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«COBIA J. THE DIGITAL MILLENNIUM COPYRIGHT ACT TAKEDOWN NOTICE PROCEDURE: MISUSES, ABUSES, AND SHORTCOMINGS OF THE PROCESS. MINN. J.L. SCI. & TECH. ...»

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COBIA J. THE DIGITAL MILLENNIUM COPYRIGHT ACT TAKEDOWN NOTICE PROCEDURE:

MISUSES, ABUSES, AND SHORTCOMINGS OF THE PROCESS. MINN. J.L. SCI. & TECH.

2009;10(1):387-411.

Note

The Digital Millennium Copyright Act Takedown Notice

Procedure: Misuses, Abuses, and Shortcomings of the

Process

Jeffrey Cobia∗

The takedown procedure provision of the Digital

Millennium Copyright Act of 1998 (“DMCA”) was designed to

balance the rights of copyright holders online with the rights of hosts who have no responsibility for, or knowledge of, thirdparty material. However, the DMCA fails to provide adequate protections and does not achieve this desired balance between copyright holders and hosts.

This Note delineates the shortcomings of the DMCA takedown procedure and provides possible solutions to these problems. To understand these shortcomings, it is necessary to have a detailed knowledge of the DMCA, specifically the takedown procedure, as well as the reason for its enactment.

This Note describes how the DMCA takedown procedure fails to adequately enforce copyrights, leads to violations of copyrights, and is used inappropriately to censor criticism.

This Note concludes that the DMCA takedown procedure is an ineffective and shortsighted policy that can nevertheless be remedied by requiring all takedown notices to pass through the U.S. Copyright Office.

© 2009 Jeffrey Cobia.

∗ Jeffrey Cobia is a J.D. candidate at the University of Minnesota. He would like to thank Emily Quinlan for all her love and support, as well as the MJLST staff and editors from volumes 9 and 10.

COBIA.WEB 2/20/2009 11:38:35 AM 388 MINN J.L. SCI. & TECH. [Vol. 10:1

I. THE DIGITAL MILLENNIUM COPYRIGHT ACT

HISTORY, TAKEDOWN PROCEDURE, AND AN

EXEMPLARY TAKEDOWN

A. A BRIEF HISTORY OF THE DMCA

On December 20, 1996, the World Intellectual Property Organization (“WIPO”) adopted a Copyright Treaty.1 To implement the doctrine of the treaty, the U.S. Congress began crafting online copyright legislation in July 1997.2 The legislation became an amendment to the Copyright Act in 1998 and provided copyright holders more protection online than the WIPO Copyright Treaty asked of the signatory nations.3 Congress designed the DMCA first and foremost to further codify the rights of copyright holders in the digital world.

While the overall tone of the DMCA was to delineate explicitly digital copyrights, the takedown section actually describes rights of those who find themselves on the other side of the copyright battle—accused infringers.4 The safe-harbor provision enables those who wish to host material online to avoid culpability for copyright violations by third parties.5 The tradeoff for this protection is a quick, court-free method of copyright violation enforcement, initiated by the copyright holder, and overseen by the host. The result is an Internet that is largely self-policing due to the interaction between those who send takedown notices and the hosts that receive them.

B. BASIC FAIR USE DOCTRINE

The fair use protections arises from section 107 of the

1. World Intellectual Property Organization Copyright Treaty, adopted Apr. 12, 1997, S. TREATY DOC. NO. 105-17, 2186 U.N.T.S. 152, available at http://www.wipo.int/clea/en/text_pdf.jsp?lang=EN&id=4050.

2. Executive Summary: Digital Millennium Copyright Act, http://www.copyright.gov/reports/studies/dmca/dmca_executive.html (last visited Dec. 4, 2008); Julie E. Cohen, WIPO Copyright Treaty Implementation in the United States: Will Fair Use Survive?, 21 EUR. INTELL. PROP. REV. 236, 236 (1999); see Anti-DMCA, Frequently Asked Questions (Sept. 7, 2001), http://www.anti-dmca.org/faq_local.html.

3. Chilling Effects Clearinghouse, Frequently Asked Questions (and Answers) About Anticircumvention (DMCA), http://www.chillingeffects.org/anticircumvention/faq.cgi#QID92 (last visited Oct. 12, 2008).

