Fostering Web 2.0 Innovation: The Role of the Judicial Interpretation of the DMCA Safe Harbor, Secondary Liability and Fair Use

Abstract

There have been many creative suggestions for new laws to resolve some of the tension between protecting copyright online and encouraging the growth of Web 2.0. It is improbable that Congress will pass legislation encompassing any of these suggestions soon given the intense lobbying by the copyright industry. Creating a workable balance between protecting copyright owners and fostering technological innovation is more likely to be achieved through judicial interpretation of existing law. This paper argues that the internet of the future is going to be shaped by cases like Viacom v. YouTube. The paper contends that judicial interpretations, particularly of the Digital Millennium Copyright Act (DMCA) safe harbors, and the common law doctrines of secondary liability and fair use, can and should be used to balance the lengthy statutory protection won by the copyright industries, most particularly by ensuring the safe harbors cover all legitimate content sharing sites which use the notice and takedown procedures but also by limiting the application of secondary liability to these sites and clarifying that transformative new technologies are protected by fair use. Judges need to avoid the overprotection of copyright owner’s rights and to provide legal certainty about the boundaries of copyright protection. Case law is clarifying that it should be the job of copyright owners to police their own property online and that legitimate web platforms should rarely be liable for the activity of their users absent specific awareness of infringing activity or willfully blindness to such activity. There is less judicial interpretation of the doctrine of fair use than of both the DMCA safe harbor and secondary liability which unfortunately deters reliance on fair use as a defense, a fact potentially likely to deter online innovation. Limited secondary liability expanded fair use and, most of all, clear parameters for copyright protection will encourage investment in technological innovation and promote creativity, the purpose of copyright protection, online.