Law Commons^™

Boss Battle: Twitch Vs Proposed Amendments To The Knowledge Standard Under The Digital Millennium Copyright Act, Zachary Messick

Journal of Intellectual Property Law

Under the Digital Millennium Copyright Act (DMCA), indirect theories of liability such as vicarious liability and contributory infringement have been inconsistently applied, leading the Copyright Office to recommend lowering the knowledge standard and increasing potential liability for Online Service Providers (OSPs). In this note, I will discuss the histories of vicarious liability and contributory infringement, which demonstrate that courts have correctly applied the standards under the DMCA. Further, through a case-study of Twitch, an up-and-coming streaming website, I will discuss how the proposed amendments drive against the policies underlying the indirect theories of liability and would destroy OSPs like Twitch. …

Privacy And Legal Automation: The Dmca As A Case Study, Jonathon Penney

Articles, Book Chapters, & Popular Press

Advances in artificial intelligence, machine learning, computing capacity, and big data analytics are creating exciting new possibilities for legal automation. At the same time, these changes pose serious risks for civil liberties and other societal interests. Yet, existing scholarship is narrow, leaving uncertainty on a range of issues, including a glaring lack of systematic empirical work as to how legal automation may impact people’s privacy and freedom. This article addresses this gap with an original empirical analysis of the Digital Millennium Copyright Act (DMCA), which today sits at the forefront of algorithmic law due to its automated enforcement of copyright …

Congress Does Not Hide Elephants In Mouse-Holes: How Vimeo Paid No Heed To That Caution, Mitch Bailey

Marquette Intellectual Property Law Review

With the passage of the 1976 Copyright Act, sound recordings fixed prior to February 15, 1972 remained under the protection of the state copyright laws where the works were registered. Some incredible culturally significant songs were fixed before February 15, 1972, including songs from “The Beatles, The Supremes, Elvis Presley, Aretha Franklin, Barbara Streisand, and Marvin Gaye.” To date, state law protects the owner’s rights without interference from federal law, including the Digital Millennium Copyright Act (“DMCA”).

Given its location, the Second Circuit significantly influenced the development of intellectual property law in the United States, especially copyright law. Many businesses …

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 …

Shifting The Burden To Internet Service Providers: The Validity Of Subpoena Power Under The Digital Millennium Copyright Act, Matt Sellers

Oklahoma Journal of Law and Technology

No abstract provided.

Internet Safe Harbors And The Transformation Of Copyright Law, Matthew Sag

Faculty Articles

This Article explores the potential displacement of substantive copyright law in the increasingly important online environment. In 1998, Congress enacted a system of intermediary safe harbors as part of the Digital Millennium Copyright Act (DMCA). The internet safe harbors and the associated system of notice-and-takedown fundamentally changed the incentives of platforms, users, and rightsholders in relation to claims of copyright infringement. These different incentives interact to yield a functional balance of copyright online that diverges markedly from the experience of copyright law in traditional media environments. More recently, private agreements between rightsholders and large commercial internet platforms have been made …

A Panoptic Approach To Information Policy: Utilizing A More Balanced Theory Of Property In Order To Ensure The Existence Of A Prodigious Public Domain, Christine D. Galbraith

Journal of Intellectual Property Law

No abstract provided.

You(Tube), Me, And Content Id: Paving The Way For Compulsory Synchronization Licensing On User-Generated Content Platforms, Nicholas Thomas Delisa

Brooklyn Law Review

The changing landscape of digital media technology makes it increasingly difficult for owners of copyrighted music to monitor how their works are being exploited across the Internet. This is especially true of user-generated content (UGC) platforms—websites and applications such as Facebook, YouTube, and Snapchat, where content is created or uploaded predominantly by users. These services pose a special problem to copyright owners because, instead of content being uploaded from a single source that is easily sued and has deep pockets, content is uploaded by users. Users are a troublesome group because they are innumerable, sometimes anonymous, and mostly click on …

Lenz V. Universal: A Call To Reform Section 512(F) Of The Dmca And To Strengthen Fair Use, Marc J. Randazza

