CTIC and Copyright Society of the USA host Penn Law panel on the Digital Millennium Copyright Act twenty years after its passage

By Caroline Harris

On November 7, the Center for Technology, Innovation & Competition (CTIC) and the Copyright Society of the USA welcomed distinguished panelists at Penn Law to discuss the ramifications of the Digital Millennium Copyright Act (DMCA) twenty years after its passage.

The DMCA is a 1998 United States copyright law that introduced new forms of liability for copyright infringement. The Act instituted notice and take down provisions, a process by which websites remove content in response to allegations that content is illegal. The DMCA also expanded the policy-making authority of the United States Copyright Office.

Shyamkrishna Balganesh, Professor of Law at Penn and Co-Director of CTIC, introduced the panel discussion by providing an overview of the important changes the DMCA made to United States copyright law. He argued that the DMCA triggered the broader role of the United States Copyright Office. He also discussed how new forms of civil and criminal liability under the DMCA helped prevent copyright infringement.

Balganesh outlined critiques of the DMCA. Some believe the DMCA is “far too prohibitive of free speech” and “impedes a variety of different technological views and expressions,” he explained. Others stress the “inefficiency and transaction costs” of enforcing notice and take down provisions. Copyright infringement can be a “whack-a-mole problem,” where as soon as one piece of illegal content is removed, another appears in its place.

The panel discussion unfolded into a conversation about the successes and failures of the DMCA. Panelists considered the DMCA from their personal experiences with copyright law. Corinne Militello L’07 is Counsel at Ballard Spahr, where she advises on trademarks and copyrights, as well as privacy and data security matters. She also serves as Co-Chair of the Pennsylvania Chapter of the Copyright Society of the USA. Peter Decherney is a Professor of Cinema & Media Studies and English at the University of Pennsylvania. He is the author or editor of six books including Hollywood’s Copyright Wars: From Edison to the Internet.

Militello described her experiences advising clients on trademarks and copyrights. At its best, the DMCA is an “effective enforcement tool with swift results, and often inexpensive,” she said. At its worst, the DMCA can be “misused or used too frequently.” Militello believes that ultimately, clients must have a good faith basis for submitting notice and take down requests. She argues they must also have “protectable interests” and “be able to point specifically to infringing content.”

Decherney discussed how the DMCA traces back to a long history of protecting against copyright infringement. He cites copy-protected CDs and DVDs as specific examples. Decherney provided real-world examples of navigating United States copyright law. He teaches a free online course on the history of Hollywood, and he needed to request permission to distribute audio and video clips for his class. Decherney emphasized that since 2006, “there has been a massive expansion of the kinds of devices that have digital media.” Because of the proliferation of digital media, copyright law increasingly influences everyday life.

“Copyright law is everywhere,” Decherney said.

Balganesh asked whether the DMCA is an overall success or failure. Militello and Decherney agreed that the pros of the DMCA outweigh the costs.

“We’re better off with it,” Militello said.

She argued that while it is difficult to balance competing interests, the DMCA provides an essential mechanism for protecting digital media from copyright infringement. Militello views the DMCA as “imperfect” but satisfying an important purpose.

Balganesh declared the DMCA is “stuck with an understanding of technology from 1998” and needs a modern update. Balganesh indicated the role of subscription services like Spotify and Netflix in preventing piracy. He framed the DMCA as “obsolete” as technology rapidly changes.

“For heaven’s sake, we know a lot more about technology now,” Balganesh said.