Digital Millennium Copyright Act Research Articles

THE ROLE OF COPYRIGHT IN THE CONTEXT OF SOCIAL MEDIA

This article examines important aspects of the interaction between copyright and social networks in contemporary information society. The article emphasizes key elements of agreements between users and platforms, defining rules for content usage. The Digital Millennium Copyright Act (DMCA) is highlighted as an effective mechanism for protecting copyright in the online environment. Court decisions on copyright infringement in social networks serve as examples for understanding the complexities of balancing between freedom of information exchange and intellectual property protection. In conclusion, the importance of effective collaboration between authors and social platforms is emphasized to ensure fairness, diversity, and quality of content in the online space.

Determination of Indirect Tort Liability under the Circumstance that the ISP Gains Economic Benefits from Advertisements in Infringing Works in China

According to Chinese law, “directly obtaining any economic benefits” from the works of network users cause network service providers to bear a “higher duty of care” for the infringement acts. However, the standards of “directly obtaining any economic benefits” and “a higher duty of care” have triggered a series of controversies in theory and practice. In terms of theory, this article compares the provisions regarding “direct economic benefits” under the PRC law with the Safe Harbor Rules of the U.S. Digital Millennium Copyright Act (DMCA), pointing out the cognitive bias existing in the PRC interpretation of the DMCA. Meanwhile, this article analyzes the determination of tort liability when the ISP gains economic benefits by placing advertisements in infringing works in Chinese judicial practice. The author finds that the standard for determining “direct economic benefits” is relatively vague, and there are issues concerning the direct presumption of fault on network service providers who are found to gain “direct economic benefits” from advertisements in infringing works. These problems often lead to Chinese network service providers being deemed to be liable for damages even though they are doing the normal business of advertising. This article explains the important role of “direct economic benefits” in determining the indirect tort liability of the ISP and how to optimize the rules for determining the indirect tort liability of the ISP in China.

Algorithmic (In)Tolerance: Experimenting with Beethoven’s Music on Social Media Platforms

Popular social media platforms, such as YouTube and Facebook, see insurmountable volumes of media uploaded every day. The extent of which cannot be feasibly monitored through human efforts alone to identify infringing activity. Such companies employ algorithmic methods to enforce copyright by removing or monetizing content on behalf of copyright owners; however, occasionally flagged material is misidentified as infringing. These instances represent a potential loss of income for independent artists by way of misappropriated revenue or removal of material, and time spent challenging automated decisions. This article discusses an experiment seeking to ascertain the false positive rate of YouTube’s Content ID and Facebook’s Rights Manager. This is put in the context of existing legal precedence in the United States, including the Digital Millennium Copyright Act (DMCA). The article makes recommendations for technological and logistical modifications to these systems, and it encourages public education and research on the topic.

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

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

Intellectual Property and the University: An Interview with Kim Bonner, Director, Center for Intellectual Property, University of Maryland, University College

LA&M met Kimberly Bonner, the director of the Center for Intellectual Property, University of Maryland, at Seton Hall University, where she was the keynote speaker at a conference that addressed copyright law and its applications in a university context. The Center for Intellectual Property, which focuses on policy research and developing conferences and workshops on issues such as the TEACH Act, the Digital Millennium Copyright Act (DMCA), peer-to-peer file sharing, and scholarly communication, also provides open-access Web services to the higher-education community.

The Last Line of Defense: Addressing Section 512(g)’s Dwindling Capacity to Protect Educational Fair Users on the Internet

