Among those interested in copyright reform, there’s a commonly-held misconception that the DMCA is a uniformly negative, draconian law. It’s no wonder: as we’ve seen in the first three parts of this series, numerous innovators, academics and citizens have been stifled by the DMCA’s anti-circumvention provisions, all in the name of protecting copyrighted works. While it’s hard to argue that these anti-circumvention provisions have benefited users in any way, there is a section of the DMCA that has been of enormous benefit to the public: the ISP “safe harbor” provisions provided by section 512 of the law.
Sarah Deutsch, Verizon’s Vice President and Associate General Counsel was one of five telecom industry representatives who participated in the negotiations that led to the DMCA’s passing. In the above interview, she speaks of the ongoing battle for balance in copyright law. In the case of the DMCA, this attempt to create balance produced the ISP safe harbor provisions, which shield both ISPs and online service providers from liability for their users’ copyright infringements. In the interview, Sarah mentions that had the DMCA been crafted differently, service providers could have been held liable for everything from links to search engines. What’s more, under such a regime, services like Blogger, YouTube, Flickr and Facebook would never have emerged.
To be fair, the ISP safe harbor provisions are not perfect. Abuses of the notice and takedown system have run rampant in recent years, a point that Sarah briefly addresses in the interview. Still, thanks to the work of people like Sarah Deutsch, the DMCA wrote into law that online and Internet service providers are not responsible for the actions of their users and in so doing, paved the way for the Web as we know it today.
For more on how the DMCA’s safe harbor provisions saved the Web, see this Wired article