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from doing that search. Under §512(m), nothing in the applicable section of the DMCA shall be
construed to require YouTube’s “affirmatively seeking facts indicating infringing activity.” 31
Finally, the court explained that the “mere knowledge of the prevalence of infringing activity, and
welcoming it, does not itself forfeit the safe harbor. To forfeit that, the provider must influence or
participate in the infringement.” 32
Accordingly, while recent decisions have discussed the applicability of certain exceptions to the
DMCA’s safe harbor provisions to specific fact patterns, the divergence of opinions among various
courts considering digital copyright enforcement cases suggests that the “correct” application of
the DMCA is far from obvious. While intermediaries can generally avoid liability by providing
mechanisms through which copyright owners can report alleged instances of copyright infringement,
and by subsequently taking steps to remove such content where appropriate, 33 many copyright
pirates have found ways to utilize the safe harbor provisions as loopholes and online
infringement continues largely unfettered. Although the current legal structure creates a powerful
incentive for intermediaries to cooperate voluntarily, the primary enforcement burden still falls on
the copyright owner, who must constantly patrol the Internet for infringements. Unfortunately,
rightsholders often find that, without further cooperative measures from ISPs such as takedownstaydown
policies or content filtering, the same copyrighted titles continue to be infringed on the
same sites over and over again.
Moreover, recent proposals made by Maria Pallante, the Register of Copyrights, during a speech at
Columbia University 34 and later during a hearing before the House Judiciary Committee. Subcommittee
on Courts, Intellectual Property and the Internet, 35 suggest that a major overhaul of the
Copyright Act may be warranted in light of the dramatically evolved Internet environment through
which many works now travel. Indeed, Rep. Goodlatte (R-VA) has taken up the challenge and
announced on April 24, 2013, that the House Judiciary Committee has launched a comprehensive
review of copyright law to determine whether it adequately protects copyrights in “the digital
age,” 36 particularly in light of online distribution, breakdowns in licensing payments due to
rampant unauthorized online distribution, orphan works, statutory licensing and damages. 37 As a
result, the DMCA’s current structure and/or mandates may evolve over the next several years as
lawmakers attempt to bring the entire Copyright Act up to date with respect to digital works.
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2. DMCA Requirements vs. Recent Voluntary Initiatives in the Copyright Field
While the DMCA provides incentives for ISPs and other such parties to voluntarily implement
notice and removal procedures for online copyright infringement, it does not by itself represent a
voluntary industry initiative. Instead, it is a statutory mandate which ISPs must follow if they wish
to take advantage of the safe harbors from liability for monetary damages provided under the Act.
However, the methods by which some intermediaries have implemented this mandate are helpful in
understanding the choices intermediaries have made (or can make) of purely voluntary actions to
reduce counterfeiting and piracy undertaken on their systems. Questions remain regarding the
scope and effectiveness of truly voluntary industry initiatives that have been implemented to date.
To the extent that certain strategies have proven to be effective, they can potentially serve as key
components of a more comprehensive and uniform legislative plan for combating the continued
reach of PFWs into the U.S. market.
An example of an independent voluntary initiative that has been successfully implemented is
YouTube’s Content ID program. 38 This program allows copyright owners to easily identify and
manage their content on YouTube and provides them with streamlined mechanisms for preventing
or otherwise expediently removing copyright infringing content online. 39 Videos uploaded to
YouTube are scanned against a database of files that have been submitted by content owners. 40