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Although the legislative history of the DMCA can be deceptive,
there are some clear indications of Congress's intentions regarding the legislation as a whole, as well as specific provisions, including § 512(f). This legislative history, when combined with the statutory structure of the DMCA, shows that Congress intended to discourage abuse of the notice-and-takedown process and the putback process without discouraging their use.
Congress crafted the DMCA, in part, in order to implement the World Intellectual Property Organization (“WIPO”) Copyright Treaty (“WCT”) and WIPO Performances and Phonograms Treaty (“WPPT”).
These treaties “enhance[d] the exploitation and enforcement of exclusive rights in the digital environment” in response to “the questions raised by new economic, social, cultural and technological developments.”
In other words, the treaties are the product of an international “recognition that works made available in digital formats may be especially vulnerable to unauthorized copying and redistribution; unless the digital file can be secured against these acts, its susceptibility to unauthorized recirculation may discourage authors from making it digitally available to the general public.”
As a signatory to the treaties, the United States was obligated to pass implementing legislation covering rights management information and technological protection measures used to prevent unauthorized access to, and infringement of, creative content.
Title I of the DMCA, entitled “WIPO Treaties Implementation,” contained provisions doing precisely that.
However, Congress was motivated to do more than what was necessary to implement the treaties due to case law emerging during consideration of the DMCA,
and advocacy by the Clinton administration, ISPs, copyright owners, libraries, and consumer interest groups.
In order to address the panoply of copyright-related issues presented by the online environment, Congress found it necessary to clarify the standards of liability for online use of creative materials. It also saw fit to provide copyright owners with a mechanism that would facilitate the removal of infringing material from the Internet should technological protections measures fail to prevent infringing activity.
Congress recognized that a successful information-based economy and culture depends on the availability of creative content, the proliferation of services capable of disseminating the content in a legitimate fashion, and the freedom to engage in lawful uses of the content.
An outgrowth of this recognition was title II of the DMCA (entitled “The Online Copyright Infringement Liability Limitation Act” (“OCILLA”)), which created the notice-and-takedown process and the limitations on liability for cooperative service providers.
The OCILLA, codified at 17 U.S.C. § 512, streamlines online copyright enforcement in a manner that decreases the need for litigation by providing incentives for ISPs to remove or disable access to infringing material upon receipt of takedown notices from copyright owners.
Congress designed this process in a manner that encourages its use while also discouraging its abuse.
If a copyright owner sends a valid takedown notice
and the ISP responds in a timely manner as required by the statute,
the ISP is eligible for limitations on liability in relation to the challenged material.
If an Internet user believes that an ISP removed noninfringing material from the Internet in response to an illegitimate takedown notice, the user may send a counternotice (or “putback notice”) requesting the replacement of the material.
Upon receipt of the counternotice, the ISP may repost the material unless the copyright owner informs the ISP within ten to fourteen business days that he or she plans to file a lawsuit.
If the copyright owner does not file suit, the ISP must replace the material or risk exposure to liability for removing the material and/or terminating access.
Although this process seems relatively straightforward, it is replete with not-so-straightforward requirements that copyright owners, ISPs, and Internet users must comply with in order to qualify for the statutory protection. While the requirements are somewhat burdensome, they make the process more usable by creating uniform guidelines and discouraging abuse. For example, ISPs must designate an agent to receive takedown and putback notices with the U.S. Copyright Office
and reasonably implement “a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers.”
As for copyright holders and their agents, they must provide ISPs with specified information regarding the alleged infringing material and how to locate it.
The copyright holder must also state that it has a good faith belief that the material is infringing and swear under penalty of perjury that it is “authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”
Similarly, Internet users must provide ISPs with descriptive information and swear under penalty of perjury that they have a good faith belief that the material addressed in a counternotice is noninfringing (i.e., was removed by mistake or misidentification).
Even the limitations on liability contained in § 512 have built-in requirements that narrow their applicability.
These requirements are aimed at excluding ISPs that are not “innocent” from the provisions' benefits.
Thus, ISPs that take active roles in relation to infringing material cannot profit from infringement while claiming the protection of the statute.
These requirements are part of a balanced statute designed to create an effective notice-and-takedown process that is not prone to abuse. However, Congress also included penalties for knowing material misrepresentations regarding the nature of online material in § 512(f). While this provision was undoubtedly designed to prevent abuse, it is also part of a statutory structure designed to facilitate use of the notice-and-takedown process. As will be discussed in detail below, Congress did not intend § 512(f) to discourage use of the process by copyright holders or Internet users.
Section 512(f) states:
Misrepresentations.-Any person who knowingly materially misrepresents under this section-(1) that material or activity is infringing, or(2) that material or activity was removed or disabled by mistake or misidentification,shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
It is clear from the statutory language that Congress included § 512(f) in the DMCA to ensure that the costs associated with malicious abuse of the notice-and-takedown process would be borne by the abusers. However, the statute and related legislative reports fail to define “knowing material misrepresentation.” In fact, only two reports give any real indication of what “knowing material misrepresentation” means, and the language used in each is identical: “This subsection is intended to deter knowingly false allegations to service providers in recognition that such misrepresentations are detrimental to rights holders, service providers, and Internet users.”
Although this explanation could have been more explicit, when combined with the statutory structure and the legislative history describing the overall purpose of the notice-and-takedown provisions, Congress's intent is clear. Congress aimed to create a notice-and-takedown process that would facilitate legitimate e-commerce by providing copyright owners with a method by which to remove infringing material, providing ISPs with limitations on liability and clear guidelines on what a copyright owner had to do to seek such removal, and providing Internet users with a mechanism to object to removals when they believe that material they placed online should not have been removed due to the fact that it is noninfringing. The statute would fail to achieve these three goals if it allowed wrongdoers on either side to intentionally mislead ISPs regarding the nature of the content or the use at issue. Section 512(f) targets these conscious misrepresentations and discourages them by providing damages to injured parties. However, nothing in § 512(f) itself or in the legislative history indicates that Congress intended to create a process in which copyright owners and Internet users would fear voicing their interests to ISPs due to a high risk of liability. Imposing liability for takedown or counternotices aimed at alleged fair use material would create such fear.
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