Some scientists, educators, and librarians have opposed certain aspects of the DMCA, as it was promoted by commercial entertainment and software content industries. For example the Electronic Frontier Foundation published Unintended Consequences: Twelve Years under the DMCA which provides some background on such viewpoints. NOTE: The IPAC understands the needs of opposing viewpoints, yet it always promotes legal and ethical use of others' intellectual works. We provide this perspective for informational purposes only. The UCLA Online Institute for Cyberspace Law and Policy provides a succinct overview of the complicated (and often confusing) DMCA:
As revealed in the overview above, the DMCA involves provisions dealing with ISPs (Internet Service Providers) such as commercial providers like Google, YouTube, and noncommercial ISPs such as universities. A good example of this is often seen on YouTube, when one returns to a link for a favorite site and it’s no longer viewable as it has been removed due to copyright restriction. The introduction of the DMCA initiated a controversial information rights debate between copyright owners and copyright consumers as the federal government had to balance between the exclusive “copyright law” rights of copyright owners and the free flow of information to copyright consumers on the Web. Consequently, as copyright owners filed claims against Internet subscribers allegedly infringing upon copyright owners, laws such as the DMCA were passed. Title II of the DMCA, a portion known as the Online Copyright Infringement Liability Limitation Act, divides limitations on the liability of Internet Service Providers (ISP) for copyright infringement into three categories: direct liability, vicarious liability, and contributory liability.[iii]
Direct liability may result from the direct infringement by an ISP, while vicarious and contributory liability may result based on some actions of subscribers of an ISP. Copyright for educators expert Kenneth Crews points out that:
"A company or another party can be held liable for the actions of another person on at least two theories. Contributory infringement can occur when someone provides the equipment or other means for creating infringements and knows, or should have known, of the infringing actions. Vicarious liability can occur when someone has the right to supervise the activity and stands to benefit from it. Knowledge of the infringing activity is not necessary. Employers are often in exactly that situation, at least with respect to activity that are part of an employee’s job."[iv]
So, could a nonprofit university be liable when a student has infringed copyright on the school’s Internet service? Based on the statement of Kenneth Crews above, a school could be liable depending on the level of oversight and knowledge. Congress included a safe harbor within the DMCA to address this challenge. However, we only present brief particulars here about such a safe harbor for information awareness. For more details about the DMCA, see http://www.copyright.gov/legislation/dmca.pdf.
[i] 112 Stat. 2860 (1998).
[ii] UCLA Online Institute for Cyberspace Law and Policy, http://legacy.gseis.ucla.edu/iclp/dmca1.htm, accessed 16 November, 2012.
[iii] Jennifer Kostyu, “Copyright Infringement on the Internet: Determining the Liability of Internet Service Provider,” Catholic University Law Review, Volume 48 (1998-99).
[iv] Kenneth Crews, Copyright Law for Librarians and Educators, (Chicago: ALA, 2012) page 104.