Academic journal article Marquette Intellectual Property Law Review

Navigating the Safe Harbor Rule: The Need for a DMCA Compass

Academic journal article Marquette Intellectual Property Law Review

Navigating the Safe Harbor Rule: The Need for a DMCA Compass

Article excerpt

INTRODUCTION
I. HISTORICAL OVERVIEW OF COPYRIGHTS
   A. Early Evolution Due to Modern Technology
   B. Entrance of the Digital Millennium Copyright Act
   C. Evolution After the Digital Millennium Copyright Act
II. VIDEO SHARING PHENOMENON
   A. YouTube
   B. Other Video Sharing Websites
III. CURRENT LITIGATION
IV. THE COLLIDE OF VIDEO SHARING TECHNOLOGY AND THE DMCA
V. SOLUTIONS
   A. Both Parties Monitor Content
   B. Implement Semi-Permanent Red Flags
   C. Clarifications
CONCLUSION

INTRODUCTION

The Internet is an everyday part of life for many people--checking e-mails, doing research for work or school, getting directions, and more. In addition to these activities, which many people consider essential to their everyday lives, are other abilities of the Internet: acquiring music, reading newspapers, and watching videos. The Internet's capability to give users easy access to mass media can provide many problems in the copyright arena. Along with the ability to share information on the Internet came the ability for mass copyright infringement. (1) Who was to be held liable?

Copyright law has evolved in order to accommodate the special issues arising due to the Internet. To prevent a chilling effect on technology from copyright infringement liability, the Safe Harbor Rule was enacted. (2) This rule prevents Internet service providers (ISPs) (3) from being held liable for third party activity on the Internet. As long as the service providers follow several different rules, they will not be penalized for copyright infringement. (4) Along with protecting the ISPs, the Safe Harbor Rule allows copyright holders to contact ISPs and have them take down unauthorized copyrighted material. (5) This legislation provides a balance between the copyright owners and ISPs.

However, recent litigation brought the question of whether the Safe Harbor Rule is adequate for its intended purpose (6)--providing a balance between copyright owners and ISPs. Much of the technology causing controversy, such as video sharing, did not exist at the time Congress enacted the Digital Millennium Copyright Act (DMCA). (7) Without knowing what to expect to emerge on the Internet, Congress was not able to make provisions that sufficiently protect both the copyright holders and the ISPs. (8) As ISPs once struggled with excessive copyright infringement liability, (9) copyright holders now need more protection from the rampant copyright infringement occurring on the Internet. (10) Congress should reform, or at the very least clarify, specific sections of the Safe Harbor Rule in order to obtain its initial purpose in making the Safe Harbor Rule--to provide a balance of responsibility between the copyright owners and ISPs.

Part I of this Comment will discuss the historical overview of copyrights. It will briefly skim over the basic entry of copyrights into the legal system, and then delve into more depth about the evolution of copyrights because of technological advances.

Part II of this Comment analyzes the current phenomenon of video sharing online. Specifically, I will look at the use and policies of YouTube and several other video sharing websites and how they affect copyrights.

In Part III, I discuss current litigation that may influence the liability of ISPs in connection with the Safe Harbor Rule of the DMCA. The cases discussed will be Tur v. YouTube and Viacom v. YouTube.

In Part IV, the potential effects of the cases discussed in Part III on the DMCA are analyzed, along with the potential issues the outcomes may create in connection to copyright protection.

Part V of the Comment discusses solutions to the issues video sharing technology has caused in connection with copyrights. Among the possible solutions are having both parties monitor the content on websites, implementation of semi-permanent red flags, and legislative clarifications to the DMCA.

Finally, a brief conclusion and overview of Parts I-V is located at the end of this Comment. …

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