Decoding the DMCA Safe Harbors

44 Pages Posted: 28 Jan 2009 Last revised: 20 Aug 2012

See all articles by Edward Lee

Edward Lee

Chicago-Kent College of Law - Illinois Institute of Technology

Date Written: January 27, 2009

Abstract

The DMCA is a decade old, which, in Internet time, may well be closer to a century. Although the DMCA safe harbors have helped to foster tremendous growth in web applications in our Web 2.0 world, several very basic aspects of the DMCA safe harbors remain uncertain. These uncertainties, along with the relative lack of litigation over the DMCA in the past ten years, have threatened to undermine the whole purpose of the DMCA safe harbors by failing to inform the public and technology companies of what steps they need to undertake to fall within the safe harbors. In several high profile cases against MySpace, YouTube, and other Internet sites, the clarification of the DMCA safe harbors could prove to be just as important to the Internet as their enactment in 1998. This Essay has attempted to clear up two of the biggest uncertainties regarding the DMCA's relationship to vicarious liability, and the so-called "red flags" theory of knowledge on the part of the Internet service provider. Specifically, under a proper interpretation of the DMCA, courts should (i) reject the "loophole" theory that posits that the DMCA safe harbors provide no immunity from vicarious liability at all, and (ii) require a high burden for proving a "red flags" theory by requiring knowledge of facts that show specific and "obvious" or "blatant" infringement. This Essay offers five principles for courts and Congress to consider in applying or amending the DMCA safe harbors in the future. The DMCA safe harbors should be made truly "safe" harbors, in a way that encourages greater investment in and the development of speech technologies on the Internet, all while encouraging copyright holders to share the burden of reducing infringement by utilizing the DMCA notice and take-down procedure.

Keywords: DMCA safe harbors, YouTube, MySpace, Veoh, Tiffany's, eBay, Lemley, Netcom, Internet service provider, red flag, loophole, statutory interpretation, copyright

JEL Classification: K10, K19, K30, K39, L82, L86, O38

Suggested Citation

Lee, Edward, Decoding the DMCA Safe Harbors (January 27, 2009). Columbia Journal of Law & the Arts, Forthcoming, Available at SSRN: https://ssrn.com/abstract=1333709 or http://dx.doi.org/10.2139/ssrn.1333709

Edward Lee (Contact Author)

Chicago-Kent College of Law - Illinois Institute of Technology ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
852
Abstract Views
6,973
Rank
52,612
PlumX Metrics