Copyright's Digital Deputies: DMCA-Plus Enforcement by Internet Intermediaries

John A. Rothchild (ed.), RESEARCH HANDBOOK ON ELECTRONIC COMMERCE LAW, Edward Elgar, 2016

29 Pages Posted: 14 Jul 2015 Last revised: 10 Mar 2017

Annemarie Bridy

University of Idaho College of Law; Stanford University Center for Internet and Society

Date Written: July 9, 2015

Abstract

In the years since passage of the Digital Millennium Copyright Act (“DMCA”), the copyright industries have demanded that online intermediaries — both those covered by the DMCA and those falling outside the statute’s ambit — do more than the law requires to protect their intellectual property rights. In particular, they have sought new ways to reach and shutter “pirate sites” beyond the reach of United States law. Their demands have been answered through an expanding regime of nominally voluntary “DMCA-plus” enforcement.

This chapter surveys the current landscape of DMCA-plus enforcement by dividing such enforcement into two categories: Type 1 and Type 2. Type 1 DMCA-plus enforcement is cooperation by DMCA-covered intermediaries over and above what is required for safe harbor. Type 2 DMCA-plus enforcement is cooperation by intermediaries whose activities fall outside the scope of the DMCA’s safe harbors and who are not liable for their customers’ copyright infringements under secondary liability rules.

As the gap widens between what the law requires and what intermediaries are agreeing to do on a voluntary basis, there is reason to be concerned about the expressive and due process rights of users and website operators, who have no seat at the table when intermediaries and copyright owners negotiate “best practices” for mitigating online infringement, including which sanctions to impose, which content to remove, and which websites to block without judicial intervention.

Keywords: copyrights, piracy, DMCA, Google, infringement, safe harbors, graduated response, three strikes, pirate sites, UGC

Suggested Citation

Bridy, Annemarie, Copyright's Digital Deputies: DMCA-Plus Enforcement by Internet Intermediaries (July 9, 2015). John A. Rothchild (ed.), RESEARCH HANDBOOK ON ELECTRONIC COMMERCE LAW, Edward Elgar, 2016 . Available at SSRN: https://ssrn.com/abstract=2628827

Annemarie Bridy (Contact Author)

University of Idaho College of Law ( email )

Idaho Law & Justice Learning Center
PO Box 83720
Boise, ID 83720-0051
United States
(208) 364-4583 (Phone)

HOME PAGE: http://www.uidaho.edu/law/faculty/annemariebridy

Stanford University Center for Internet and Society ( email )

Idaho Law & Justice Learning Center
PO Box 83720
Boise, ID 83720-0051
United States
(208) 364-4583 (Phone)

HOME PAGE: http://www.uidaho.edu/law/faculty/annemariebridy

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