This comment considers recent cases interpreting the Digital Millennium Copyright Act ("DMCA") and urges Congress to expand the protection of service providers through the DMCA safe harbors. The comment proceeds in six parts. Part I explains contributory and vicarious liability, the applicable sections of the DMCA to this comment, and the fair use doctrine. Part II provides a brief overview of video-sharing websites. It further observes the impact that video-sharing websites have had on digital media, focusing on the impact on the music industry. Part III looks at the recent cases interpreting the DMCA's red flag exception to safe harbor protection, as well as a case that demonstrates some ramifications of over-enforcement by copyright holders. Part IV examines the problem with the current interpretation of the red flag provision that leads to service providers' greater exposure to liability. Part V argues that Congress needs to enact legislation declaring that awareness of material that contains any original content, even if the material also contains what appears to be the use of another's copyright, does not amount to "aware[ness] of facts or circumstances from which infringing activity is apparent." Finally, this comment concludes by explaining how this revision will affect service providers and copyright owners, and why this change is necessary.
Response or Comment
Hank Fisher, Comment, Danger in the DMCA Safe Harbors: The Need to Narrow What Constitutes Red Flag Knowledge, 49 U. Rich. L. Rev. 643 (2015).