4. Digital Millennium Copyright Act, 17 U.S.C. § 512(c) (2006).

5. Id. § 512(a).

COBIA.WEB 2/20/2009 11:38:35 AM 2009] DIGITAL MILLENNIUM COPYRIGHT ACT 389 Copyright Act.6 The Act lists non-infringing purposes of a copyrighted work and four factors used to determine the legality of the use. The allowable purposes are for use “as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or

research....”7 The four factors are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.8 Fair use is an affirmative defense to copyright infringement.9 Still, as the above factors suggest, there is no bright-line rule on fair use; it is decided on a case-by-case basis.10 While there are many different statutory criteria for fair use and even Supreme Court cases on the matter, each case is so distinctly particular that it is often difficult to anticipate the validity of an infringement claim.11 For every statutory criterion, such as non-commercial nature of the use, there is usually a fact pattern that violates that criterion but is nevertheless considered fair use.12 Thus, it is difficult to predict how courts will interpret various fact patterns.





Copyright law encompasses so many different mediums and genres that a uniform law covering them all would be inefficient and unlikely.13

6. 17 U.S.C. § 107 (2006).

7. Id.

8. Id.

9. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994).

10. Frank Pasquale, Toward an Ecology of Intellectual Property: Lessons from Environmental Economics for Valuing Copyright’s Commons, 8 YALE J.L.

& TECH. 78, 81 n.13 (2006).

11. Id.

12. Campbell, 510 U.S. at 594.

13. For a detailed look at the argued absurdity of copyright law in modern society and the nature of fair use in everyday life, see John Tehranian, Infringement Nation: Copyright Reform and the Law/Norm Gap, 2007 UTAH L. REV. 537. Professor Tehranian walks through a typical day of a typical law professor and points out the copyright infringement done by the professor. It is an interesting look at fair use, with the subsection entitled “The Default Rule of Use as Infringement” especially disconcerting. Id. at 548. The article is also a general commentary on fair use.

COBIA.WEB 2/20/2009 11:38:35 AM

390 MINN J.L. SCI. & TECH. [Vol. 10:1

While case law has existed for hundreds of years on the meaning of fair use, the current trend is to push the limits of what constitutes infringement.14 Computers and the Internet have created a system for infinite, quick, and essentially free copying of works. Copyright law—even the ten-year-old DMCA—is hopelessly out of date.15

C. THE PROCEDURE OF THE DMCA TAKEDOWN NOTICE AND

COUNTER-NOTICE The DMCA is a compromise between allowing content providers to avoid liability and continuing to grant copyright holders rights online.16 The DMCA governs the many varied aspects of online copyright protection, including enforcement and remedies.17 While there are many important implications of the DMCA, one of particular salience derives from the section commonly referred to as the “takedown notice” section.18 Content, uploaded by users, is commonly hosted online by websites such as YouTube,19 Google Video,20 and Scribd.21 Once material is uploaded, each hosting website becomes a “service provider” as described in the act.22 To avoid liability for direct infringement, each service provider must have an employee registered with the U.S. Copyright Office as a “registered agent.”23 The service provider must also be unaware of the infringement.24 When a copyright owner discovers that his or her material is viewable (or audible) on a website, the copyright owner can send a notification to the service provider that the material

14. Infringement Nation: We Are All Mega-Crooks, Cory Doctorow, (Nov.

17, 2008) http://www.boingboing.net/2007/11/17/infringement-nation.html.

15. See Digital Copyright Law Under Fire: Millennium Act Already Out of Date, Critics Say, Benny Evangelista, (Aug. 13, 2001) http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2001/08/13/BU192271.DTL (stating that the DMCA was out of date as early as 2001).

16. See Cohen, supra note 2.

17. Digital Millennium Copyright Act, 17 U.S.C. § 512(c) (2006).

18. Id. (“Information Residing on Systems or Networks at Direction of Users”).

19. YouTube, http://www.youtube.com (last visited Nov. 15, 2008).

20. Google Video, http://video.google.com (last visited Nov. 7, 2008).

21. Scribd, http://www.scribd.com (last visited Nov. 7, 2008).

22. 17 U.S.C. § 512(c)(1).

23. Id. § 512(c)(2).

24. Id. § 512(c)(1)(A)(i).

COBIA.WEB 2/20/2009 11:38:35 AM 2009] DIGITAL MILLENNIUM COPYRIGHT ACT 391 must be removed.25 The notification letter must comply with a number of statutory requirements; otherwise, it is void.26 The service provider must notify the user who uploaded the material after taking it down.27 If the user chooses to send a

counter notification, the service provider must:

replace[] the removed material and cease[] disabling access to it not less than 10, nor more than 14, business days following receipt of the counter-notice, unless its designated agent first receives notice from the person who submitted the notification... that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material....28 In practice, takedown notifications are often sent to “service providers,” counter notifications are rarely sent, and, to date, there have been only a few lawsuits filed after this initial procedure.29 There are three current abuses of the DMCA.