The COVID-19 pandemic has rapidly transformed education from one of the least digitized sectors in the U.S. economy to a largely online phenomenon, with up to 93% of households with school-age children relying on distance learning. The value of online educational opportunities has extended beyond traditional purveyors of education as well, with online service providers (OSPs) like YouTube reporting an increase in average daily views for educational videos produced by subscribers (“users”).
 The rise of user-generated content in online education (“educational content”) is merely part of a larger sea change as more content is uploaded to OSPs than ever before. But educational content provides a curious case study. While educational content is a nebulous concept to describe, here it may be defined as materials—from video lectures to digital course packs—that are created wholly or in part by users, uploaded to OSPs, and designed to aid in online educational pursuits. Because copyrighted works play a central role in the explication of such topics as literature, art, and music, any increase in educational content will also inevitably bring with it an increase in the use of copyrighted materials. Even though educational uses of copyrighted works are often considered to be fair use, users who incorporate these works into their educational content remain vulnerable to infringement claims, which can cause their educational content to be removed.
 This lack of protection for educational content applies to all users—“non-institutional” or “institutional”—who create and upload teaching materials containing portions of copyrighted works. Educational content therefore provides a compelling case study illustrating the limited defenses afforded to all user-generated content, whether or not it is educational in nature: If fair use educational content is considered non-infringing but nevertheless subject to removal under the guise of copyright infringement, then any non-infringing user-generated content is potentially vulnerable to the same fate. Indeed, in response to the COVID-19 pandemic, YouTube increased the automation of its takedown practices, making it easier for rightsholders to have content that incorporates their copyrighted works removed—regardless of the purpose of the use.
 While the situation may look bleak for producers of both educational and non-educational content, users possess a shield against erroneous takedown notices. Enacted as part of the Digital Millennium Copyright Act (DMCA), the § 512(g) counter-notification measure grants OSP users the ability to contest the takedown of their content. However, studies have shown that this feature may generally be under-utilized, both in terms of overall volume and in relation to the amount of potentially invalid takedown notices that may warrant its use. Moreover, given additional evidence that submitted counter-notifications may be erroneous more often than not, this Note argues that the main issues plaguing the counter-notification system point to an overdeterrence of the wrong users—that is, users such as university professors and other educational content creators who are permissibly using copyrighted materials.
 This Note provides a more thorough examination of the issues besetting the counter-notification process, particularly with respect to its use in education. In Part I, I discuss the functionality of the counter-notification process within the greater legal and historical background of the DMCA, focusing on the unique challenges faced by educational content creators who seek to use counter-notifications on YouTube. In Part II, I discuss the tripartite problem facing counter-notification petitioners: (1) Counter-notifications are under-utilized overall; (2) counter-notifications are over-utilized by pirates for whom the educational fair use defense does not apply; and (3) the timeframe for “putting back” material is costly to users and rightsholders alike. Finally, in Part III, I propose a “First Shot” system whereby a preemptive “counter-notification” can be used to assert educational fair use and delay takedown of educational content before a rightsholder acts. The First Shot therefore substitutes for the regular counter-notification, a privilege only for educational “Fair Users.”

Pushing Back on Stricter Copyright ISP Liability Rules

For more than two decades, internet service providers (ISPs) in the United States, the European Union (EU), and many other countries have been shielded from copyright liability under “safe harbor” rules. These rules apply to ISPs who did not know about or participate in user-uploaded infringements and who take infringing content down after receiving notice from rights holders. Major copyright industry groups were never satisfied with these safe harbors, and their dissatisfaction has become more strident over time as online infringements have grown to scale. Responding to copyright industry complaints, the EU in 2019 adopted its Directive on Copyright and Related Rights in the Digital Single Market. In particular, the Directive’s Article 17 places much stricter obligations on for-profit ISPs that host large amounts of user contents. Article 17 is internally contradictory, deeply ambiguous, and harmful to small and medium-sized companies as well as to user freedoms of expression. Moreover, Article 17 may well violate the European Charter of Fundamental Rights. In the United States, Congress commenced a series of hearings in 2020 on the safe harbor rules now codified as 17 U.S.C. § 512 of the Digital Millennium Copyright Act (DMCA). In May 2020, the U.S. Copyright Office issued its long-awaited study on Section 512, which recommended several significant changes to existing safe harbor rules. The Study’s almost exclusively pro–copyright industry stances on reform of virtually every aspect of the rules notably shortchanges other stakeholder interests. Congress should take a balanced approach in considering any changes to the DMCA safe harbor rules. Any meaningful reform of ISP liability rules should consider the interests of a wide range of stakeholders. This includes U.S.-based Internet platforms, smaller and medium-sized ISPs, startups, and the hundreds of millions of Internet users who create and enjoy user-generated content (UGC) uploaded to these platforms, as well as the interests of major copyright industries and individual creators who have been dissatisfied with the DMCA safe harbor rules.

