Convergence and Conflation in Online Copyright

• Author: Christopher A. Cotropia & James Gibson
• Position: Dennis I. Belcher Professor of Law and Director of the Intellectual Property Institute, University of Richmond School of Law/Sesquicentennial Professor of Law, University of Richmond School of Law
• Pages: 1027-1080

1027

Convergence and Conflation in

Online Copyright

Christopher A. Cotropia* & James Gibson**

ABSTRACT: The Digital Millennium Copyright Act (“DMCA”) is showing

its age. Enacted in 1998, the DMCA succeeded in its initial goal of bringing

clarity to wildly inconsistent judicial standards for online copyright

infringement. But as time has passed, the Act has been overtaken—not by

developments in technology, but by developments in copyright’s case law.

Those cases are no longer as divergent as they were in the last millennium.

Instead, over time the judicial standards and the statutory standards have

converged, to the point where the differences between them are few. The statute

whose ascendance was once central to the governance of copyright online is

therefore now diminished in importance.

At first glance, this development seems unproblematic. After all, uniformity

was the DMCA’s goal, and convergence gets us closer to it. But a deeper look

reveals that convergence has significantly changed the cost/benefit calculus

for those whom the Act governs. The benefits of complying with the Act’s

regulatory requirements have decreased, because convergence means that one

can ignore the statute and rely solely on the case law. And the costs of

complying have increased, because convergence has pa radoxically given rise

to a new, troubling phenomenon: the mixing and matching of statutory and

judicial standards in unpredictable and counterproductive ways, which

create new, unintended forms of copyright liability and immunity. In short,

convergence has led to conflation, which means that the best course for today’s

online community is to steer clear of the DMCA altogether.

*

Dennis I. Belcher Professor of Law and Director of the Intellectual Property Institute,

University of Richmond School of Law. The authors would like to acknowledge th e considerable

help they received from Shyam Balganesh, Sandra Braman, AnneMarie Bridy, Dan Burk, Jud

Campbell, Hank Chambers, Erin Collins, Kenny Crews, Graeme Dinwoodie, Stacey Dogan, Jessica

Erickson, Dave Fagundes, Linda Fairtile, Joe Fishman, Jeanne Fromer, Kristelia Garcia, Lolly

Gasaway, Cathy Gellis, Deborah Gerhardt, Andrew Gilden, Eric Goldman, Laura Heymann, Justin

Hughes, Dmitry Karshtedt, Daphne Keller, Doug Lichtman, Lucretia McCulley, Tyler Ochoa,

Jack Preis, Jennifer Rothman, Noah Sachs, Matt Sag, Jessica Silbey, Shannon Sinclair, Scott

Tilghman, Rebecca Tushnet, Rob Tyler, Fred Yen, and Peter Yu. They would also like to thank

Brad Stringfellow for his excellent research assistance.

** Sesquicentennial Professor of Law, University of Richmond School of Law. In addition

to those acknowledged above, Jim would like to thank Jane Savoca, his safe harbor from all storms.

1028 IOWA LAW REVIEW [Vol. 105:1027

I.INTRODUCTION ........................................................................... 1028

II. CREATION ................................................................................... 1030

A.COURTS ................................................................................ 1030

B.CONGRESS ............................................................................. 1036

1.The Road to Legislation ............................................. 1036

2.The DMCA’s Structure ............................................... 1038

i.The “Access” Safe Harbors ....................................... 1038

ii.The “Transmission” Safe Harbor ............................. 1041

iii.The Best-Practice Thresholds .................................... 1046

3.The DMCA’s Lacunae ................................................. 1047

III.CONVERGENCE ............................................................................ 1049

A.THEORETICAL PATHS OF CON/DIVERGENCE ............................ 1050

B.PRACTICAL OPPORTUNITIES FOR COMMON-LAW

DEVELOPMENT ...................................................................... 1052

C.CONVERGENCE IN THE CASE LAW ........................................... 1054

1.Findings of No Liability .............................................. 1054

i.Direct Infringement Convergence .............................. 1054

ii.Secondary Infringement Convergence ........................ 1057

2.Findings of Liability .................................................... 1060

