Navigating the safe harbor rule: the need for a DMCA compass.

• Jurisdiction: United States
• Date: 01 January 2009
• Author: Beaty, Tiffany N.

INTRODUCTION I. HISTORICAL OVERVIEW OF COPYRIGHTS A. Early Evolution Due to Modern Technology B. Entrance of the Digital Millennium Copyright Act C. Evolution After the Digital Millennium Copyright Act II. VIDEO SHARING PHENOMENON A. YouTube B. Other Video Sharing Websites III. CURRENT LITIGATION IV. THE COLLIDE OF VIDEO SHARING TECHNOLOGY AND THE DMCA V. SOLUTIONS A. Both Parties Monitor Content B. Implement Semi-Permanent Red Flags C. Clarifications CONCLUSION INTRODUCTION

The Internet is an everyday part of life for many people--checking e-mails, doing research for work or school, getting directions, and more. In addition to these activities, which many people consider essential to their everyday lives, are other abilities of the Internet: acquiring music, reading newspapers, and watching videos. The Internet's capability to give users easy access to mass media can provide many problems in the copyright arena. Along with the ability to share information on the Internet came the ability for mass copyright infringement. (1) Who was to be held liable?

Copyright law has evolved in order to accommodate the special issues arising due to the Internet. To prevent a chilling effect on technology from copyright infringement liability, the Safe Harbor Rule was enacted. (2) This rule prevents Internet service providers (ISPs) (3) from being held liable for third party activity on the Internet. As long as the service providers follow several different rules, they will not be penalized for copyright infringement. (4) Along with protecting the ISPs, the Safe Harbor Rule allows copyright holders to contact ISPs and have them take down unauthorized copyrighted material. (5) This legislation provides a balance between the copyright owners and ISPs.

However, recent litigation brought the question of whether the Safe Harbor Rule is adequate for its intended purpose (6)--providing a balance between copyright owners and ISPs. Much of the technology causing controversy, such as video sharing, did not exist at the time Congress enacted the Digital Millennium Copyright Act (DMCA). (7) Without knowing what to expect to emerge on the Internet, Congress was not able to make provisions that sufficiently protect both the copyright holders and the ISPs. (8) As ISPs once struggled with excessive copyright infringement liability, (9) copyright holders now need more protection from the rampant copyright infringement occurring on the Internet. (10) Congress should reform, or at the very least clarify, specific sections of the Safe Harbor Rule in order to obtain its initial purpose in making the Safe Harbor Rule--to provide a balance of responsibility between the copyright owners and ISPs.

Part I of this Comment will discuss the historical overview of copyrights. It will briefly skim over the basic entry of copyrights into the legal system, and then delve into more depth about the evolution of copyrights because of technological advances.

Part II of this Comment analyzes the current phenomenon of video sharing online. Specifically, I will look at the use and policies of YouTube and several other video sharing websites and how they affect copyrights.

In Part III, I discuss current litigation that may influence the liability of ISPs in connection with the Safe Harbor Rule of the DMCA. The cases discussed will be Tur v. YouTube and Viacom v. YouTube.

In Part IV, the potential effects of the cases discussed in Part III on the DMCA are analyzed, along with the potential issues the outcomes may create in connection to copyright protection.

Part V of the Comment discusses solutions to the issues video sharing technology has caused in connection with copyrights. Among the possible solutions are having both parties monitor the content on websites, implementation of semi-permanent red flags, and legislative clarifications to the DMCA.

Finally, a brief conclusion and overview of Parts I-V is located at the end of this Comment.

