Academic journal article Harvard Journal of Law & Technology

DMCA S. 512 Pain Points: Music and Technology Industry Perspectives in Juxtaposition

Academic journal article Harvard Journal of Law & Technology

DMCA S. 512 Pain Points: Music and Technology Industry Perspectives in Juxtaposition

Article excerpt

                         TABLE OF CONTENTS  I. INTRODUCTION                                                   547 II. BACKGROUND                                                    548     A. The DMCA Safe Harbor: Notice-and-Takedown                  548     B. The State of the Market According to the Music Industry    550     C. The State of the Market According to the Technology        Industry                                                   551 III. JUDICIAL INTERPRETATIONS OF THE DMCA                         553     A. Red Flag Knowledge                                         554     B. Representative List                                        556     C. Fair Use and Its Implications for Human Versus        Automated Notices                                          558 IV. POTENTIAL REFORMS TO THE DMCA                                 562     A. From Takedown to Staydown (or Somewhere in        Between)                                                   562     B. Counter-Notices and the Lawsuit Requirement                564 V. CONCLUSION                                                     566 


On April 1, 2016, the U.S. Copyright Office published the comments it solicited from stakeholders for its Section 512 Study, a program with the goal of gathering opinions on whether [section] 512 of the Digital Millennium Copyright Act ("DMCA") needs reform. (1) Among the commenters, the content and technology industries were not shy to tell the Copyright Office what they think is going right and what they think is going wrong, as well as what they think the systemic implications are. This Note will examine the comments of two groups of stakeholders: those from the music industry, (2) and those from the technology industry. (3) This Note will refer to each industry's arguments collectively while identifying when individual companies dissent. Both industries' comments, which answered the Copyright Office's list of questions in varying degrees of detail, tended to address two types of pain points: (1) major judicial interpretations of DMCA language, and (2) potential policy reforms that would require changing the actual structure of the DMCA system. Their proposed changes show that the two industries sometimes seem to live in entirely different worlds, and that there are serious questions as to whether the DMCA framework is suitable for the online ecosystem. The music industry decries the current system, citing the normalization of free music, the increase in infringement on popular platforms like YouTube, and the notice-and-takedown system requiring the music industry to constantly police the Internet for infringing material. (4) In contrast, the technology industry supports the current system, pointing to rising revenues, the enormous digital economy that the system's limited liability has encouraged, and the potential burden that any change in the status quo would impose on it. (5) Accordingly, this Note aims to critically engage with the policy proposals (or lack thereof) of both industries and place their arguments in direct juxtaposition.

Part II will provide relevant background, explaining the DMCA and the basic ways in which the music and technology industries view the state of the market. Part III will examine judicial interpretations of DMCA [section] 512 that the industries disagree about, while Part IV will examine their respective responses to proposed reforms.


A. The DMCA Safe Harbor: Notice-and-Takedown

Before DMCA [section] 512, providers of online services might have been liable for the content of users under a theory of secondary liability, based on them having facilitated infringement by providing the platform. (6) Section 512 establishes safe harbors for "service providers" that host, store, route, or transmit user-generated content, shielding them from liability for the copyright infringement of users as long as service providers comply with a few conditions. …

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