Rebalancing Section 512 to Protect Fair Users from Herds of Mice-Trampling Elephants, or a Little Due Process Is Not Such a Dangerous Thing

Malla Pollack, American Justice School of Law

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Abstract

I agree with the basic concept of 17 U.S.C. § 512; to protect Internet functionality, ISPs should have robust safe harbors against liability for their subscribers' copyright infringement. However, the current details of the notice and take down system are both unfair to the general public and unnecessary to the economic health of the United States. I suggest a robust, statutorily established digital fair use right backed by a notice and take down procedure protecting fair users. At a minimum, use of a purchased music file on any of the purchaser's equipment should be fair use. Preferably, all personal non-commercial use should be legal. Use or provision of technology to enable fair use should not violate Chapter 12 of Title 17. Additionally, ISPs should not be allowed (let alone incentivized) to cut off subscribers as repeat, online copyright infringers absent court decision on the alleged infringements.