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Laura McGuinn

Professor Sarah Corporandy

BDAL 709

22 November 2016

Project B: The Digital Millennium Copyright Act

In the 1990s, Al Gore and the Clinton administration paved the political path for the

development of the "information superhighway," or, as we call it today, the Internet. This

national fiber-optic network would revolutionize American culture by easily and instantly

connecting users to each other, media, shopping, and vast collections of data. The Department of

Commerce and content creators recognized the need for government regulation in this digital

space, especially regarding the protection of intellectual property rights. The Digital Millennium

Copyright Act of 1998 addressed the growing need for penalizing online copyright infringement

in the midst of the development of the Internet, but, two decades later, the Internet has largely

outgrown the law and content creators are demanding digital copyright reform.

Vice-President Al Gore led the political movement to create an "information

superhighway", which the New York Times described in their October 26, 1993 issue as a

technology "which will link everyone at home or office to everything else- movies and television

shows, shopping services, electronic mail and huge collections of data" (Shannon). The

beginnings of federal regulation of the digital environment can be traced back to the High

Performance Computing Act of 1991 (HPCA), also known as the Gore Bill (Lutzker). When

President Bill Clinton and Vice-President Al Gore took office in 1993, they prioritized the

development of the National Information Infrastructure (NII) as well as the development of legal
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reform to address the needs of this new infrastructure (Lutzker). A National Information

Infrastructure Task Force was formed with the assistance of the Department of Commerce

(DOC), and one of their first tasks was to gather information regarding public opinion on

regulation of the budding digital landscape. After holding public hearings as well as holding a

Conference on Fair Use, the NII Task Force published The Report of the Working Group on

Intellectual Property Rights which was also known as the White Paper (Lutzker). The White

Paper asserted that existing copyright law only required minor reform to address the needs of the

growing global network and the advancement of digital technology (Lutzker). Meanwhile, the

World Intellectual Property Organization (WIPO) planned an international diplomatic

conference concerning copyright laws in 1996 (Lutzker). The conference ultimately decided to

follow the lead of the NII's White Paper. In 1997, the discussion finally reached Congress, and

the core issues were determined to be the anti-piracy circumventions, the protection of copyright

management information systems, the liability of online service providers, and modifications to

copyright law (Lutzker). Other issues relating to copyright law, such as term extension, library

exemptions, database protection, and distance education provisions were also deemed of pivotal

importance as well (Lutzker). However, the bill was ultimately named "The Digital Millennium

Copyright Act" to stress the important changes to existing U.S. copyright law (Lutzker).

The Digital Millennium Copyright Act (DMCA) was signed into law by President

Clinton mainly to modify existing copyright law and to combat the rise of digital piracy.

Copyright law exists to protect the intellectual property rights of content creators, which

guarantees adequate compensation and creates an incentive to create more original content

(Thierer). However, in a networked world, pirated digital content can be copied and distributed
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to thousands of users quickly and easily, which eliminates any chance at compensation and

essentially destroys the incentive to create original work (Thierer). The DMCA intended to

address this newfound vulnerability that content creators faced when entering the digital

environment and marketplace. Furthermore, the act expanded upon existing copyright law by

criminalizing anti-piracy circumvention and addressing the role of Internet service providers in

online copyright infringement (Copyright Office Summary). The DMCA deemed any and all

circumvention of anti-piracy protections to be a criminal offense, leaving absolutely no room for

reasonable discretion (Thierer). As for the role of service providers, the DMCA limited their

liability but instituted a somewhat strict takedown notice policy regarding infringed material

(Copyright Office Summary). The law states that "upon receiving proper notification of claimed

infringement, the provider must expeditiously take down or block access to the material"

(Copyright Office Summary). If the service provider did not adhere to this condition, they would

accept liability for infringing material hosted on their systems (Copyright Office Summary). As

long as service providers adhered to the conditions listed in the DMCA, they were not liable for

infringing content hosted on their systems. This is referred to as a "safe harbor" and it was

intended to protect online service providers (Thierer). These measures also intended to defend

content creators against piracy as well as establish guidelines for copyright protections in the

digital environment.

