Fordham 27 (Report 3): DMCA - 20 years later

The 'DMCA: 20 Years Later' panel

Moderated by Mitch Glazier (Recording Industry Association of America), one of the copyright sessions of Day 1 at Fordham IP Conference provided an opportunity to reflect on the first 20 years of the Digital Millennium Copyright Act (DMCA).

The first speaker, William F. Patry (Google), discussed the interplay between legislation and business solutions. The former serves as a way to solve business problems, and can do so by regulating directly business conduct or by providing a framework so that businesses themselves can solve problems. He submitted that the latter is the case of copyright legislation and, in particular, of the DMCA. If one uses this perspective, then the DMCA has been successful (even if you always need to define 'successful', which is a political choice as well).

Jacqueline C. Charlesworth (Covington & Burling LLP) discussed how over the past few years courts have had the opportunity to shape primary and secondary liability principles while interpreting section 512 safe harbours.

Joseph C. Gratz (Durie Tangri) focused on the concepts that section 512 does not really define and that courts have had to tackle, such as red flag knowledge and the approach to repeat infringers.

J. Devlin Hartline (CPIP, Antonin Scalia Law School, George Mason University) did not share a positive view of how the DMCA has worked so far. He highlighted how, not only is the DMCA "more broken than ever", but also how the original intention of Congress has been defeated by the actual application of the law by courts (in Perfect 10 v CCBill, Viacom v YouTube, UMG v Shelter, and Capitol v Vimeo): instead of having service providers and copyright owners working together to prevent online piracy, the DMCA has turned into a notice-and-takedown regime where copyright owners have to do most - if not all - of the work.

Following the individual presentations, the discussion moved on to the forthcoming US Copyright Office report on section 512, section 1201 (a point raised by Benjamin E. Golant (Entertainment Software Association)), and the suitability for and availability of safe harbours to certain types of providers. More generally, the merits and shortcomings of section 512 were discussed at length: an animated debate ensued, in fact, following up on Hartline's last point regarding the stated lack of cooperation between rightholders and service providers.