[Federal Register Volume 87, Number 81 (Wednesday, April 27, 2022)]
[Notices]
[Pages 25049-25052]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08946]


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LIBRARY OF CONGRESS

 Copyright Office

[Docket Number 2022-2]


Standard Technical Measures and Section 512

AGENCY: Library of Congress, U.S. Copyright Office.

ACTION: Notification of Inquiry.

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SUMMARY: The U.S. Copyright Office is gathering information on the 
development and use of standard technical measures for the protection 
and identification of copyrighted works. The Office seeks public 
comment on this topic to enhance the public record and to advise 
Congress. This Notice of Inquiry on standard technical measures is 
separate from the Office's consultations on voluntarily deployed 
technical measures for identifying or protecting copyrighted works 
online, announced in the Federal Register on December 22, 2021, with 
the opening plenary session held on February 22, 2022.

DATES: Written comments must be received no later than 11:59 p.m. 
Eastern Time on May 27, 2022. If the Office determines that an 
additional round of written comments is needed, it will issue a 
separate notice.

ADDRESSES: For reasons of governmental efficiency, the Copyright Office 
is using the regulations.gov system for the submission and posting of 
public comments in this proceeding. All

[[Page 25050]]

comments are therefore to be submitted electronically through 
regulations.gov. Specific instructions for submitting comments are 
available on the Copyright Office's website at https://www.copyright.gov/policy/stm. If electronic submission is not feasible 
due to lack of access to a computer and/or the internet, please contact 
the Office using the contact information below for special 
instructions.

FOR FURTHER INFORMATION CONTACT: Aurelia J. Schultz, Counsel for Policy 
and International Affairs, by email at <a href="/cdn-cgi/l/email-protection#afcedcccc7daefccc0dfd6ddc6c8c7db81c8c0d9"><span class="__cf_email__" data-cfemail="6f0e1c0c071a2f0c001f161d0608071b41080019">[email protected]</span></a> or Benjamin 
Brady, Counsel for Policy and International Affairs, by email at 
<a href="/cdn-cgi/l/email-protection#caa8a8b8abaeb38aa9a5bab3b8a3ada2bee4ada5bc"><span class="__cf_email__" data-cfemail="8fededfdeeebf6cfece0fff6fde6e8e7fba1e8e0f9">[email protected]</span></a>. They can each be reached by telephone at 202-707-
8350.

