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Chairman Nadler Statement for Hearing on “Copyright and the Internet in 2020: Reactions to the Copyright Office’s Report on the Efficacy of 17 U.S.C. § 512 After Two Decades”

Washington, D.C. –Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) delivered the following opening remarks, as prepared, during a hearing on “Copyright and the Internet in 2020: Reactions to the Copyright Office’s Report on the Efficacy of 17 U.S.C. § 512 After Two Decades”:

“Today’s hearing will examine whether a key provision of copyright law that guides how copyright and parts of the internet interact with each other has fared well in today’s digital age.

“The provision, section 512 of title 17, was enacted in 1998 as part of the Digital Millennium Copyright Act. Back then, internet activity was in its nascency. Many of the online platforms that we consider universal today were only a few years old or had yet to be formed. eBay had been around for just three years; Google was founded that same year; and Facebook’s birth was still six years away.

“With the burgeoning ways for people to share and distribute content through the internet, in enacting section 512, Congress sought to balance two goals—on the one hand, promoting the growth and innovation of online networks and, on the other hand, protecting intellectual property rights and that incentive system for promoting the creation of new expressive works.

“At the heart of section 512 is the notice-and-takedown system. Broadly, under notice and takedown, a copyright owner can send a notice to an online service provider when a third party has used allegedly infringing material through or on the provider’s services. The online service provider must then take that material down. If the online service provider complies with the notice-and-takedown process, its liability for infringement is limited.

“More than twenty years have passed since section 512’s enactment, and it would be an understatement to say that the internet has changed rapidly in that time. The internet has gotten faster and more accessible, and the number of ways to share and view copyrighted content has increased dramatically. In tandem with these increases, we have also seen a dramatic increase in the volume of infringing materials being shared and viewed online. Our copyright laws have to keep up.

“Today, we seek perspectives on whether section 512 is working efficiently and effectively for this new internet landscape, and whether the balance that Congress sought in 1998 is still being achieved in 2020.

“Our discussion is guided by the Copyright Office’s recent report that studied this very question. I want to applaud the Copyright Office for the care and diligence with which it undertook this study. Their work began two Congresses ago when this Committee requested that it study section 512 in light of all of the changes the internet had undergone.

“The Office’s review was exhaustive. They reviewed more than 90,000 comments; held public roundtables in Washington, D.C., New York, and San Francisco; and conducted an extensive review of case law on the issue.

“Turning to the report’s substance, the Office concluded that the balance that Congress originally sought in enacting section 512 is now ‘askew.’ The Office found that online service providers and user groups were generally satisfied with section 512’s operation. Copyright owners typically disagreed, finding section 512 ineffective in the face of the current scale of infringement.

“To address this imbalance, the Copyright Office includes recommendations for areas that Congress may wish to fine-tune or clarify, as well as voluntary measures that the Office considers valuable for increasing the efficacy of section 512.

“To better understand the Copyright Office’s recommendations, staff for the Committee held a series of eleven listening sessions over the summer, hearing directly from over 90 panelists, including creators and artists, and representatives of public interest groups, libraries, online service providers, internet service providers, legal practitioners, and the sports, live entertainment, music, film, television, software, news, print, and photography industries. I want to thank the many people who participated, and also those who followed up with written statements for this hearing. Without objection, I will place those statements into the record.

“Here with us today, we have six witnesses to provide the Committee with a representative set of reactions to the Copyright Office’s report and recommendations, and ultimate conclusion that section 512 is out of balance.

“Today’s witnesses reflect the diverse interests at stake when copyright and the internet intersect, and their perspectives are invaluable. A lot has changed since 1998, and today’s dialogue will mark an important step forward in ensuring that our copyright laws are keeping pace with reality. I thank our witnesses for joining us today, and I look forward to their testimony.”

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