At the start of the Internet boom, courts expected online services to basically be the police for Internet copyright. But, these so called “Internet police” had absolutely no reliable databases to consult, nor any knowledge of licensing.
Later in 1998, congress changed that with a safe harbor, Section 512 of the Digital Millennium Copyright Act (DMCA), which provided clarity to Internet companies. The safe harbor says that in return for responding expeditiously to complaints of infringement, the liability of online services for misconduct by third parties is limited.
The Huffington Post reported that as part of its review of copyright law, the Subcommittee on Courts, Intellectual Property, and the Internet of the House Judiciary Committee has decided to hold a hearing on this framework.
The Section 512 safe harbor is an important principle of the Internet that is so important to the economy that we have incorporated it into free trade and trade promotion agreements — providing liability limitations to companies and investors. Section 512 has helped to nurture a successful Internet industry in the U.S., and legal uncertainty abroad has demonstrably deterred the same investment.
As of late, the DMCA has been referred to as “the third rail of IP politics,” due to the controversy it attracts. But, the balance that Congress struck in 1998 places compliance burdens on service providers — and provides both with benefits. However, this doesn’t mean there should be no scrutiny of how parties use the DMCA, r. Because online services can’t tell duplicitous claimants from honorable ones, would-be censors tend to gravitate the DMCA takedown process to suppress unflattering speech.
While the DMCA should still remain undisturbed as a cornerstone of the Internet economy, congress can shed light on bad actors trying to snuff out competitors.
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