The Digital Millennium Copyright Act: Protecting the ISPs and bogging down technology
The Digital Millennium Copyright Act (DMCA), codified in 17 U.S.C. § 512, amended the U.S. Copyright Act of 1976. The DMCA provides for severe criminal penalties for circumventing technical measures protecting copyrighted works.
The DMCA protects Internet Service Providers (ISPs) from liability arising from acts by the ISP’s customers. However, there are certain conditions that an ISP must meet in order to qualify for the Act’s safe harbor provisions. To enjoy safe harbor protection, an ISP must:
1. Implement a policy to terminate infringers;
2. Designate a service provider agent for notification of claims of infringement. (The list of designated service provider agents is located at: http://www.copyright.gov/onlinesp/list/index.html)
3. Provide means to receive notice of infringement and upon obtaining notice act expeditiously to remove, or disable access to the infringing material; and
4. Have no actual knowledge of the infringing activity.
Arguably, the DMCA has bogged down the development of technology. For example, in Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984), a case decided prior to the passage of the DMCA, the U.S. Supreme Court held that a manufacturer of video tape recorders could not be held liable for contributory copyright infringement. The Court found that although video tape recorders could be used to copy copyrighted television shows, there were commercially significant non-infringing uses for the device. This decision facilitated the commercial widespread of video tape recording devices such as Betamax and VCRs.
In Universal City Studios v. Reimerdes, 111 F. Supp. 2d 294 (2000), a case decided after the passage of the DMCA, motion picture studios brought action under the DMCA to enjoin Internet website owners from posting or downloading software that decrypted digitally encrypted movies on DVDs. The United States District Court for the Southern District of New York granted the injunction under the authority of the DMCA.
Despite the obvious differences between the distribution of a machine that records unencrypted television shows and the distribution of code that allows the copying of encrypted DVDs, had the DMCA existed in 1984, what would have happened to the development of the home video recording industry?
Hollywood would have missed out on a billion dollar industry. Good thing the courts didn't let them shoot themselves in the foot back in '84. It's a shame the courts can't do the same thing now. Rather than going after infringers, Hollywood needs to help companies develop ways to make movies via the Internet into a profitable business. Look at Netflix. They've only recently started offering streaming movies. There's no reason why Hollywood should not have helped them develop this.
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Why should Hollywood have to help other companies increase their profits? It is the responsibility of the companies like Netflix to create profitable business models that are also legal.
Even though Netflix offers streaming videos, this will not solve the copyright infringement problem. The problem is that when most people are presented with two convenient options (pay for Netflix membership and download, or download over the internet for free) they will choose the free option most of the time e.g. Napster vs. buying CD's.
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I believe that the best thing about the DMCA is the take down provision. The DMCA take down notice provision allows for swift action to take down an infringing website before irreparable injury can occur while putting protections in place to prevent the exploitation of the process.
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Though other aspects of the DMCA have stiffled technology, I don't think the notice and takedown provision has. The reason is that it has enabled hosts to get in the game who would not be able to defend themselves against copyright infringement suits if their users got into trouble.
By setting some clear rules about when a host can be held liable, it opened the door for hosts to enter the field without fearing a copyright lawsuit.
Much of the Web today is possible because of the DMCA and, if it is upeheld in the YouTube v. Viacom case, the growth will be even faster.
To me, the notice and takedown provision was probably the most reasonable part of the DMCA, it could use some serious work, but its heart is in the right place.
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