Calls for a new look at the DMCA safe harbor protection as music companies head back to court in battle against MP3tunes

Talking to rights holders in the run up to the CISAC World Creators Summit in Washington, it seems that few agree that any country has the right balance between certain technology companies’ use of music and the abuse of copyright. Google has been on the receiving end of several legal actions by a number of rights holders that have claimed its online video service YouTube has either not acted quickly enough to remove content when asked, or is using content that it has no license for. Ever-troubling for rights holders is the fact that it is their responsibility to check whether music is being used correctly and not the responsibility of the digital-music service.

A similar complaint was made last week by the RIAA’s Executive Vice President of anti-piracy, Brad Buckles. He blogged that the number of requests sent to Google to remove search returns to illegal music files has now gone over the 20 million mark. Buckles described the takedown process as “using a bucket to deal with an ocean of illegal downloading.” He added that takedown notices sent to search engines must be directed at specific links to specific sound recordings and do nothing to stop the same files from being reposted straight after they are removed. Although the blog post paid tribute to Google for taking “initial steps to strengthen company policies against copyright theft” Buckles said more work needed to be done to limit the amount of time and money spent by creators on sending takedown notices. Buckles concluded that unless a better system was put in place to control copyright infringement the next 20 million takedowns “will be no more effective than the first.”

Over the last couple of years Music & Copyright has detailed a number of cases in the US that have questioned just where the responsibility lays with regards unauthorized music use. The current issue examines the decision by a US court to look again at the 2011 MP3tunes ruling in light of last year’s appeals court decision in the long-running case brought by Viacom against YouTube. In short, a district court judge will reconsider claims made by Capitol Records and a number of record companies and music publishers against the digital locker service MP3tunes. In the first hearing neither Capitol nor MP3tunes scored an outright victory with both parties awarded summary judgments. The judgment granted in favour of MP3tunes was perhaps the most contentious as it intimated that digital-locker services are covered by the Digital Millennium Copyright Act (DMCA) safe-harbor provisions.

The decision by the district court to look again at some it its summary judgments has pleased the record companies and music publishers. But, there is though no guarantee that the reassessment of the original judgments will result in a change of heart. A second look at the Viacom YouTube case last month resulted in no change to the original ruling. However, the mere fact that the district court has recognized the potential to deny MP3tunes its claim for DMCA safe-harbor protection sends a signal to service providers that they cannot just turn a blind eye to possible copyright infringements.

This case will not change the fact that the responsibility to locate unauthorized content and request its removal from services rests with rights holders, but the case should go some way to clarifying the boundaries of protection afforded by the DMCA. Whether that will be enough for rights holders in the US is unlikely. Certainly the RIAA will keep pushing for a review of the DMCA safe-harbor protection. According to Buckles, rights holders spending their own time and money sending takedown notices instead of making music is confirmation that “the system isn’t working” and “the balance is off.”

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