Op/Ed Assignment: Statement by the Digital Millennium Copyright Act Revision Committee

The Internet and online technologies have grown so quickly that the Digital Millennium Copyright Act (DMCA) was arguably out of date before its October 28, 1998 signing. Hence, nearly 10 years after its enactment, it is necessary to revisit the provisions of the DMCA. We limit the scope of our revisionary proposals to two areas within 17 U.S.C. § 512.

One major flaw in the act is an inadequate handling of the term “service provider”. The DMCA defines “service provider” near the end of § 512 at (k) in two different ways. “Service providers” are then broken into categories by provisions (a) through (e). This convoluted verbiage is not only confusing, it fails to account for emerging technologies that, though worthy of safe harbor protection, might fall outside of the listed categories. We propose that “service provider” be redefined in a single simpler and more robust way that would not only account for the current categories but also for service providers that might now be beyond the imaginative grasp of legislators.

A second major flaw is the untenable burden placed on IP owners who try to police misuse of their works. We acknowledge that redefining “service provider” as suggested above could lead to an even greater burden for IP owners. Hence, we would require service providers to make use of technology in order to combat the problems that technology has caused. Current take-down notices are ineffective; service subscribers repost infringing works as soon as they are removed. Therefore, we propose a revision such that when IP owners provide sufficient identification of a work (e.g. digital signature, the work in its entirety, etc.) with the initial notice, no further notice will be required. The burden then shifts to the service provider to ensure that works so identified are not reposted. Section § 512(g)(2), which allows the subscriber to oppose take-down of noninfringing material, will stay in place in some form. Since the level of service provider might range from an amateur, noncommercial user to a major corporation, we further propose a reasonability standard for protective measures. This will allow for effective, one-time notices without overburdening low level service providers.