Who’s on the Hook for Digital Piracy? Analysis of Proposed Changes to the Digital Millennium Copyright Act and Secondary Copyright Infringement Claims

FBI Anti-Piracy Warning: The unauthorized reproduction or distribution of a copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by up to five years in federal prison and a fine of $250,000.[1]

Chances are that many Americans have seen the warning above at some point in their lives, whether they saw the words stamped on the back of a music album sleeve or displayed on a screen before viewing a film.[2] Still, despite the threat of severe liability, chances are that many of these individuals will nevertheless engage in illegal pirating activity.[3]

Prior to the rise of the internet, individuals who made illegal copies of copyright-protected works like movies and music recordings were necessarily limited by the technology available to make such copies.[4] Magnetic audio and videotape cassettes allowed individuals to record songs played on the radio or movies and television shows to create “bootleg” versions by crude processes which, by nature, hindered one’s ability to reproduce multiple copies of similar quality to the original work.[5] However, as technology progressed, the opportunities to create illegal copies of copyrighted works, specifically within the newly emerging digital landscape, expanded with ease, and digital piracy grew more and more rampant.[6] The development of compact discs (“CDs”) and MP3 compression software provided easier avenues to create impermissible copies of digital media, and access to high-speed internet coupled with the rise of peer-to-peer sharing systems streamlined opportunities for fast and simple illegal downloading.[7] Today, in the current landscape of internet ubiquity, digital piracy has become an all but inevitable obstacle that every copyright owner, be it a large established entity such as a record label or a small independent content creator, has come to anticipate.[8]

The issue of digital piracy has not gone unaddressed by Congress, as evidenced by the promulgation of the Digital Millennium Copyright Act (“DMCA”) in 1998.[9] One goal of the DMCA was to address the growing rates of digital piracy in the 1990s by providing copyright owners additional causes of action against copyright infringers, particularly infringers that impermissibly circumvented technological tools used by rights-owners to protect their works.[10] However, the drafters of the DMCA were also careful to remain consistent with the main underpinnings of copyright law, which are to maintain a balance between protecting copyright owners’ works and facilitate the constitutional charge to “promote the Progress of Science and useful Arts.”[11] Within the context of the emerging digital age, Congress applied this balance by seeking to (1) instill confidence in rightsholders that copyright protections would remain effective in a digital landscape and (2) provide assurances to new, growing online service providers (“OSPs”) that their unprecedented business models would not be decimated by imputing liability to the providers for the infringing conduct of their users.[12] Thus, Title I of the DMCA laid out “anti-circumvention provisions” that prohibit circumvention of technological measures, such as password keys and encryption codes, used to protect copyrighted works.[13] Title II of the DMCA mitigated liability for internet service providers (“ISPs”)[14] by granting “safe harbor” protections to ISPs that comply with statutory requirements—these safe harbors largely aimed to incentivize ISPs to promptly respond to reports of infringing content.[15]

Since its enactment, the DMCA has received criticism that its measures are outdated and ill-equipped to address the ongoing digital piracy problems that continue today.[16] The internet is undoubtedly a different landscape from what it was at the time the DMCA was promulgated more than two decades ago.[17] With current considerations to amend the DMCA in light of the areas of growth that were unimagined at the time the DMCA was written,[18] coupled with recent litigation seeking to hold ISPs secondarily liable for infringing conduct of their subscribers,[19] the path to reducing digital piracy is still paved with uncertainty.

Following a discussion of ongoing proposed changes to the DMCA and developing litigation concerning the potential for vicarious liability claims against ISPs, this Note will ultimately argue that the current DMCA safe harbor provisions require updated eligibility requirements for ISPs, but the availability of vicarious liability claims against “mere conduit” ISPs overreaches the scope of protection afforded to copyright owners. Part I will provide a brief history of the DMCA, including a discussion of the safe harbor provisions and the requirements therein. Part II will incorporate current discussions regarding the need for DMCA reform, address the competing policies at play, and note potential areas of reform. Part III will discuss the origins of secondary copyright infringement liability caselaw, including recent cases that have considered extending vicarious liability claims to ISPs that act as “mere conduits” to provide internet to their users. Part IV will propose clarifications in the DMCA safe harbor protection most needed in the current digital landscape while arguing that ISPs must still be properly insulated from open floodgates of liability. This Note will conclude that the DMCA should be revised to alleviate rightsholders’ burden of monitoring incidents of copyright infringement, but the DMCA should still insulate “mere conduit” ISPs from vicarious liability claims.

