A User-Focused Commentary on the TPP’s ISP Safe Harbors

               This article is part of an IP-Watch and Infojustice.org series analyzing the Trans Pacific Partnership intellectual property provisions by leading experts around the world.  The series will publish weekly on Infojustice.org through the first quarter of 2016.

Section J of the TPP’s IP chapter, on ISP safe harbors, looks a lot like Section 512 of the DMCA, but the two frameworks differ in some important respects that could negatively impact the global environment for user speech online. This post offers a comparison of Section J and Section 512 with a focus on the rights of users and the status of user expression in the TPP’s intermediary safe harbor provisions.

First, the similarities. The TPP, like the DMCA, provides for a safe harbor framework pursuant to which ISPs can escape liability for users’ infringements by promptly removing or disabling access to allegedly infringing material upon acquiring knowledge of the material’s existence on their systems (18-60). As under the DMCA, such knowledge under the TPP can come from a copyright owner’s notice of infringement or from another source, including “red flags” of infringement (18-60). The TPP’s broad, functionally-driven definition of “Internet Service Provider” (18-58) aligns with DMCA, as do the legal benefits of the safe harbor (non-liability for money damages) (18-59) and the covered technical functions (routing, caching, storage/hosting, linking) (18-59). Of tremendous importance to ISPs, the TPP, like the DMCA, contains a no-duty-to-monitor rule (18-60) that prohibits member states from conditioning safe harbor on an ISP’s affirmatively monitoring its service for infringement. And like the DMCA, the TPP requires member states to provide a judicial process by which a copyright owner can compel an ISP to identify an alleged infringer who is the ISP’s customer (18-61).

The TPP’s safe harbor provisions differ from the DMCA’s, however, in important ways that make the notice and takedown protocol it contemplates structurally less speech-protective and more prone to over-enforcement and abuse. Most notably, the TPP makes it optional for member states to include a counter-notice and put-back protocol in their safe harbor frameworks (18-60). ISPs under the TPP are required to notify users when material is taken down, but without a system of counter-notices, users are left without any mechanism for having wrongfully removed material restored. Under the DMCA, potential abuse of notice and takedown by copyright holders is structurally (even if not very effectively) checked and balanced by the possibility that users will send counter-notices demanding that their material be put back. If a user makes that demand, an ISP is required under the DMCA to restore the material unless the copyright owner elects to sue the user. If the ISP fails to restore the material in response to a counter-notice, the ISP is liable to the user. An ISP in the United States must maintain both notice and takedown and counter-notice and put-back protocols to completely avoid liability: Implementation of a notice and takedown protocol avoids liability to copyright owners for infringing material; implementation of a counter-notice and put-back protocol avoids liability to users for material wrongfully taken down. The same will not necessarily be true for ISPs based in TPP member states, because the TPP’s counter-notice protocol is an optional component of a TPP-compliant safe harbor framework.  

Another important difference between the TPP and the DMCA is that the TPP has more relaxed requirements for the contents of a takedown notice. Unlike the DMCA, the TPP does not require a notice sender to state his or her good faith belief that the material identified in the notice is being used unlawfully. The TPP requires that notices contain only the identity of the work allegedly infringed, the location of the allegedly infringing material on the ISP’s system, and “sufficient indicia of reliability with respect to the authority of the person sending the notice” (18-60 n. 156). The DMCA’s required statement of a good faith belief operates in tandem with its cause of action for knowing material misrepresentation to provide a safeguard against abusive takedown notices that wrongfully target non-infringing or fairly used material. The Ninth Circuit’s recent decision in Lenz v. Universal illustrates how the DMCA’s required statement of a good faith belief forces copyright owners to put a little skin in the game when they send takedown notices. In Lenz, the court interpreted the DMCA’s “good faith belief” language to mean that notice senders must consider fair use before demanding that copyrighted material be taken down. The court held that a notice sender cannot form and attest to having a good faith belief that material is infringing without having first considered whether unauthorized use of the material was lawful as fair use or under some other copyright limitation. The TPP exempts service providers from liability for wrongful removals if they act in good faith in response to notices (18-60), but it does not require copyright owners to affirm that they are sending notices in good faith.

In terms of the relief available for users in cases involving takedown abuse, the TPP does require that Parties make available monetary remedies for knowing material misrepresentation in takedown notices (18-60). Unlike the DMCA, though, the TPP doesn’t provide expressly for recovery of attorney’s fees and costs in such cases. Without provision for recovery of attorney’s fees and costs, the prospect of user litigation to combat abusive takedowns is, for all intents and purposes, foreclosed. And while the TPP requires Parties to make statutory or exemplary damages available for copyright plaintiffs (18-46), it has no corresponding requirement that such damages be made available to user plaintiffs in abusive takedown cases. With respect to the unavailability of enhanced damages to combat abusive takedown practices, the TPP mirrors a recognized deficiency in the DMCA. User litigation to push back on abusive notice-sending is exceedingly rare even under the more user-oriented provisions of the DMCA. It will be that much rarer in countries that go no further to discourage takedown abuse than the TPP minimally requires.

The final paragraph of Section J affirms “the importance…of taking into account the impacts on rights holders and Internet Service Providers” (18-61). Consideration of impacts on Internet users was apparently not a high priority for the TPP’s negotiators. There is, however, one respect in which the TPP is potentially more user-friendly and more speech-protective than the DMCA: it lacks a provision requiring member states to condition safe harbor on an ISP’s adoption and implementation of a policy to terminate the accounts so-called repeat infringers. Repeat infringer rules are especially problematic in notice-based enforcement regimes that lack a convenient means for users to contest notices that they believe are mistaken or abusive.