Keeping the Internet Free: Why the DMCA’s Safe Harbor Provision Should Be Expanded to Help Curb Overregulation of Content by Removing the Financial Benefit with Right and Ability to Control Exclusion

Abstract

The Digital Millennium Copyright Act (DMCA) was passed in 1999 as an attempt to update copyright law to the age of the internet. The law was intended to serve as a compromise for both sides, giving copyright holders an easy means of taking action against infringements while giving websites reduced liability. To that end, the DMCA included the Online Copyright Infringement Liability Limitation Act (OCILLA), which created Safe Harbors for service providers.While creating a Safe Harbor was a good idea, it has not been encouraging sites to be less fearful of lawsuits. With the rise of video hosting sites like YouTube, the internet is a far larger and more critical part of society than it was in 1999. Unfortunately, there has been a recent trend of sites like YouTube regulating their content more strictly than the Safe Harbor provision requires in order to avoid any chance of liability. This has resulted in the unnecessary take down and removal of countless videos, and if things are left alone, content removal across the internet will only become more frequent.The issue of over regulation stems from an ambiguous section of the Safe Harbor provision which removes protection from content hosting sites that gain a financial benefit from the infringing content and have a right and ability to control it. This has been interpreted several ways by courts. Some have said that a site must do more than just have the content on their site, while others have used the common law vicarious liability test, which raises its own problems and ambiguities when applied to a content hosting site. An uncertainty on what to do has lead to sites over regulating to avoid liability. Because of this, the financial gain with right and ability to control language should be struck from the Safe Harbor provision to resolve this ambiguity and over regulation. While the concept that the OCILLA is ambiguous has been discussed in academic literature before, the outright removal of the financial benefit with right and ability to control language is a new solution.