Section 512 of the Digital Millennium Copyright Act: User Experience and User Frustration

Author:Emily M. Asp
Position:J.D. Candidate, The University of Iowa College of Law, 2018; B.A., Oberlin College, 2013
Pages:751-783
SUMMARY

The DMCA was created at a time when the internet was still relatively new. One of the most important sections of the DMCA is section 512, which provides a safe harbor from liability to internet service providers when their consumers post copyright-infringing material on their websites. Because of section 512, copyright owners who find potentially infringing content on the internet can petition... (see full summary)

 
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751
Section 512 of the Digital Millennium
Copyright Act: User Experience and User
Frustration
Emily M. Asp*
ABSTRACT: The DMCA was created at a time when the internet was still
relatively new. One of the most important sections of the DMCA is section
512, which provides a safe harbor from liability to internet service providers
when their consumers post copyright-infringing material on their websites.
Because of section 512, copyright owners who find potentially infringing
content on the internet can petition service providers to take down the content.
While this has protected many websites and allowed for innovation on the
internet, it has been detrimental to consumers. A lack of clarity in the statute
combined with dramatic changes in how the internet is accessed and used
have created significant problems that go to issues of free speech, privacy, and
due process. This Note proposes that Congress amend the DMCA to simplify
the language of the statute and to require that service providers give more
information to consumers to inform them both of their rights and the nuances
of the counter-notification process. While some internet service providers are
taking preliminary steps in this direction, the most comprehensive plan has
been implemented by P2P file sharing websites. These sites have worked with
copyright holders to create a system that promotes knowledge and
understanding as well as providing ample time for consumers to correct their
behavior prior to removing them from the site entirely. I believe this is the
proper approach to bring the law into the 21st century and to protect average
consumers.
I.INTRODUCTION ............................................................................. 752
II.HISTORY AND ITS IMPACT ON THE DMCA ..................................... 755
*
J.D. Candidate, The University of Iowa College of Law, 2018; B.A., Oberlin College,
2013. I would like to thank my friends and family for their support and the Iowa Law Review for
helping me through the publication process. I would also like to extend a special thank you to
my fiancé, Nick Balay, and to my cats, Charlie and Mac. Thanks for everything. Y’all are the best.
752 IOWA LAW REVIEW [Vol. 103:751
A.A BRIEF HISTORY OF UNITED STATES COPYRIGHT LAW IN
THE 20TH CENTURY ................................................................ 755
B.PASSAGE OF THE DIGITAL MILLENNIUM COPYRIGHT ACT .......... 758
C.NOTICE AND TAKEDOWN .......................................................... 761
III.RAPID INTERNET INNOVATION AND EXPANSION AND ITS
IMPACT ON THE AVERAGE CONSUMER .......................................... 763
A.RAPID INNOVATION AND THE INCREASINGLY INEFFECTIVE
DMCA ................................................................................... 764
B.FLAWS IN SECTION 512 OF THE DMCA .................................... 767
1.Who’s In and Who’s Out .............................................. 767
2.Problems with Notice & Takedown ............................. 769
3.Problems with Counter Notification ............................ 770
C.HOW HAS THE DMCA IMPACTED CONSUMERS
GENERALLY? ..................................................................... 773
1.User Impact Surveys: What the Limited Data
Tells Us ........................................................................... 774
2.User Frustration and User Acquiescence .................... 774
IV.WHERE TO GO FROM HERE ........................................................... 776
A.CHANGE THE STATUTE TO ALLOW FOR GREATER
TRANSPARENCY ....................................................................... 777
B.REQUIRE ISPS TO PROVIDE INFORMATION AND RESOURCES
TO THEIR CONSUMERS ............................................................. 780
C.BRING CONSUMERS INTO THE NARRATIVE ................................ 782