Comparison of Digital Copyright Protection on Over the Top (OTT) Streaming Content Media in Indonesia and the United States

In the rapid technological development, physical boundaries have begun to disappear. The internet has created a ‘free culture’. In addition, the era is challenging the copyright concept along with the emergence of ‘digital copyright’. It has become the main commodity of Over-the-Top services providing means of communication and entertainment through the internet. Content streaming service like Netflix uses films, as well as other cinematographic works, as its main commodities. OTT Streaming media helps to protect copyright holders' rights that previously have been violated by illegal streaming sites on the internet. Unfortunately, it also raises a new question: how digital copyright-objects can be protected in this kind of service. Without physical form, copyright object can be distributed easily on the internet, and it may lead to right violations. To answer this problem, the authors aim to describe the digital copyright protection on OTT Streaming Content Media in Indonesia and compare them to the 1998 Digital Millennium Copyright Act (DMCA) of the United States of America using a descriptive-analytical approach. This study employed a normative juridical approach with secondary data. The results of this study indicate that digital copyright protection in Indonesia is still centered on conventional copyright objects, and a sui generis law is needed to provide better protection for digital copyright objects.

Submission for the Record Regarding DMCA Reform

This is an additional statement for the record updating my initial testimony (https://ssrn.com/abstract=3694085) and responses to questions for the record (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3707237) in the Senate IP Subcommittee's ongoing consideration of reforms to the Digital Millennium Copyright Act (DMCA).

МІЖНАРОДНО-ПРАВОВИЙ ДОСВІД ЗАХИСТУ АВТОРСЬКИХ ПРАВ У ВСЕСВІТНІЙ ІНТЕРНЕТ-МЕРЕЖІ ТА ПЕРСПЕКТИВИ ЙОГО ЗАСТОСУВАННЯ В УКРАЇНІ

Наукова стаття присвячена дослідженню сучасного стану міжнародно-правового регулювання захисту авторських прав в Інтернет-мережі у перспективі його впровадження у законодавство України.
 Проаналізовано Закон США про авторське право у цифрову епоху (DMCA) від 12 жовтня 1998 року, який вважається першим у світі нормативно-правовим актом з регулювання авторсько-правових відносин у цифровому середовищі. Одним із основних принципів DMCA є забезпечення так званої «безпечної гавані» для постачальників онлайн-послуг, яка полягає в тому, що постачальник онлайн-послуг звільняється від відповідальності за розміщення інформації з порушенням авторських прав, якщо відповідає на заяву про видалення розміщеного з порушенням авторських прав контенту в найкоротший строк.
 Встановлено, що схожий принцип знайшов втілення і в Директиві 2001/29/ЄС Про гармонізацію деяких аспектів авторського права і суміжних прав в інформаційному суспільстві. Україна, спираючись на досвід США та ЄС, законодавчо закріпила порядок припинення порушень авторського права з використанням мережі Інтернет лише в 2017 році.
 Автор зазначає, що найважливіше значення для боротьби з порушеннями авторських прав в інтернеті має Директива 2019/79/ЄС Про авторські та суміжні права на єдиному цифровому ринку. Найбільший резонанс у суспільстві викликала норма ст. 17 зазначеної Директиви, якою передбачена можливість притягнення до відповідальності інтернет-платформи для обміну контентом (такі як YouTube, Vimeo тощо) за публічне надання контенту, який порушує авторські права, навіть якщо він був завантажений їх користувачами. Такий підхід є безпрецедентним зрушенням у сфері відповідальності за порушення авторських прав в інтернет-просторі.
 З метою запровадження європейського досвіду обґрунтовано необхідність продовження процесу адаптації українського законодавства в сфері захисту авторських прав до законодавства ЄС, взявши курс на посилення відповідальності інтернет-платформ обміну інформацією за публічне надання контенту, який порушує авторські права, завантаженого їх користувачами.

The Trajectories of Creative Content Protecting Law in Indonesia: Dealing with the Challenge and Advancing the Potential

The article aims at determining the legal protection of creative content uploaded by the creators through online media as well as the challenges faced by the creators in protecting their works. This research includes descriptive normative of the legal research that describes the legal protection and the challenges faced by the creators in protecting their works. The secondary data are obtained from the case file of Agency France Presse v. Morel, Decision No. 68/HC/2005/PN.Niaga.Jkt.Pst, and Decision No. 056 PK/Pdt.Sus/2010. The collection of secondary data is done through literature study. Based on the results, it can be concluded that, first , United States copyright laws and the Digital Millennium Copyright Act (DMCA) have accommodated the protection of the works uploaded through online media even though they have not been registered in the relevant institution as demonstrated by the case of Agence France Presse v. Morel. Second , the Indonesian copyright law has some similarities to the articles of the DMCA used in the case of AFP v. Morel. Referring to the case No. 68/HC/2005/PN.Niaga.Jkt.Pst, in the case the copyright of the infringing logo has not been registered and it is registered by a party who is not the actual creator, it is decided that the registration can be cancelled with evidence presented at the trial. Several challenges faced in protecting creative content include the contractual relationships between users and service providers, the absence of copyright registration, and the characters of user in digital media. The terms of service set by service providers usually non-exclusive licenses or royalty free in which they can utilise the works in accordance with the existing provisions. Keywords: Protection law, copyright, user-generated content, creative content, anti piracy.