IV.CONFLATION ............................................................................... 1066

A.REDUCED BENEFITS ............................................................... 1066

B.CONFLATIONARY COSTS ......................................................... 1067

1.BMG v. Cox: New Liability ........................................... 1067

2.Ventura Content v. Motherless: New Immunity ............. 1074

C.REAL-WORLD EFFECTS OF CONFLATION .................................. 1077

V.CONCLUSION .............................................................................. 1079

I. INTRODUCTION

The Digital Millennium Copyright Act1 (“DMCA”) is the most important

piece of copyright legislation of the last 40 years. Enacted in 1998, the DMCA

did many things, but its hallmark achievement was to immunize the routine

operations of online service providers from (most) liability for copyright

infringement.2 By doing so, the Act used statutory law to create national

1. Digital Millennium Copyright Act, Pub. L. No. 105-304, § 1, 112 Stat. 2860, 2860 (1998); see

also JESSICA LITMAN, DIGITAL COPYRIGHT 143 (2001) (discussing in detail the creation of the DMCA).

2. See Lital Helman & Gideon Parchomovsky, The Best Available Technology Standard, 111

COLUM. L. REV. 1194, 1195–96 (2011) (“Not surprisingly, the congressional solution represented

a compromise between the demands of the content industries to impose liability on internet

intermediaries and the pleas of the internet industries to afford them sufficient breathing room

2020] CONVERGENCE AND CONFLATION 1029

uniformity, replacing judicial standards that varied greatly from jurisdiction

to jurisdiction and paving the way for the user-content platforms that

dominate modern culture and commerce.3 It is no exaggeration to say that

YouTube, Facebook, and the like might not exist were it not for the rise of the

DMCA.4

What the Act did not do, however, was set the standards for online

copyright infringement. Instead, it established four safe harbors—telling us

what conduct did not infringe copyright, rather than telling us what conduct

did infringe.5 Federal courts therefore retained considerable power to define

what actually constituted infringement online.6 When a service provider’s

conduct fell within a safe harbor, a court could still find infringement,

because the safe harbor merely limited the available remedies rather than

providing absolute immunity.7 The inverse was true as well: Conduct that fell

outside a safe harbor would not qualify as infringing unless the courts said so.8

What this meant is that even after passage of the legislation, courts were free

to fashion liability standards that favored service providers or copyright

owners, as they saw fit.

Nevertheless, over the past 20 years courts have declined this

opportunity. No independent case law of online copyright infringement has

developed. Instead, the judicial standards and the statutory standards have

converged. The case law’s standards for liability have become the mirror

image of the safe harbor standards for immunity. In other words, when a

service provider is liable for copyright infringement, it also fails to fall within

to operate and grow.”); see also Niva Elkin-Koren, Making Technology Visible: Liability of Internet

Service Providers for Peer-to-Peer Traffic, 9 N.Y.U. J. LEGIS. & PUB. POL’Y 15, 17 (2005) (“The safe

harbor regime provided ISPs with a shield that mostly kept them out of copyright wars.”).

3. See Matthew Sag, Internet Safe Harbors and the Transformation of Copyright Law, 93 NOTRE

DAME L. REV. 499, 510 (2017) (“As the term ‘safe harbor’ suggests, Title II of the DMCA was

intended to offer legal certainty to internet service providers and online platforms if their

conduct stayed within certain parameters.”).

4. See, e.g., id. at 504–05 (“The DMCA safe harbors have been a tremendous benefit to the

U.S. copyright system and to the U.S. economy. . . . [T]he internet safe harbors have propelled

the growth of social networking and other ‘Web 2.0’ businesses.”); Edward Lee, Decoding the

DMCA Safe Harbors, 32 COLUM. J.L. & ARTS 233, 269 (2009) (“[T]he DMCA safe harbors have

helped to foster tremendous growth in web applications.”).

5. See 17 U.S.C. § 512(a)–(d) (2012) (defining the substantive requirements for falling

within one of the four the safe harbors).

6. H.R. REP. NO. 105-796, at 73 (1998) (“Section 512 is not intended to imply that a service

provider is or is not liable as an infringer either for conduct that qualifies for a limitation of

liability or for conduct that fails to so qualify. Rather, the limitations of liability apply if the

provider is found to be liable under existing principles of law.”).

7. See 17 U.S.C. § 512(j) (allowing for injunctive relief even against service providers who

qualify for immunity under one of the safe harbors).

8. See id. § 512(l) (noting that “[t]he failure of a service provider’s conduct to qualify for

limitation of liability under this section shall not bear adversely upon the consideration of a

defense by the service provider that the service provider’s conduct is not infringing unde r this

title or any other defense”).