A Good Idea at the Time: Recent Jurisprudence Under the Service Provider Safe Harbor in Section 512c of the Digital Millenium Copyright Act
29 Pages Posted: 14 Dec 2012
Date Written: December 13, 2012
The growth of the internet and world wide web, and many of the applications which we take for granted, such as digital audio and video, smartphones with sophisticated cameras and interactive websites inviting our comments and submissions, have been facilitated not merely by technological change, but also by a favorable legal framework. At an early stage of the internet’s development in 1998, Congress enacted legislation known as the safe harbor provisions of the Digital Millennium Copyright Act, which were intended to protect those developing the technological foundation for large scale, high speed internet access to avoid liability for its misuse by someone who infringes the copyright of a third party.
While there has been surprisingly little litigation construing this legislation, two recent cases, involving the prominent Veoh and YouTube websites are worthy of significant attention both for what they teach regarding permissible practice and the weaknesses they reveal in the statutory language and its construction. This article discusses and critiques in detail what the Ninth and Second Circuits did and did not do in these cases, as it impacts both subsequent cases and current practice, and the sort of legislative tweaking that may be warranted. In particular, the author expresses concern as to whether the statutory definition of the term “service provider” which is the threshold provision for availing oneself of the safe harbor supports the current construction.
The author also argues for much greater use of a technical device known as digital fingerprinting by both copyright holders and operators of sites where copyrighted material may show up, in an effort to more efficiently screen out infringing material. He also argues for more direct incorporation of such practice into the current safe harbor framework.
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