1. HISTORICAL OVERVIEW OF COPYRIGHTS

   Historically, copyright law has evolved, and continues to evolve, with the changing demands of the field. Copyright originated in Venice at the end of the fifteenth century, where the government granted people exclusive rights for printing particular books; (11) England started using copyrights around 1556 with a royal decree; (12) and the United States enacted copyright laws shortly after gaining its independence. (13) Initially, the states enacted laws independently, but as conflicts between varying laws across state lines arose, the federal government enacted the first national copyright laws in 1790. (14) These copyright laws have evolved over time to what they are today and have adapted to different copyright situations throughout history. (15)

   1. Early Evolution Due to Modern Technology

      Much of copyright law has evolved and been further defined through various case law. An early modern technology case was Sony v. Universal City Studios. (16) In that case, the plaintiff brought an action against Sony alleging contributory infringement of its copyrights because Sony's Betamax allowed users to record television shows on video tapes. (17) Betamax was the first video recording device, and it caused great concern among the television industry. (18) The Court focused on the public interest in having access to items used in contributory infringement. (19) Specifically, the Court found that the sale of items that may aid contributory infringement does not constitute contributory infringement if the items are "capable of substantial noninfringing uses." (20) The Court also concluded that if a product does not have a "demonstrable effect" on the market (or potential market) for the copyright owner, it does not need to be prohibited in the market to protect the incentives to create new works. (21) The Sony decision further defined what was needed to prove contributory infringement in copyright law by stating that any possible substantial noninfringing use is a valid defense. (22)

      In addition, in Matthew Bender v. West Publishing Co., the Second Circuit Court of Appeals concluded that CD-ROMs containing information found in print are not necessarily infringing on copyrights. (23) In that case, Matthew Bender produced CD-ROMs for legal authority. (24) Among the information on these CD-ROMs was case law found on Westlaw and citations to look up the cases on Westlaw. (25) The display on the computer screen for the case also contained identical page numbers to West's books. (26) The court held that the contested information, which was the organization of the cases and use of the page numbers, was not copyrightable information. (27) Furthermore, the court upheld the Sony decision by refusing to find contributory infringement because of the noninfringing uses of the CD-ROMs. (28) In doing so, the court explained that the purpose of the Supreme Court's holding in Sony was to prevent copyright holders from controlling distribution of various products that may incidentally infringe their copyright. (29) This holding further clarified what is copyrightable and what copyrights qualify for the Sony treatment.

   2. Entrance of the Digital Millennium Copyright Act

      In 1998, Congress amended the Copyright Act with the DMCA. (30) Congress did this in response to the emergence of issues involving the Internet and copyright infringement liability, specifically involving ISPs. (31) The DMCA was established in order to ensure the continued growth of the Internet by protecting the ISPs. (32) Overall, the DMCA was a balance between protecting copyright owners and ISPs. (33) A DMCA section of significant importance is [section] 512(c), which applies to ISPs that provide storage at the direction of a user. (34) The provision does not make a service provider liable for monetary relief due to copyright infringement as long as the service provider follows several restrictions. (35) First, the ISP must not have actual knowledge of infringing material. (36) This requirement also applies to an awareness of circumstances that the infringement is apparent. (37) Essentially, general knowledge about the infringement instead of specific knowledge is enough to disqualify a service provider. Second, the ISP must not receive direct financial benefit from the copyright infringement occurring on the site. (38) An example of direct financial benefits would be advertising revenue from people visiting a specific site in order to see the copyrighted material. This revenue would be directly attributable to the infringement of another's copyright and would disqualify the ISP from DMCA protection. Finally, the ISP must respond quickly to any notifications of copyright infringements stored on the site--the ISP must remove or disable access to the material that was infringing the copyright. (39)

      The final requirement imposed on ISPs to obtain protection under the DMCA is what ultimately balanced the copyright owners' interests against the ISPs' interests. Copyright owners no longer have to take legal action to protect their copyrights, but instead have to fill out a form and send it to the ISPs with details about the copyright infringements occurring at specific locations, along with other information specified in the DMCA. (40) Although the form requires much detail, it is faster than legal action would be against the ISP.

   3. Evolution After the Digital Millennium Copyright Act

      After the enactment of the DMCA, cases that interpreted the meaning of the law followed. A prime example of technology providing a stage for new issues is A&M Records v. Napster, which occurred when music file sharing was a new phenomenon. (41) In Napster, the Ninth Circuit held that the plaintiff was liable for contributory copyright infringement because Napster had actual knowledge of direct infringement on its site. (42) The court held that it did not matter if there were some noninfringing uses of the technology and website because of Napster's actual knowledge...