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
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).
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