Time to Reboot?: DMCA 2.0
57 Pages Posted: 20 Sep 2015 Last revised: 5 Nov 2015
Date Written: 2015
Perhaps the most vexing question in copyright law today is whether Internet Service Providers (ISPs) should be liable for the infringing acts of their subscribers. While the 1998 Digital Millennium Copyright Act (DMCA) provides a number of safe harbors that effectively immunize ISPs from most liability for subscribers’ infringing conduct, a larger questions looms: Should ISPs nevertheless be responsible for preventing infringement occurring on their sites? Since the enactment of the DMCA, copyright infringement -- through BitTorrent peer-to-peer systems, video streaming, direct download cyberlockers, and other file sharing networks -- has increased at a phenomenal rate. Worldwide, hundreds of millions of Internet users seek out infringing content. The current DMCA scheme places the onus on copyright holders to root out infringement and then seek the help of ISPs through the DMCA’s notice and takedown provision. This system proved adequate for a while, but some question whether in light of the massive infringement occurring online, whether ISPs should take on a greater role in curbing infringement. As might be expected, there is no consensus.
Copyright holders argue that ISPs should accept more responsibility, demanding that ISPs monitor and filter content on their sites for infringing material. They thus seek to add ex ante obligations to ISPs’ current ex post DMCA obligations. ISPs argue no additional obligations other than those required under the DMCA are necessary. Recognizing that more empirical data is needed to accurately assess the wisdom of changing the current scheme, this article makes a case for increased ISP responsibility, requiring ISPs to take a more proactive role in preventing online infringement.
While many have lauded the DMCA and its balance, there is little question that circumstances have changed since its passage in 1998 such that the carefully crafted scheme balancing the interests of ISPs and copyright holders is no longer balanced. More particularly, the DMCA’s preventative aspect (and the copyright holders’ benefit) -- the anti-circumvention provisions -- has become all but meaningless and the grand bargain now looks like a really bad deal for copyright holders. The Article proposes recalibrating the current system by adding a new preventative aspect, i.e., layering a duty-based regime over the already existing strict liability scheme. Under the duty-based regime, ISPs will be required to shoulder part of the burden of protecting content owners by taking reasonable efforts to prevent infringement. These efforts should include, at the least, monitoring their sites using filtering technology to detect and prevent infringement. The proposal is derived from employer-employee respondeat superior liability principles in employment law, particularly in the Title VII sexual harassment context. There, liability is contingent not only upon remedial measures taken by the employer/ISP to redress harassment/infringement, but also preventative measures designed to avert harassment/infringement. This Article advocates for a similar approach in the ISP context.
Keywords: copyright, infringement, ISP, digital millennium copyright act, employment law, sexual harassment
JEL Classification: K30, K39
Suggested Citation: Suggested Citation