Convergence and Conflation in Online Copyright

Abstract

The Digital Millennium Copyright Act (“DMCA”) is showing its age. Enacted in 1998, the DMCA succeeded in its initial goal of bringing clarity to wildly inconsistent judicial standards for online copyright infringement. But as time has passed, the Act has been overtaken—not by developments in technology, but by developments in copyright’s case law. Those cases are no longer as divergent as they were in the last millennium. Instead, over time the judicial standards and the statutory standards have converged, to the point where the differences between them are few. The statute whose ascendance was once central to the governance of copyright online is therefore now diminished in importance.

At first glance, this development seems unproblematic. After all, uniformity was the DMCA’s goal, and convergence gets us closer to it. But a deeper look reveals that convergence has significantly changed the cost/benefit calculus for those whom the Act governs. The benefits of complying with the Act’s regulatory requirements have decreased, because convergence means that one can ignore the statute and rely solely on the case law. And the costs of complying have increased, because convergence has paradoxically given rise to a new, troubling phenomenon: the mixing and matching of statutory and judicial standards in unpredictable and counterproductive ways, which create new, unintended forms of copyright liability and immunity. In short, convergence has led to conflation, which means that the best course for today’s online community is to steer clear of the DMCA altogether.

Keywords: Copyright, DMCA, Digital Millennium Copyright Act, Safe Harbor, Service Provider, ISP