Capitol Records v. Vimeo

The Digital Millennium Copyright Act (DMCA) unfairly discriminates against copyright holders by allowing online service providers to employ inadequate and outdated takedown protocols of copyright infringement. These protocols promote piracy resulting in illegal advertisement revenue streams. Congress must reform the DMCA to ensure online service providers are held properly accountable when copyright infringement occurs on their platforms. Specifically, the DMCA’s existing takedown protocols should be reformed to ensure online service providers cannot benefit from issues associated with advertisements attached to posts containing infringing material. This Note examines the pertinent sections of the DMCA; relevant caselaw concerning the DMCA, online service providers, copyright holders, and internet users; and recommendations for changes to be made to reconstruct the DMCA so that it may fulfill its original purpose. The proposed recommendations address rising tensions between copyright holders and online service providers. These proposed solutions involve revising existing takedown protocol requirements to give copyright holders more freedoms rather than limiting their remedies to a “band-aid” fix that only provides an illusory remedy. Efficient and updated procedures should be added to the DMCA, to ensure that copyright holders are protected from the issues presented by an ever-digital climate. We cannot continue to apply a law written in Short Code to a world living in the Metaverse.

IntroductionUnplanned internet blackouts can result from failure or overcapacity, or can occur following attacks on Internet service providers (ISPs), the Internet’s domain naming system, or specific websites. They can also result from improper Web server infrastructure configuration (PC Mag). However, Internet blackouts can also be planned and strategic. Governments have used blackouts for political reasons such as shutting down websites and social media to disrupt protest activities. Online service providers (OSPs) — websites, social media, and the organisations that run them — can also use coordinated outages as a form of protest and to raise awareness. Various groups in the United States (U.S.) have used blackouts to protest changes to Internet legislation. Not all contentious legislation, however, spurs a blackout protest.Online blackout protests receive uneven academic treatment. While several scholars consider the successful 2012 Stop Online Piracy Act (SOPA) protests (Oz; Langford; Lev-Aretz; Logie; Benkler et al.; Shahshahani; Tufekci), there is less analysis of the blackout protests in relation to the Communications Decency Act (CDA) (Berman and Mulligan; Logie) and Cyber Intelligence Sharing and Protection Act (CISPA) (Lev-Aretz; Shahshahani). Scholars consider technological and design factors that lead to successful protest, specifically the Internet’s capacity to foster ad-hoc online activism (Berman and Mulligan 85) and the use of visual and rhetorical tactics to spread messages and disrupt website operation (Langford 98; Logie 36). Other scholars explore communication and networking factors, including the ability of power brokers to set agendas and foster community support (Oz) and the networking of various actors online to create an “attention backbone,” where sites with more traffic link to those with less (Benkler et al. 610, 613). Tufekci argues, “Elite unity or disunity is a major factor in whether protests successfully change policies” (220). Elite disunity leads to large OSPs aligning with grassroots protesters in opposition to politicians and proposed legislation (Tufekci 220). Scholars have paid much less attention to instances when contentious legislation fails to spur an online blackout protest. Lev-Aretz argues that most issues do not meet the high threshold for “extensive public participation” (243), but does not explore how to achieve this threshold.This article begins to fill this gap addressing why the introduction of some contentious U.S. legislation results in blackout protests while others do not. This study employs qualitative analysis of proposed legislation, OSPs’ and activists’ statements regarding the potential laws, and news reports from 1996 to 2018. This analysis reveals that proposed laws threatening the power of large technology companies mobilised the largest protest actions. While the popular imagination celebrates online blackouts as successes of the Internet community and its grassroots activism in the popular imagination, this study illustrates the extent to which large technology companies have captivated the Internet infrastructure and mobilise users’ actions.Online Blackout Protests in the United StatesImage 1: Communications Decency Act blackout screen, image by Electronic Frontier Foundation (CC BY 3.0 2016).In 1996, OSPs and advocacy organisations protested the passage of the CDA which sought to protect children under 18 from “indecent” and “patently offensive” material on the Internet (U.S. Congress, Public Law 104-104, §502(1)(d)). Under the law, knowingly transmitting such material online became a criminal offense. President Clinton signed the CDA into law on 8 February, despite critics’ argument that the law was an unconstitutional limit on adults’ access to protected speech (Reno v. American Civil Liberties Union; Bicknell). The Electronic Frontier Foundation (EFF), among others, insisted the CDA was both vague and overbroad (Fena; McCandlish). The law’s failure to define prohibited speech meant the CDA would censor more speech than needed to achieve its goal (Reno v. ACLU; Fena).On the day the CDA became law, opponents held an online blackout, called “Turn the Web Black” or “The Great Web Blackout.” The Voters Telecommunications Watch and Centre for Democracy and Technology (CDT) organised the protest in a week through e-mail (Berman and Mulligan 85; Dibbell). Approximately 1,500 websites participated in the action, including