Capitol Records v. Vimeo

In Capitol Records, L.L.C. v. Vimeo, L.L.C., the U.S. Court of Appeals for the Second Circuit held that the “safe harbor” provisions of Section 512 of the federal Copyright Act covered state law claims against an online service provider for infringement of pre-1972 sound recordings.1 The evidentiary basis for this conclusion was slender. At the heart of the decision was the court’s surmise that Congress must have intended to cover state law “copyright,” because a contrary interpretation would undermine the policy objectives of the Digital Millennium Copyright Act (DMCA). In reaching its decision, the court apparently misread the Copyright Act and misunderstood both the nature of state law protection for pre-1972 sound recordings and the trade-offs that underlay the DMCA. We submit that this holding of Vimeo should not be followed by courts in other circuits, however sympathetic its policy underpinnings may be.2 It is doubtful that Congress considered state law “copyright” claims in passing the DMCA, or that it meant to include them under § 512. As a policy matter, it probably should have done so. But had it done so, Congress almost certainly would have said so explicitly, and would have altered other provisions of the DMCA to achieve a fairer result for owners of rights in pre-1972 sound recordings than the Second Circuit did. Congress could, for example, have protected pre-1972 sound recordings under § 1201 et seq., or otherwise provided those recordings with greater protection under the Copyright Act.3 The court’s focus on only one policy objective of the DMCA led it to interpret the Copyright Act in an implausible manner that benefits online service providers (OSPs), at the expense of owners of pre-1972 sound recordings, and the unique position of those recordings under copyright law. The central issues in this case that concern pre-1972 sound recordings are more appropriately under Congressional purview, as the Second Circuit should have recognized. And indeed, Congress should act to resolve these issues, particularly now, in view of the conflicting treatment of state law claims between Vimeo (concerning the safe harbor in § 512 of the Copyright Act)4 and the Ninth Circuit’s sweeping conclusion in Perfect 10, Inc. v. CCBill, L.L.C.5 that state law intellectual property claims are barred by § 230 of the Communications Decency Act (CDA).6 Accordingly, we recommend legislation to address this issue and to resolve other problems and inconsistencies that have arisen due to the peculiar situation of pre-1972 sound recordings and federal copyright law, as discussed below. In Part I, we discuss the legal status of pre-1972 sound recordings as necessary background to evaluating the Second Circuit’s decision in Vimeo. Part II discusses that decision in greater detail, and Part III explains the flaws in the court’s rationale. In Part IV, we address the Second and Ninth Circuits’ contradictory views concerning the treatment of state law claims against OSPs under § 512 of the Copyright Act and § 230 of the CDA. In Part V, we explain that it is up to Congress to change the role of pre-1972 sound recordings in the federal copyright scheme, and argue that the time is ripe for Congress to exercise that power. We conclude in Part VI.

Copyright Anti-Circumvention & Free Trade

The article examines the contrasting implementation of Intellectual Property Organization (WIPO) Internet Treaties’ anti-circumvention obligation and its free trade implications. While the US Digital Millennium Copyright Act (DMCA)’s implementation established a brand new exclusive right of access control for rightholders, the EU’s InfoSoc Directive attempted to balance rightholder’s access control with interests of fair use beneficiaries. Examination of copyright’s private right nature shows access control in anti-circumvention finds no support from traditional theory, and actually turns copyright into a negative right in rem. Further examination on copyright limitations and exceptions shows that the anti-circumvention mechanism sits right at the centre of the dynamics between the idea-expression dichotomy, and the tension between rights and obligations. Critical examination of the circumstances of treaty conclusion of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and Internet Treaties respectively shows that neither framework’s settlements have successfully balanced rights and obligations, or private rights and public access. New development of regional trade fragmentation from Trans-Pacific Partnership (TPP), to the Anti-Counterfeiting Trade Agreement (ACTA), to the Regional Comprehensive Economic Partnership (RCEP), brings the anti-circumvention diversity further into a terrain of uncertainty. The article concludes with a call for attention to access control’s negative impact on public information access and the balance of rights and obligations.

