DMCA Safe Harbor and chilling effects on free speech

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Expected Audience: Anyone who uses the internet


The DMCA does do a lot of good. It allows websites like Youtube to exist without having to pay damages for contributory infringement. However, Doug does not emphasize the problems with the DMCA. The DMCA would work extremely well if everyone who posts content on the internet is familiar with U.S. Copyright law in general and the doctrine of fair use in particular. However, because internet users are not familiar with the fair use doctrine the DMCA has a chilling effect on free speech. Many users who post acceptable fair use material do not respond to take down notices because they either do not realize their posts were acceptable or do not care enough about the matter to respond.

Youtube is an interesting example of how the DMCA can work to protect the third parties that might accidentally infringe copyrights. As a new video sharing site on the internet, Youtube quickly became popular for watching and sharing unauthorized copyrighted videos. In 2008, Youtube stepped up policing of its site for copyrighted videos and became fully compliant with the DMCA's safe harbor provision. An interesting part of Viacom v. Youtube, is the remedy that Viacom was seeking from Youtube. The most common remedy for copyright infringement is an injuction.. Court's do not favor allowing infringing works to be distributed to allow plaintiffs to recover greater monetary damages. In Viacom, Viacom did not ask for an injunction against Youtube but instead sought damages for infringing materials that Youtube hosted prior to when it became eligible for the DMCA safe harbor. In fact an injunction against Youtube would probably not have been against Viacom's interest as Youtube has become a way for media companies to advertise and promote material over the internet.

Grooveshark, which I discussed in my last post, was an attempt at utilizing the DMCA to create a Youtube like site for sharing music. One of the main problems with the idea was that in 2006 when Grooveshark was founded Youtube, the site Grooveshark modeled itself after, was not compliant with the DMCA's safe harbor provision. I have doubts about whether the Youtube model can really work for a high profile website for music sharing. Most of the music people want to listen to are by popular artists who have assigned copyright to record companies. Time will tell if Grooveshark will find a way to exist without being sued by every major label.

I hope everyone has a happy Thanksgiving.