Internet Safe Harbors and the Transformation of Copyright Law

=2539165 (“Due to the robust nature of the immunity, Section 230 provides the legal foundation for many of the most popular websites that enable users to communicate with each other or the world at large.”). 24 See Edward Lee, Decoding the DMCA Safe Harbors, 32 COLUM. J.L. & ARTS 233, 269 (2009) (“[T]he DMCA safe harbors have helped to foster tremendous growth in web applications.”). 25 For a representative sample of criticisms of the safe harbors, see Jeffrey Harleston et al., Universal Music Grp., Reply Comments Submitted in Response to Section 512 Study: Notice and Request for Public Comment at 3–9 (Apr.1, 2016), https://www.regulations.gov/contentStreamer?documentId=COLC-2015-0013-90321&attachmentNumber=1&disposition=attachment&contentType=pdf; Jennifer L. Pariser, Motion Picture Ass’n of Am., Reply Comments Submitted in Response to Request for Comments on U.S. Copyright Office Section 512 Study at 3–5 (Apr.1, 2016), https://www.regulations.gov/contentStreamer?documentId= COLC2015-0013-90285&attachmentNumber=1&disposition=attachment&contentType=pdf. 26 See generally Lital Helman & Gideon Parchomovsky, The Best Available Technology Standard, 111 COLUM. L. REV. 1194 (2011). 27 See Roscoe Pound, Law in Books and Law in Action, 44 AM. L. REV. 12, 36 (1910). \\jciprod01\productn\N\NDL\93-2\NDL202.txt unknown Seq: 8 28-DEC-17 10:03 506 notre dame law review [vol. 93:2 For reasons addressed in Part II, rightsholders and platforms with substantial resources are leaving the DMCA behind and negotiating DMCA-plus arrangements that revolve around automated copyright enforcement systems. These systems are a pragmatic response to the incredible scale of online infringement, but they also have the potential to fundamentally rewrite the balance of copyright law. The automation of copyright enforcement at the platform level reinstates gatekeeping, but in a way that is likely to result in a new digital/analog divide. The defining feature of copyright regulation in DMCAplus environments is that any connection it has to the substantive content of copyright law will be purely a function of private negotiations between copyright owners and internet platforms. I. NOTICE-AND-TAKEDOWN A. The DMCA’s Origin Story The DMCA was intended to shepherd copyright into the digital age, but it was drafted at a time when the full implications of digitization and the global interconnectedness of the internet could not have been fully anticipated. In 1998, only forty-one percent of American households were connected to the internet, and an hour of television would take more than twenty-four hours to download, assuming you had the latest 56k modem.28 Google was founded on September 4, 1998, less than two months before the DMCA was signed into law.29 The DMCA’s origin story begins in 1993 when President Clinton formed the Information Infrastructure Task Force to articulate and implement the Administration’s vision for the National Information Infrastructure (i.e., the internet). The resulting White Paper was released in 1995 and eventually— after much lobbying, negotiation,30 forum shopping, and horse trading— morphed into the DMCA that we have today.31 The final text adopted in 1998 reflects a compromise between competing interests: Congress wanted to protect copyright owners from the prospect of massive digital piracy, but at 28 See Susannah Fox, The Internet Circa 1998, PEW RES. CTR. (June 21, 2007), http:// www.pewInternet.org/2007/06/21/the-Internet-circa-1998/. A file of 577 MB would take twenty-four hours to download on a 56k modem with dialup access. See Download Speed Calculator—How Long Will a Download Take?, CALCULATORCAT, http://www.calculatorcat. com/free_calculators/download_speed_calculator.phtml (last visited Sept. 20, 2017). 29 See Alex Fitzpatrick, Google Used to Be the Company that Did ‘Nothing but Search,’ TIME (Sept. 4, 2014), http://time.com/3250807/google-anniversary/. 