          [1].      FBI Anti-Piracy Warning Seal, Fed. Bureau of Investigation, https://www.fbi.
gov/investigate/white-collar-crime/piracy-ip-theft/fbi-anti-piracy-warning-seal [https://perma.cc/6HEN-PT3G].

          [2].      See id. All U.S. copyright holders are authorized by 41 C.F.R. § 128-1.5009 to use the FBI’s Anti-Piracy Warning (“APW”) Seal, the purpose of which is to deter infringement of U.S. intellectual property laws by educating the public of these laws’ existence and notifying citizens of the FBI’s authority to enforce these laws. Id.

          [3].      Maria Petrescu, John T. Gironda & Pradeep K. Korgaonkar, Online Piracy in the Context of Routine Activities and Subjective Norms, 34 J. Mktg. Mgmt. 314, 324–25 (2018). Studies have shown that although some consumers may view digital piracy as an infringement of another’s intellectual property rights, this did not impact their moral perceptions of the act of infringement. Id. Digital piracy may be regarded as a “soft crime,” as one study noted that consumers who state they would not steal a CD from a store would still consider illegally downloading the contents of the CD online, due to a lowered risk of getting caught. Id. at 325.

          [4].      Thomas J. Holt & Steven Caldwell Brown, Contextualising Digital Privacy, in Digital Piracy: A Global, Multidisciplinary Account 3, 4 (Steven Caldwell Brown & Thomas J. Holt eds., 2018).

          [5].      See id.

          [6].      See id.

          [7].      See id.

          [8].      See id. The authors note that “it is thought that millions of people engage in digital piracy every day. The true scope of piracy is, however, difficult to document as clear statistics are difficult to obtain.” Id. at 5. One report by Music Watch estimated 57 million Americans pirated digital copies of music in 2016; another report by Nera estimated the revenue loss for the global movie industry to be between $40 billion and $97.1 billion per year. Damjan Jugović Spajić, Piracy Statistics for 2021, DataProt (March 19, 2021), https://dataprot.net/statistics/piracy-statistics/ [https://perma.cc/5CMV-BH8N%5D.

          [9].      Digital Millennium Copyright Act of 1998, 17 U.S.C. §§ 512, 1201–02.

        [10].      See Holt & Caldwell Brown, supra note 4, at 189; Cyberlaw: Intellectual Property in the Digital Millennium § 1.02, Lexis [hereinafter Cyberlaw § 1.02] (database updated Oct. 2020).

        [11].      U.S. Const. art. I, § 8, cl. 8.

        [12].      See Bill D. Herman, The Fight Over Digital Rights: The Politics of Copyright and Technology 45, 48–49 (2013).

        [13].      Cyberlaw § 1.02, supra note 10.

        [14].      For the purposes of this Note, the term “ISP” will refer to service providers that merely provide internet access to their subscribers (for example, Charter Spectrum, AT&T, and Frontier). The term “OSP” will refer to all other online service providers that provide services such as user material hosting or system caching (for example, YouTube, Facebook, and Google).

        [15].      Cyberlaw § 1.02, supra note 10.

        [16].      See U.S. Copyright Off., Section 512 of Title 17: A Report of the Register of Copyrights 27–28 (2020) [hereinafter Report of the Register of Copyrights], https://
http://www.copyright.gov/policy/section512/section-512-full-report.pdf [https://perma.cc/R8Z9-JQME].

        [17].      See id.

        [18].      See id. at 10.

        [19].      Compare UMG Recordings, Inc. v. Bright House Networks, LLC, No. 8:19-CV-710, 2020 U.S. Dist. LEXIS 122774, at *5 (M.D. Fla. July 8, 2020) (declining to hold defendant ISP vicariously liable for user infringement because ISPs do not receive a direct financial benefit from ongoing infringement), with Warner Recs. Inc. v. Charter Commc’ns, Inc., 454 F. Supp. 3d 1069, 1079 (D. Colo. Oct. 21, 2019) (holding that defendant ISP may be vicariously liable for infringement because the ISP plausibly receives a financial benefit from infringing users “motivated” to use the ISP’s service due to the ISP’s lax approach to curbing infringement).


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