Netscape, one of the premier Web browsers of the time, Yahoo!, RealAudio, and websites belonging to Senator Patrick Leahy and Representative Jerrold Nadler (Mitchell; Lewis; Berman and Mulligan 85). Websites altered their webpages to white text on a black background with information about the CDA and ways to oppose the law (Image 1). Yahoo! removed all of its usual content and replaced it with a black screen and links to more information about the CDA (Logie 29). The EFF noted sites wereTurning their Web page and login screen backgrounds to black, to mourn the death of the Internet as we know it. Some … blanked out their entire online offerings, replacing everything that had been available with a single sentence: “This is what censorship looks like”. (McCandlish)The protest occurred too late to affect the text of the enacted law; however, it did raise public awareness about its free speech implications. In 1997, the U.S. Supreme Court ruled the CDA was unconstitutional. After the victory, Bruce Ennis, legal representation for the plaintiffs, stated “the Internet is now basically safe from government regulation in the future” (quoted in Brown).However, this sentiment was short-lived. A subsequent legislation, the Children’s Internet Protection Act (CIPA), required certain public library and school computers to use filters to prevent children from accessing harmful material online. This law did not spur a blackout protest. CDA protest organisers cited a variety of factors for this absence, including the increased use of the Web by people other than the small contingent of early adopters who were adamant that the Web should be a forum enabling free expression (Barlow) and the belief that a legal challenge would be successful as it was with the CDA (Brown). In addition, despite criticism from the American Civil Liberties Union (ACLU) and the American Library Association, CIPA had little effect on OSPs or on users who had Internet access at home, likely dampening potential opposition. In end, the Supreme Court upheld the law (U.S. v. American Library Association).A widely known blackout protest occurred in response to the Stop Online Piracy Act (SOPA) and PROTECT IP Act (PIPA) in 2011. These Bills would increase the Federal Government’s power to restrict pirated digital material and goods in the U.S. SOPA would allow the Attorney General to request a court order to force a service provider to “take technically feasible and reasonable measures designed to prevent access by its subscribers located within the United States to the foreign infringing site” (U.S. Congress, H.R.3261 13). The proposed law would require search engines, such as Google, to unlink sites distributing pirated materials that hindered access to an entire site rather than only the portion containing piracy (Peckham; Logie 20) and decreased OSP internet traffic revenue. Broad interpretation of the law required OSPs to monitor the content available on their sites to ensure no pirated material was present (Logie 20). Thousands of OSPs, including Reddit and Wikipedia, claimed the legislation would censor the Internet (Reddit; Barnett). In response on 10 January 2012, Reddit announced an online blackout. Wikipedia announced its participation six days later (Logie 20-22).OSPs altered their home pages and content for a 24-hour period between 18 and 19 January and implemented varying levels of disruption. Wikipedia editors voted to disrupt service globally, rather than only in the U.S. (Wikipedia). The English version of the site was inaccessible for 24 hours. Instead of accessing the free database with millions of articles, users found a statement encouraging them to contact Congress to protest this “frightening precedent of Internet censorship for the world” (Wikimedia). Wikipedia’s co-founder Jimmy Wales explained: “The general sentiment seemed to be that US law, as it impacts the Internet, can affect everyone” (quoted in Barnett). Similarly, Reddit shut down for twelve hours on 18 January and displayed information on how to take action (Reddit). Other OSPs did not completely disable service, but still participated. In the U.S. Google placed a blackout doodle over its famous logo and directed users to a petition against SOPA/PIPA (Svensson; Germick).However, other large OSPs did not join in the blackout protests. Facebook’s chief executive, Mark Zuckerberg, stated his opposition to SOPA/PIPA in a Facebook post and a tweet (@finkd; Protalinski) but ultimately decided not to join the blackout. The reason was likely economic – Facebook could lose $12 million in advertising revenue if it went offline for a day (Taylor). Twitter also functioned normally during the protest citing its status as a business as central to its non-participation. Chief Executive Dick Costolo argued, “That’s just silly. Closing a global business in reaction to single-issue national politics is foolish” (@dickc). Wikimedia’s executive director, Sue Gardner, explained why there might be reluctance to take part in the online blackouts:Most are commercialy [sic] motivated: their purpose is to make money. That doesn’t mean they don’t have a desire to make the world a better place –many do!– but it does mean that their positions and actions need to be understood in the context of conflicting interests.Between 7,000 and 10,000 OSPs participated in the SOPA/PIPA protests and numerous sites encouraged users to sign online petitions and contact their Congressional representatives (Chang and Puzzanghera

Free Expression under the DMCA

How did copyright become controversial? In a phrase, the Digital Millennium Copyright Act (DMCA). Although many of legal controversies that have swirled since its October 1998 passage trace their roots to other elements of copyright law, the DMCA created a new feature in copyright law that has crystallized why so many academics, librarians, computer users, and technology entrepreneurs object to what they regard as the overreaching nature of copyright law.

