Twenty Years of the DMCA: Notice and Takedown in Hindsight (Part I)

This weekend marks twenty years since President Bill Clinton signed H.R. 2281, the Digital Millennium Copyright Act (DMCA), into law. It was 1998, and as personal computers were starting to become commonplace in the home, so was access to the internet—or as it was called back then, the “Information Superhighway.” Although the internet itself had been around in some form since the 1960s, the 1990s was the true beginning of a cultural and technological shift into the digital age. On the one hand, this meant a complete overhaul of the way we accessed information, communicated, and connected with the world. On the other hand, it meant a growing and largely unpredictable threat to copyright protection and enforcement.

To set the scene, in the mid-1990s, core copyright industries contributed $278.4 billion to the national economy, and accounted for 3.65% of the total gross domestic product (GDP), according to a report from the International Intellectual Property Alliance (Copyright Industries in the U.S. Economy: The 1998 Report). And while still in its infancy, the potential growth and value of the internet and internet-based industries was apparent. While industry stakeholders recognized how important creative content would be to the proliferation of the internet, and vice versa, there were concerns from those in the creative and the internet communities. Copyright owners were concerned about rampant online piracy, resulting in lost jobs, wages, and tax revenue. Internet service providers and platforms (ISPs) were concerned about their own potential liability for copyright infringement committed by their users or subscribers, and feared that potential liability might inhibit innovation and have a chilling effect on the growth of the internet.

These concerns were buttressed by disputes like the one that arose in Religious Technology Center v. Netcom On-Line Communication Services, Inc. Dennis Erlich, one of the defendants in the case, was a former minister of the Church of Scientology who had become critical of the Church and began posting portions of works authored by the Church’s founder—the copyrights to which were owned by the plaintiffs—on a bulletin board service (a type of platform common in the 80s and 90s that, among other things, connected users to the internet) run by another defendant, Thomas Klemesrud. The plaintiffs contacted both Klemesrud and his internet service provider, Netcom, asking that Erlich be prevented from gaining access and posting their content, to no avail. As a result, the plaintiffs sued Erlich, Klemesrud, and Netcom for copyright infringement where, on a motion for summary judgement, the court determined that Klemesrud and Netcom were not liable for direct copyright infringement, but left open the possibility that they, and others in similar situations, could be held liable for contributory infringement. The decision would come down to questions about whether those defendants knew or should have known about the infringement. This case also laid groundwork for determining when an ISP might be held vicariously liable in instances like this.

With the potential for secondary liability hanging in the balance, ISPs now had an incentive to work with copyright owners to find a solution to the problem of piracy and infringement online, in a way that provided them some certainty regarding their own liability. Negotiations between the two sides culminated in the creation of the Section 512 of the Digital Millennium Copyright Act (DMCA), the “notice-and-takedown” provision, which has shaped the relationship between the internet and copyright-protected content for the last 20 years. The basic framework is as follows: an ISP can avoid copyright liability for content posted by its users by promptly removing infringing content when it becomes aware—or should be aware—of the existence of that content on its site. One way that an ISP could become aware of infringement is through receipt of takedown notice sent by the copyright owner, as outlined in Section 512, identifying the infringing content. In passing the legislation, Congress intended the DMCA to balance the interests of copyright owners, ISPs, and internet users by incentivizing cooperation among them.

Since then, piracy and infringement have decreased dramatically online, the internet has continued to flourish, and both sides lived happily ever after. The end.

Okay, not really.

That’s the way this blog post should end, but that unfortunately has not been the case. While the internet has grown and flourished tremendously over the last 20 years, rather than decreasing, piracy and infringement online have dramatically increased over the last two decades. That isn’t to say that the legislation is itself to blame. Rather, the landscape has shifted so dramatically that the notice-and-takedown regime envisioned by the legislation is unable to keep up.

Frankly, the World Wide Web of the 20th century was vastly different from today’s internet. When I think about the internet back in 1998, a few things standout in my memory: I recall the loud, menacing screech of dial-up. The AOL Running Man running—albeit rather slowly by today’s standards—across the screen to join the rest of America online. Long before Siri and Alexa, we asked Jeeves. A download? With maximum download speeds of 56Kbps, that would take all afternoon (for comparison, my current download speed as of the writing of this post is 29.3mbps, or 29,300kbps, more than 523x the maximum speed of dial up internet in 1998). If I wanted to use the internet, I had to coordinate with my family members to make sure that no one was using the phone or expecting a call before logging on. And when I logged off, I was truly disconnected from the internet—there were no smartphones, no tablets, and no constant influx of information in the form of emails, tweets, notifications and alerts. This was the internet as it existed when the DMCA became law.

The New Millennium: Peer-to-Peer File Sharing and Beyond

It wasn’t long before that landscape began to change. By 2000, consumers were shifting from the use of dial-up internet to DSL broadband connections that allowed for faster internet speeds, and no longer interfered with the use of the home’s phone line, which meant computers could stay connected to the internet indefinitely if you wanted. This shift laid the groundwork for peer-to-peer file sharing services like Napster, that allowed users to illegally distribute files to other users, particularly mp3 music files.

At a hearing before the House Subcommittee on the Courts, Internet, and Intellectual Property in 2002, Representative Zoe Lofgren (D-CA), recounting the negotiations that led to the DMCA’s notice-and-takedown provision, said “I’ve been chatting with Members sitting on both sides of me about how much the world has changed technologically since we [passed the DMCA] … none of us were thinking beyond Web sites. And certainly, as the technology has changed, it is complicated and made, in some ways, dysfunctional some of what we in good faith worked to do [] back there a few years ago.”

Although a 2001 decision in the Ninth Circuit granted a preliminary injunction against Napster which led to its shut down that same year, it was clear that piracy had gone from bad to worse. The speed and frequency at which infringing content appeared online was increasing exponentially. There was a growing expectation among consumers that everything online should be “free” for the taking. Napster marked the beginning of a long line of websites, platforms, and internet services operating under business models specifically aimed at circumventing copyright law. And so it began: copyright owners were now tasked with combating “bad actors” on legitimate websites, as well as illegitimate websites capitalizing on everyday internet users’ demand for free content.

This is part 1 of a 2-part series on the history of Section 512 of the DMCA. Read part 2 here.

Photo Credit: NonChanon/iStock/thinkstock

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