When was the last time you watched a video on YouTube? How about the last time you uploaded one onto the site? Now, when was the last time you thought about the copyright implications of any of those videos? Most people have probably never contemplated the implications of copyright law with respect to YouTube, and that is where the trouble begins, because copyright law has not caught up with modern means of creation on the Internet.
Congress did recognize the necessity of updating copyright laws in the late 1990s when it enacted the Digital Millennium Copyright Act (“DMCA”), but since then, the law has not progressed, while the Internet has grown in leaps and bounds. Not only has the Internet expanded, but so has the popularity of video-sharing websites. Title II of the DMCA governs the liability of Internet service providers (“ISPs”) for copyright infringement by website users. One of the functions of the DMCA is to provide safe harbors to ISPs that limit their liability for infringement on their websites. To be eligible for these safe harbors, however, ISPs have to meet a series of criteria.
Since the DMCA has been around for well over a decade, its application to websites like YouTube indicates that it is governing websites that did not even exist when it was enacted in 1998. As a result, the application of the DMCA heavily favors the mass media copyright holders, and not the small users who generate much of the content on YouTube. Furthermore, YouTube launched an automated digital fingerprinting system, called “Content ID,” in 2007. This system makes it much easier, and much more likely, for user-generated content to be flagged as infringing, regardless of the context in which it is uploaded. The favoritism that arises and the automated systems used contradict the constitutional purpose of copyright law because they discourage smaller users from creating content for fear of being sued for infringement.