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

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