30 Pamela Samuelson, The U.S. Digital Agenda at WIPO, 37 VA. J. INT’L L. 369, 379–81 (1997) (explaining the influence of the U.S. digital copyright agenda on the negotiation of the World Intellectual Property Organization (WIPO) internet treaties in the mid-1990s). 31 JESSICA LITMAN, DIGITAL COPYRIGHT 89–150 (2001) (reviewing the legislative history of DMCA). Note that the White Paper’s legislative proposal contained no relief whatsoever for online intermediaries with respect to infringing user conduct. See Annemarie Bridy, Graduated Response and the Turn to Private Ordering in Online Copyright Enforcement, 89 OR. L. REV. 81, 87–89 (2010) (summarizing the White Paper discussion concerning the scope of online service provider liability for copyright infringement). \\jciprod01\productn\N\NDL\93-2\NDL202.txt unknown Seq: 9 28-DEC-17 10:03 2017] internet safe harbors 507 the same time it sought to ensure quick access to movies, music, software, and literary works via the internet.32 Congress did not foresee user-generated content, Facebook posts, tweets, Vines, Snapchat videos, and the like; what it had in mind was a kind of “Celestial Jukebox,” which would broadcast traditional content, made by traditional producers, on demand and via subscription.33 In the 1990s, traditional commercial copyright producers, such as movie studios, record labels, songwriters, publishing houses, and software companies, were understandably concerned that rapidly spreading digital networks would facilitate the unauthorized copying of perfect digital reproductions of their works on a scale never before seen. Because the internet promised the dissemination of copyrighted works almost instantaneously, copyright owners were reluctant to make their works available in digital form or online without enhanced legal protection.34 On the flip side, the telecommunications providers that connected users to the internet were concerned that they would be made liable for the infringing conduct of their users—conduct over which they had no real control.35 This liability could be direct or indirect. Cases in the 1990s, such as Playboy Enterprises, Inc. v. Frena36 and Playboy Enterprises, Inc. v. Russ Hardenburgh, Inc.37 suggested that online service providers, such as internet bulletin boards, would be held directly liable for unlawful material posted by their users.38 However, other cases, such as Religious Technology Center v. Netcom OnLine Communication Services, Inc. (Netcom)39 and CoStar Group, Inc. v. LoopNet, Inc. (CoStar),40 persuasively reached the opposite conclusion. In Netcom, the district court held that the defendant internet service provider was not liable for the automatic reproduction of a copyrighted work by its computer system.41 The court refused to impose direct liability on the service provider, reasoning that “[a]lthough copyright is a strict liability statute, there should still be some element of volition or causation which is lacking where a defendant’s system is merely used to create a copy by a third party.”42 In CoStar, 32 S. REP. NO. 105-190, at 8 (1998). This account risks crossing the line from simplification into fable, but it is sufficient for present purposes. 33 See Bonneville Int’l Corp. v. Peters, 153 F. Supp. 2d 763, 767 (E.D. Pa. 2001), aff’d, 347 F.3d 485 (3d Cir. 2003). See generally PAUL GOLDSTEIN, COPYRIGHT’S HIGHWAY: FROM GUTENBERG TO THE CELESTIAL JUKEBOX 187–88 (rev. ed. 2003). 34 S. REP. NO. 105-190, at 8; see also GOLDSTEIN, supra note 32, at 164–65. 35 See GOLDSTEIN, supra note 32, at 105–90. 36 839 F. Supp. 1552 (M.D. Fla. 1993) (holding a bulletin board service operator liable for copyright infringement because the bulletin board displayed and allowed downloads of pictures copyrighted by Playboy). 37 982 F. Supp. 503 (N.D. Ohio 1997). 38 See Eric Goldman, How the DMCA’s Online Copyright Safe Harbor Failed, 3 NTUT J. INTELL. PROP. L. & MGMT. 195, 195 (2014). 39 907 F. Supp. 1361 (N.D. Cal. 1995). 40 373 F.3d 544, 550 (4th Cir. 2004). 41 Netcom, 907 F. Supp. at 1370.