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In 1998, in an effort to strike a compromise between copyright holders and Internet Service Providers (“ISPs”), Congress passed the Online Copyright Infringement Liability Limitation Act (“OCILLA”) as Part II of the Digital Millennium Copyright Act (“DMCA”). It was later codified in Section 512 of the Copyright Act. Known as the DMCA safeharbor provisions, the law exempts ISPs from liability for the infringing actions of their users, if ISPs satisfy certain conditions. It is seen as the more beneficial element of the DMCA because it is responsible for opening up free speech avenues and business opportunities on the Internet, many of which were yet to be realized when the law was enacted in 1998. The ISP safe harbor provisions distinguish between Internet access providers such as Comcast and Verizon, and content hosts such as YouTube. Internet access providers are not liable for infringing content travelling on their networks, so long as they maintain a policy of terminating the Internet access of repeat infringers. Content hosts, on the other hand, have to remove material if the copyright holder sends a takedown notice of infringement. However, if a user certifies that the use is not infringing, and the copyright holder fails to sue, the service provider has to restore the content within 10-14 days of the user’s notice.
Coupled with the 1996 Communications Decency Act, the OCILLA safe harbors have arguably played a primary role in making the Internet what it is today: a public forum where a person can say what she wants without the forum on which she posts being held responsible for her speech. Because the safe harbors give ISPs the assurance that they will not be subjected to massive liability for the speech of third parties, it allows them to confidently provide services. This process has proven to be beneficial to the growth of the Internet and the proliferation of free speech.
However, while OCILLA has generally been beneficial, some of its provisions fail to adequately protect users of the Internet. One study found that flawed takedowns occur all too often, where a users’ content is taken down unfairly without an affirmation of a claim of infringement. While the law does not require such takedowns, it provides an incentive for them by exempting ISPs from liability for faulty takedowns. In addition, ISPs claim that they receive so many takedown notices that they cannot possibly review all of them. What can result is another “unintended consequence” of the DMCA: a violation of free speech. Recent examples, like the Stephanie Lenz case and the McCain campaign’s problems with YouTube shine further light on the problem. In Lenz’s case, Universal Music issued a takedown notice to YouTube over her 29-second video of her toddler son dancing to a Prince song. YouTube promptly removed the material and Lenz sued Universal for DMCA abuse, claiming that her use of the song qualified as fair use and free speech. As for McCain, his campaign wrote to YouTube complaining that the sites’ take down of some of its campaign videos impinged on free speech. YouTube responded and stated that because it is such a fact specific determination, the host does not make decisions about what is and is not fair use of material.
Both cases serve as good examples of the flawed nature of the DMCA takedown provisions. To illustrate this point, here is a scenario similar to Lenz's: I exercise fair use and post a short clip of a song on YouTube, copyright holder comes across the post, copyright holder contacts YouTube to take down the song clip, and YouTube does so—no questions asked. Since YouTube is a content host, YouTube is required to contact me and inform me that it has taken the song clip down. Then YouTube must wait 10-14 days before it puts the song clip back up on its site, so as to give the copyright holder time to file suit. If I have filed a counter-notice requesting the material to be reposted, only after the grace period has passed can YouTube re-post the song.
At the very least, what should be happening is instead of notifying me the user that it has received a takedown notice and subsequently removed the song, a content host should contact me and give me a chance to either concede to the takedown notice, or file a counter-notice—all before the material is taken down. Public Knowledge is considering this as part of its copyright reform proposal found here. If this type of process is adopted, it would ensure additional burdens are not placed on ISPs and guarantee a more fair process for me, the user, because it gives me a chance to properly exercise my right of free speech.