Neighborhood Watch: the Negation of Rights Caused by the Notice Requirement in Copyright Enforcement Under the Digital Millennium Copyright Act

• Publication year: 2003

SEATTLE UNIVERSITY LAW REVIEWVolume 26, No. 4SPRING 2003

Neighborhood Watch: The Negation of Rights Caused by the Notice Requirement in Copyright Enforcement Under the Digital Millennium Copyright Act

Colin Folawn(fn*)

Unlike traditional media that limit and pre-censor the content of information disseminated to the public, the Internet could become the digital equivalent of the classic agora where public debate, artistic creativity, and cultural diversity coexist with commercial transactions. Realization of that possibility depends on our ability to strike an equitable balance between the public interest in access to works and rightholders' ability to profit from their investments in producing such works. -Deborah Tussey(fn1)

I. Introduction

This Comment discusses the problems inherent in the notice requirement(fn2) of the Digital Millennium Copyright Act (DMCA),(fn3) which requires copyright holders to notify Internet Service Providers (ISPs) before they are required to remove infringing material from a server or investigate a copyright infringement incident. Although some copyright holders(fn4) have sufficient resources to detect infringement and enforce their rights through the DMCA, the structure of the notice requirement represents a heavy burden to stakeholders like independent copyright holders. Because they are unable to effectively enforce copyrights, independent copyright holders experience a negation of rights.

Additionally, the substantial compliance standard is confusing because the courts do not seem to understand how to balance the competing interests as Congress intended. As will be discussed later, one recent memorandum opinion offers hope for sorting out these interests properly.(fn5) To recalibrate the balance of these competing interests, Congress should consider the metaphor of a neighborhood in regulating Internet copyrights.

The Neighborhood Watch Program was developed by the National Crime Prevention Council (NCPC) to detect and prevent crime, but it was also meant to strengthen communities by empowering residents to take active roles in protecting themselves.(fn6) After the September 11, 2001 terrorist attacks, the Program has taken on a new relevance, and the NCPC is addressing the epidemic of fear by expanding the number of participating neighborhood groups.(fn7) Strangely enough, the Internet,(fn8) a neighborhood of its own,(fn9) does not have a cognate to the Neighborhood Watch Program, even though an epidemic of its own, in the form of copyright infringement(fn10) and other criminal activity,(fn11) has been taking place for years. Although the DMCA(fn12) was a step in the right direction (albeit initiated by private interests),(fn13) it failed to adequately address the concerns of independent copyright holders,(fn14) who are unable to maintain their rights. Equally concerning is the difference of opinion among the courts in determining how strict compliance with the notice requirement should be.(fn15)

At first glance, the notice requirement(fn16) of the DMCA seems to correctly place the burden on the copyright holders because, as owners or authors of the work, they are the beneficiaries of copyright protection, and they are best able to identify instances of infringement. However, after examining the nature of modern file sharing software and recent case law, it becomes clear that the resources required to find infringement on the Internet and to create this notice are overly burdensome to independent copyright holders.

The problem of unauthorized file sharing via the Internet is seen clearly in the realm of digital music.(fn17) The advent of file compression technology,(fn18) combined with the increasing popularity of broadband Internet service,(fn19) enables large amounts of copyrighted content to be shared with the world quickly, without the permission of the copyright holder and in violation of their copyrights. With the creation of online services like Napster,(fn20) the problem of music piracy grew large enough to receive the significant attention of the Recording Industry Association of America (RIAA), because millions of Internet users illegally shared millions of files on a daily basis.(fn21) Although the Napster network no longer functions as it once did, copyright infringement continues through peer-to-peer (P2P) technology, and the problem remains.(fn22) Without an adequate enforcement model, the neighborhood of the Internet will continue to be plagued by criminal copyright infringement.

Additionally, the DMCA was the result of a legislative process that pandered to private interest groups like the RIAA and the ISP industry, rather than considering the rights of individual copyright holders.(fn23) This is evidenced throughout copyright law, where certain forms of expression are arbitrarily given protection, and others are excluded. For example, there is no rational reason that the Copyright Act of 1976 needed to protect an exclusive right to public performance for digital audio transmission, but not digital video transmission.(fn24) One of the resulting problems was the inequitable burden placed upon independent copyright holders to protect their copyrights. Under the DMCA, ISPs and Online Service Providers (OSPs) have no duty to search for infringing activities until they receive notification from the copyright holder or her designee.(fn25) Because these important considerations seem to have been neglected in the DMCA, this Comment proposes that the initial burden of locating infringement of copyrighted music over the Internet(fn26) should be shared between independent copyright holders and ISPs.(fn27) Independent copyright holders qua enforcing authorities are ill-equipped to meet the challenge of investigating unauthorized file sharing on the Internet. Instead, the DMCA should have been structured as to encourage cooperation among the various Internet stakeholders, not unlike the well-known Neighborhood Watch Program.(fn28) Finally, this Comment proposes that the government should not play a monitoring role, because it is institutionally incompetent to monitor the entirety of the Internet, and such an effort would likely be viewed as an unacceptable violation of consumer privacy.

The Proposal in this Comment may be more applicable to OSPs than it is to ISPs. For the purposes of the DMCA and the Proposal, the most important distinction is in the function they provide to Internet users and their role in maintaining the Internet. The DMCA defines a service provider, for the purposes of subsection (a), as "an entity offering the transmission, routing, or providing 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."(fn29) Simply put, ISPs provide consumers with service in the form of access to a network. The DMCA provides a second definition of service provider, applicable to all other subsections: "[A] provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A)."(fn30) At a minimum, OSPs do not supply access to the Internet itself, but they create services that can be reached through a pre-existing Internet connection. At the most, OSPs provide both online services and Internet access. Businesses that exist on the Internet add value because they create spaces of communication or commerce on the Internet, but they are generally much smaller in scope than ISPs. Nicholas Negroponte might refer to this distinction as the difference between the selling of access and the selling of bits themselves.(fn31)

Part II of this Comment explains why the DMCA was created, beginning with a brief discussion of modern copyright justifications. Part III lays out the mechanics of the notice requirement and the safe harbor protection for ISPs. Part IV focuses on inconsistencies among the courts and the enforcement dilemma posed by the DMCA. Part V proposes a different standard for the initial notice, encouraging ISPs to work cooperatively with independent copyright holders. This part includes a preview of services and software that exist and that are being developed to ease the burden of finding and managing digital content. Finally, Part VI analyzes the benefits and burdens created by the Proposal and addresses possible counterarguments that would likely be posed by the various stakeholders, and Part VII presents concluding remarks.

II. Background and Purpose of the DMCA

A. Copyright Law and the Internet

The law surrounding copyright infringement applies to activity within the Internet neighborhood because copyright does not depend on the environment in which a work exists. Intellectual property, some of which is protected by copyright law, is often referred to as a "bundle of exclusive rights."(fn32) For copyright, the bundle includes exclusive rights to reproduce the work,(fn33) to distribute copies of the work,(fn34) to create derivative works,(fn35) and to perform or publicly display the work.(fn36) While the bundle of rights may change depending on the nature or character of the owned subject, these rights would not necessarily change simply because the work can be disseminated over a network.(fn37) After all, references to works in the Copyright Act of 1976 focus on the creation and...