I generally agree with the holding of this case(Viacom v. YouTube). As stated in the Senate Committee on the Judiciary Report, the purpose of DMCA is to “ensure that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will continue to expand,” the ISP should not bear the burden to monitor its service affirmatively to achieve legislative purpose.
In the past, there is no doubt that the copyright holders bore the burden to patrol others’ illegal activity. For example, to eliminate counterfeit goods, the copyright holders had to detect such goods and take appropriate legal steps. Even though, today, ISP actually contributes to infringe copyrights by providing with a huge platform, in my opinion, there is no reason to shift such burden to patrol illegal activity from the copyright holders to ISP.
Additionally, if mere knowledge of prevalence of infringing activity in general is enough, most ISP should take down illegal materials to fill the requirements of DMCA, but it is materially difficult to find out such materials because ISP has no concrete idea about infringing activity, and it seems too hard for ISP.
DMCA RATIONALE IS PROPERLY VINDICATED
ReplyDeleteI strongly agree with the decision on Viacom v. YouTube.
Big Content generally wants to create scarcity and therefore drive up-- or at least maintain and avoid a precipitous drop in -- prices. This is exactly what would happen if ISPs faced greater exposure and burdens to police infringement.
But this is at odds with the fundamental rationales set forth in the IP Clause of the Constitution: to further dissemination and distribution of works "...To promote the Progress of Science and useful Arts..." Notably, the IP Clause does not state that the primary rationale of copyright law is to reward authors.
The existing rationale of the DMCA protects ISPs -- therefore increasing supply of distribution that dramatically lowers distribution costs of content. These lower costs of distribution result in wider dissemination of works and easier adoption/use of works, which is consistent with the primary goal of the IP Clause. The DMCA accomplishes this while still maintaining an effective remedy for Big Content for repeat intentional infringers. The big ISPs have a vested interest in taking down repeat infringers.
Meanwhile, Big Content can best protect itself by adjusting its pricing and business models to take advantage of the new reality in which it may reach dramatically more customers but must charge less per customer than before. This is a far more useful and customer-friendly way of dealing with current dynamics than engaging in lawsuits that, if successful, hurt customers.
Punchline: The current DMCA works. It is consistent with rationale of IP Clause, economically efficient, and still leaves Big Content with adequate remedies for repeat infringers.
Chris Hurley