The Digital Millennium Copyright Act: disabusing the notion of a constitutional moment.

• Author: Fox, Adam R.

1. INTRODUCTION

   The Digital Millennium Copyright Act (1) ("DMCA") has been characterized as "represent[ing] the most comprehensive reform of United States copyright law in a generation." (2) It implemented two 1996 treaties executed under the auspices of the World Intellectual Property Organization, (3) and addressed a number of other significant issues relating to the modernization of copyright protection. (4) In consequence of these sweeping changes, when the DMCA was signed into law it had already garnered a reputation as more than one of many manifestations of normal legislation, and was instead characterized as the trigger of"serious constitutional concerns." (5)

   Among other things, scholars have criticized the DMCA for providing Internet Service Providers ("ISPs") with a safe harbor from liability if the ISPs remove allegedly infringing material from websites hosted on their systems upon receiving notice of the infringement. (6) These critics opine that ISPs may act to comply with accusations so zealously that they threaten to engender a countervailing infringement of the First Amendment rights of web page owners and ISP customers. (7) Some defenders of the DMCA, disagreeing with the contention of unconstitutionality, maintain that it is a revolutionary legal reform up to the task of enforcing copyright in the Digital Age. (8) Both positions are exaggerations. No constitutional moment has taken place.

   A study of history discloses that the issues that have previously resulted in true constitutional change, despite formal Article Five(9) compliance, surface only during periods of crisis as long-standing legal dogmas are shaken and challenged by intense debate and escalating electoral mandates from an unusually engaged citizenry, (10) Consider two examples. First, the Reconstruction Amendments (11) were the final product of decades of political debates that culminated in the bloodiest conflict in American history and the near-destruction of the Union. (12) Although certain southern delegations were excluded from congressional participation, rendering the Amendments of dubious Article Five authority, (13) the public repeatedly gave large electoral mandates to the Republicans in support of political equality with a nationalist center, and today the Reconstruction Amendments are unquestionably part of the constitutional fabric that governs this nation. (14)

   Second, following Reconstruction, the emerging Industrial Revolution and its impact on the American worker led to ubiquitous state legislative actions to provide constitutional and statutory rights in the form of workers' compensation laws, and ultimately culminated in mandates for regulatory-minded state and federal governments, permanently altering the constitutional interpretation of the substantive freedom of contract. (15) In this instance, Article Five was even more blatantly disregarded, as a Supreme Court threatened by unconventional reform revisited and rejected Lochner v. New York (16) and its progeny, signaled by the "switch in time" of Justice Roberts in West Coast Hotel Co. v. Parrish (17) and other New Deal cases. (18) Despite the total absence of Article Five compliance, the rejection of the Lochner era's interpretation of the freedom of contract is well established in modern law. (19)

   The DMCA, despite its ambitious moniker and much fanfare, presents no such concern for the hypertextualist who believes constitutional reform must follow Article Five procedures. Instead, the DMCA is a particularly unambitiously-drafted piece of legislation and a relatively inadequate attempt to bring copyright protection in line with the ability of modern technology to promulgate inexpensive and potentially worldwide copyright infringement. (20) Accordingly, when addressing the import of this statute, the appropriate focus for the legal community--scholars, jurists and the practicing bar alike--is to use it as the starting-point to adapt nineteenth-century copyright concerns to twenty-first century technology.

   The recent Napster decision (21) may have triggered some heightened public interest and debate on the issue in general, (22) but until that debate gains in breadth, depth and variety of expression, the DMCA is nothing more than another piece of legislation and should be treated as such within the legal community.

   Part II of this article examines the nature of the Internet's revolutionary impact on copyright law generally, and the DMCA's attempt to address some of the noted concerns. Part III compares the DMCA as a response to the Digital Age to the constitutional creativity during Reconstruction, and the Industrial Revolution and New Deal. Part IV then assesses these observations from a practical perspective with an aim toward providing the practicing bar with guidelines to effectively counsel ISPs to comply with the DMCA scheme, without permitting them to become vulnerable to litigation raising constitutional concerns, and to offer suggestions for protecting the public good.