Vanderbilt Journal of Entertainment & Technology Law

Under 17 U.S.C. § 512(f) of the Digital Millennium Copyright Act (DMCA), those who issue materially false takedown notices are liable for damages. However, Section 512(f) has not effectively protected fair use. Currently, the DMCA issuer only has to prove he considered fair use before issuing a takedown notice, but faces no liability for actually taking action against fair use. The outcome of the recent Ninth Circuit Court of Appeals case Lenz v. Universal shows the flaws in the language of the DMCA. This Article calls for a mild adjustment to Section 512(f) for the purpose of protecting fair use …

Avoiding The Next Napster: Copyright Infringement And Investor Liability In The Age Of User Generated Content, Truan Savage

Michigan Business & Entrepreneurial Law Review

Rapid developments in digital technology over the past quarter century have made it easier than ever for people to create and instantly share content. These developments have served as the basis for countless innovations and have spawned some of today’s largest and most profitable companies. As content creation and distribution continues to evolve, businesses seek new ways to profit from these technological innovations. But while businesses continue to develop around new methods of content distribution, the law of copyright, which generally aims to encourage the creation of content, has been slow to adapt. This era of modern technological innovation thus …

Danger In The Dmca Safe Harbors: The Need To Narrow What Constitutes Red Flag Knowledge, Hank Fisher

Law Student Publications

This comment considers recent cases interpreting the Digital Millennium Copyright Act ("DMCA") and urges Congress to expand the protection of service providers through the DMCA safe harbors. The comment proceeds in six parts. Part I explains contributory and vicarious liability, the applicable sections of the DMCA to this comment, and the fair use doctrine. Part II provides a brief overview of video-sharing websites. It further observes the impact that video-sharing websites have had on digital media, focusing on the impact on the music industry. Part III looks at the recent cases interpreting the DMCA's red flag exception to safe harbor …

Is Internet Radio “Livin' On A Prayer”? With New Legislation, It “Will Make It, I Swear”, Kelsey Schulz

The Journal of Business, Entrepreneurship & the Law

This Comment discusses whether the IRFA would be the appropriate solution to the inequities in current copyright law as it pertains to digital music. Part I of this Comment will provide a more in-depth discussion of the history of copyright law and music distribution. It will examine the implications of the 1971 Sound Recording Act, the 1976 Copyright Act, and the Digital Performance Right in Sound Recordings Act of 1995. Part II will provide a critique of the current state of the law, including a look at the Digital Millennium Copyright Act of 1998 and its effects on the respective …

It’S Time For Revenge Porn To Get A Taste Of Its Own Medicine: An Argument For The Federal Criminalization Of Revenge Porn, Taylor Linkous

Richmond Journal of Law & Technology

Throughout history, pornography and technology have enjoyed a symbiotic relationship, each playing a significant role in the growth and widespread success of the other. From the VCR and camcorders to the Polaroid camera and the Internet, the pornography industry has always accelerated the growth of new technologies, paving the way for these new services to be introduced into mainstream society. Most of these new technologies were appealing to creators and consumers of pornography because the new technologies brought an increased sense of privacy. For example, much of the success of the Polaroid camera is said to come from the fact …

Secondary Liability, Isp Immunity, And Incumbent Entrenchment, Marketa Trimble, Salil K. Mehra

Scholarly Works

More than fifteen years have passed since the two major U.S. statutes concerning the secondary liability of Internet service providers were adopted--the Communications Decency Act and the Digital Millennium Copyright Act. The statutes have been criticized; however, very little of the criticism has come from Internet service providers, who have enjoyed the benefits of generous safe harbors and immunity from suit guaranteed by these statutes. This Article raises the question of whether these statutes contribute to incumbent entrenchment--solidifying the position of the existing Internet service providers to the detriment of potential new entrants. The current laws and industry self-regulation may …

Geographically Restricted Streaming Content And Evasion Of Geolocation: The Applicability Of The Copyright Anticircumvention Rules, Jerusha Burnett

Michigan Telecommunications & Technology Law Review

A number of methods currently exist or are being developed to determine where Internet users are located geographically when they access a particular webpage. Yet regardless of the precautions taken by website operators to limit the locations from which they allow access, it is likely that users will find ways to gain access to restricted content. Should the evasion of geolocation constitute circumvention of access controls so that § 1201 of the Digital Millennium Copyright Act ("DMCA") applies? Because location data can properly be considered personally identifiable information ("PII"), this Note argues that § 1201 should not apply absent a …

International Covergence On The Need For Third Parties To Become Internet Copyright Police (But Why?), Dennis S. Karjala

Richmond Journal of Global Law & Business

No abstract provided.