SUPPLEMENTARY INFORMATION: In 2015, the U.S. Copyright Office initiated 
a study on section 512 of Title 17, enacted as part of the Digital 
Millennium Copyright Act (DMCA).\1\ Public input for the Study included 
two rounds of comments and several roundtables.\2\ The comments and 
transcripts of the roundtable proceedings are available on the 
Copyright Office website at http://copyright.gov/policy/section512/ 
under ``Public Comments'' and ``Public Roundtables,'' respectively.\3\ 
The Office issued its report, Section 512 of Title 17, on May 21, 2020; 
it is available at http://www.copyright.gov/policy/section512/section-512-full-report.pdf.
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    \1\ Section 512 Study: Notice and Request for Public Comment, 80 
FR 81862 (Dec. 31, 2015).
    \2\ Id.; Section 512 Study: Request for Additional Comments, 81 
FR 78636 (Nov. 8, 2016); Section 512 Study: Announcement of Public 
Roundtables, 81 FR 14896 (Mar. 18, 2016); Section 512 Study: 
Announcement of Public Roundtable, 84 FR 1233 (Feb. 1, 2019).
    \3\ References to the transcripts are indicated by ``Tr.'' 
followed by the page(s) and line(s) of the reference, the date of 
the roundtable, and the speaker's name and affiliation.
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    Among other topics, the Study examined section 512's ``safe 
harbor'' framework, which limits an internet service provider's 
liability for infringement if the provider meets certain conditions. 
One of these conditions is that the internet service provider 
``accommodates and does not interfere with standard technical 
measures.'' \4\ Section 512(i) defines standard technical measures 
(STMs) as measures ``used by copyright owners to identify or protect 
copyright[ ]'' that ``have been developed pursuant to a broad consensus 
of copyright owners and service providers in an open, fair, voluntary, 
multi-industry standards process.'' \5\ These measures must be 
``available to any person on reasonable and nondiscriminatory terms'' 
and cannot ``impose substantial costs on service providers or 
substantial burdens on their systems or networks.'' \6\
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    \4\ 17 U.S.C. 512(i)(1)(B).
    \5\ 17 U.S.C. 512(i)(2)(A).
    \6\ 17 U.S.C. 512(i)(2)(B), (C).
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    Several participants observed that, in the two decades since the 
passage of the DMCA, no STMs have been identified under section 
512(i).\7\ Although some participants expressed an interest in building 
consensus around existing technologies,\8\ others warned that the 
consultative multi-industry process the statute requires might be 
difficult or impossible to achieve.\9\
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    \7\ See, e.g., Authors Guild, Inc., Comments Submitted in 
Response to U.S. Copyright Office's Dec. 31, 2015, Notice of Inquiry 
at 27 (Apr. 1, 2016) (``As a result, there has been no impetus to 
conduct the sort of standards creation process to develop STMs that 
was contemplated by Congress . . . .''); Comput. & Commc'ns Indus. 
Ass'n (``CCIA''), Comments Submitted in Response to U.S. Copyright 
Office's Dec. 31, 2015, Notice of Inquiry at 24 (Mar. 31, 2016) 
(``CCIA Initial Comments'') (``CCIA is unaware of any successful or 
emerging inter-industry technological effort that satisfies the 
requirements of Section 512(i)(2).''); Copyright All., Comments 
Submitted in Response to U.S. Copyright Office's Dec. 31, 2015, 
Notice of Inquiry at 26 (Apr. 1, 2016) (referring to STMs as an 
``entirely un-utilized device''); Software & Info. Indus. Ass'n, 
Comments Submitted in Response to U.S. Copyright Office's Dec. 31, 
2015, Notice of Inquiry at 4 (Apr. 1, 2016) (observing that ``the 
multi-stakeholder process that the statute envisioned never 
occurred, and is not likely to occur''); Tr. 19:8-11 (May 13, 2016) 
(Keith Kupferschmid, Copyright All.) (noting that section 512(i) 
``really hasn't been used virtually at all''); Tr. 68:22-69:6 (May 
3, 2016) (Lisa Willmer, Getty Images) (stating that ``it's clear 
that leaving it to voluntary action is not enough'' and that 
``there's no technology that meets that definition'').
    \8\ See Tr. at 70:14-18 (May 13, 2016) (Jeffrey Sedlik, PLUS 
Coal.) (``[T]he technology is there and ready to use. And there is a 
voluntary initiative by all the stakeholders to get together and 
come together and create a solution that doesn't necessarily involve 
revising the statute.''). Despite the interest expressed during the 
2016 roundtables, the development of any STMs still had not occurred 
by 2019. See Tr. at 439:21-440:2 (Apr. 8, 2019) (Nancy Wolff, Digit. 
Media Licensing Ass'n (``DMLA'')) (``[T]he idea that it's a multi-
industry standard process with everyone involved, I don't think 
that's the way that really has worked. I haven't seen any of that 
happening.'').
    \9\ See CCIA Initial Comments at 24-25 (``In light of the fact 
that Section 512(i) amounts to a private sector technology mandate 
that would govern many thousands of diverse platforms, it should not 
be surprising that no one-size-fits-all system meeting the statute's 
high standards has evolved.''); Google Inc., Comments Submitted in 
Response to U.S. Copyright Office's Dec. 31, 2015, Notice of Inquiry 
at 16 (Apr. 1, 2016) (``Given the wide array of OSPs of different 
sizes, users, and service offered, a one-size-fits-all requirement 
imposed by private stakeholders would be unworkable for many OSPs, 
especially smaller ones . . . .''); Tr. at 438:12-17 (Apr. 8, 2019) 
(Nancy Wolff, DMLA) (``The way [STMs are] defined just doesn't work 
because technical measures aren't done by a broad consensus of users 
and technology companies. They really come out of different sectors 
that are familiar with their own type of content.''); Tr. at 111:8-
16 (May 13, 2016) (Dean Marks, Motion Picture Ass'n of Am.) (``[I]n 
the kind of notice-and-takedown or anti-piracy copyright protection 
context online, [development of STMs] just hasn't worked that way, I 
think possibly because there is such a variety of platforms and 
players and different types of sites and technology. You know, when 
the DMCA was passed, there wasn't even peer-to-peer technology. So I 
think the context just changes so rapidly that it's made it more 
difficult.'').
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    In its Report, the Office concluded that a complete consensus 
across industries and one-size-fits-all technical solutions are 
unlikely to emerge. The Office suggested that Congress clarify that the 
``broad consensus'' in section 512(i) does not require agreement by all 
stakeholders on a given STM.\10\ The Office also suggested that 
stakeholders and Congress consider ``legislative, regulatory, or 
practical avenues to encourage the adoption and development'' of 
STMs.\11\ The Office encouraged ``stakeholder collaboration to leverage 
their diverse expertise in order to find and adapt solutions as 
technology and piracy evolve.'' \12\
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    \10\ U.S. Copyright Off., Section 512 of Title 17, at 177 (2020) 
(``Section 512 Report'').
    \11\ Id.
    \12\ Id. at 179.
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    Shortly after the Report's release in 2020, Senators Thom Tillis 
and Patrick Leahy of the Senate Judiciary Committee wrote to the 
Copyright Office requesting additional information on potential 
improvements to the safe harbor framework.\13\ The Senators 
specifically inquired about ways in which the Office ``can help 
stakeholders identify and adopt standard technical measures without 
congressional action.'' \14\ In response, the Office held a virtual 
stakeholder meeting in September 2020, with three separate discussions 
covering the legal foundation of STMs, current technologies and their 
potential for adoption as STMs, and means of identifying or developing 
STMs going forward.\15\ Recognizing the importance of the 
``collaboration and cooperation of all stakeholders involved in the 
online ecosystem,'' the Office invited participation by representatives 
from a wide range of stakeholders.\16\ Videos of these public 
discussions are available at http://www.copyright.gov/512/ under 
``Standard Technical Measures Discussion.'' \17\ In the Office's view, 
the

