Out of tune

Bobby Ghajar, new partner at Cooley in Los Angeles, considers the confluence of agendas at play in the quest for DMCA reform

What is the copyright landscape like right now for the music business? Are their rights losing value online?

For years, people have debated the effect of online music distribution on the value of music. We have seen that artists, publishers, and consumers have enjoyed greater access and interaction with music online. Consumers are spending money on music subscriptions and music downloads, arguably more than they were spending on CDs or singles. I believe there will always be debate over which party is enjoying the greatest benefit from online music distribution.

On the legal front, we have seen recent litigation involving the use of music, ranging from the well-reported Blurred Lines case, to a recent decision in one appellate court allowing the sampling of a split second of music, which was at odds with an earlier decision out of another appellate court.

Do you expect any meaningful reform of the DMCA’s takedown system, for both copyright owners dissatisfied with its effectiveness and internet users who feel unfairly targeted by takedown requests?

There are always talks about reform, just as there are complaints from both sides about perceived problems with the current law. A few years ago, allegedly improper Digital Millennium Copyright Act (DMCA) takedowns were a hot topic, which led to well-publicised litigation.

Some artists have criticised the DMCA as being technologically-outdated and as providing an unfair advantage to platforms. Other groups have campaigned against what they call DMCA abuse. Yet others complain that as soon as one infringement is taken down, another identical infringement pops up in its place.

I am aware that the US Patent and Trademark Office and other organisations have held meetings to discuss improvements and modifications to the takedown provisions, including the possibility of a standardized form of notice. Even the US Copyright Office has held roundtables on the subject and is in the process of evaluating Section 512—this might eventually lead to legislative reform.

What about the safe harbour provisions—are they out of date?

I don’t know that the safe harbour provisions are “out of date”, but as technology evolves into a greater reliance on social media and virtual reality, I expect that policies will evolve with them. As noted, many have criticised the 18-year old DMCA as being technologically out-of-date.

There are discussions at the roundtables about how one might use technology to ferret out infringing uses (mitigating the need for a copyright owner to send multiple takedown notices).

What do you make of platforms taking it upon themselves to resolve disputes that have traditionally been resolved in a court of law? Is this the future of law where the internet is concerned?

This is not uncommon, and many consumers and brand owners expect platforms to have mechanisms to deal with abuse and infringement. The larger, established platforms have dispute procedures (for example, eBay’s VeRO programme) that have been lauded by the courts as an effective means for the platform to give users the ability to send takedowns. It remains to be seen whether music distribution platforms will adopt similar mechanisms, or whether technology develops in a way that streamlines the real disputes.

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