Internet-Based Fans: Why The Entertainment Industries Cannot Depend On Traditional Copyright Protections , Thomas C. Inkel

Pepperdine Law Review

No abstract provided.

From Betamax To Youtube: How Sony Corporation Of America V. Universal City Studios, Inc. Could Still Be A Standard For New Technology, Veronica Corsaro

Federal Communications Law Journal

Internet technological innovations, particularly the development of Peer-to-Peer ("P2P") networks and the proliferation of user-generated content sites, have introduced considerable challenges for the application of copyright law and infringement liability. The response from the courts and Congress has been mixed, with severe legal curtails being applied to P2P technology while usergenerated content sites have been afforded a level of protection against infringement claims as part of the Digital Millennium Copyright Act's section 512 "safe harbor" provisions. However, these provisions have raised concerns about the issue of secondary copyright liability, a matter that has still been left undefined. This Note will …

Mge Ups Systems, Inc. V. Ge Consumer & Industrial, Inc., Alexander Hill

NYLS Law Review

No abstract provided.

A ‘Pinteresting’ Question: Is Pinterest Here To Stay? A Study In How Ip Can Help Pinterest Lead A Revolution, Stephanie Chau

Richmond Journal of Law & Technology

Bulletin boards and pushpins are archaic. Yet, each day represents a new paradigm for the technologically savvy. Innovators pair old concepts with new functionalities and technology, often achieving groundbreaking results. Digital counterparts for Post-It notes emerged for computers and other wireless devices. Other examples abound. Thus, it is no surprise that pins and boards also have new meaning in the digital age. Credit is due to the founders of Pinterest, a nascent social networking site with a devoted following, for modernizing the pin. As a newer social networking site, Pinterest has experienced unparalleled growth after its inception only a few …

Curbing Copyblight, John Tehranian

Vanderbilt Journal of Entertainment & Technology Law

This Article identifies and analyzes the growing problem of "copyblight" the use of overreaching claims by putative copyright holders to ownership of public domain works, and, more broadly, to exclusive rights which they do not hold in copyrighted works. Despite the fact that copyblight circumscribes political and social discourse, stifles creativity, and constricts the dissemination of information, present law provides few, if any, disincentives against the practice. Building on the groundbreaking work of Paul Heald and Jason Mazzone, this Article advances three proposals to temper the problems of overreach in order to restore a needed balance in our copyright system: …

Antibiotic Resistance, Jessica D. Litman

Articles

Ten years ago, when I wrote War Stories,' copyright lawyers were fighting over the question whether unlicensed personal, noncommercial copying, performance or display would be deemed copyright infringement. I described three strategies that lawyers for book publishers, record labels, and movie studios had deployed to try to assure that the question was answered the way they wanted it to be. First, copyright owners were labeling all unlicensed uses as "piracy" on the ground that any unlicensed use might undermine copyright owners' control. That epithet helped to obscure the difference between unlicensed uses that invaded defined statutory exclusive rights and other …

Busting Blocks: Revisiting 47 U.S.C. § 230 To Address The Lack Of Effective Legal Recourse For Wrongful Inclusion In Spam Filters, Jonathan I. Ezor

Richmond Journal of Law & Technology

Consider a company that uses e-mail to conduct a majority of its business, including customer and vendor communication, marketing, and filing official documents. After conducting business in this manner for several years, one day the company discovers that its most recent e-mails were not delivered to recipients using a major Internet Service Provider (“ISP”) because the company was recently listed on an automated block list as a sender of unwanted bulk commercial e-mail (“spam”).

