A DMCA Fix Needed To Eliminate Online Copyright Loophole

Jul 24, 2007

Article ImageThe second provision of the Digital Millennium Copyright Act (DMCA) of 1998, also known as the Online Copyright Infringement Liability Limitation Act (OCILLA), gave service providers a “safe harbor” from copyright infringement if they removed the alleged infringing content from their websites at the request of the copyright owner.

However, content-filtering technology has evolved since Congress passed the DMCA, which may in turn affect how the law is interpreted and enforced. In February, MySpace, the News Corporation-owned online community, licensed copyrighted video-filtering technology from Audible Magic, an acoustic fingerprinting company. Autonomy Corporation, a provider of infrastructure software for the enterprise and a proponent of meaning-based computing, released Virage Automatic Copyright Infringement Detection (ACID) in April. ACID enables copyright owners to maintain control of their intellectual property by automating detection of illegal distribution of copyrighted material on the internet. 

Thus, despite an increasingly blurry line between who is responsible for removing content, the courts have begun to send a message to service providers: Now you have technology available to help avoid infringement, so you need to take a more proactive role in filtering copyrighted content. 

In a lawsuit filed in early May, England’s Football Association Premier League Ltd. and independent music publisher Bourne Co. filed a class-action lawsuit against YouTube, alleging copyright infringement. In the complaint, the Premier League claims YouTube has content-filtering technology but it will only provide filtering to copyright owners with whom it has licensing agreements.

“Content providers call it favoritism,” says Carole Handler, vice chair of the IP litigation practice at Foley & Lardner, who specializes in new media, entertainment, and copyright law. “But given the newness of the technology and the burden shifting involved, it is a logical concomitant of an agreement.” 

Handler explains that with loopholes in the DMCA, copyright infringement lawsuits are going to continue to pop up and she thinks that Congress needs to reexamine the law. Handler believes Congress has taken a second or third look at the DMCA since 1998 but “has not seen any proposed revision.” “The issue in the litigation is who bears the burden of enforcement and whether the DMCA unduly burdens the content owners,” she adds. 

The Premier League/Bourne Co. class action lawsuit comes on the heels of a previous suit filed by Viacom in March where the media conglomerate sued Google and YouTube for $1 billion over copyright-infringing videos on its site. In July 2006, the helicopter pilot who in 1992 shot footage of the beating of truck driver Reginald Denny during the Los Angeles riots sued YouTube. Given the direction of this latest string of copyright infringement lawsuits, many believe that the laws in place regarding online copyright infringement need to be reexamined. 

In fact, as far back as October of last year, Jack Lerner, a fellow at the Samuelson Clinic at the University of California, Berkeley predicted that we “will see a lot more lawsuits if they don’t change the policy from what YouTube is doing, because there’s a lot of copyrighted content up there now.” Other experts claim that the lawsuits are just a testament to the burgeoning of online video. “The emergence of these lawsuits is yet another sign of what a powerful force online video has become in such a short period of time,” says Mary Madden, senior research specialist at the Pew Internet and American Life Project. 

While she can’t say for sure what the decision will be in the Premier League/Bourne Co. vs. YouTube case, Handler speculates that the case will piggyback on top of the class-action lawsuit filed by Viacom against Google and YouTube. One thing she does feel certain about: Until Congress amends the DMCA to more effectively enforce content filtering by service providers, regardless of whether they have license agreements, copyright infringement lawsuits will continue to arise. 

(www.copyright.gov/laws; www.eff.org/IP/DMCA