The U.S. was arguably the first country to enact an Internet-related copyright law. The challenges posed by the emergence and evolution of the Internet compelled the U.S. to implement the DMCA in 1998.[1]
History
During the 1980s and early 1990s, the main focus of preventing piracy from copy protection was to educate people that piracy was unlawful.[2] Some software had the slogan “piracy is theft” written with skulls and crossbones in the manual.[3] Because the Internet was not that developed, software piracy was not considered a big issue back in early 1990. Development of new software that facilitated sharing and distribution increased online piracy.
The first law enacted to regulate the use of cyberspace was the U.S. Communication Decency Act (CDA) of 1996.[4]Many considered this as an attack against rights online, as the Act imposed a restriction on Internet users. The Act prohibits all transmissions considered indecent on the Internet, whether sexual communications or indecent images.[5] One of the crimes on the rise on the Internet was online piracy.
Copyright’s importance is affirmed by a clause inserted to the U.S. Constitution which states that Congress shall have the power “to promote the Progress of Science and useful Arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”.[6]
Thus, it is no surprise the U.S. enacted one of the first laws to regulate copyright online, with the DMCA passed in 1998 to comply with World Intellectual Property Organization (WIPO) standards and account for changing technology. Congress designed the DMCA to further codify the rights of copyright holders in the digital world.[7]The DMCA addressed infringing activities that the 1976 Act could not have foreseen. The Online Copyright Infringement Liability Limitation Act (OCILLA), codified at section 512 of the DMCA, was passed as part of the (DMCA) on October 28, 1998.[8]
[1] 17, USC (1998).
[2] Guldberg Gustav & Sundén, Johannes “Pirates & merchants – An ongoing struggle on the hightech seas”(2004) School of Mathematics and Systems Engineering, Växjö University 1.
[3] Ibid.
[4] 47 USC s.230 (1996).
[5] Ibid.
[6] U.S Constitution Art 1, Sec 8 (8).
[7] Jeffrey Cobia, “The DMCA Takedown Notice Procedure: Misuses, Abuses, and Shortcomings of the Process”(2009) 10:1 Minnesota Journal of Law, Science & Technology 388.
[8] DMCA, Pub. L. No. 105-304, 112 Stat. 2860 (1998).
While there are many important implications of the DMCA, one of particular salience derives from the section commonly referred to as its NTD system or model.[1]
The DMCA’s NTD System
Section 512 of DMCA sets out the provision of NTD of an illegal content online.[2] The copyright owner sends takedown notice regarding infringement to the service provider.[3]
The notice need not be sent by the owner personally, but can also be sent by any person who is authorized to act on behalf of the owner.[4] The notice shall contain the signature (Electronic or Physical) of the person whose copyrighted work has been claimed to be infringed, along with his personal contact details.[5] The service providers after analysing the takedown notice must act expeditiously to remove or prevent access to the allegedly infringing material[6] by immediately taking down the online content.[7]
The Act gives a fair chance to the other party to defend themselves and prove their innocence. The accused party in his defence sends a counter notification to the copyright holder in which he claims his innocence.[8] The counter notification shall have the necessary details in accordance with the DMCA provision.[9] The service provider delivers a copy of the counter notification to the copyright owner along with an information stating the taken down content shall be restored in ten business days,[10] unless the service provider receives a notice from the owner that he has filed a suit to prohibit the user from “engaging in infringing activity relating to the material on the service provider’s system or network.”[11] There have been instances when the website containing the content has been taken down altogether.[12]
This whole provision is also called the “safe harbour” provision. To qualify for the statutory safe harbor, search engines and user generated content platforms are required to comply with the notice-and-takedown protocol in Section 512(c)[13]and with the obligation to terminate access for repeat infringers in Section 512(i).[14]
Under the safe harbour provision, apart from the protection given to the copyright holders, there are protections also granted to the ISPs and OSPs. Under Section 512(c),[15] ISPs are not liable for hosting or storing material that is posted by or at the direction of users. An ISP is immune from liability, however, only if it
(1) has no actual knowledge that the material is infringing;
(2) when the ISP is not aware of any facts or circumstances from which infringing activity is apparent;
(3) when the ISP removes infringing material when it becomes aware of the infringement.[16] The ISP/OSP plays a crucial role in acting as a medium between the copyright holder and the subscriber hence, it becomes important to grant them a proper protection.
[1] 17 USC S 512.
[2] 17 USC S 512(b)(2)(E).
[3] Ibid(c)(3)(A)
[4] Ibid (c)(vi).
[5] Ibid (c)(3)(A)(i)-(vi)
[6] Ibid (c)(1)(C).
[7] Ibid (b)(2)(E).
[8] Ibid (g)(2)(B).
[9] Ibid (3)(A)-(D).
[10] Ibid (g)(2)(B)(C).
[11] Ibid (g)(2)(C).
[12] Bari Solomon, “Friend or Foe-The Impact of Technology on Professional Sports” (2011) 20 Common Law Conspectus 253 at 253.
[13] 17 USC s.512(c).
[14] Ibid.
[15] Ibid.
[16] Ibid.
Author – Ketan Joshi, Senior Associate
