Document Type

Article

Publication Date

2011

Abstract

In today’s highly litigious legal landscape, one might doubt that there could ever be an “open, fair, voluntary” agreement between copyright owners and service providers to police infringement. Congress nevertheless envisioned such a consensus when it developed § (i) of the Digital Millennium Copyright Act (DMCA): “Conditions for [Safe Harbor] Eligibility.” An often-overlooked provision of the DMCA, § 512(i) directs right holders and Internet service providers to work together and agree on “standard technical measures” to “identify or protect copyrighted works.” In addition to being the product of consensus, these measures must be “available ... on reasonable and nondiscriminatory terms” and also “not impose substantial costs ... or substantial burdens.” Although ostensibly thorough, these guidelines are too imprecise and elusive to actually guide service providers and right holders toward a consensus; the term “standard technical measures” remains undefined and possibly undefinable more than a decade after passage.

However, right holders and user-generated content sites (UGCs) — the group of DMCA “service providers” that pose the greatest problems for copyright enforcement — already employ audio and video fingerprinting technology as a standard measure to police infringement. Both groups employ this technology both to conduct general policing and also to operate repeat infringer policies, which are separately mandated by § 512(i). Already, fingerprinting technology is fundamental to the protection of copyrighted works on the Internet.

In light of the widespread use of this successful technology and Congress’s mandate that the term “standard technical measures” be developed “expeditiously,” individual or infrequent holdouts should not obstruct the consensus necessary to define the term. Although Congress expected that a standards development organization would be the key to establishing consensus, no such organization has arisen, and parties remain free to agree independently on such measures.

This Note will argue that fingerprinting technology should qualify as “standard technical measures” under § 512(i), so that right holders and service providers may be on notice of their statutory obligations and may continue to develop “best practice” applications for that technology.

Part I will briefly introduce the reader to fingerprinting technology and to the general scope and purpose of § 512. Part II will then expand this general discussion to describe how — and whether—§ 512 has come to be understood to include UGCs within its scope while right holders continue to accuse UGCs of enabling widespread copyright infringement online. In response to this insecurity, and in an effort to preserve its eligibility, the UGC industry has developed sophisticated, technological practices for identifying and protecting copyrighted works. This Note will argue that, by its widespread use, fingerprinting technology satisfies the qualifications for “standard technical measures” set out in § 512(i). Part III will then uncover legislative history and analogous technological and legal developments in an effort to better illuminate the definition of “standard technical measures” in light of this existing technology. Finally, Part IV concludes with a hypothesis of what “standard technical measures” might usefully look like.

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Winner of the 2011 Andrew D. Fried Memorial Prize.

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