It’s Fun to Strengthen the D-M-C-A

By: Joanna Mrsich

Imagine you are a video game developer or publisher excited about the release of a new game, but to your dismay, you find that popular streamers have uploaded extensive videos of your product to devices like Twitch and YouTube without obtaining your permission. You might find yourself asking “why don’t these platforms do more to protect my intellectual property?” And you just might be right in thinking that they should.

My previous blog post discussed the world of video game streaming and the role of copyright law in it. It also analyzed whether infringement exists in this realm and found that it is a prevalent, but thus far unenforced, issue. This post will focus on the role of platforms and whether the Digital Millennium Copyright Act (DMCA) serves its original intended purpose despite society becoming increasingly technology based. It is important to question whether streaming platforms are able to shirk their responsibilities too easily and if they should have a greater role in protecting their users’ copyrighted works.

Does the DMCA Play Favorites? Copyright Owners Versus Online Service Providers

Last year, the U.S. Copyright Office published a comprehensive U.S. government study and report to assist Congress in evaluating potential updates to the Copyright Act—specifically section 512—given the significant social and technological advancements since its creation. In over twenty years, advancements in technology and business models involved in copyright have evolved and expanded in ways that the DMCA could not foresee in 1998. These advancements and shifts have led the U.S. Copyright Office to conclude that the Digital Millennium Copyright Act is tilted in favor of tech companies rather than copyright owners.  The Copyright Office now suggests that Congress make changes to favor copyright owners. Moreover, the Report addresses whether section 512 is effectively balancing the needs of online service providers (OSPs) with those of creators.

The Copyright Office also discovered a variety of evidence indicating that online piracy remains pervasive despite §512. In a 2013 study by the MPAA, “432 million unique users worldwide explicitly sought infringing content during one month alone.” The MPAA also cited data from 2015 indicating that online sites well known as sources of infringing content encounter millions of unique visitors per month. The advancement in technology over the last seven years since the aforementioned study is nearly immeasurable. The number of global social media users alone has increased from 970 million people in 2010 to 2.96 billion people in 2020. The Report even cites the Association of American Publishers (AAP) in stating that “an increase in the volume does not speak to the effectiveness of the notice-and-takedown process…[given that]…the very same infringing content is easily and quickly re-uploaded to the same site after removals pursuant to previous notifications.” The Copyright Office explicitly states that the divergence in assessments between §512 by OSPs and copyright owners indicates that the DMCA is not achieving Congress’ intended balance. Consequently, the Report singles out areas where improvement is possible and would be beneficial to protect against copyright infringement.

DMCA Knowledge Requirement

One issue the Copyright Office Report notes is that legal precedent based on the current statute has fostered an environment in which companies can deny “knowledge” of infringing content. Additionally, courts have struggled to articulate the appropriate relationship between section 512’s intent to avoid imposing a duty to monitor and the knowledge requirement. A second issue involving the knowledge requirement is that courts have adopted a standard for willful blindness that differs from common law. The adopted standard requires deliberate avoidance of specific incidences of infringement versus a general avoidance of acts of infringement. This Report notes that this modified standard appears to be in tension with Congress’ original intent and scope of willful blindness. Moreover, while OSPs must take action under §512(c) and (d) when they have “actual knowledge” of infringement and are unable to ignore claims, §512 also explicitly states that OSPs have no duty to “monitor its service or affirmatively seek facts indicating infringing activity, except to the extent consistent with a standard technical measure.”

While OSPs argue they are already doing their part to limit infringing material and that strengthening DMCA provisions would limit their innovation and progress, many owners of copyrighted works believe a better balance can be struck. One of the principles used to guide the Study was the notion that internet policy in the twenty-first century cannot be one-size-fits-all.

DMCA Repeat Infringer Policy

The Report further suggests that Congress reevaluate the policy surrounding repeat infringers. While the DMCA currently permits OSPs to terminate accounts of repeat infringers, it does not have clear or uniform standards. Under §512(i)—which defines the conditions for eligibility—a limitation on liability shall apply to a service provider only if they have adopted and reasonably implemented a policy that provides for termination in appropriate circumstances. Moreover, §512(i) requires that service providers “…inform subscribers and account holders of the service provider’s system or network….” In conducting the study, the Copyright Office found that many rightsholders felt courts had shifted the burden to the rightsholder to establish that an OSP was in violation of the requirements in §512(i)(1)(A) by not adopting or reasonably implementing a repeat infringer policy. Additionally, the Report notes that rightsholders were concerned that infringing users could simply create new accounts and avoid culpability under the OSP policy.

Providing such standards could benefit OSPs’ enforcement mechanisms and help them be more proactive in preventing future or repeat copyright infringement from operating on their platforms. The Copyright Office suggested that policies should not require a repeat infringer to have been found liable in court—codifying a Fourth Circuit ruling—and that Congress require a written policy governing repeat infringement from all content providers—overturning a Ninth Circuit decision—so that users are definitively informed of the code of conduct. While the courts have articulated various tests to identify what is required under §512(i)(1)(A)—such as two tests from the Ninth Circuit used to assess whether OSP has fulfilled their obligations—it would be beneficial to further define what constitutes a “repeat infringer,” an adopted policy, and minimum requirements that satisfy “reasonable implementation.”

Conclusion

While the Report does not recommend any direct or wholesale changes to section 215, it identifies critical areas where Congress should reevaluate if the intent and action the DMCA was intended to provide is not being met. These potential reevaluations would aid OSPs, especially streaming platforms, in becoming proactive bodies that help protect copyrighted works from being infringed. Without updating and adapting the DMCA to modern times, it is likely copyright owners will continue to suffer the brunt of the antiquated DMCA’s fallout. Despite Congress’ original intent to provide OSPs with greater certainty regarding their legal exposure, while simultaneously providing copyright owners with assurance of protection, the advancements of technology and the way people interact with it seem to require a more robust form of the DMCA’s §512. As the Copyright Office’s Report addresses, the status quo arguably fails in achieving the level of protection copyright owners deserve from OSPs. As the world evolves, so should the DMCA.

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