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The DMCA License?

June 6, 2013

By Corey Field, Esq.

Recently I was reading through some Twitter links to copyright articles, when an online article caught my eye because it had such an annoying headline, using a phrase I had never encountered before.  The headline included the phrase "the DMCA license."  What on earth, I asked myself, is a "DMCA License"?

The DMCA (Digital Millennium Copyright Act), became part of U.S. copyright law back in the 1990s because it represented a legislative balancing act between the needs of copyright owners, and the needs of emerging new technologies on the internet.  On the one hand, new online technologies such as search engines and sites with user-posted content needed a way to grow their business model without being sued for copyright infringement committed by their users.  On the other hand copyright owners needed to maintain their exclusive right to control online distribution of their copyrights, including songs, videos, and movies.

The DMCA's solution was the "safe harbor" for internet service providers (ISPs).  The philosophy was (and is) that the ISP is not the same as their users, and ultimately not responsible for what users of the web site do.  If a web site user posts an infringing song or video, the DMCA "safe harbor" rules, when followed, provide the copyright owner a method to give notice to the ISP ("Hey, my copyright is on your web site!  Remove it!").  In turn, once the ISP removes the infringing content (or disables links to it), the ISP cannot be sued for the copyright infringement committed by the user.  So if everyone follows the rules, infringing files are removed, the copyright infringement stops, and the ISP can continue to pursue their technology and their business model.

This is a simplified description of the DMCA "notice and take down" procedures, and in addition to this process both sides must comply with other requirements: ISPs must register with the Copyright Office, and list their official "contact person" on their web site for copyright owners to contact.  Copyright owners are responsible for identifying the specific infringing URL, and for sending to the ISP an official DMCA notice that must provide specific information about the copyright owner and the alleged infringing posting.

Recently, you may have heard about high-profile court cases that have clarified some of the basic provisions of the DMCA and the "safe harbor."  The cases confirm that no matter how many infringing files are posted, and how often they are put back up, it is the responsibility of the copyright owner to identify each infringing URL and to send a "correct" DMCA notice to the ISP.  ISPs do not have a duty to police their own web sites.

But the courts also are starting to recognize that some web sites engage in what's called "willful blindness."  The owners of the web site know full well that the main attraction of the web site is the availability of infringing content.  But under the DMCA they are not required to police the web site, they can wait until the copyright owners send an official DMCA "take down notice."  The recent cases are important because the 9th Circuit court of appeals in California, and the 2nd Circuit court of appeals in New York, both said that at some point, web sites can't knowingly build their business model on copyright infringement.  They can't pretend to be blind to massive infringement.  And they can't encourage the infringement. 

In fact, the 9th Circuit actually found one web site liable for copyright infringement because it so actively encouraged the posting of infringing files, and sought advertising revenue based on the fact that the web site had things like full movies for free.  But that was an extreme "pirate site" case.  More legitimate web sites, according to the courts, may or may not cross the line into such active encouragement of infringement, and may or may not turn a blind eye to "red flags" of obvious infringement.

Which brings us to the headline that bothered me so much, the so-called "DMCA License."  Apparently, some internet users interpret the DMCA "safe harbor," which is designed to strike a balance between copyright and technology, as something quite different, a "license" to post anything you like, even if you know it is infringing, unless and until the copyright owner complains. 

The distinction may seem small, but it may represent how the general public regards copyright on the internet.  Instead of avoiding infringement and respecting copyright, the concept of the "DMCA License" is that you don't have to respect copyright.  Do what you like, and at the worst the copyright owner might force your ISP to remove the material.  There is no such thing as a "DMCA License" because under the DMCA, copyright owners are not in any way consenting to unauthorized use.  They are simply trying to keep up with the millions of infringements, using what the law gives them to work with.

One caveat: the DMCA does not overcome fair use rights.  Fair use, properly and fairly applied, is an essential First Amendment "safety valve" in the world of copyright.  But that's another story for another "Copyright Corner."

Any opinions expressed here do not necessarily reflect the opinions of my law firm or clients. You can follow Corey Field on Twitter:  @copyrightnotice

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