The Digital Millennium Copyright Act has been the subject of debate throughout its

development and since it was signed into law in 1998, but it faces increased scrutiny as digital

technology and the Internet continue to rapidly develop. Intellectual property infringement is an

issue that has more or less spiraled out of control since the development of the Internet. The
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Institute for Policy Innovation released a report in 2007 stating that digital piracy costs "the U.S.

economy $58.0 billion in total output, costs American workers 373,375 jobs and $16.3 billion in

earnings, and costs federal, state, and local governments $2.6 billion in tax revenue" each year

(Siwek). There is a common sentiment among many Americans that access to digital content is a

"fundamental right" and that peer-to-peer file sharing is essentially a victimless crime

(Corporandy). So, when the House proposed antipiracy legislation in the form of the wildly

controversial Stop Online Piracy Act (SOPA) of 2012, the American public was outraged

(Thibodeau). SOPA would have given the U.S. government the power to cut service to websites

accused of piracy or counterfeiting U.S. products, as well as the power to ban search engines

from linking to the accused sites (Thibodeau). Popular websites "went dark" to demonstrate the

power the bill would give the government and the threat the bill posed to "Internet freedom"

which prompted passionate protest from the public (Thibodeau). While some opposed the bill

simply because they wanted to continuing pirating content, many had valid concerns about the

government having the power to deny access to websites.

The constitutionality of the DMCA has been thoroughly questioned by American lawyers

and groups like The American Civil Liberties Union (ACLU). The ACLU and Ben Edelman, a

consultant at Harvard Law School's Berkman Center for Internet and Society, filed a lawsuit

challenging the constitutionality of the DMCA (Pope). Edelman is concerned that Internet filters

for school and public libraries are actually harming the free speech rights of users by blocking

sites that users should be able to access (Pope). These filters have been proven to block websites

that do not contain violent or pornographic content, which is why Edelman wants to research the

way these blocking mechanisms work (Pope). The lawsuit states that "Mr. Edelman's proposed
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research, which should be fully protected by the First Amendment, puts him at risk of liability

under the DMCA" (Pope). The law prohibits consumers from truly understanding how blocking

products work but software companies insist that they need the copyright protections to

protect their business (Pope). The ACLU and Edelman's lawsuit is not the first challenge to the

DMCA regarding First Amendment rights. Wendy Seltzer asserts in her paper in the Harvard

Journal of Law & Technology that the DMCA takedown notifications "bear many of the

hallmarks of prior restraints on speech" because they are "imposed to limit speech before any

adjudication on the merits of the copyright claims" (Seltzer). Since the takedowns are made by

service providers without the benefit of any sort of judicial review, the public is often denied

access to lawful, expressive speech (Seltzer). Seltzer asserts that "as an interim solution, the

public might even prefer a brief, less formal adjudication" (Seltzer). This system would likely

decrease the number of takedowns of protected speech and give those accused of infringement

the opportunity to defend their actions. The DMCA seems to ignore vital sections of the First

Amendment and even deny Internet users the right to free speech where alleged copyright

infringement claims are concerned.

The music industry has taken the lead in 2016 in demanding DMCA reform. Famous

musicians are using their platform to petition for digital copyright reform. Music manager Irving

Azoff collected over 150 signatures of artists and record labels on his petition contending that,

under the DMCA, YouTube is provided an unfair safe harbor for distributing copyrighted

content (Kreps). Azoff argues that YouTube allows "consumers to carry almost every recorded

song in history in their pocket via a smartphone, while songwriters' and artists' earnings continue

to diminish" (Kreps). YouTube was founded in 2005, seven years after the DMCA was signed
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into law, and music industry professionals argue that the government could not have predicted

nor can it appropriately handle the issues that have arisen with YouTube (Sutter). Apple Music's

Chief Creative Officer and Nine Inch Nails' frontman Trent Reznor argues that YouTube "is built

on the backs of free, stolen content" (Kreps). A representative for YouTube presented a

counterargument to Reznor's comments, stating that "the overwhelming majority of labels and

publishers have licensing agreements in place with YouTube to leave fan videos up on the

platform and earn revenue from them" (Krepps). Regardless, musicians are still forced to play a

time-consuming, exhausting game of requesting takedowns whenever their infringed material

appears on the website. The time and energy spent requesting takedowns arguably detracts from

time that could be spent creating original content as well as decreases the incentive to continue

creating. This is the key reason for the existence of copyright laws, and yet YouTube continues

to take advantage of their safe harbor rather than choosing to work with creatives to ensure fair

compensation and generate incentive.

YouTube has a lot of reason to resist DMCA reform, and even more resources to do so.