Why the Copyright Act Expressly Preempts State-Level Public Performance Rights in Pre-1972 Recordings

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.

U.S. Copyright Law, Technology and Litigation. A National Approach and its International Consequences

U.S. copyright law is facing an interesting moment, where technology is far ahead of the law, and where the evolution of law seems to lead nowhere. This article focuses on recent technological evolution and subsequent legal developments, especially the safe harbor provisions for Internet service providers established by the Digital Millennium Copyright Act (DMCA) and its judicial interpretation. The main idea is to suggest a different direction on the evolution of U.S. copyright law. The proposal is based on a rather simple approach that would adapt copyright law to new technology. It is about redefining the red flag knowledge contained on the safe harbor provisions of the DMCA. In order to overcome opposition, the article suggests discontinuing the use of ineffective approaches.

Comparative Analysis of the Search Engine Caching Process under EU and US Copyright Laws

In fact, search engines operate as filters for the abundance of information available online; moreover, they represent the essential online techniques within the functioning of the Internet. The importance of search engines is undeniable. In fact, some of the most popular search engines such as Google, Yahoo, Bing and Ask receive billions and even trillions of requests every day. Generally, search engines can be represented as the virtual portals through which the Internet is actually experienced and online information is “properly” organized. Search engine caching is a complex process and may be viewed as a solution to the Internet congestion and traffic. It can benefit end users by providing “cached” links to the relevant information; however, it increases potential legal risk by copying protected content without authorization. This paper examines the search engines caching process and their potential liability for copyright infringement in both EU and US legal systems. The first part of the analysis will explore the general aspects and “nature” of caching process, its benefits and drawbacks for online environment. The second part will consider the potential liability of search engines and lawfulness of caching process.This paper will analyze the European Union and United States legal approaches to possible violation of copyright by search engines and “available” defenses, which can be applied to Online Service Providers (OSPs), particularly, application of Fair Use doctrine, Digital Millennium Copyright Act (DMCA) provisions, exemptions and limitations under Information Society Directive and E-Commerce Directive’s “safe harbor” provisions.

Innovation and Competition Policy, Ch. 9: The Innovation Commons

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters will be updated frequently. The author uses this casebook for a three-unit class in Innovation and Competition Policy taught at the University of Iowa College of Law and available to first year law students as an elective. This Chapter, in a revised and expanded second edition, deals with issues of IP pooling and cross licensing, blanket and package licensing, joint development ventures, standard setting, the FRAND licensing process for standards essential patents, FRAND licensing obligations, the Jan. 2013 FTC/Google settlement, and related issues relating to collaborative innovation.

Innovation and Competition Policy, Chapter 8: Innovation, IP Rights, and Anticompetitive Exclusion

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters will be updated frequently. The author uses this casebook for a three-unit class in Innovation and Competition Policy taught at the University of Iowa College of Law and available to first year law students as an elective. This document is Chapter 8, revised second edition on exclusionary practices, including refusal to license, exclusionary pricing, anticompetitive design, and technological tying. It also includes coverage of expanded sharing duties under the 1996 Telecommunications Act, as well as net neutrality and related regulations promulgated by the Federal Communications Commission.

Innovation and Competition Policy, Chapter 7: Intellectual Property Misuse

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters will be updated frequently. The author uses this casebook for a three-unit class in Innovation and Competition Policy taught at the University of Iowa College of Law and available to first year law students as an elective. This document is Chapter 7, second edition, which addresses IP misuse and related doctrines.

Innovation and Competition Policy, Ch. 10: Post-Sale and Related Distribution Restraints Involving IP Rights

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters will be updated frequently. The author uses this casebook for a three-unit class in Innovation and Competition Policy taught at the University of Iowa College of Law and available to year law students as an elective.This document is Chapter Ten, which deals with vertical contractual restraints and the first-sale (exhaustion) doctrine. Two decisions from the Oct. 2012 term have been added as principal cases. One is the Supreme Court's decision in Kirtsaeng v. John Wiley, dealing with copyright exhaustion and goods covered by U.S. copyright but manufactured abroad. The other is Bowman v. Monsanto, which considers whether the sale doctrine applies to self-replicating technologies, in this case a genetically altered seed. Relatedly we include a note on the European Court of Justice's first download doctrine, creating protections equivalent to those of the sale doctrine but for downloaded software.