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June 28, 2021

Technology Law and Policy Clinic Helps the Internet Archive Answer Congressional Questions on the Digital Millennium Copyright Act (DMCA)

Technology Law & Policy Clinic

This post is part of a series exploring the Clinic’s work during the 2020-21 year

In the Fall 2020 semester, student attorneys in the NYU School of Law Technology Law and Policy (“TLP”) Clinic helped the Internet Archive submit answers to Congressional questions on potential reforms of the Digital Millennium Copyright Act (“DMCA”).

The Internet Archive is a nonprofit digital library that strives to archive web pages, software, videos, audio, and other digital artifacts that have important cultural, historical, scientific, and other value. Its ambitious ultimate mission is to provide “universal access to all knowledge.”

The DMCA is an important piece of copyright legislation, especially for organizations like the Internet Archive that provide public access to materials—including potentially copyrighted materials—over the Internet. A particularly contentious portion of the DMCA is 17 U.S.C. § 512: the DMCA’s “safe harbor” provisions. These provisions shield an Internet service provider from copyright infringement liability arising from copyright-infringing material posted to the provider’s platform, provided the provider meets certain requirements. One of these requirements is that a provider must take down material upon receipt of a notice from the copyright owner (or one of its representatives) that the material in question is legitimately infringing a valid copyright. (This is the DMCA’s so-called “notice-and-takedown” system.)

The efficacy and fairness of the DMCA, and its notice-and-takedown system in particular, has been the subject of broad debate recently. Senator Thom Tillis, former Chairman of the Senate Judiciary Subcommittee on Intellectual Property, has indicated an interest in reforming the DMCA through new legislation. Among other things, Senator Tillis has proposed a major change to the notice-and-takedown system, converting it to a “notice-and-staydown” system. Under notice-and-staydown, providers would be required to predict where potentially copyright-infringing content might exist on their sites, obliging providers to invest additional resources, pushing them to err on the side of censorship, and imposing greater uncertainty and risk of copyright infringement liability for material they were unable to find or investigate in time.

In the Fall 2020 semester, two student attorneys from the TLP Clinic partnered with the Internet Archive to help the Internet Archive respond to questions on the DCMA posed by Senator Tillis. The students worked closely with Lila Bailey, Policy Counsel for the Internet Archive, to draft and submit responses that expressed the Internet Archive’s unique viewpoint on these issues, as a not-for-profit library and major steward of knowledge online.

The Internet Archive’s responses explained that some of the proposed reforms—including notice-and-staydown—have the potential to impose unreasonable burdens on nonprofit providers, like the Internet Archive, who are already working with limited resources. The responses also highlighted how making major changes to the DMCA could destabilize the Internet during this challenging time, when people are especially dependent on remote work, learning, and access to online resources. The Internet Archive’s responses stressed that the voices of all stakeholders—not just large companies with sophisticated legal teams—should be heard as Congress considers amending the DMCA.

TLP Clinic Director Jason Schultz and Deputy Director Chris Morten supervised this project.