The Digital Millennium Copyright Act and Web 2.0

When the Digital Millennium Copyright Act became law 10 years ago, Internet giants YouTube and MySpace did not exist. Today YouTube hosts more than 3 billion videos and MySpace boasts more than 100 million profiles, representing just two of a growing number of Web sites offering user-generated content.

The sheer volume of user-generated content on the Internet presents a challenge to litigation as it is difficult to determine if content is unlawful or authorized, said panelist Jonathan Gottlieb, Fox Entertainment, during the program, “The Digital Millennium Copyright Act and User-Generated Content,” at the ABA Section of Intellectual Property Law’s 23rd annual conference in April.

The U.S. “opt-out” copyright system—which grants protection whether or not a work is registered, marked or renewed—would seem to simplify the determination of what is protected since it reduces the number of works in the public domain. However, that has not been the case.

Panelist Zahavah Levine, chief counsel with YouTube, showed three videos uploaded by users of YouTube and asked the audience whether each clip was a legitimate fair-use case or an infringement of copyright. The audience, in Levine’s opinion, faired poorly. Part of the problem, said Levine, is that YouTube and other similar sites do not immediately know where the audio or video clip came from, who uploaded it or whether the uploader had the necessary authorization to do so.

Section 512 of the DMCA offers a “notice-and-takedown” recourse for those who believe material infringes on copyright. Notice is sent to the Internet Service provider hosting the content in question and asks for removal in exchange for protection from liability. The alleged infringer can then dispute the removal by issuing a counter-notice to restore the material. While Section 512 is a powerful tool in protecting copyright, many criticize the notice-and-takedown procedure. Some ask for material to be taken down that is not covered by the statute, such as disfavored speech. Some others do not properly follow the requirements of the statute.

In order to help prevent infringing material on its site, YouTube uses both technology and policy-related tools:

• User-education. As Levine pointed out, many people who are uploading clips don’t fully grasp “copyright.”
• Repeat infringer policy. If someone is uploading copyright-protected materials frequently, there may be a ban on that account.
• Ten-minute limits on video uploads. This is to prevent copyright infringement from, for example, the upload of full-length sit-coms.
• Technology that includes such tools as digital hashing technology; automated DMCA notification and take-down, which detects identical clips; and new proprietary video identification technology.

“The Digital Millennium Copyright Act and User-Generated Content” was moderated by Ian C. Ballon, Greenberg Traurig LLP. The session was co-sponsored by the Section of Intellectual Property Law and the Section of Science and Technology Law.

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