Download This PaperFair Use Quotation Licenses: A Private Sector Solution to DMCA Takedown Abuse on YouTube
20 Pages Posted: 4 May 2020
Date Written: April 7, 2020
Abstract
In 1998, Congress enacted the Digital Millennium Copyright Act (the DMCA) in an attempt to comprehensively equip US copyright law to deal with the challenges of the new millennium. One of the ways that rightsholders benefitted from the DMCA was the introduction of an online takedown mechanism (the DMCA takedown) by which they could request the expeditious removal of infringing material online. Unfortunately, the DMCA takedown has also led to much abuse on platforms like YouTube. In particular, the ease by which a YouTube user can remove allegedly infringing content and punish infringers is at great tension with the protections afforded by the fair use doctrine.
This Note argues that YouTube’s current copyright enforcement regime, namely its DMCA takedown and copyright strike system, opens the door to takedown abuse by failing to properly accommodate fair use. Part I of this Note covers the history of the DMCA and its interplay with the fair use doctrine, specifically within the context of online service providers (OSPs) like YouTube. This section also examines how recent case law developments concerning the DMCA have fostered an environment that is ripe for takedown abuse. Part II then argues that most content creators on YouTube have little to no recourse if their fair use creations are flagged as infringing content by rightsholders who issue DMCA takedowns. Specifically, YouTube’s copyright policies and the excessive costs of litigation disincentivize users from fighting DMCA takedowns or pursuing legal actions to curb bad faith behavior. As a consequence, the fair use defense is virtually inaccessible to most YouTube content creators. Finally, Part III proposes the implementation of a fair use quotation licensing scheme as a way of mitigating this abuse problem on YouTube, and that other viable solutions for curbing DMCA takedown abuse should be sought from the private sector, rather than seeking legislative or judicial reform.
Keywords: YouTube, DMCA, takedown, abuse, fair use, copyright
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