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| Chilling Effects Clearinghouse > DMCA Notices > Weather Reports > Is The DMCA Broken? | 
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|  Is The DMCA Broken?Adam Holland, April 25, 2013 Abstract: Or is it at least wearing out? We think so. Some recent developments have us here at Chilling Effects, and in other places as well, wondering if the DMCA, which is shockingly celebrating its 16th anniversary this year. First off is this week's stunning ruling from a New York state court re: UMG Recordings lawsuit against Grooveshark. Grooveshark’s parent company is Escape Media. The gist of the suit was / is that Grooveshark, despite its licenses, was violating UMG’s copyrights in various sound recordings. Critically, these were recordings made, or “fixed”, pre-1972. Grooveshark relied on its DMCA-granted immunity from Section 512. UMG said that didn’t help, because Section 301 of the DMCA explicitly stated that it did not apply to any sound recording fixed prior to 1972. “With respect to sound recordings fixed before February 15, 1972, any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067. The preemptive provisions of subsection (a) shall apply to any such rights and remedies pertaining to any cause of action arising from undertakings commenced on and after February 15, 2067.” That the DMCA nevertheless should apply is a difficult textual argument to make, which may be why the NY court made the ruling that it did. However, as Grooveshark accurately points out, this would “eviscerate” the DMCA and render it useless for its intended purpose, streamlining the ability of service providers to offer content without investing massive resources in vetting it beforehand. Imagine if Grooveshark had to investigate whether every song uploaded to it was pre- or post-1972 (not as easy as it sounds). In Perfect 10, the court was concerned not only with Section 512 of the DMCA, but also Section 230 of the Communications Decency Act. The judge there took the expansive (but logical) view that Section 230 preempted all state IP law. A lengthier quote is worth it. “[P]ermitting the reach of any particular state's definition of intellectual property to dictate the contours of this federal immunity would be contrary to Congress's expressed goal of insulating the development of the Internet from the various state-law regimes. See 47 U.S.C. §§ 230(a) and (b); see also Batzel, 333 F.3d at 1027 (noting that “courts construing § 230 have recognized as critical in applying the statute the concern that lawsuits*1119 could threaten the ‘freedom of speech in the new and burgeoning Internet medium’ ” (quoting Zeran, 129 F.3d at 330)). In the absence of a definition from Congress, we construe the term “intellectual property” to mean “federal intellectual property.”
With all of these developments, it seems pretty clear to us here that the DMCA is up for some substantial revision in order to settle this once and for all. Further, just this week, “House Judiciary Committee Chairman Bob Goodlatte (R-Va.) announced in a speech at the World Intellectual Property Day celebrations that the Judiciary Committee will conduct a comprehensive review of U.S. copyright law It’s about time! One can only hope that all of the right people will be at the table and listened to for advice, concerns and general context, so that whatever results from the review isn’t completely one-sided, as some have said of the 1970’s CONTU and 1990’s CONFU recommendations, and the public’s side of the copyright bargain gets a fair shake. It’s going to be key to remember, as discussions commence, that simply being willing to think about changing copyright law doesn’t necessarily mean that change will be for the better. Remember the ratchet.
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