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A decade of the DMCA: keep the Safe Harbor, ditch the rest
October 31, 2008
Ten years ago this week, President Clinton (remember him?) signed the Digital Millennium Copyright Act into law. Ostensibly passed to bring US copyright law in line with World Intellectual Property Organization treaties, the law has had a variety of effects, some good, others obviously not. If there has been any unambiguous impact of the law, it has been that it has provided a whole new venue for companies to file frivolous lawsuits that attempt to deny others the chance to communicate or engage in business.
The two main features of the DMCA are its "safe harbor" provisions for sites that host user-generated content, and its anticircumvention provisions, which apply to anything that could crack a DRM scheme. We'll take a look at each of these separately, since they've had very different impacts.
Safety in harbors
The safe harbor provisions of the DMCA function in much the same way as those that appeared in the Communications Decency Act, which dates from two years earlier. In general, they legally protect service providers from being held responsible for the actions of their users in regards to otherwise illegal content. Thus, ISPs can't be held responsible for the file sharing that rushes across their networks, nor can video-sharing websites be sued if one of their users posts a portion of a copyrighted film on their servers. All these companies have to do is demonstrate they respond to complaints about the presence of copyrighted material; generically, those complaints are termed a DMCA takedown notice.
Overall, the system has worked remarkably well. The last 10 years have seen an explosion of user-contributed content to sites like Flickr, YouTube, and many others. If the Web 2.0 movement has been all about social web use, then content contributed by members of those social groups has been its fuel. I think it's safe to say that, if companies faced the prospect of Jammie Thomas-sized penalties every time one of their users posted a bit of copyrighted material, then a lot fewer of those companies would have entered the market.
That's not to say that the safe harbor provisions have worked flawlessly. Google is facing down a $1 billion lawsuit from content owner Viacom, which alleges a pattern of profiting from infringing content, despite YouTube's rapid response to DMCA takedown notices. Another recent case found that DMCA safe harbor rules applied to video services, but that hasn't protected Google from racking up legal fees defending itself.
Click Here to View the Full Article at Ars Technica
Photo of Library of Congress attributed to wallyg