Is Online Copyright Enforcement Scalable?, Annemarie Bridy

Vanderbilt Journal of Entertainment & Technology Law

This Article examines P2P file sharing and the copyright enforcement problem it has created through the lens of scalability. Part I traces the evolution of peer-to-peer (P2P) networks from Napster to BitTorrent, with a focus on the relative scalability of successive architectures. Part II takes up the difficult question of the scale of P2P infringement and its harms, examining the strategic number-crunching that underlies industry data on piracy, the government's credulous acceptance of that data, and the risk of letting industry hyperbole drive copyright policy and law enforcement priorities. Part III evaluates the efficacy of the Digital Millennium Copyright Act …

The Darknet: A Digital Copyright Revolution, Jessica A. Wood

Richmond Journal of Law & Technology

We are in the midst of a digital revolution. In this “Age of Peer Production,” armies of amateur participants demand the freedom to rip, remix, and share their own digital culture. Aided by the newest iteration of file sharing networks, digital media users now have the option to retreat underground, by using secure, private, and anonymous file sharing networks, to share freely and breathe new life into digital media. These underground networks, collectively termed “the Darknet[,] will grow in scope, resilience, and effectiveness in direct proportion to [increasing] digital restrictions the public finds untenable.” The Darknet has been called the …

Whose Burden Is It Anyway? Addressing The Needs Of Content Owners In Dmca Safe Harbors, Greg Janson

Federal Communications Law Journal

Much of today's network neutrality debate addresses concerns that cable providers will limit access to competing Web-based services delivering multimedia content. While proposals to mandate nondiscrimination for all Internet traffic surely will help create a competitive environment where online entertainment providers can prosper, ISP interference is not the only threat. Online entertainment sites that relay user-generated content are threatened by crippling litigation brought by copyright holders for actions taken by third parties using their services. Reliance on the safe harbors provided in the Digital Millennium Copyright Act has, in most cases, proved unsuccessful. This Note addresses the concerns of both …

The Riaa, The Dmca, And The Forgotten Few Webcasters: A Call For Change In Digital Copyright Royalties, Kellen Myers

Federal Communications Law Journal

Emerging webcasting technology is playing an increasing role in modem society. The ease of use of webcast technology has brought about an increased user base as well as an increased viability for small webcasting businesses. However, the mix-tape genre of independent Internet radio has been financially and legislatively abused as a forerunner of rapidly advancing digital technology and concerns over protecting copyright royalties. This Note argues for a revision of the DMCA to provide a middle ground between protecting copyrighted works and allowing the continued existence of Internet radio.

Looking For Fair Use In The Dmca's Safety Dance, Ira Nathenson

Ira Steven Nathenson

Like a ballet, the notice-and-take-down provisions of the Digital Millennium Copyright Act ("DMCA") provide complex procedures to obtain take-downs of online infringement. Copyright owners send notices of infringement to service providers, who in turn remove claimed infringement in exchange for a statutory safe harbor from copyright liability. But like a dance meant for two, the DMCA is less effective in protecting the "third wheel," the users of internet services. Even Senator John McCain - who in 1998 voted for the DMCA - wrote in exasperation to YouTube after some of his presidential campaign videos were removed due to take-downs. McCain …

Perfect Enforcement Of Law: When To Limit And When To Use Technology, Christina M. Mulligan

Richmond Journal of Law & Technology

Road safety cameras can photograph your car running red lights. Some bars record information on driver’s licenses to establish that their patrons are old enough to drink. The Recording Industry Association of America (RIAA) uses automated web crawlers to try to find illegal copies of mp3s, and iTunes embeds personal identifying information in the tracks of every song you buy.

From Safe Harbor To Choppy Waters: Youtube, The Digital Millennium Copyright Act,And A Much Needed Change Of Course, Lauren B. Patten

Vanderbilt Journal of Entertainment & Technology Law

YouTube.com, named Time magazine's "Invention of the Year" for 2006 and widely recognized as the most-visited video site on the Internet, has changed the face of online entertainment. With the site's acquisition by Google in October 2006, the possibilities for YouTube's growth became truly endless. However, there is a darker side to the story of the Internet sensation, one that is grounded in its potential liability for copyright infringement. The issue is that many of the most-viewed and most-popular videos on the site are copyrighted. The copyright owners of those popular clips want their works back and are suing YouTube …