Over the past several years, two former bandmates in the 1960s rock group, The Turtles, have initiated several lawsuits against the popular music streaming services, Pandora and Sirius XM, arguing that the band owns common law copyrights in the sound recordings of its songs, and that these state-level copyrights grant the band an exclusive public performance right in its sound recordings. If accepted, this argument has the potential to significantly distort federal copyright policy because states would not be constrained by any of the balancing features of the Copyright Act, including Digital Millennium Copyright Act (DMCA) safe harbors for Internet Service Providers (ISPs), statutory licenses under 17 USC § 114, or even the limitations, such as fair use, in §§ 107 through 122. In spite of how detrimental state-by-state copyright policymaking could be to Congress’s policy choices embodied in the Copyright Act, federal courts have not applied any form of preemption that would prevent states from legislating at will in this area, because § 301(c) appears to contain a disavowal of preemption for any state law dealing with pre-1972 sound recordings. This note advances an interpretation of § 114(a) that would expressly preempt state-level public performance rights in pre-1972 sound recordings as well as an interpretation of §301(c) that would greatly narrow the scope of the disavowal of preemption, allowing federal courts to strike down state laws that severely distort federal copyright policy.

Congress created the Digital Millennium Copyright Act (DMCA) at the dawn of the internet age 25 years ago. It addressed the needs and concerns of Online Service Providers (OSPs) in the nascent cyber landscape, but the DMCA must now be reformed to meet the needs of Web 2.0. The DMCA’s refusal to condition §512(c) safe harbor protection on OSPs’ platform monitoring is no longer practical. This now produces results contrary to the Copyright Act’s purpose of encouraging the creation and dissemination of new works. Copyright owners are fighting a losing battle against infringing OSP users and the DMCA’s notice-and-takedown procedures are little help against the sea of infringing material on Web 2.0. Thus, §512(c) safe harbors must be reformed to condition protection on OSPs taking affirmative anti-infringement action. Artificial intelligence (AI), a powerful and ever-improving tool, equips OSPs to monitor user-generated content for infringing material and puts OSPs in a better position than any other entity to combat the online copyright infringement epidemic. This Comment argues that all Web 2.0 OSPs—especially social media platforms—should begin using AI screening tools to monitor their sites—a process that would greatly shrink §512(c) safe harbor protection and greatly reduce copyright infringement to the mutual benefit of copyright owners and OSPs.

Recovering Fair Use

Do I Need to Ask Permission? Applying Fair Use to Educational Activities.

In an online landscape where algorithm-driven social media platforms host millions of users that create, post, or interact with material that is infringing on its face, the Digital Millennium Copyright Act (DMCA) is failing. In 1998, Congress passed the DMCA to address emerging methods of copyright infringement that accompanied the public’s use of the internet and other technologies. The DMCA shields online service providers (OSPs) from liability for a user’s infringement so long as the OSP enacts the prescribed reporting mechanism for copyright holders to remove infringing content online. Now, copyright holders face another significant challenge: generative AI systems have emboldened its users with unprecedented opportunities and abilities to infringe, while certain OSPs circulate––and thus, promote––AI-generated, infringing derivative content. To demonstrate this tension, this Note discusses Universal Music Group’s removal of its catalog from TikTok’s platform and evaluates the efficacy of third-party liability copyright doctrines. This Note argues that the doctrinal ambiguities of contributory infringement and inducement render them ill-equipped to confront the rapid creation and dissemination of AI-generated content online. Instead, this Note contends that vicarious liability, having clearly articulated doctrinal elements, enables creators to enforce their copyrights against OSPs, which in turn, incentivizes OSPs to undertake proactive measures to mitigate user-infringement. This Note also discusses the European Union’s Digital Services Act and AI Act and asserts that these Acts fairly distribute legal responsibilities that effectively enforce copyright without impeding the public’s access to helpful technologies. As the United States articulates an AI legislative framework, this Note proposes that OSPs should use the elements of vicarious liability as an applicable threshold to gauge their potential liability in their pursuit of innovation.

