Internet Copyright Infringement
This paper is a research on Congressman Howard Coble’s Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act. It limits the accountability of internet service providers (ISPs) “for copyright infringements made over their networks, unless they have knowledge of such activity or gain economically from it” (Macavinta, 1998).
The writer agrees with the provisions of this law, as the writer believes that each individual should be responsible and accountable for their own actions. The writer believes that it would be unfair and unreasonable to make ISPs accountable for every single action of their subscribers. For one, they have a vast number of subscribers and it would be unreasonable to expect them to have the capability or the resource to monitor every subscriber’s activities. For another, if they did have the capability and the resource to monitor each subscriber’s activity then this might constitute as an invasion of the subscriber’s privacy, which would also be ethically questionable.
The U.S. Copyright Act of 1976 was passed as a copyright protection measure “to assure authors the right in their original expression, (and) to encourage others to build freely upon the ideas and information conveyed by a work” (Harrington, 1999). It protects “original works of authorship fixed in any tangible medium of expression” (Harrington) where the copyright holder is granted exclusive rights during their entire lifetime with the addition of 50 years. These rights include the right to license, display, perform, distribute, or reproduce their work.
This law protected the copyright owner from two types of copyright infringement, namely secondary copyright infringement and direct copyright infringement where secondary copyright infringement is further classified as either vicarious or contributory copyright infringement.
With the secondary copyright infringement, the defendant does not need to be personally involved in the violation, but is still responsible in some way for the infringement. A vicarious copyright infringement is committed when the defendant has the ability and the right to police or control the acts of the infringer and benefits financially in a direct manner from the infringement. Contributory copyright infringement, on the other hand, is committed if the defendant has knowledge of the infringing activity and causes, induces or contributes materially to another person’s infringing conduct.
Secondary copyright infringement is the violation that most ISPs are accused of. However, they claim that they are just passive providers that should be exempted from liability. The concerns of ISPs eventually led to the passage of the Online Copyright Infringement Liability Limitation Act.
The Online Copyright Infringement Liability Limitation Act protected ISPs from lawsuits when they assisted copyright owners in the limitation or prevention of infringement; clarified the criteria, which made it more difficult to establish a case of secondary copyright infringement against an ISP; and codified into statutory law that passive automatic acts cannot be used as basis for online copyright infringement.
One inadequacy of the Online Copyright Infringement Liability Limitation Act is that it may compromise fair use (“Online Service Provider Liability,” 1999). Since the law requires ISPs or other online service providers such as corporations or universities to expeditiously disable or remove access to infringed material, these online service providers might indiscriminately take down materials that are posted on the Internet just to avoid the complaints or to avoid being accused of violating the law. This can prevent proper investigations from being conducted, which in turn prevents the determination of whether the material was indeed infringed or not. In addition, this may lead to stricter rules where permission will be required for all hyperlinks and inclusion of materials that might be copyrighted.
This would greatly impact educational institutions and libraries where copyrighted materials are provided to students in digital format and where hyperlinks and finding tools are created.
In addition, since the law was enacted years before the emergence of the technologies of today, it may not have taken into account the nature and framework of these new technologies. It now raises questions on how the law should apply to them. For example, Google’s use of its cached page service has been under question by copyright proponents for a long time (Deora, 2003). Google was just starting as a company when the Online Copyright Infringement Liability Limitation Act was being created. Naturally, the law failed to account for the intricacies of a technology that was still under development. However, Google believes that the conditions which exempt ISPs and other online service providers from secondary copyright infringement also apply to them; hence, the law should be updated to include provisions for search engines and other new technologies.
This law can be improved with the development of policies for finding tools and web-based materials that enable the privilege of fair use to be maximized.
It would also be proposed that the implementation of the Online Copyright Infringement Liability Limitation Act be complemented by advancements in technology, that is, the use of technology in protecting copyrights. Examples would be the use of digital watermarks or digital signatures (Magalhaes, 2004). These can be used to prove the user’s identity, which can in turn be used to verify copyright ownership or permission to use copyrighted material.
As experts advocate (Harrington), it may be easier and more effective to fight internet copyright infringement by using technology than the law. It can be noted that technology advances more rapidly than the law, so this may be the more efficient way of providing cyber security measures. As well, by allowing copyright owners the capability of creating and maintaining their own digital signatures, they can help both the government and the ISPs in policing their work against any possible infringement. In addition, by enabling copyright owners to protect their work through digital signatures, it will become possible for almost anyone to protect their digital intellectual properties, no matter how simple or complex their nature may be. This would provide a faster way for copyright owners to provide protection for their work than having to wait for a specific law to be enacted or updated.
The writer believes that her proposals should be implemented. Firstly, policies do need to be created to ensure that fair use isn’t compromised by the internet copyright infringement laws. This will ensure that users get to make use other people’s work in a manner that’s beneficial for both sides. Users get to gain knowledge from the work of others while copyright owners get the fulfillment that their work is helping others and is not being rendered useless. It will also enable them to get recognition for their work.
On the other hand, the advancements in technology with regards to watermarking and digital signatures should be developed to enable copyright owners more control over the protection of their work and to complement the implementation of laws that guard and protect copyrighted materials against infringement.
References
Deora, P. (2003). Updating copyright laws to address concerns of Google’s cached page service.
Massachusetts Institute of Technology, Massachusetts
Harrington, M. E. (1999, June 4). On-line copyright infringement liability for internet service
providers: context, cases & recently enacted legislation. Boston College Intellectual
Property & Technology Forum. Retrieved from http://www.bc.edu/bc_org/avp/
law/st_org/iptf/articles/content/1999060401.html#fn29
Macavinta, C. (1998, April 1). Congress pushes copyright bills. Retrieved from
http://news.cnet.com/Congress-pushes-copyright-bills/2100-1033_3-209759.html
Magalhaes, R. M. (2004, July 22). Digital signatures. Retrieved from
http://www.windowsecurity.com/articles/digital_signatures.html
Online service provider liability. (1999, May). Retrieved from
http://www.unc.edu/~unclng/copy-corner9.htm