[[Page 25051]]

September 2020 event highlighted a lack of consensus among stakeholders 
and raised more questions than answers.
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    \13\ Letter from Sens. Thom Tillis & Patrick Leahy to Maria 
Strong, Acting Reg. of Copyrights (May 29, 2020), https://copyright.gov/laws/hearings/response-to-may-29-2020-letter.pdf.
    \14\ Id. at 2.
    \15\ The panel discussions were held on September 22, 23, and 
29, 2020. More information is available at https://www.copyright.gov/events/stm-discussion.
    \16\ Letter from Maria Strong, Acting Reg. of Copyrights, to 
Sens. Thom Tillis & Patrick Leahy at 11 (June 29, 2020), https://copyright.gov/laws/hearings/response-to-may-29-2020-letter.pdf 
(``Strong, June 29, 2020, Letter'').
    \17\ See U.S. Copyright Off., Standard Technical Measures: Legal 
Foundation (Sept. 22, 2020), https://stream-media.loc.gov/copyright/STM-Legal-Foundation.mp4; U.S. Copyright Off., Standard Technical 
Measures: Current Technologies and Their STM Potential (Sept. 23, 
2020), https://stream-media.loc.gov/copyright/STM-Current-Technologies-and-their-STM-Potential.mp4; U.S. Copyright Off., 
Standard Technical Measures: Looking Forward (Sept. 29, 2020), 
https://stream-media.loc.gov/copyright/STM-Looking-Forward.mp4.
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    In June 2021, Senators Tillis and Leahy again wrote to the 
Copyright Office expressing concern about the lack of progress on 
achieving the DMCA's goal of encouraging stakeholder collaboration in 
the development of STMs.\18\ The Senators asked the Office to look into 
the deployment of technical measures to identify and protect 
copyrighted works online generally and to explore the identification 
and implementation of STMs under section 512(i).\19\
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    \18\ Letter from Sens. Patrick Leahy & Thom Tillis to Shira 
Perlmutter, Reg. of Copyrights, at 2 (June 24, 2021).
    \19\ Id. at 2-3.
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    The Office's Notice of Inquiry from December 2021 addresses the 
Senators' first request concerning the voluntary development of 
technical measures to identify and protect copyrighted works online 
generally.\20\ Today's Notice of Inquiry addresses the second request 
by examining issues surrounding STMs as defined in the current 
statutory framework and seeking input on alternatives.
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    \20\ Technical Measures: Public Consultations, 86 FR 72638 (Dec. 
22, 2021).
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    In the Section 512 Report and a subsequent letter to Congress, the 
Office described several hurdles to identifying and adopting STMs under 
section 512(i), including ambiguities in the statutory language that 
potentially restrict or discourage their use,\21\ the limited 
application and availability of specific technologies to certain 
subsets of stakeholders,\22\ and practical challenges impeding the 
Office from either facilitating the development of STMs or playing a 
direct role in their development or use.\23\ To provide Congress with a 
better understanding of how these issues might be addressed, the Office 
requests comments on the following questions. In your response, please 
identify which question(s) you are answering.
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    \21\ Section 512 Report at 179; see also Strong, June 29, 2020, 
Letter at 12-13.
    \22\ Section 512 Report at 67-68, 71-72.
    \23\ Strong, June 29, 2020, Letter at 12 (June 29, 2020).
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Questions About Existing Technologies as STMs

    1. Are there existing technologies that meet the current statutory 
definition of STMs in section 512(i)? If yes, please identify. If no, 
what aspects of the statutory definition do existing technologies fail 
to meet?
    2. What has hindered the adoption of existing technologies as STMs? 
Are there solutions that could address those hindrances?

