Should the Digital Millennium Copyright Act of 1998, which has been the basis for rulings around copyright infringement with online video and all other Internet content, have a 2011 makeover? I interviewed New York intellectual property attorney Robert W. Clarida about some of the problems with the existing 13-year old standing federal law, and who’s benefitted and suffered the most.

What is the Digital Millennium Copyright Act?

In 1998, the U.S. government established a Federal law meant to adapt the copyright laws to the digital age. This law is what is known as the DMCA and stands for “Digital Millennium Copyright Act.”

My interview with Robert W. Clarida, Copyright Attorney

I caught up with Bob prior to his speaking engagement for the Practicing Law Institute full-day seminar on June 16th, “Understanding Copyright Law in the Data Era 2011.” (For some disclosure and transparency, PLI has been gracious enough to provide me with a media pass for my coverage of this event.) Bob’s session is titled “New Cases in Copyright Law – Internet and Beyond,” is scheduled for 1:45 pm and will include the following presentation items:

  • Newsworthy copyright cases
  • Impact of case law on copyright law practice
  • Possible future copyright conflicts
  • YouTube v. Viacom, Costco v. Omega, Pearson, Barclays v., Golan v. Holder and many more

Bob, what has changed with copyright law today with online video being accessible for everyone to create, publish, and market – compared to the pre-Internet days?

When I started fresh in copyright law, the Internet didn’t exist and copyright law was mostly about big media companies. That is less and less true in copyright law today.  Any jewelry store on a street corner is going to have a website (and maybe video on that site), and that means they may have people infringing on their Web content. People who would never have had any interaction with copyright law 20 years ago, today they easily could be on either side of a copyright case.

What is it about online video that raises so many copyright issues?

I think anything that’s widely distributed on the Internet is going to raise a lot of copyright issues. When its just true user generated content, where people are posting a video that they themselves have made, that raises relatively few copyright issues. The most common problems tend to crop up you have people who do either one of the following:

1)   Post others’ professionally-created content from TV shows, music videos, or whatever it might be. They’ll just re-record something that they like and post it to You Tube or wherever.

2)   Post the own user-generated content while incorporating someone else’s professional (and copyrighted) material.

The second circumstance raises some interesting issues with copyright law that are a little bit unique to online video. With online video you’re much more likely to get some sort of user generated video content in the mix. You’re much more likely to have some 3rd party content that sneaks into the frame, that you might have with another media.

Do you find there to a lot of companies doing online video today that don’t think they never need to really consider consulting with copyright lawyer? Or are copyright attorneys having a difficult time keeping up with the Internet technology, and the new legal discussions from it?

I think it’s a little bit of both. Most companies doing online video today have never had any interaction with copyright law before. They’re very often turning for advice to their attorneys that they’ve had in place for a long time on their general business issues. You get a lot of attorneys who are being asked to resolve copyright questions who really don’t have any background in it, and haven’t of kept up with the changes in the law and the way the DMCA applies to online video.  There’s just an awful lot of misinformation out there. When you have any question about copyright law and online video, you need the counsel of a copyright lawyer to really know the answer and what the courts have ruled on.

Does the law have a hard time keeping up with the technology?

I think the law is always destined to be behind technology. Changes in the law happen very slowly and changes in technology can happen very quickly. But I would also say that even the technology has a hard time keeping up with technology. The last time anybody tried in a serious way to get out in front of technology and make some law that would address technology head-on was to the DMCA in 1998, and that has not worked out terribly well. I think our Congress would need to have a lot better ability to predict the future than they do in order to make wise laws about technologies that haven’t even been invented yet.

Why do you say the DMCA hasn’t worked well?

The DMCA has become really, really unworkable as a practical matter because the scope of infringement is now so large. There are just so many infringements to pursue that sending take down notices is just not a productive way to go about it.

There’s the whack-a-mole problem as I’m sure you’re aware of; that if a content owner sends a take down notice to a website or Internet service provider (ISP) and the material comes down, within 15 minutes there are 4 other people that have also posted it. That happens a lot with popular content. Now if it’s just one piece of content on You Tube and it’s not all over the Internet, then yes you can send You Tube a notice, and maybe that will take care of it. But the scope of infringement is so much larger today than ever imagined back in 1998 when they did the DMCA, and user generated content has become a big part of it. It’s just not an effective way of enforcing copyright on the Internet.

So who have been the beneficiaries of the DMCA?

Well, copyright owners have received some benefit from the DMCA. One of them being that the burden is not on the copyright owner to do anything in order to have a copyright. It’s up to the copyright owner to say, “yes” in order to authorize the use.  If you haven’t got a yes from the copyright owner, then what you’re doing is unauthorized; and unless it meets the legal definition for “fair use,” then it’s an infringement.

But who really have benefitted from the DMCA are the Internet service providers (ISP) to avoid having liability. It’s been a much, much better deal for them as it has been for the content owners.

I think what the DMCA did inadvertently is that it has given everybody the idea that taking someone’s copyrighted material is fine as long as the copyright owner doesn’t complain to them about it. It has sort of turned the default position upside down and it has said until somebody complains about this I’ll do it and I’ll be fine.  That’s not the way our understanding of copyright law operated prior to that time.

But the Internet has skewed all of that. The Internet gave us a whole new medium in which to distribute copyrighted works, whether with or without authorization. The Copyright Act let ISPs take the position that until they get a complaint from the copyright owner, anything and everything on their site is fine and can stay there. I think that is what’s really unfortunate; and that has not been a good thing.

About Robert W. Clarida, Copyright Attorney

Robert W. Clarida is the partner in charge of the copyright practice at the New York firm of Cowan, Liebowitz & Latman, P.C., which was named “Copyright Firm of the Year for 2008” by Managing Intellectual Property magazine. He has recently received professional peer recognition for the field of intellectual property in “New York Superlawyers” (2006, 2007, 2008, 2009), American Lawyer’s “Best Lawyers in the U.S.”(2006, 2007, 2008, 2009); and for the field of copyright in Legal 500 (2007). Bob practices primarily in the copyright, trademark and rights of publicity areas. Read Bob Clarida’s full bio.

Feature image provided courtesy of iStockphoto, ©richywolf (File #13345477)