Time for a DMCA Fix?

Title II of the Digital Millennium Copyright Act (DMCA) of 1998 introduced new limitations on liability for copyright infringement by online service providers (OSPs). These limitations were put in place to protect OSPs from copyright infringement suits when engaged in standard operational activities based on transitory communications, system caching, storage of information on systems or networks at the direction of users, and information location tools. After almost ten years under the DMCA, a number of issues and limitations have emerged, including conflicts with existing laws, abuse of the notification and takedown provision, and threats to fair use.
Title II also establishes a procedure for copyright owners to obtain a subpoena from a federal court to order an OSP to disclose the identity of a subscriber who is allegedly engaging in infringement of their copyright. Included in this procedure is a provision for notification and takedown by OSPs of content suspected of this type of infringement and a disclaimer that nothing in these procedures require a provider “to monitor its service or access material in violation of law (such as the Electronic Communications Privacy Act, Title I) in order to be eligible for any of the liability limitations” (U.S. Copyright Office, 1998).
To qualify for these safeguards, an OSP must adopt and reasonably implement a policy of terminating the accounts of subscribers who are repeat infringers (in appropriate circumstances) and provide reasonable notification to their customers of this policy. It must also designate an agent to receive notifications of claimed infringement and file this information with the U.S. Copyright Office (17 U.S.C. § 512).
There are a number of legal and ethical issues involved as to how the DMCA can be interpreted and how it has been applied in legal cases to date. It has been argued that some of its shortcomings can be blamed on its being written in rather broad and inexplicit language with little to no precedent, and that it can be abused by copyright owners for purposes other than its original intent.
One such issue is that of the reliance on a subjective “good faith” belief in the notification and takedown provision and the lack of accountability of the OSP if an accusation is proved to be false.
Under the knowledge standard, an OSP is only eligible for the limitation on liability if they “do not have actual knowledge of the infringement, and/or are not aware of facts or circumstances from which infringing activity is apparent” (U.S. Copyright Office, 1998). Therefore, if an OSP receives a “good faith” notification from a copyright owner of possible infringement, in order to continue to be eligible for this protection, the notice and takedown provision requires that the provider “respond expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity” (17 U.S.C. § 512 (d) (3)).
One of the problems with this policy is that though there are some safeguards included to supposedly protect against possible fraudulent notifications of this type, there is no protection in place for the alleged infringer against the OSP. For example, the OSP is not required to give prior notice to the subscriber before removing or blocking access to the material in question. Under the DMCA, providers are protected against any claims by subscribers based on having taken down materials as long as they promptly notify the subscriber once they have done so.
Upon receiving notification from the OSP, the subscriber may choose to file a counterclaim which would require the provider to reinstate access and/or put the material back up within 10-14 business days after receipt. However, if the copyright owner then chooses to pursue a court order against the subscriber, this would extend the time that the subscriber’s site and/or materials would be inaccessible.
If it is later found that the alleged infringer was wrongly accused, claims can only be filed against the copyright owner, not the OSP. To take down or block access to content based on a “good faith” notification without requiring an objective showing by the complaining party or engaging in a reasonable investigation beforehand is in conflict with Rule 11 of the existing Federal Rules of Civil Procedure that “allegations and other factual contentions must have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery” (Federal Rules of Civil Procedure, 2006, Title III, Rule 11(b) (3)).
Since cooperation between copyright owners, website operators, and OSPs was one of the initial goals of the DMCA, OSPs may want to consider putting base-level procedures in place to investigate these types of allegations before removing any content to attempt to more equally balance the rights of their subscribers along with the protection of copyright owners while remaining under the umbrella of DMCA protection. As a result, this step could reduce both the number of fraudulent cases being brought to the courts and the potential damages to those innocently accused of these crimes.
These takedown procedures can often affect those other than the intended alleged infringer. In cases where an IP address is shared by more than one domain – often referred to as “IP sharing” or “virtual hosting”, or if an OSP uses an IP filtering tool to disable or terminate access to a particular IP address, it could also affect innocent sites that share that particular address (Edelman, 2003). Similar affects can occur in cases where DMCA claims are invoked against a customer, their direct service provider, and that provider’s upstream bandwidth provider.
When the DMCA was created, it was based on technologies in existence in the early to mid-1990’s. No one knew or had the means to predict the possibilities of technologies ten years forward.
The Internet has become more and more interactive, which opens still more possibilities for infringement. Sites allowing users to directly upload pictures, video, and other content using automated processes without any direct interaction by the OSP increases the volume of content being accessed on the network with less and less intervention needed by the providers.
