The FCC, the DMCA, and Why Takedown Notices are Not Enough

Abstract:     
In December of 2008, the Recording Industry Association of America (RIAA) stopped its strategy of suing individuals for copyright infringement over peer-to-peer networks, but now seeks the cooperation of Internet Service Providers (ISPs) to deter online copyright infringement. These novel proposed collaborations, which have recently appeared and become prevalent worldwide in various forms, could lead to termination and suspension of internet connections based upon mere suspicions. In the United States, these proposals fail when analyzed under the FCC’s Internet Policy Statement because they are likely to deprive individuals of lawful content and applications of their choice. I propose a standard under which to evaluate these new ISP-RIAA collaborations: Professor David Nimmer’s interpretation of the Digital Millennium Copyright Act’s (DMCA) repeat infringer standard. Any collaboration where suspected infringers lose internet access at the direction of the RIAA must affect only those who have been previously held liable for copyright infringement or of whom the ISP has actual knowledge of infringement. This solution harmonizes the interests of the ISPs, the RIAA, and the FCC, and is logical when one considers the purpose, policy, and interpretation of both the Internet Policy Statement and the DMCA’s repeat infringer standard.

Number of Pages in PDF File: 42

Accepted Paper Series