February 15, 2010
Evaluating the Effectiveness of Takedown Notices Under the DMCA
In December of 2008, the Recording Industry Association of America (RIAA) stopped its strategy of suing individuals for copyright infringement over peer-to-peer networks, but now seeks the cooperation of Internet Service Providers (ISPs) to deter online copyright infringement. These novel proposed collaborations, which have recently appeared and become prevalent worldwide in various forms, could lead to termination and suspension of internet connections based upon mere suspicions. In the United States, these proposals fail when analyzed under the FCC’s Internet Policy Statement because they are likely to deprive individuals of lawful content and applications of their choice. I propose a standard under which to evaluate these new ISP-RIAA collaborations: Professor David Nimmer’s interpretation of the Digital Millennium Copyright Act’s (DMCA) repeat infringer standard. Any collaboration where suspected infringers lose internet access at the direction of the RIAA must affect only those who have been previously held liable for copyright infringement or of whom the ISP has actual knowledge of infringement. This solution harmonizes the interests of the ISPs, the RIAA, and the FCC, and is logical when one considers the purpose, policy, and interpretation of both the Internet Policy Statement and the DMCA’s repeat infringer standard.
Download the Note from SSRN at the link.
Hong Kong's Digital Copyright Reform Regime
Since the mid-1990s, countries have struggled to respond to copyright challenges created by the internet and new communications technologies. Although the law and policy debate in recent years has focused primarily on the entertainment industry’s aggressive tactics toward individual end-users, online service providers, and other third parties, a recent wave of legislative action and lobbying efforts has rejuvenated the debate on the proper legal response to digital copyright challenges.
Like many other jurisdictions, Hong Kong, in the past few years, has been busy exploring copyright law reform to respond to challenges created by the internet and new communications technologies. To help understand how countries reform their copyright system by transplanting laws from other jurisdictions, this article studies the ongoing digital copyright reform in Hong Kong.
Published in the symposium issue for the Conference on Innovation and Communications Law, this article begins by examining the proposals advanced in the consultation and legislative documents released by the Hong Kong government. The article explains why Hong Kong needs to be cautious about using legal transplants to reform its digital copyright laws, as the costs incurred by these transplants may ultimately outweigh their benefits.
The article concludes by advancing four key questions policymakers need to answer before they begin transplanting copyright laws from other jurisdictions. Although these questions were specially designed for the digital copyright reform in Hong Kong, they are equally relevant to other jurisdictions that are responding to similar copyright challenges created by the internet and new communications technologies.