The DMCA: A Year In Review
Since it became law in 1998, the Digital Millennium Copyright Act (DMCA) has become the avenue for content management for copyright holders, but it is also an easily-deployable weapon for anyone who wants to censor content on the Internet. Let’s take a look at how recent developments are shaping content on the web, for better or for worse.
In short, the DMCA protects “online service providers” from copyright lawsuits if they comply with various parts of the DMCA, including swiftly removing potentially infringing content after receiving a takedown notice from the alleged rights holder. It also provides a mechanism for challenging improper takedowns.
In October, 2015, the U.S. Copyright Office and the Librarian of Congress issued a set of exemptions for the DMCA-as it does every three years. These exemptions basically “allow” people to do what they should already have a right to do under the First Amendment. For example, one exemption grants documentary filmmakers a renewed exemption to DMCA, which includes an expansion of authority for breaking encryption and allowing access to content on Blue-ray, for fair use purposes.(1) Also, now we legally can tinker with our tablets, smart watches and car control systems during the holiday season.(2)
Digging in to the most current DMCA conflicts, back in October, 2015, George Orwell’s Estate issued copyright takedown notices to merchandise seller, Cafepress, for a vaguely-worded reference to copyrights owned by the Orwell estate. The Estate ended up taking a lot of heat for their “Big Brother” approach to sending takedown notices to merchants. However, according to the Estate, it was being blamed for a unilateral decision by Cafepress to takedown every single item of merchandise that might reference any intellectual property owned by the Estate, including anything marked with “1984”, the title of Orwell’s novel “1984,” representative of our current surveillance culture.
Bill Hamilton, executor of Orwell’s estate, made a statement: “I asked CafePress to take down material that was in breach of Orwell copyright, and without checking with me which items I was referring to, [they] unilaterally took down everything with any Orwell reference, including T-shirts.”(3) Internet radio host, Josh Hadley, had created t-shirts sold on Cafepress which stated, “1984. It’s already here.” Not the zinger of our century, by any means, (wasn’t 1984 here a long time ago?) he never sold a single shirt, but got caught in Cafepress’ decision to take down all of his merchandise referencing “1984.” Instead of filing a counter-notice, Hadley spoke out on social media and simply began offering for sale his t-shirts on his own website. In this case, a great cost was incurred by the brand and reputation of the Estate by sending out a single takedown notice, risking the service provider taking down everything that might infringe on a holder’s intellectual property. Regardless of the facts, there is a social cost of the entire world thinking that the Estate has lost touch with the value of Orwell’s works. Not going too far down the rabbit hole, Orwell resided and died in the United Kingdom, where there is no right of publicity, so the initial letter the Estate sent regarding misappropriation of Orwell’s image would also be an improper use of a takedown notice.
Page 1 of 4 | Next page