YouTube is owned by Google, which was founded the same year the DMCA was signed into

law. YouTube and its parent company Google profit from their users seeking out infringed

content, so they allow access to this content until, of course, they receive a takedown request

(Sutter). If artists do not have the time or resources to locate their pirated material and request

that it be taken down, then the companies may continue to profit from this material. The

government obviously did not intend for companies like YouTube and Google to take advantage

of this safe harbor in this manner; they intended for companies to work with creatives to create a

balance (Sutter). Since 1998, digital content has exploded in a way no one could have possibly
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predicted. The DMCA was only intended to modify copyright laws in the wake of the new

digital age, but, strangely enough, it has remained unmodified through a massive technological

boom. Google tends to counteract arguments from content creators regarding piracy by arguing

that technology has expanded the reach of creatives and provided more opportunities for their

work. Google also argues that it is impossible to track down every case of infringement, and that

any regulations enacted to protect intellectual property rights would be an attack on "Internet

freedom" (Sutter). Google essentially claims that content creators should be grateful that a wider

audience has easy access to their content, and that the cost of this accessibility is copyright

protection. A simple reference to the widely unpopular and heavily criticized SOPA allows

Google to paint content creators as Internet freedom attackers who want nothing more than to

restrict accessibility and invade the Internet with pay walls and other costs. In reality, content

creators are simply seeking the right to fair compensation and an incentive to create in a world

rife with digital piracy.

Aside from the inevitable threat of digital piracy, content creators must police the

distribution of their work on social media. Social media platforms like Facebook, Instagram,

Pinterest, Twitter, Tumblr, and more make it as simple as one click of the mouse to distribute

infringing content (Yun). Social media users are often unaware that they are sharing copyrighted

content, and they are usually unaware that by creating an account with the social media

company, they are agreeing to take full responsibility for infringing copyrights. Tumblr explicitly

states that users who upload original content agree to have their content distributed within the

site, but plenty of users illegally upload content that they do not own (Tumblr). In this case,

when users share that illegally uploaded content, they are equally responsible for infringing
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copyright and may be sued by the content creator for distributing content without permission

(Tumblr). Pinterest has a similar clause in their Terms of Service (Yun). Pinterest is essentially

built on distributing copyrighted content to create virtual pin boards filled with linked images.

Pinterest founder Evan Sharp describes Pinterest as a place for users to gather inspiration, saying

that "as you encounter great ideas and discover new things that you didn't even know were out

there, you can pin them and make them a part of your life through our system of boards"

(Madigral). While this is a great idea and a useful tool for many people, the idea becomes

problematic when content creators have no control over their content being "pinned" and

distributed without their permission. It becomes even more of an issue when content creators

must search through Pinterest's 30 billion pins to locate their content and request it be taken

down (Madigral). Social media platforms are built on the idea of sharing content and creating

discourse. This is often referred to as a "sharing economy" in which people prioritize dialogue

and collaboration over commercial gain (Madigral). Unfortunately, without compensation,

content creators have neither the incentive nor the means to contribute content. This means that

the less we prioritize adequate compensation, the less content we will have to discuss and

contribute.

In the same way we look to Google and YouTube to willingly stop taking advantage of

their safe harbor to profit from infringing content, we should look to social media companies to

curb copyright infringement on their sites. Social media sites do very little to educate and protect

their users from copyright infringement or from distributing infringing content. Their users

consume countless posts of essentially meaningless content every day, and these companies

could very easily add posts to their various timelines and feeds educating their users about the
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significance of copyright law. If users had access to concise, digestible, and reliable information

on copyright protection and its significance in cultural development amidst the thousands of cat

videos and memes, it could make a world of difference for digital content creators. Social media

users generally trust and listen to the various platforms they subscribe to, so it makes sense for

these companies to reach out to their users this way.

In the nearly twenty years since its passage, reform on the DMCA has been hampered by

opposing schools of thought regarding its implementation and how to balance the need for

creators' intellectual property protection with citizens' right to free speech and expression. Fight

for the Future, a public interest group opposing "the ongoing mass censorship of the Internet due

to abusive copyright takedowns under the Digital Millennium Copyright Act," has published on

their website their efforts to achieve DMCA reform (Lyon). Representatives from the group

recently rallied their supporters to petition government officials with public, online comments so

that two group representatives could obtain seats at the DMCA reform meetings in San Francisco

(Lyon). The Fight for the Future representatives claimed that the copyright industry lobbyists

were pushing to eliminate the counter-notice process in favor of a "take down, stay down"

system. In this system, website owners would be required to "police user-uploaded content and

proactively remove any copyrighted material" (Lyon). If this system was actually put into place,

it would have the potential to permanently remove protected material, especially material

protected under fair use, such as parody or commentary. Furthermore, the Fight for the Future

representatives claimed that live streaming was not available for the meeting and that open

microphone time was extremely limited (Lyon). Public interest groups like Fight for the Future

and the Electronic

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Frontier Foundation have taken steps to demand DMCA reform both legally and socially, but it

appears that government officials hope to keep the issue out of the hands of the public.

