American music industry unhappy with courts ruling on DMCA

The Recording Industry Association of America (RIAA) is not pleased with the interpretation of the Digital Millennium Copyright Act (DMCA) by the U.S. courts. Jennifer Pariser, the RIAA’s litigation lawyer, stated this at the New York Entertainment and Technology Law Conference last week.

During the panel discussion, Pariser pointed out that American courts are too lenient when it comes to responsibilities for ISPs to protect the entertainment industry as set out in the DMCA. According to Pariser, the rulings do not provide the necessary protection against online copyright infringements, as intended by Congress.

Pariser stated: "I think Congress got it right, but I think the courts are getting it wrong. I think the courts are interpreting Congress' statute in a manner that is entirely too restrictive of content owners' rights and too open to [Internet] service providers.”

The DMCA provides a 'safe harbour' to ISPs that relieves them of any liability for hosting copyright protected files, but only if they cooperate with legal requests to disclose details of suspected infringers. The ISPs are also required to act on behalf of copyright holders, which means that ISPs should be vigilant for signs (so-called 'red flags') that may indicate infringing files, called ‘red-flag knowledge’. If an ISP is aware of these ‘red flags’ the ISP should remove the infringing files.

The ‘red flag requirement’ is at the core of where the courts have fallen down, according to Pariser. In three most notable copyright cases on this issue, Viacom vs. YouTube, Universal vs. Veoh and EMI vs. MP3tunes.com, the courts completely ignored the ‘red flag requirement’ which ought to compel the ISP to actively act to remove the infringing files. Through this case, the effect of the ‘red flag’ in the Safe Harbour regime is meaningless, Pariser said.

According to Pariser, the RIAA might be taking the ‘red flag problem’ to Congress. Pariser clarifies: “Not because the DMCA was badly drafted, but because the interpretation has been so hamstrung by court decisions”. Therefore, it is interesting to see whether the DMCA will be modified.

References: Cnet.com, PCworld.

By: Karen Groen