The DMCA Safe Harbor

Policy and Practice Divided

Authored by: Christopher S. Reed

The Routledge Companion to Copyright and Creativity in the 21st Century

Print publication date:  November  2020
Online publication date:  November  2020

Print ISBN: 9781138999251
eBook ISBN: 9781315658445
Adobe ISBN:

10.4324/9781315658445-43

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Abstract

This essay explores whether the process and practices set forth in the Digital Millennium Copyright Act of 1998 (DMCA) have now largely outlived their useful life. Although the internet community believes that the system works well, most copyright owners say that the system makes it hard for rights owners to enforce their rights on the internet and imposes an undue burden on them to actively police the internet for potential infringements in a way that goes well beyond what Congress intended. For copyright owners, the biggest failing of the notice and takedown procedure is that it has been construed to mean that a notice must be issued for every instance of infringing content, even if it has been taken down previously on the same platform. In addition, although the law requires that platforms remove infringing content “expeditiously,” neither Congress nor the courts have offered much guidance on what that means. But perhaps the most troubling feature of the current notice and takedown regime is that smaller, independent rights owners are disproportionately harmed because every hour spent issuing takedown notices results in less creative output, undermining the fundamental constitutional intent of copyright law: to promote the production of creative works for the public to enjoy.

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