The Digital Millennium Copyright Act built on existing copyright law to address the

growing need for regulation of the digital environment. United States copyright law has

experienced only minor modifications since the first copyright statute was signed into law in

1793, so the government's decision to enact only minor changes was somewhat understandable

in the 1990s (National Academy Press). However, the members of Congress at the time simply

could not have predicted the rapid growth of the Internet and the incredible increase in the

accessibility of information in digital form. The Digital Millennium Copyright Act simply does

not have the necessary language or appropriate protections to address copyright infringement in

the modern digital age. The development of social media, streaming services, and digital piracy

have presented a vast array of issues that need careful government regulation. Successful DMCA

reform would preserve this extraordinary level of accessibility of information and media while

also protecting the rights of content creators.

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Works Cited

The Digital Millennium Copyright Act of 1998. Pub. L. No 105-304, 112 Stat. 2860 (Oct. 28,

1998). Congress.gov. Web. 21 Nov. 2016.

Copyright Office Summary. "The Digital Millennium Copyright Act of 1998: U.S. Copyright

Office Summary." Copyright.gov. United States Copyright Office, Dec. 1998. Web. 21 Nov.

2016.

Corporandy, Sarah. “Unit 5: Copyright Law, Part 1 (Rights and Ownership).” Savannah College

of Art and Design. Blackboard Learn, Savannah. October 2016. Lecture.

Lutzker, Arnold P., Esq. "PRIMER ON THE DIGITAL MILLENNIUM." ALA Washington

Office. ALA Washington Office, 8 Mar. 1999. Web. 21 Nov. 2016.

Thierer, Adam D., and Clyde Wayne. Crews. Copy Fights: The Future of Intellectual Property in

the Information Age. Washington, D.C.: Cato Institute, 2002. Print.

The Digital Dilemma: Intellectual Property in the Information Age. Washington, D.C.: National

Academy, 2000. Print.

Seltzer, Wendy. "Free Speech Unmoored In Copyright's Safe Harbor: Chilling Effects Of The

DMCA On The First Amendment." Harvard Journal Of Law & Technology 24.1 (2010): 171-

232. OmniFile Full Text Mega (H.W. Wilson). Web. 19 Nov. 2016.

Siwek, Stephen E. The True Cost of Copyright Industry Piracy to the U.S. Economy. Rep. no.

189. IPI Center for Technology Freedom, Institute for Policy Innovation. The Institute for Policy

Innovation, 3 Oct. 2007. Web. 21 Nov. 2016.

Thibodeau, Patrick and Grant Gross. “New Congress Seen Shunning SOPA.”

Computerworld 47.1 (2013): 10. Academic Search Premier. Web. 21 Nov. 2016.
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Kreps, Daniel. "Taylor Swift, McCartney Sign Petition for Digital Copyright Reform." Rolling

Stone. Rolling Stone, 20 June 2016. Web. 21 Nov. 2016.

Sutter, Kurt. "Kurt Sutter Slams Google, Argues for DMCA Update." Rolling Stone. Rolling

Stone, 15 July 2016. Web. 21 Nov. 2016.

Madigral, Alexis C. "What Is Pinterest? A Database of Intentions." The Atlantic. Atlantic Media

Company, 31 July 2014. Web. 21 Nov. 2016.

Pope, Justin. "ACLU Files Suit Over the DMCA." GovTech. Government Technology, 2002.

Web. 21 Nov. 2016.

Shannon, L. R. "Getting Your Feet Wet In a Sea Called Internet." The New York Times. The New

York Times, 26 Oct. 1993. Web. 21 Nov. 2016.

Yun, Monica. Pinterest's secondary liability: the DMCA implications of holding Pinterest

responsible and what Pinterest can do to avoid liability. Hastings communications and

entertainment law journal, Comm/Ent 36.2 22 Jun 2014: 489. University of California, Hastings

College of the Law. 21 Nov 2016.

Lyon, Jeff. "A Look inside the Closed-door DMCA Meetings." Fight for the Future. Fight for

the Future, 17 May 2016. Web. 21 Nov. 2016.

"Terms of Service." Tumblr. Tumblr, Inc., 8 Sept. 2016. Web. 21 Nov. 2016.