“They’re creepy and they’re kooky” and They’re Copyrighted: How Copyright Is Used to Dampen the (Re-)Imagination

Un]Happy Together: Why the Supremacy Clause Preempts State Law Digital Performance Rights in Radio-Like Streaming of Pre-1972 Sound Recordings

The US Digital Millennium Copyright Act (DMCA) of 1998 adopted a notice-and-take-down procedure to help tackle alleged online infringements through online service providers’ actions. The European Directive 2000/31/EC (e-Commerce Directive) introduced similar liability exemptions, but did not specify any take-down procedure. Many intermediary (host, and online search engine) service providers even in Europe have followed this notice-and-take-down procedure to enable copyright owners to issue notices to take down allegedly infringing Web resources. However, the accuracy of take-down is not known, and notice receivers do not reveal clear information about how they check the legitimacy of these requests, about whether and how they check the lawfulness of allegedly infringing content, or what criteria they use for these actions. In this paper, we use Google’s Transparency Report as the benchmark to investigate the information content of take-down notices and the accuracy of the resulting take-downs of allegedly infringing Web resources. The analysis of copyright infringement is limited to the five scenarios most frequently encountered in our study of Web resources. Based on our investigation, we propose a Content-Linking-Context (CLC) model of the criteria to be considered by intermediary service providers to achieve more accurate take-down, and investigate technical issues applying the CLC Model to automatically assess web resources and output a ‘likelihood of infringement’ score.

OVER THE last four years, we Americans have lost a considerable number of our constitutionally guaranteed And the sad part is, most people didn't even notice. Even sadder, perhaps, is the fact that these were given away by the very people we elected to the Congress. Just how bad is the situation? Consider this report from a September 2001 issue of the New York Times: Responding to the arrest July Las Vegas of Dmitri Sklyarov, a 26- year-old programmer from Moscow, the Russian government issued an alert last week to the nation's computer programmers, warning them of the long arm of a 1998 American copyright law. Mr. Sklyarov, who has been free on bail since August 6 and is staying California, was arrested after he spoke at a computer hackers' convention about his program that lets readers disable software for electronic books.1 Why, you might ask, would anyone want to disable the software embedded an Adobe Acrobat electronic book anyway? I describe just two of several reasons. First, you can't get text-to- speech computer software to read an encrypted book to a visually impaired person; second, the denies us the fair we have traditionally had to items we've lawfully purchased. To understand the lost, you have to start by understanding fair use. U.S. copyright law, as it has been interpreted by the courts over the years, has always tried to balance the of an author/copyright holder and the of a user/reader, called fair use rights. For example, if you buy a conventional book, you can lend it to a friend, give it to a library, quote sized excerpts from it, and even make an archival photocopy. Other traditional fair use rights include such things as videotaping television programs to time them, making compilation CD audiodiscs for use your car, transferring music you own to an MP3 player, creating parodies of all kinds, assembling video clips of news programs for social studies classes and using them for 10 days, and so on. The fair use rights of consumers are balanced copyright law by the first sale rights of copyright owners. Once the copyright owner receives payment for a copy of his or her work, the shift to the user. These counterbalancing get all out of balance when you introduce concepts like pay per read, pay per view, and digital encryption -- all of which reduce fair If you doubt the severity of such problems, surf on over to the Digital Future Coalition website (www.dfc.org) and take a look at the 40 or so prestigious organizations that have banded together to fight for our fair Members of the DFC include the American Library Association, the Modern Language Association, and the Consumer Federation of America, to name just a few. The Electronic Frontier Foundation website (www.eff.org) is one of the most up-to-date and informative of the various sites. The mess we are today started 1998 with the passage of the Digital Millennium Copyright Act (DMCA). Two provisions of this complicated bill have caused the most consternation. Title I of the DMCA establishes new prohibitions Title 17 of the U.S. Code: 1) prohibition on the circumvention of technological measures used by copyright owners to control access to protected works and 2) prohibition on manufacturing or otherwise trafficking in [including discussing] a device designed to circumvent a technological measure that controls access or that protects the of the copyright owner (copy controls). The second troublesome provision of the DMCA provides for a notice and take down procedure. If a content owner reasonably believes that an online service provider is misusing copyrighted material and notifies the provider according to statutory procedures, or if the provider becomes aware of an infringement any other way, then the provider must expeditiously remove the material or disable public access to it or face severe penalties. …

In Part I, this Note will explore federal cultural property statutes as well as the doctrines of common law copyright and aboriginal title, each of which might be employed to determine ownership interests in pre-1972 sound recordings made on Indian reservations. In Part II, this Note will present a case study, involving a nonindigenous collector who captured a massive body of Native American cultural expression prior to 1972, to illustrate the complexities of applying cultural property statutes and common law doctrines to these types of materials in the present. Finally, recognizing that the Copyright Act’s treatment of pre-1972 sound recordings has been identified by Congress as an area in need of revision,1 Part III explores the potential risks and benefits of applying the Copyright Act’s frameworks to pre-1972 sound recordings made on federally recognized Indian reservations. If Congress does have the power to impose these frameworks on pre- 1972 sound recordings made on tribal lands, how might such a framework affect tribal communities? And, should tribal communities oppose such a move by Congress?

Constitutional Obstacles? Reconsidering Copyright Protection for Pre-1972 Sound Recordings