Cardozo Journal of Conflict Resolution
Abstract
This Note argues that even though the DMCA may protect the ISPs from unwarranted copyright liability, it tilts the balance of interests between the individual creator and the ISP too far in favor of the ISP by granting them almost unbridled and arbitrary discretion to eliminate and take down allegedly infringing copyrighted work. As a result, the DMCA undermines the objective of promoting independently created works by legitimate authors. The DMCA essentially allows the ISPs to act as their own on-line copyright judges and take down creative works that are merely alleged to be infringing, but not infringing in fact or law. Such conduct is equivalent to a store owner taking all of Van Gogh’s paintings and reprints off its shelves merely because someone declares that one of the reprints infringes her copyrighted work. ISPs are not qualified nor equipped to make fair determinations on whether a work constitutes copyright infringement pursuant to the 1976 Copyright Act. The DMCA’s support for such arbitrary take-down is fundamentally unfair, and the safe harbor provisions violate the Fifth Amendment of the United States Constitution by depriving the property of individuals without due process of law.
Disciplines
Dispute Resolution and Arbitration | Law
Recommended Citation
Susan Hong,
Digital Millennium Copyright Act and Protecting Individual Creative Rights: A Proposal for On-Line Copyright Arbitration,
2
Cardozo J. Conflict Resol.
110
(1999).
Available at:
https://larc.cardozo.yu.edu/cjcr/vol2/iss1/6