Since passage in 1998 of the Digital Millennium Copyright Act, Pub. L. 105-304, media companies like Sony, Disney, Comcast and others have issued DMCA take down notices to remove online content from sites hosted by service providers, primarily YouTube. The DMCA was enacted to help both content creators and hosts by providing a safe harbor provision for hosts who rely on user-generated content and who do not provide content themselves. Since it is impossible for YouTube to police all user-uploaded content themselves, it would be unfair to make YouTube liable for infringing material on their site. Before passage of the DMCA, copyright infringement on a website might result in the website being liable, which could lead to putting platforms like YouTube out of business. The DMCA was codified in Title 17 of the US Code. The safe harbor in 17 USC 512 protects the rights of copyright holders while providing protection for content service providers. If a copyright holder alleges infringement in a video on the site like YouTube, it has to take down that video immediately. There is no appeal process, as YouTube is not in a position to look at the validity of each take down notice because of time constraints. If this process is followed, the law gives safe harbor protection for the content service provider.
With aggressive policing of potential copyright infringement, media companies use automated software that ignores fair use rights often misidentifying music and videos as copyrighted. Another controversial section of the DMCA aims to protect against copyright infringers who employ tools that enable them to circumvent access controls that protect a copyright holder, 17 USC 1201 prohibits the use of tool to “circumvent a technological measure” like those that descramble a scrambled work, decrypt an encrypted work, or otherwise impair a technological measure, without the authority of the copyright owner.
Provisions of the DMCA dealing with both take down notices and the “anti-circumvention” rule now face legal challenges that may lead to review by the US Supreme Court. The take down provisions were the subject of a federal appeals court decision in Lenz v. Universal Music Corp., 801 F. 3d 1126 (9th Cir., 2015). Plaintiff posted on YouTube a home video of her children dancing to Prince’s song “Let’s Go Crazy”. Universal Music Corporation sent YouTube a DMCA take down notice claiming that Lenz’s video violated their copyright in the song. Lenz claimed fair use of the copyrighted material and sued Universal for misrepresentation of a DMCA claim. The district court in Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150 (N.D. Cal., 2008) rejected a motion to dismiss the claim, and held that Universal must consider fair use when filing a take down notice, but noted that to prevail a plaintiff would need to show bad faith by a rights holder. The 9th Circuit affirmed, holding that while fair use arises procedurally as an affirmative defense, copyright holders have a “duty to consider—in good faith and prior to sending a take down notification—whether allegedly infringing material constitutes fair use”. This week, the Electronic Frontier Foundation filed a petition with the Supreme Court, arguing that this standard rendered fair use protections against the DMCA “all but meaningless.”
As for the 17 USC 1201 prohibition on anti-circumvention tools, the EFF filed a complaint in the US District Court for the District of Columbia challenging its constitutionality claiming the section restricts people’s ability to access, use, and even speak out about copyrighted materials. The “Digital Rights Management” provision of the law bans activities that weaken copyright access-control systems, including re-configuring software-enabled devices. This imposes a legal cloud over the rights to tinker with or repair devices, to convert or remix videos, or conduct independent security research to reveal dangerous security flaws in computers. If the complaint succeeds, one of the most controversial technology laws will be struck down. Other countries that have been pressured by the US trade representative to adopt this rule will decide whether they will still enforce it, even after the US has given up on it.
Brooklyn Law School Library has a large collection of material on copyright including the 3d edition of Copyright Law for Librarians and Educators by Kenneth D. Crews (Call No. KF2995 .C74 2012) with 18 discrete areas of copyright, including specialized and controversial music and sound recording issues. The easy-to-use guide has tools that information professionals need to take control of their rights and responsibilities as copyright owners and users.
