The Digital Millennium Copyright Act is a controversial law. The “DMCA” receives more than its fair share of criticism, but in truth, it is a reliable method for trying to deal with a problematic online legal subject. Let’s take a look at the pros and cons of the DMCA.
Digital Millennium Copyright Act
Congress designed the DMCA to encourage online sites and ISPs to work with copyright holders through DMCA agents to protect copyrighted materials. In exchange for providing such assistance, Congress gave the websites and ISPs immunity from copyright infringement claims. It is this give and take process that creates many of the pros and cons of the DMCA.
Pros of DMCA
The positives aspects of the DMCA depend on one’s point of reference when using it. For copyright holders, the law provides a mechanism for obtaining the removal of infringing material on the web in a low cost, straightforward manner.
Imagine you’ve slaved over your Great American Novel for ten years. You finish the book and decide to self-publish it. The novel is a hit. After a few months, however, you discover people posting large chunks of it in forums. People are essentially giving away pieces of your novel for free!
Traditionally, you would need to hire a lawyer like myself and start suing people. This approach would be expensive. It would also take a good bit of time for the case to work its way through the judicial process. To be blunt, most copyright owners would not have the resources [$$] to pursue such actions. The DMCA provides a solution to this problem.
Under the DMCA, a copyright holder can give notice of the copyright infringement to the site or service in question. If I see big chunks of my novel published on Facebook, I can give Facebook notification of the violation, and they MUST take down the offending content. The person who posted the material can then claim they have the right to post it. Most never respond.
This process provides a significant benefit to the copyright holder. The party served with the notice removes the infringing material, and they avoid the cost of a lawsuit.
What about the site owner or service served with the copyright infringement notice? By complying with the procedures called forth in the DMCA, the entity is immune from liability for the offense. With the potential damages being as high as $150,000 per each violation, one cannot overstate the value of this protection.
a. DMCA Example
I own a forum on how to make a bajillion dollars online. Yes, a “bajillion” because a million just isn’t that much anymore. Individuals sign up as members. They then post comments and materials related to making money online on the forum.
One of my members posts a video from a series of videos he purchased from the latest guru in the money-making field. The guru sends in a copyright infringement claim to me under the DMCA. Known as a “takedown notice,” I am required to “expeditiously” remove the content from public viewing on the site. I do so and give the member who posted the content notice of the claim. The poster does not respond, and the material stays down.
In this situation, the copyright owner cannot sue me for infringement. Their sole recourse is to sue the member who posted the content. Furthermore, the member cannot sue me for any copyright issue either. By following the dictates of the Act, I’ve placed myself within the “safe harbor” provisions of the law that protect me from being sued to kingdom come.
And what of the person who posted the allegedly infringing content? The DMCA provides them with no protection whatsoever. The only benefit they might receive is most copyright holders drop the matter once the party in question removes the offending material.
Cons of DMCA
The negative aspects of the DMCA became apparent soon after it was signed into law by Bill Clinton in 1998. Abuse is the primary problem.
Individuals, groups, and companies use the DMCA takedown provisions as a hammer against anyone posting their content, even if there is a legal basis for doing so. Since copyright holders cannot sue sites if the allegedly offending content is taken down, online businesses tend to do so even if there is no merit to the infringement claim. An example can help show how this works.
I own a forum the covers the political going-ons in the United States. The forum conversations get somewhat heated as you might imagine. One of the members of the forum, John, starts posting videos on YouTube expressing his political views. Another member of my forum with the opposite political leanings, Bob, locates the videos and posts them on my forum along with scathing remarks.
John blows his top and sends me a copyright infringement notice per the DMCA rules. What am I going to do? I could be dragged into a copyright lawsuit if I don’t take the content down. If I do take it down, I am exempt from being sued. You can probably guess what most sites do – they take the content down.
A. Common Scenario
This scenario plays out over and over online, and it is becoming a real problem. Why? Most individuals posting content have neither the time nor the monetary resources to fight false DMCA claims. In the example above, the use of the videos arguably falls under the “fair use” exemption to copyright law. However, Bob is unlikely to pursue such a claim because who wants to spend the time and money doing so?
Copyright abuse is an enormous negative aspect of the DMCA. It acts as a form of censorship and is the biggest failing of this law without a doubt.
Is the DMCA the worst “Internet law” Congress ever enacted as some critics claim? Not by a long shot. The pros and cons of the DMCA are evident for all to see. The law actually represents a relatively novel approach to dealing with a complicated subject. Is it a perfect law? No. The goal for lawmakers at this point should be to try to emphasize the positives and fix the negatives. Given the glacial pace at which Congress works, it appears as though we will be stuck with the current pros and cons of the DMCA for the foreseeable future.
Richard A. Chapo, Esq.
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