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DMCA Notice-Takedown: An Appropriate Balance?

May 12, 2010

Recently, summary judgment motions have been filed in the long-running copyright infringement suite Viacom Intern, Inc, v. YouTube, Inc.. The arguments focus substantially on the Digital Millenium Copyright Act (DMCA) notice-takedown safe harbor.

A good summary of the briefs is provided by Eric Goldman.

The DMCA safe harbor, in short, allows internet service providers (ISPs) to be exempt from copyright infringement liability by their users if they follow a set of takedown procedures after being given notice from a copyright holder. From a policy perspective, the safe harbor seeks to balance author creativity with online innovation. It allows companies like YouTube to provide game-changing services without being hindered by potential infringing uses. This post will consider how well this balance is achieved.

The advantage of the DMCA safe harbor is that it provides a bright line and predictable framework to (supposedly) ensure that ISPs need not worry about infringement. Bright lines promote innovation by providing developers a clear framework of what is and is not permitted. This innovation in turn benefits creative types who can utilize the new technology, like the user-generated content distributed widely on YouTube.

The problem with the DMCA safe harbor is its susceptibility to abuse. The notice-takedown procedures of the safe harbor are such that a work is presumed to be guilty of infringement. Thus, copyright holders can get material taken down immediately, before any review, and the procedure is outside the scope of judicial oversight. This potential for abuse can (and has been) used to stifle free speech and creativity, particularly criticism of copyright holder’s works.

The ability to stifle criticism without judicial oversight obviously raises serious First Amendment issues. Wendy Seltzer has written a good draft article further criticizing the DMCA and its First Amendment concerns. In this article she suggests a number of options to revamp the law, most of them favoring free information transfer (starting at page 54). Many suggestions are workable, though some might require a change in major portions of copyright law, more than just a revision in the DMCA.

It is not entirely clear how far revisions would need to go to address the free speech and abuse problems currently found in the safe-harbor. It is certain, however, that some revisions are needed.

To best promote Constitutional policy these revisions should be as minimal as possible, so as to balance copyright protection and freedom to innovate. Some minor changes that Seltzer suggests would be appropriate. One suggestion is limiting takedown to entire works. This might be hard to define, but this is the type of revision that would be most effective at maintaining the balance the DMCA seeks to achieve.

Overall, the DMCA safe harbor reaches a proper balance protecting creativity and stimulating innovation, thus achieving its Constitutional objective. While some revisions are needed to prevent abuses, these revisions should be subtle, thereby maintaining the balance of copyright protections and technological innovation and development.

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