2. THE TECHNOLOGY, THE ACT AND THE "CRISIS"

   1. The Technology

      It has been apparent for some time that "copyright law, digital electronic fixation, and telecommunication are on a collision course." (23) "The higher transmission speeds and storage capaci[ty] of modern technology[,]" and the networking of that technology via the Interact, are continually "decreasing the cost[s] of duplicating and disseminating information[] below economically prohibitive [levels]." (24) These changes have made it impractical (and too costly) for most copyright owners to proceed directly against individual infringers. (25)

      An understanding of the scope of the problem can be appreciated by a visit to an Internet site called "Pokemon[TM] World," (26) hosted by Nintendo of America. This site generally promotes the sale of video games and other commercial products incorporating its popular Pokemon[TM] characters. In furtherance of this objective, the site contains a "Downloads" (27) page that provides "desktop wallpaper" images that site visitors are encouraged and instructed how to borrow for use on their own Internet sites, and thereby promote the official Pokemon[TM] site. (28)

      The trouble for Nintendo, and for all entities that either display copyrighted images on their web pages or provide hosting services to others that do so, is that the identical methods for borrowing expression that has been authorized for that purpose can also be used for unlawfully appropriating copyrighted works. (29) Users can then disseminate those works through electronic mail messages, post them on other Internet sites, or print them for storage or distribution with a few simple clicks of a mouse. (30)

      The Napster phenomenon provides an even more potent example because it deals with allegations of the active facilitation and encouragement of copyright infringement. The Napster site (31) indeed promotes the sharing between its visitors of digitally-compressed music files by providing, free of charge, "MusicShare" software that allows users to upload, download and search for music files on the Internet. (32) Apart from the MusicShare software, and unlike the licensed images on the "Pokemon[TM] World" site, Napster, Inc., the corporation behind the Napster site, claims no proprietary rights in the music files shared by its visitors. (33)

      The scope of the copyright infringement apparently facilitated by Napster is staggering. In a much-publicized lawsuit brought against the company by various large copyright owners, the district court found that the roughly 75 million Napster users were swapping as many as 10,000 music files per second. (34) A year of such use, discounting the continued increase of the number of Napster users, would result in over 300 billion discrete acts of copyright infringement. Proceeding against each individual who directly infringes a copyright owner's exclusive right is clearly burdensome. How, for example, could A & M Records seek and enforce judgments against billions of infringing acts involving millions of individual defendants? In response to this obstacle, in recent years litigants seeking to enforce their copyrights have increasingly made efforts to persuade courts to hold ISPs liable for their indirect contribution to the infringements committed by others. (35)

   2. The Act

      When Congress amended copyright law in 1998, it had an opportunity to directly address the issue of contributory infringement by ISPs. Instead, Congress included in the DMCA only a tacit recognition of the validity of the practice by creating standards by which ISPs could avoid liability. It did not set forth a standard for determining when or how liability should be imposed. (36)

      Title II of the DMCA, also known as the Online Copyright Infringement Liability Limitation Act, (37) accordingly addressed the important issue of contributory infringement in a manner wholly inadequate to the task of protecting proprietary expression in cyberspace. Instead of providing real answers to the question of ISP liability and the more fundamental issue of authorship's future, this portion of the DMCA effectively diluted protections for intellectual property rights by placing private parties with no direct interest in the copyrighted expression in the first line of enforcement.

      Specifically, the DMCA created four "safe harbors" protecting ISPs from claims brought by copyright holders. The first safe harbor shields ISPs that maintain a system that provides merely a waystation or conduit by which users transmit infringing materials without the knowledge, active participation or modification by the ISP. (38) The second safe harbor protects ISPs whose systems merely store infringing materials temporarily to facilitate information transfers between users. (39) The third deflects liability when an ISP is used to store infringing materials without the ISP's knowledge, provided that the ISP promptly removes such materials upon notification...