This article discusses the development of the DMCA and the reasons it was drafted. The author describes in depth the protection guaranteed by the Safe Harbor law before he begins to describe the development of the DMCA. Because I have discussed Safe Harbor elsewhere, I will focus on the part of the article detailing the creation of the DMCA, beginning in section C. In 1993, President Clinton created a task force designed to “fine tune” copyright laws to make them relevant in the digital world. A preliminary report ruled that ISPs be held wholly liable for infringement. ISPs immediately retaliated, claiming that under this law they would be liable whenever their users sent infringing works across their networks. They also argued that the law would require them to monitor their users’ transmissions while trying to detect copyrighted material, thus violating their users’ First Amendment Rights. Representative Rick Boucher argued that “Congress should provide ISPs with an incentive to invest in the development of computer networks without fear of litigation.” ISPs rationalized that they should only be liable if they have knowledge of the infringements. Copyright holders, however, argued that giving ISPs freedom from liability would encourage them to purposefully allow infringement on their servers. Because of the stark contrasts in opinion between the groups, a decision was not reached immediately. After months of negotiations between ISPS and Copyright Holders, the Online Copyright Infringement Liability Act was introduced in February 1997, which sought to protect ISPs from Direct Liability and monetary damages if they were not aware of “information indicating that the material is infringing.” In House Bill 3209, the Senate created the “red-flag test” for ISPs to use to determine infringement. ISPs did not have to monitor for infringement, but if they became aware of a “red-flag,” they would lose Safe Harbor protection unless they removed the content immediately.
This article is very important for my paper because it addresses the attitudes of both ISPs and Copyright Holders before the creation of the DMCA. Without the DMCA in place, both these groups were forced to come up with their own arguments to defend themselves, something ISPs are much less likely to do now that they can simply hide behind the Safe Harbor clause of the DMCA. The interesting aspect of this article, however, is that many, if not all, of the concerns of ISPs and Copyright Holders made their way into the finalized version of the DMCA. ISPs, such as Youtube today, were worried that they would violate their users’ rights if forced to monitor for copyright violations. Thus, the DMCA was written so that the burden fell on Copyright Holders to identify infringing material and report it to the ISPs. Similarly, the Copyright Holders were worried ISPs would turn a blind eye towards infringement, so the DMCA requires ISPs to remove infringing material at the request of the Holder. Thus, it is clear that the DMCA was created to appease both ISPs and Copyright Holders.