I actually remember when the Digital Millennium Copyright Act became law, back in October 1998. I was working in-house for Micron Electronics, and we had just completed the acquisition of a Los Angeles-based Web hosting company. The Web hosting company became my client, and there was much confusion in the industry about copyright generally and about online infringements specifically. Whom did you sue — the infringer? The Web host? Both? My new client was receiving many cease and desist letters from copyright owners, despite the fact it was merely a passive conduit for (allegedly infringing) content posted by its customers.
So when President Clinton signed the Act into law, there was a sigh of relief in both the Web hosting industry and the entertainment industry — which, admittedly, much of the Act sought to protect. The Act, in relevant part, offered guidance regarding online copyright infringements and created mechanisms to address them quickly and economically. Indeed, one of the most striking features of the DMCA is the “take-down notice” created by 17 U.S.C. Section 512(c)(3). This provision permits someone with a good-faith belief that infringing content resides online to prepare a complaint, under penalty of perjury, and send it to the implicated “service provider” (a defined term under the DMCA).
If the complaint is in correct form, the service provider may escape liability for monetary damages in any subsequent copyright infringement litigation by expeditiously removing or disabling access to the allegedly infringing content from its network or servers — thereby creating a de facto injunction in favor of copyright owners without their having to go to court. A corollary provision allows a court to easily issue a pre-filing subpoena for the putative copyright plaintiff to serve on a service provider, ostensibly to permit identification of the alleged infringer.
This was (and is) a big deal. I was the guy who received the take-down notices and subpoenas from aggrieved copyright owners around the world on behalf of my Web host client, and in the first three years after its enactment, I received several hundred such documents. Now, at that rate, and combined with my other tasks servicing my in-house clients, I did not have time (nor did the Act require me) to substantively analyze each take-down notice under copyright law precepts. If the take-down notice was in the form required by 17 U.S.C. Section 512(c)(3), the most risk-averse course was simply to remove the content. The Act, after all, did have some mechanisms in place to protect against abuses of the de facto injunction, and so in 99 percent of cases, I simply caused the content to be removed.
Fast forward 15 or so years, and it has been interesting to watch recent developments regarding the DMCA. As one might expect, despite built-in protections against abuse, the de facto injunction and pre-filing subpoena provisions have been aggressively employed by so-called copyright “trolls” to swamp service providers like YouTube and Verizon.
But service providers are fighting back, and the courts are responding. For example, on Sept. 14, the Ninth Circuit held in in Lenz v. Universal Music Corp. that under the DMCA, copyright holders must consider in good faith whether allegedly infringing material constitutes fair use before sending a take-down notice.
I personally believe that that has always been true by virtue of the mandate in 17 U.S.C. Section 512(c)(3)(A)(v) that “the complaining party [must have a] good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law[,]” but it is nice to see a court opine on the topic.
Similarly, Verizon recently sought to strike certain DMCA subpoenas served on it by porn company and copyright owner Malibu Media, asserting that the subpoenas are defective and unenforceable. Another provision of the DMCA that prevents circumventing copy-protection technology has also recently come under attack as allowing so-called “secret code.” Note that such code was purportedly the reason Volkswagen engineers were allegedly able to fool emissions tests protocols. Certain commentators have noted that if third parties had been able to legally circumvent the copy protections built into the code, the alleged issues with the VW code would have been discovered long ago.
So for the moment, the DMCA as enacted remains law, but recent events teach that it may be time for an overhaul or at least a tune-up of certain key provisions.
Brad Frazer is a partner at Hawley Troxell, where he practices Internet law, publishing law and copyright law. He is a published novelist and a frequent author of Internet content. He may be reached at [email protected] A version of this column originally appeared in Idaho Business Review, sister publication to The Daily Record.