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Reinterpreting Repeat Infringement in the Digital Millennium Copyright Act

Posted by on Wednesday, June 28, 2023 in Articles, Volume 25, Volume 25, Issue 3.

Hunter McGhee | 25 Vand. J. Ent. & Tech. L. 483 (2023).

In 1998, Congress passed the Digital Millennium Copyright Act, which aimed to balance the growth of the internet with the enforcement interests of copyright holders. In exchange for immunity from third-party infringement, the DMCA imposes certain conditions on internet and online service providers. Unfortunately, the law continues to contain many ambiguities in its statutory scheme, not least of which is the requirement that service providers maintain a “repeat infringer policy” to remove individuals that repeatedly infringe intellectual property rights. In response to a review of the Copyright Act conducted by the House Judiciary Committee, the US Copyright Office authored a report in May of 2020 evaluating the DMCA. The report makes clear that there are persistent issues around the repeat infringer policy requirement. As social media companies become more powerful, resolving the ambiguities in the DMCA becomes increasingly important. This Article accomplishes two things. First, it is the only comprehensive review of the law around repeat infringer policies and lays forth a practical framework for what adequate policies must contain under Section 512(i)(1)(A) of the DMCA. Second, the Article contributes to the scholarly literature by proposing an effects-oriented policy solution in light of the vagueness of Section 512(i) of the DMCA: a tiered system for evaluating termination of users online. This system will consider the type of infringing user, providing lenience to the service providers, clarity to the copyright holders, and security to internet users by reinterpreting the circumstances in which termination is appropriate to better reflect Congress’ legislative intent.

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