First, takedown notices often supersede the fair use doctrine.

In one case, for example, the National Football League (“NFL”) sent a takedown notice to YouTube over a video posted by Wendy Seltzer, a law professor. The video in question was a short clip of the NFL’s copyright and broadcast policy. The takedown was almost certainly illegitimate because the video was posted for criticism, comment, and research.30 The second abuse is more complicated because it involves a situation where the person sending the takedown notice is not actually the copyright holder of the material. In this case, the

25. See id. § 512(c)(3).

26. See id.

27. Id. § 512(g)(2)(A).

28. Id. § 512(g)(2)(C).

29. See JENNIFER M. URBAN & LAURA QUILTER, EFFICIENT PROCESS OR “CHILLING EFFECTS”? TAKEDOWN NOTICES UNDER SECTION 512 OF THE DIGITAL MILLENNIUM COPYRIGHT ACT (2005), available at http://mylaw.usc.edu/documents/512Rep-ExecSum_out.pdf. The suit is a high

profile case between two large Internet and copyright industry players:

Viacom and YouTube. See Posting of Peter Lattman to Law Blog—WSJ.com, Google Answers Viacom Lawsuit and Won’t Back Down, http://blogs.wsj.com/law/2007/05/01/google-answers-viacom-lawsuit-and-wontback-down (May 1, 2007, 11:31 EST).

30. See Wendy.Seltzer.org: Legal Tags, The Blog, NFL Clip Down Again, http://wendy.seltzer.org/blog/archives/2007/03/18/nfl_clip_down_again.html (Mar. 18, 2007, 10:38 EST); see also Jacqui Cheng, NFL Fumbles DMCA Takedown Battle, Could Face Sanctions, ARS TECHNICA, Mar. 20, 2007, http://arstechnica.com/news.ars/post/20070320-nfl-fumbles-dmca-takedownbattle-could-face-sanctions.html; Posting of Peter Lattman to Law Blog— WSJ.com, Law Professor Wendy Seltzer Takes on the NFL, http://blogs.wsj.com/law/2007/03/21/law-professor-wendy-seltzer-takes-on-thenfl (Mar. 21, 2007 12:27 EST).

COBIA.WEB 2/20/2009 11:38:35 AM

392 MINN J.L. SCI. & TECH. [Vol. 10:1

legitimate copyright holder’s rights are violated for the ten to fourteen days that the copyrighted material is taken down. For instance, Christopher Knight, an independent filmmaker, produced a video that was posted on YouTube and then featured on a Viacom show on cable television. Knight then reposted the portion of his video with accompanying commentary from the Viacom show. Viacom sent 100,000 takedown notices to YouTube, including the video Knight reposted.31 Knight discovered the video was taken down and filed a counterclaim notification with YouTube, which then reposted the video.32 Another example involved the Science Fiction Writers of America (“SFWA”), which sent a similar mass takedown notice to Scribd.com, a public document database.33 This mass takedown included copyrighted works not owned by the SFWA.34 Several people objected and the matter was mostly resolved with the SFWA, but the possibility for litigation still remains.35 Third, parties have abused the DMCA by using it for censorship instead of its intended purpose, which is to protect legitimate copyright holders’ rights online.36 Repeated examples exist of takedown notices superseding the First Amendment or being sent where the underlying material is not copyrightable. In one instance, Akon, a rapper, and United Music Group, the company that produces his records, issued a takedown notice to Michelle Malkin, a blogger who spoke

31. Greg Sandoval, Viacom Demands Google, YouTube to pull 100,000 clips, Cnet News, http://news.cnet.com/8301-10784_3-6155737-7.html (Feb. 2, 2007, 9:20 PST).

32. The Knight Shift, YouTube/Viacom Aftermath—Part 2: The DMCA Counter-Notification Claim, http://theknightshift.blogspot.com/2007/09/youtubeviacom-aftermath-part-2dmca.html (Sept. 19, 2007, 7:25 EST); see also Cade Metz, YouTube, Viacom Bow to Light-Sabre Wielding Defender of Online Justice, REGISTER, Sept. 13, 2007, http://www.theregister.com/2007/09/13/youtube_viacom_bow_to_light_sabre_w ielding_video_maven.



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