Law Commons^™

Pushing Back On Stricter Copyright Isp Liability Rules, Pamela Samuelson

Michigan Technology Law Review

For more than two decades, internet service providers (ISPs) in the United States, the European Union (EU), and many other countries have been shielded from copyright liability under “safe harbor” rules. These rules apply to ISPs who did not know about or participate in user-uploaded infringements and who take infringing content down after receiving notice from rights holders. Major copyright industry groups were never satisfied with these safe harbors, and their dissatisfaction has become more strident over time as online infringements have grown to scale.

Responding to copyright industry complaints, the EU in 2019 adopted its Directive on Copyright and …

Paypal Is New Money: Extending Secondary Copyright Liability Safe Harbors To Online Payment Processors, Erika Douglas

Michigan Telecommunications & Technology Law Review

The Digital Millennium Copyright Act (DMCA) has shaped the Internet as we know it. This legislation shields online service providers from secondary copyright infringement liability in exchange for takedown of infringing content of their users. Yet online payment processors, the backbone of $300 billion in U.S. e-commerce, are completely outside of the DMCA’s protection. This Article uses PayPal, the most popular online payment company in the U.S., to illustrate the growing risk of secondary liability for payment processors. First it looks at jurisprudence that expands secondary copyright liability online, and explains how it might be applied to PayPal. Then it …

Fair's Fair: An Argument For Mandatory Disclosure Of Technological Protection Measures, Robert C. Denicola

Michigan Telecommunications & Technology Law Review

Section 1201(a)(1) of the Copyright Act prohibits the act of "circumvent[ing] a technological measure that effectively controls access to a work," including, for example, by-passing password protection or encryption intended to restrict access to paying customers. Section 1201(a)(2) prohibits the manufacture or sale of "any technology, product, service, device, component, or part thereof" primarily designed for the purpose of circumventing access controls on copyrighted works. Additionally, § 1202(b) prohibits the manufacture or sale of products, devices or services primarily designed to circumvent "a technological measure that effectively protects a right of a copyright owner"--for example, a technological measure intended to …

From The Cluetrain To The Panopticon: Isp Activity Characterization And Control Of Internet Communications, Eric Evans

Michigan Telecommunications & Technology Law Review

If ISPs are exposed to liability for forwarding others' messages--messages originating with other ISPs or with the ISP's own users--the norm of universal mutual message forwarding that underlies the present operation of the Internet will be threatened. This Note will argue that society presently confronts a choice between a common carrier Internet characterized by universal mutual message forwarding and a monitored and controlled Internet. Part I will describe the underlying rules that govern ISPs' liability for their users' actions. Part II will argue that the present statutory regime governing ISPs' liability for users' copyright infringement includes elements that provide ISPs …

Quibbles'n Bits: Making A Digital First Sale Doctrine Feasible, Victor F. Calaba

Michigan Telecommunications & Technology Law Review

Whereas the first sale doctrine historically permitted the transfer and resale of copyrighted works, license agreements used by software companies and the DMCA's strict rules prohibiting tampering with access control devices frustrate exercise of the first sale doctrine with respect to many forms of digital works[...] This article explores the first sale doctrine as it pertains to digital works and proposes ways to make a digital first sale doctrine feasible. Part II describes the first sale doctrine as it has traditionally been applied to non-digital works. Part III discusses modern technology's impact on the distribution and use of copyrighted material. …

Paradigm Shifts And Access Controls: An Economic Analysis Of The Anticircumvention Provisions Of The Digital Millennium Copyright Act, Melissa A. Kern

University of Michigan Journal of Law Reform

This Note addresses the broadened scope of protection granted to copyright holders under the anticircumvention provisions of the Digital Millennium Copyright Act of 1998 (DMCA). This broadened scope extends to copyright holders the right to control access to their works, diminishing the consumer's 'fair use" of those works that previously served as a defense to alleged copyright infringements. While access controls are supported by economists who believe they are useful in correcting market inefficiencies and excluding free riders, this Note suggests that access controls cannot correct all market inefficiencies. Furthermore, such access controls deny access and use of copyrighted material …

Toward A "New Deal" For Copyright In The Information Age, Pamela Samuelson

Michigan Law Review

Jessica Litman believes the public needs a very good copyright lawyer, and if I have not mistaken her intentions, she is volunteering for the job (pp. 70-73). A century of Congressional deference to industry-negotiated compromises has produced, she argues, a copyright law that is both incomprehensible and unfair. This incomprehensibility might be tolerable if copyright law governed only commercial relations among industry participants, all of whom have copyright counsel. To the extent that copyright law applies to the conduct of ordinary persons, its incomprehensibility presents serious difficulties. Moreover, to the extent that copyright law makes illegal many ordinary activities of …

Taking A Bite Out Of Circumvention: Analyzing 17 U.S.C. 1201 As A Criminal Law, Jason M. Schulz

Michigan Telecommunications & Technology Law Review

...information content providers who depend heavily on copyright law are growing increasingly wary of advances in digital technology that allow manipulation of their content and potentially diminish the effectiveness of their copyright protection. Technology firms, on the other hand, are looking more and more at developing products which provide low-cost, high quality access to content without restriction. Thus, as technologists work feverishly to find new ways to free up information, content providers are fighting just as hard to constrain access in order to prevent market-killing duplication and distribution of their works. These two codependent yet clashing interest groups recently met …