Fixing the DMCA?

The Digital Millennium Copyright Act added two important sections to the copyright act, one that has proved somewhat useful in fostering fair use and the balance between owner’s and user’s rights, and one that, in stark contrast, threatens to drastically overturn that carefully crafted balance. The “safe harbor” provided for online service providers has assisted the growth of web 2.0 applications that offer an unprecedented opportunity for user creativity that pushes the boundaries of fair use. The strict protection of electronic protection measures (anti-circumvention rules), on the other hand, has arguably given content producers the means to control each and every use of their content, forbidding any uses they wish to prevent, even if those uses would otherwise be privileged under the rest of the copyright law.

A new article by Professors Riechman, Dinwoodie and Samuelson, available here on the Social Science Research Network and forthcoming in the Berkeley Technology Law Journal, examines these two provisions carefully, in the context of their origins in the World Intellectual Property Organization Copyright Treaty and the US Congress, as well as the important interpretation of each in the courts. The professors find in the development of the safe harbor “notice and takedown” mechanism that has successfully protected OSPs a fascinating suggestion for how to fix the clearly dysfunctional anti-circumvention rules.

It is difficult to summarize an article this complex, although the clear writing and argumentation in this piece makes it far easier than many other law journal articles to comprehend. The authors examine the way the concern of the US courts, starting with the famous Sony Betamax case before the Supreme Court in 1984, to protect so-called “dual-use” technologies (those capable of both infringing and non-infringing uses) so that copyright law not be allowed to stifle technological innovation, laid the groundwork for the safe-harbor provision of the DMCA. Building an elaborate analogy between these cases and the situations in which the anti-circumvention rules would come into play, the three professors suggest that, in the US (the article also deals with the European Community), courts could begin fashioning a similar solution to the over-protection of copyrighted works fostered by technological protection measures. In short, they propose a “reverse notice and takedown” procedure which would obligate content producers to “unlock” technological protection when necessary to foster uses privileged by the law as in the public interest. They discuss in detail how such a procedure make be established in both the US and the EC, and what the details of such a solution might look like.

Although long and complicated, with its treatment of both the US and the EC, this article richly rewards the time spent reading it. It provides a clear summary of where we are vis-à-vis the uneasy relationship between copyright and the digital environment, how we got to this point and how we might move forward in a responsible way. Scholarly work seems to get more attention from European courts and legislators than it does in the US, but this is one article that we must hope catches the attention of some well-placed American jurists who could consider implementing its creative solution to a problem that has rapidly become intolerable.

2 thoughts on “Fixing the DMCA?”

  1. Hi Kevin. Thanks for highlighting this article. I wonder if this is part of Pam Samuelson’s overall effort to create an alternative, model copyright law?

    I have been thinking for quite awhile that changes in the law (legislative changes) are a lost cause; rather, the likelihood is that business models will evolve away from reliance on those parts of the law, like the anti-circumvention provisions, that were wrong-headed in so many ways. It’s rare that we can get all the stakeholders to agree to change anything in the statute — not impossible, but rare — even when it’s clear that we’ve made a mistake. I hope I am wrong about this. Pam’s effort to articulate so clearly alternative solutions to the underlying problems that our attempted fixes address is admirable!

  2. Thanks Georgia. Actually, these three authors seem to share your skepticism about the possibility of real copyright reform in the U.S. being accomplished through legislation. They suggest that the best way for a reverse notice and takedown procedure to move forward in this country is through judicial action. They cite the Netcom case as as example of the courts limiting the anti-circumvention provisions in light of the public interest and argue that the next logical step for such common-law limitation is the procedure they suggest. Only when they are talking about the European Community, which has a “normative commitment” to balancing rights protection with the public interest in article 6(4) of the EU Copyright Directive, do they suggest the possibility of legislative reform in the Member States.

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