Questions About Section 512(i)

    3. Process under the current statute:
    (a) Formal Process: Does section 512(i) implicitly require a formal 
process for adoption of an STM? If so, what are the requirements for 
such a process, and what should such a process entail?
    (b) Informal Process: If the statute does not require a formal 
process, is an informal process appropriate or necessary? What type of 
informal process would facilitate the identification and adoption of an 
STM, and what should such a process entail?
    (c) Entities: What entity or entities would be best positioned to 
convene the process, whether formal or informal? What, if anything, is 
needed to authorize such an entity to convene the process? Is there any 
role under section 512(i) for third parties, such as regulatory 
agencies or private standard-setting bodies, to determine whether a 
particular technology qualifies as an STM? If so, what is the nature of 
that role? How would the third party determine that a particular 
technology qualifies as an STM? What would be the effect of such a 
determination?
    (d) Courts: What role, if any, do or should courts play in 
determining whether a particular technology qualifies as an STM under 
section 512(i)? How would a court determine that a particular 
technology qualifies as an STM? What would be the effect of such a 
determination? For example, would such a determination be binding or 
advisory? Would it bind non-parties or apply outside of the court's 
jurisdiction? What would be the effect of pending appeals or 
inconsistent determinations across jurisdictions?
    4. International Organizations: Could technologies developed or 
used by international organizations or entities become STMs for 
purposes of section 512(i)? If so, through what process?
    5. Consensus: Under section 512(i)(2)(A), a measure can qualify as 
an STM if it has been ``developed pursuant to a broad consensus of 
copyright owners and service providers in an open, fair, voluntary, 
multi-industry standards process.''
    (a) What level of agreement constitutes a ``broad consensus''?
    (b) What groupings qualify as ``multi-industry''?
    (c) Can the phrase ``multi-industry'' as used in the statute mean a 
grouping within a subset of industries? Could such sub-industry 
divisions adopt separate STMs? What would be appropriate sub-industry 
divisions?
    6. Availability:
    (a) Under section 512(i)(2)(B), an STM must also be ``available to 
any person on reasonable and nondiscriminatory terms.'' Is this a 
threshold requirement for a technology to qualify as an STM or an 
obligation to make a technology available on reasonable and 
nondiscriminatory terms once it is designated as an STM?
    (b) How has concern over the potential availability and 
accessibility of a technology affected the adoption of STMs? What terms 
would be reasonable and nondiscriminatory for STMs? In what ways would 
it be possible to enforce these terms?
    7. Costs and burdens: Under section 512(i)(2)(C), an STM must not 
``impose substantial costs on service providers or substantial burdens 
on their systems or networks.'' How should the substantiality of costs 
and burdens on internet service providers be evaluated? Should this 
evaluation differ based on variations in providers' sizes and 
functions?
    8. Internet service provider responsibilities: Section 512(i)(1)(B) 
states that an internet service provider must ``accommodate[ ] and [ ] 
not interfere'' with STMs to qualify for the statutory safe harbor. 
What actions does this standard require service providers to take or to 
affirmatively avoid taking? Must all internet service providers have 
the same obligations for every STM? What obstacles might prevent 
service providers from accommodating STMs? What could ameliorate such 
obstacles?

Questions About Potential Changes to Section 512

    9. Definition: How could the existing definition of STMs in section 
512 of Title 17 be improved?
    10. Obligations: Currently, section 512(i)(1) conditions the safe 
harbors established in section 512 on an internet service provider 
accommodating and not interfering with STMs.
    (a) Is the loss of the section 512 safe harbors an appropriate 
remedy for interfering with or failing to accommodate STMs? If not, 
what would be an appropriate remedy?
    (b) Are there other obligations concerning STMs that ought to be 
required of internet service providers?
    (c) What obligations should rightsholders have regarding the use of 
STMs?
    11. Adoption through rulemaking:

[[Page 25052]]

    (a) What role could a rulemaking play in identifying STMs for 
adoption under 512(i)?
    (b) What entity or entities would be best positioned to administer 
such a rulemaking?
    (c) What factors should be considered when conducting such a 
rulemaking, and how should they be weighted?
    (d) What should be the frequency of such a rulemaking?
    (e) What would be the benefits of such a rulemaking? What would be 
the drawbacks of such a rulemaking?
    12. Alternatives: Are there alternative approaches that could 
better achieve Congress's original goals in enacting section 512(i)?

Other Issues

    13. Please identify and describe any pertinent issues not 
referenced above that the Copyright Office should consider.

Shira Perlmutter,
Register of Copyrights and Director of the U.S. Copyright Office.
[FR Doc. 2022-08946 Filed 4-26-22; 8:45 am]
BILLING CODE 1410-30-P


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