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DMCA Provisions Proving Problematic For Courts, But Revisions Will Take Time

Friday, November 15, 2013
Nov. 13 --Courts are struggling with how to apply a number of provisions found in the Digital Millennium Copyright Act to today's technology, two attorneys with Drinker Biddle & Reath, Washington, D.C., said Nov. 7 during a Bloomberg BNA sponsored webinar.

Michael J. Remington, a partner at Drinker Biddle, said that in particular courts seem to be struggling to determine the appropriate breadth of the safe harbor protections that the DMCA created to encourage investment in what at the time was a fledgling online ecosystem. The difficulty, Remington noted, lies in the fact that “enormous technological changes have occurred” since the DMCA was enacted in 1998.

Viacom v. YouTube and Section 512
The tension between the law and technological advances has been evident in one of the more notable cases involving the DMCA: Viacom v. YouTube. In 2006, Viacom filed a copyright infringement suit in which it sought $1 billion in damages. The U.S. District Court for the Southern District of New York has twice granted YouTube summary judgment, finding both times that YouTube was protected by Section 512(c) of the DMCA, 15 U.S.C. § 512 (c).

The district court's first ruling found that YouTube lacked both actual knowledge of infringement--under Section 512 (c)(1)(A)(i)--and red flag knowledge--under Section 512 (c)(1)(A)(ii)--and therefore it determined that the service was protected by the DMCA's safe harbors (121 PTD, 6/25/10). The Second Circuit remanded and for the first time determined that if a service provider wilfully blinds itself to infringement then it may forfeit its safe harbor status (66 PTD, 4/6/12). Importantly, however, the appeals court affirmed that red flag knowledge requires that a service provider know of “specific instances of infringement.”

In its latest ruling, the Southern District of New York once again found in favor of YouTube, determining that the service provider was not wilfully blind to specific instances of infringement (77 PTD, 4/22/13). The case has one again been appealed to the Second Circuit.

“It is a problem of scale,” Janet Fries, of counsel with Drinker Biddle said during the webinar. When the DMCA was drafted, and specifically when the notice and takedown provision found in Section 512 was being discussed, nobody conceived of just how massive some of the protected service providers would be less than a decade later, Fries said. She noted that Google processes millions of takedown notices each month.

“The scale of managing notice and takedown has been strained, particularly when you have rightsholders that have vast amounts of works,” Fries said.

The ongoing review of the nation's copyright laws, launched by House Judiciary Committee Chairman Rep. Robert W. Goodlatte (R-Va.) this spring, is likely to devote considerable time to a review of the DMCA (188 PTD, 9/27/13). Indeed, on Nov. 13 Goodlatte announced that an upcoming hearing--date yet to be announced--will focus exclusively on Section 512.

During the webinar, Remington cautioned that the reform process is likely to be lengthy. Most stakeholders, he said, expect the process to take at least five or six years, and some think it may take closer to 20, he said.

“In the meantime, it is fertile ground for litigators,” Remington said.

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