January 01, 2015

The Music Industry vs. the Internet and Congress

Jennifer L. Dollard

This summer nearly 200 of the biggest names in music—including Taylor Swift, Sir Paul McCartney, and Lady Gaga—penned an open letter to Congress, calling for reform of the Digital Millennium Copyright Act (DMCA), claiming that the law is outdated and “threatens the continued viability of songwriters and recording artists to survive from the creation of music.” The industry’s concerns are in stark contrast to the traditional criticisms of the DMCA, as free speech advocates have long complained that the act often censors too much online speech.

The DMCA was enacted in 1998 with a goal of updating copyright laws for the digital age. The music industry claims that Section 512 places the entire burden of policing online piracy on the copyright owners, allowing tech companies to generate huge profits while music companies lose income. The real change that the music industry seeks is a switch from the “notice-and-takedown” procedure, which requires tech companies to remove allegedly infringing content upon notice from the copyright owner, to a “notice-and-stay-down” method, which would require online content hosts to affirmatively monitor its users to ensure that infringing content does not get reposted. The industry also alleges that the DMCA’s safe harbors encourage content-hosting platforms to turn a blind eye to piracy and get rich in the process.

Free speech advocates have long taken issue with Section 512’s “notice-and-takedown” procedures, claiming that the procedure is routinely abused by copyright owners, which results in lawful speech being blocked simply because it makes use of a copyrighted work. Moreover, the Electronic Frontier Foundation, an international nonprofit digital rights group, often asserts that the safe harbors are essential to our continued ability to share and create on the Internet.

So, whose concerns are more legitimate? It is debatable, but free speech advocates have the benefit of pointing to recent litigation for support. The facts underlying Lenz v. Universal Music Corp. provide an example of both the “notice-and-takedown” overreaching, and the potential endless liability that content-hosting platforms could face as a result of abolishing the safe harbors.

In this case, Stephanie Lenz had a thirty-second video of her one-year-old son dancing to Prince’s “Let’s Go Crazy” removed from YouTube after Universal Music Corporation sent a takedown notice pursuant to the DMCA. Imagine if YouTube had to not only remove the clip, but also affirmatively monitor all home videos uploaded to its site to ensure that Prince’s “Let’s Go Crazy” was not playing in the background, to avoid infringement liability. Most would agree that would be nearly impossible. And if it was possible, it would certainly result in a lot more “takedowns” of similar lawful content. Such was not the purpose of the DMCA, nor does it do anything to solve the music industry’s concerns over declining album sales.

The music industry’s recent push toward sensible reform is sure to be challenged by tech companies and free speech advocates, and with good reason. Although reform of the DMCA may be inevitable in light of the ever-evolving nature of technology, at this time, it appears that the music industry’s gripe is sound in business, not in the law.

Jennifer L. Dollard

Jennifer L. Dollard is an associate with the commercial litigation firm Faruki Ireland & Cox P.L.L. in Cincinnati, Ohio.