Kickstarter et al 512 second comment as filed.pdf

{ "title": "IN THE MATTER OF SECTION 512 STUDY: NOTICE AND REQUEST FOR PUBLIC COMMENT", "docketNumber": "2015-7", "comments": [ { "organization": "Kickstarter", "representatives": [ { "name": "Michal Rosenn", "title": "", "address": "58 Kent Street, Brooklyn, NY 11222" } ] }, { "organization": "Makerbot", "representatives": [ { "name": "Kathryn Hurley", "title": "", "address": "One MetroTech Center, 21st floor, Brooklyn, NY 11201" } ] }, { "organization": "Meetup", "representatives": [ { "name": "David Pashman", "title": "", "address": "632 Broadway, 10th floor, New York, NY 10012" } ] }, { "organization": "Shapeways", "representatives": [ { "name": "Michael Weinberg", "title": "", "address": "419 Park Ave. South, Suite 900, New York, NY 10016", "email": "MWeinberg@Shapeways.com" } ] } ], "date": "February 22, 2017", "sections": [ { "heading": "Introduction", "content": "Commenters are online service providers (OSPs) that connect millions of creators, designers, organizers, and small business owners to each other, to their customers, and to the world. OSPs are a critical platform for free speech and economic activity that empower individuals and small businesses to easily post content online and connect to a global audience. \n\nCommenters take this opportunity to reiterate the concerns originally raised in comments during the first round of this proceeding. Those comments highlighted the way in which claims of trademark infringement distort the real world application of the safe harbor system established by Section 512. Then, as now, any study of the Section 512 safe harbors is incomplete unless it recognizes the notice and takedown system as it is actually operated by myriad OSPs across the internet. \n\nCommenters also take this opportunity to urge the Copyright Office to recognize the highly variable nature of OSPs in any report on the 512 safe harbor system. While policy discussions are often framed in the context of the largest OSPs, framing solutions exclusively in terms of those OSPs will inevitably harm the richly diverse online ecosystem." }, { "heading": "The Impact of Trademark Takedown Requests on the 512 Safe Harbor System", "content": "As detailed in the First Round Comments, rightsholders often pair copyright-based takedown requests with accusations of trademark infringement. The practical effect of such a pairing is to remove the dispute from the Section 512 process and prevent the targeted user from challenging the accusation. This fundamentally undermines the balance between rightsholders and users inherent in the design of the Section 512 process. \n\nAlthough the 512 safe harbor system provides a robust statutory process to protect the rights of both rightsholders and users accused of copyright infringement, no such statutory safe harbor exists for notices of trademark infringement. This lack of a statutory safe harbor means that OSPs may subject themselves to direct trademark infringement liability if they allow a user to challenge a takedown request. \n\nWhen faced with such potential exposure, in edge cases OSPs will often err on the side of removing content and avoid providing accused users an opportunity to respond to the accusation against them. As a result, most users accused of a combination of both copyright and trademark infringement are not afforded an opportunity to counternotice in reply to an errant accusation. This removes a critical check in the Section 512 system against overly broad or aggressive takedown requests from rightsholders." }, { "heading": "The Copyright Office Must Account for Differences Between OSPs", "content": "Commenters were pleased to see the request for additional comments open with a question recognizing the diversity of OSPs operating under the Section 512 system. As evidenced by both comments in the first round of this study and discussions during the public roundtables, explorations of the Section 512 system are often examined primarily through the lens of experiences related to a handful of large OSPs. Unfortunately, the operational dynamics surrounding the largest OSPs often differ starkly from the vast majority of other OSPs. \n\nFocusing exclusively on these large OSPs will inevitably result in policy suggestions that fail to account for how the Section 512 system operates for the vast majority of OSPs. Commenters themselves vary greatly in terms of size, maturity, the nature of the service offered, and even the types of works protected by copyright uploaded by their users. For all of this variation, the way Commenters interact with the Section 512 system is much more similar to the vast majority of OSPs than the handful of the largest OSPs often used to frame explorations into the workings of the Section 512 system. Most sites, including those of Commenters, do not have large automated systems designed to respond to millions of 512 notices annually that often serve as the starting points for discussions about the operation of the notice and takedown system." }, { "heading": "Conclusion", "content": "Commenters appreciate the Copyright Office’s continued attention to the current Section 512 system. Commenters hope that the Copyright Office will consider the distortive effects that accusations of trademark infringement can have on the Section 512 system operation in compiling this study. To the extent that the Copyright Office elects to include recommendations and conclusions in this study, Commenters also hope that the Copyright Office will avoid excessively focusing on challenges that impact a small number of the largest OSPs. This is especially true if such recommendations and conclusions would impose new burdens on all other OSPs." } ] }