Sites are also being created with ease of interaction and backend automation in mind. This brings into question whether OSPs should be held liable for developing sites that are creating an environment conducive to copyright infringement – especially when the site is receiving financial benefits via ad income. According to a September 2007 study by In-Stat Research, revenues tied to user-generated video alone are expected to exceed $850 million by 2010 (Bernstein, 2007). With the current protections in place, as long as a provider removes or blocks any questionable content when it receives a claim, they are protected. However, there is little incentive for developers to design their systems in ways that would tend to reduce infringing behavior by its customers (Scott, 2006).
Along with advances in user interactive technologies, there have also been developments in Digital Rights Management (DRM) and the detection of infringing content through the use of content filtering technology such as Audible Magic, a copyrighted video filtering technology recently licensed by MySpace (Bernstein, 2007). With these types of innovations becoming more readily available, more responsibility could shift to the OSPs to detect and filter out copyrighted materials.
Considerations as to the levels of responsibility of OSPs may be in order, rather than the blanket protection that now exists under the DMCA. This type of liability structure could allow for providers to be exposed to the possibility of being charged with third party liability.
Two factors are commonly used to determine third part liability:
1. A person or entity is in a good position to rectify another’s bad acts through some sort of “control”; or
2. A person or entity is able to account for and pass on the costs associated with liability and consequently influence the “activity-level.” (Areheart, 2007).
In the DMCA definition of an OSP, one or both of these factors would exist. Providers do have the ability to disable or terminate accounts and/or directly remove or block access to content, which defines a level of control; and the possibility exists for these providers to pass on any costs through subscriber fees, which as a result would affect the activity level of their service (Areheart, 2007)
Though the DMCA’s safe harbors for OSPs may be necessary to continue to encourage cooperation between copyright owners and OSPs, considerations in system infrastructure design may need to play a larger part in how much protection an OSP may be given. In infringement cases brought against sites such as YouTube and MySpace, ignorance as to the content being uploaded on these sites is questionable. It may also be argued that the very culture that is promoted on these sites is one that encourages the sharing of content, regardless of copyrights. Both of these sites require users to agree to the site’s Terms of Use, therefore, users who post infringing content are in clear violation of this agreement and could be charged with direct infringement of copyright.
For an individual or entity to be held liable for direct infringement, they must violate the exclusive statutory rights of the copyright owner. Knowledge and intent are not required for direct infringement, though the absence of these may be considered in a court ruling.
Since by nature, an OSP is not the one who is directly displaying or distributing works, should it be possible in some cases for these types of sites to be charged with secondary liability or third party liability, or should they continue to be protected the DMCA?
At this time, U.S. Copyright Law defines two types of secondary infringement, vicarious and contributory. Contributory infringement involves knowledge of the infringement and “providing a facility for that infringing process” (Ferrera et al, 2004). In contrast, vicarious infringement does not require knowledge of the infringement, but the individual or entity derives financial gain as a result of the infringement. Secondary infringement is often considered when there is a proven “ongoing relationship between a direct infringer and a non-acting party who was in a position to control the use of copyrighted works by the infringer” (Scott, 2006).
Considering a system that may impose different levels of protection for OSPs regarding liability for the wrongful removal of content, and one that considers both system design and the culture being promoted by the site or service, especially for those who allow for user uploaded content, could be in order. This type of system would require OSPs to take a more active role rather than the passive one currently in place, and may give them a financial incentive to better enforce their Terms of Use.
In MGM v. Grokster (2005), the Court actually avoided ruling based on the standard liability types altogether and announced a new doctrine they called “inducement”. Under this doctrine, “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties” (MGM v. Grokster, 2005). If inducement becomes a new standard in which liability may be judged, this brings forth a whole new level of uncertainty as to what protections will be available to software and service developers.
If any such system is to be implemented, it would be important to find a balance between protection of copyright and freedom of speech, and safe harbors that do not encourage over-compliance at the detriment of innocent users.
As observed by the court in the MGM Studios v. Grokster (2005) ruling, “the more artistic protection is favored, the more technological innovation may be discouraged; the administration of copyright is an exercise in managing the trade-off.” (MGM Studios v. Grokster, 2005). This statement clearly states the delicate balance between protection of copyright and the encouragement of technological innovations that allow the public to consume and make use of copyrighted materials. Due to the very nature of technology, it will never be possible to have absolute parity between innovation and the laws that govern it. However, as technologies evolve it is necessary to re-evaluate existing law and how it can and should be applied to emerging innovation.

by Pam Kerensky

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