The Last Line of Defense: Addressing Section 512(g)’s Dwindling Capacity to Protect Educational Fair Users on the Internet
Authors: Gersham Johnson  
Published: March 2022

The COVID-19 pandemic has rapidly transformed education from one of the least digitized sectors in the U.S. economy to a largely online phenomenon, with up to 93% of households with school-age children relying on distance learning.  The value of online educational opportunities has extended beyond traditional purveyors of education as well, with online service providers (OSPs) like YouTube reporting an increase in average daily views for educational videos produced by subscribers (“users”).

The rise of user-generated content in online education (“educational content”) is merely part of a larger sea change as more content is uploaded to OSPs than ever before.  But educational content provides a curious case study.  While educational content is a nebulous concept to describe, here it may be defined as materials—from video lectures to digital course packs—that are created wholly or in part by users, uploaded to OSPs, and designed to aid in online educational pursuits.  Because copyrighted works play a central role in the explication of such topics as literature, art, and music, any increase in educational content will also inevitably bring with it an increase in the use of copyrighted materials.  Even though educational uses of copyrighted works are often considered to be fair use, users who incorporate these works into their educational content remain vulnerable to infringement claims, which can cause their educational content to be removed.

This lack of protection for educational content applies to all users—“non-institutional” or “institutional”—who create and upload teaching materials containing portions of copyrighted works.  Educational content therefore provides a compelling case study illustrating the limited defenses afforded to all user-generated content, whether or not it is educational in nature:  If fair use educational content is considered non-infringing but nevertheless subject to removal under the guise of copyright infringement, then any non-infringing user-generated content is potentially vulnerable to the same fate.  Indeed, in response to the COVID-19 pandemic, YouTube increased the automation of its takedown practices, making it easier for rightsholders to have content that incorporates their copyrighted works removed—regardless of the purpose of the use.

While the situation may look bleak for producers of both educational and non-educational content, users possess a shield against erroneous takedown notices.  Enacted as part of the Digital Millennium Copyright Act (DMCA), the § 512(g) counter-notification measure grants OSP users the ability to contest the takedown of their content.  However, studies have shown that this feature may generally be under-utilized, both in terms of overall volume and in relation to the amount of potentially invalid takedown notices that may warrant its use.  Moreover, given additional evidence that submitted counter-notifications may be erroneous more often than not, this Note argues that the main issues plaguing the counter-notification system point to an overdeterrence of the wrong users—that is, users such as university professors and other educational content creators who are permissibly using copyrighted materials.

This Note provides a more thorough examination of the issues besetting the counter-notification process, particularly with respect to its use in education.  In Part I, I discuss the functionality of the counter-notification process within the greater legal and historical background of the DMCA, focusing on the unique challenges faced by educational content creators who seek to use counter-notifications on YouTube.  In Part II, I discuss the tripartite problem facing counter-notification petitioners:  (1) Counter-notifications are under-utilized overall; (2) counter-notifications are over-utilized by pirates for whom the educational fair use defense does not apply; and (3) the timeframe for “putting back” material is costly to users and rightsholders alike.  Finally, in Part III, I propose a “First Shot” system whereby a preemptive “counter-notification” can be used to assert educational fair use and delay takedown of educational content before a rightsholder acts.  The First Shot therefore substitutes for the regular counter-notification, a privilege only for educational “Fair Users.”