V.CONCLUSION ................................................................................ 782
I. INTRODUCTION
The Digital Millennium Copyright Act (“DMCA”) is simultaneously one
of the most important and the most divisive laws of the past 20 years. Writers
have heralded it as both “the law that saved the web”1 and “a law that is one of
the biggest threats to free speech online.”2 Congress passed the DMCA to
protect copyrights from excessive infringement on the internet.3 At the same
time, Congress sought to protect nascent websites, allowing them to innovate
without fear of excessive copyright infringement litigation.4 Of the five
1. David Kravets, 10 Years Later, Misunderstood DMCA is the Law that Saved the Web, WIRED
(Oct. 27, 2008, 3:01 PM), https://www.wired.com/2008/10/ten-years-later.
2. KEMBREW MCLEOD, FREEDOM OF EXPRESSION: RESISTANCE AND REPRESSION IN THE AGE
OF INTELLECTUAL PROPERTY 213 (2007).
3. See S. REP. NO. 105-190, at 8 (1998) (discussing the balance between limiting the liability
of ISPs while simultaneously protecting copyrights “against massive piracy”).
4. Id.
2018] DIGITAL MILLENNIUM COPYRIGHT ACT 753
sections of the DMCA, one of the most complex and contentious5 is Title II,
codified at 17 U.S.C. § 512, otherwise known as the Online Copyright
Infringement Liability Limitation Act.6 When it was passed, Congress hoped
the law would endure for years and that its presence would both stimulate
economic growth and protect the rights of innovators and creators for years
to come.7 Yet despite these lofty sentiments, the DMCA has not only failed to
keep up with massive changes in technology, but it has also left behind a
group that has been affected the most by its provisions: the average
consumer.8
With more than 3.7 billion connected to the internet in 2017,9 almost
half of the people on earth could be considered “average consumers.”10 Each
of these 3.7 billion people is either directly or indirectly affected by Section
512 of the DMCA.11
Section 512 seeks to limit an Internet Service Provider’s (“ISP’s”)12
liability for when its “subscribers” (whom I will refer to as “consumers”) post
content that infringes a valid copyright.13 When a copyright holder finds
content that she believes infringes on her copyrights, she can submit a notice
that requires an ISP to take down the infringing content.14 While this has
protected many nascent websites like YouTube and Myspace,15 it has also led
to a significant amount of potential free speech suppression.16 This “notice
5. See discussion infra Part B.
6. Online Copyright Infringement Liability Limitation Act, Pub. L. No. 105-304, sec. 201–02,
112 Stat. 2877 (1998) (codified as amended at 17 U.S.C. § 512 (2006)).
7. See 144 CONG. REC. 9235 (1998) (statement of Sen. Leahy) (“[I]n voting for this legislation,
[senators] will be voting to maintain the intellectual leadership of the United States.”).
8. The “average consumer” or the “consumer” in this Note refers to a person, organization,
or company that is not a copyright holder or an internet service provider (“ISP”) who uses ISPs
to access content, but to also, in some cases, create their own content.
9. Internet Users, INTERNET LIVE STATS, http://www.internetlivestats.com/internet-users
(last visited Oct. 24, 2017).
10. Id.
11. See 17 U.S.C. § 512 (2012).
12. An ISP is d efined in section 512 as both “an entity offering the transmission, routing, or
providing of connections for digital online communications, between or among points specified
by a user, of material of the user’s choosing, without modification to the content of the material
as sent or received[,]” and “a provider of online services or network access, or the operator of
facilities therefor.” 17 U.S.C. § 512(k)(1) (2012). Both definitions are used to define an ISP in
the sections at issue in this Note.
13. Id. § 512(a)–(d).
14. Id. § 512(b)–(d).
15. Kravets, supra note 1.
16. See, e.g., MARJORIE HEINS & TRICIA BECKLES, WILL FAIR USE SURVIVE? 24–27, 36 (2005)
(discussing the chilling effect of the DMCA on classroom experiences, especially its effect on
student web-building classes. Notes one professor, “I’m really confused because what if they put
up this great [student made web] site, and it’s all re-purposed content that they had no
permission to use? Is my school going to be liable for this?”); JENNIFER M. URBAN ET AL., NOTICE
AND TAKEDOWN IN EVERYDAY PRACTICE 95–97 (2016) (discussing a study showing that one in

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