Joseph Murphy

Research Paper
Jeffery Bain-Conkin
April 13, 2015
The Problem with Internet Copyright
The internet is an exciting and amazing place for creation. Within the past twenty years,
brand new forms of art and expression have been created, and pre-existing creations have been
shared instantly worldwide. Unfortunately, the internet has also caused questions of authorship,
ownership, and copyright to be raised in moral, ethical, and legal situations. As perhaps the
greatest invention in modern history, the internet demands a change in the very way humans
create. Although the copyright laws of the 20th century have been carried online, the internet has
outgrown them, and it is now time for discussion, debate, and a rewriting of internet copyright
law.
The U.S. Copyright Act is found under Title 17 of the United States Code. It states, ...the
owner of copyright under this title has the exclusive rights to do and to authorize any of the
following: to reproduceto prepare derivative worksto distribute copiesto performto
display. In other words, copyright is the right of the creator of a work to decide when, where,
and how their work is used. No legal steps are required for copyright protection. There needs to
be no notice on the work, no filing with an office, nor even be published. Currently, copyright on
a work is protected for 70 years after the copyright holders death.1
The creation of the internet caused issues right away. It allowed anyone to post anything publicly,
and also allowed anyone to look at and copy posted items. The Digital Millennium Copyright
1 Copyright Act of 1976, 17 USC, 106

Act was signed into law by President Bill Clinton in 1998. The DMCA, as it is often referred to,
is an amendment to Title 17. This act was the first attempt to update copyright law to modern
technology. There are a few main points that the DMCA lays out.
First, the act outlaws anything that is used to circumvent controls of access to digital
copyrighted works, also known as Digital Rights Management, or DRM. One of the most
common forms of DRM are encryptions on DVDs to keep them from being ripped and burned on
everyday computers. The DMCA outlaws the creation, sale, and use of items such as DVD
rippers which circumvent the encryptions.
Second, the DMCA creates what is commonly referred to as a safe harbor for Internet
Service Providers. This safe harbor is a circumstantial legal immunity for companies such as
Comcast and Time Warner, as well as for web companies like Youtube and Facebook. The sites
are not held responsible for copyright infringement that occurs on their site by outsider users. In
return, the companies must immediately take down items in response to notices of copyright
infringement. The immediateness requirement prevents the companies from checking the item
for accuracy of the claim. 2
The DMCA is commonly seen as forward thinking, and the safe harbor provision allowed sites
such as Youtube to thrive without fear of being sued out of business. However, the act is also one
of the most controversial. Fred Von Lohmann, a member of Googles legal team, writes that,
Years of experience with the anti-circumvention provisions of the DMCA demonstrate that the

2 Kravets, David. "10 Years Later, Misunderstood DMCA Is the Law That Saved the Web | WIRED. Wired.com. Conde Nast Digital,
27 Oct. 2008. Web. 12 Apr. 2015. <http://www.wired.com/2008/10/ten-years-later/>

statue reaches too far. Von Lohmanns argues repeatedly that the DMCA infringes on the Fair
Use rights of the users.3
Fair use is the .4 Von Lohmann provides various arguments as to how the DMCA infringes on
this right. For example, the DMCA prohibits a user from copying music from a CD he purchases
onto his iPod. This would normally fall under personal use and therefore be counted as fair use.
Another large fair use debate comes from the usage of whole films or clips in a critics review or
in an educational setting.
Fair use also comes into play with the safe harbor provision of the document. Fair use allows for
the usage of copyrighted materials in transformative ways. Many video and audio clips are used
by individuals legally through fair use, but when a claim against these creations are made, the
site hosting the creation must remove it or risk losing their legal protection. Even Senator John
McCain had campaign videos taken down during the 2008 Presidential election due to claims of
copyright infringement.5
Many of the complications with internet copyright comes from the uncertain definitions for
terms that were never intended to be used online. Attorneys Scott D. Marrs and John W. Lynd
argue that items such as remixes or mash-ups are not fair use because they are derivative works,
that is, a work based upon one or more pre-existing works that includes works that recast,

3 Lohmann, Fred von. "The Digital Millennium Copyright Act Jeopardizes Fair Use." Copyright Infringement. Ed. Carol Ullmann and
Lynn M. Zott. Farmington Hills, MI: Greenhaven Press, 2014. Opposing Viewpoints. Rpt. from "Unintended Consequences: Twelve
Years Under the DMCA." Vol. 9. 2010. Opposing Viewpoints in Context. Web. 13 Apr. 2015.

4 "Fair Use of Copyrighted Materials." Web. 2 Apr. 2015. <http://copyright.lib.utexas.edu/copypol2.html>.

5 Kravets, David. "10 Years Later, Misunderstood DMCA Is the Law That Saved the Web | WIRED. Wired.com. Conde Nast Digital,
27 Oct. 2008. Web. 12 Apr. 2015. <http://www.wired.com/2008/10/ten-years-later/>

transform or adapt that pre-existing work to create something new. The right to create a
derivative work belongs to the owner of the copyright. Marrs and Lynd argue that fair use does
not hold up, because it is dependent on the nature of the activity involved, and while parodies are
protected under fair use, mash-ups and remixes are not parodies.6
In contrast, Patricia Aufderheide and Peter Jaszi, professors at American University, argue that
many viral videos are legal due to the fair use exception. They argue that fair use is a right used
to keep copyright from violating the First Amendment. They say that most judges refer to four
types of considerations when deciding whether or not a work is fair use or not. The four
considerations are, the nature of the use, the nature of the work used, the extent of the use and
its economic effect. Aufderheide and Jaszi argue that most remixes and mash-ups are allowed
when using these considerations.7
Perhaps the largest debate in internet copyright is what actually counts as a violation of a
copyright owners distribution rights. There are two main theories of thought. The first is what is
called the making available theory, which holds that because it is difficult to prove that there
was an actual distribution to another user online, simply the act of offering to distribute a copy of
someones copyrighted work is infringement.
The second theory is called the actual transfer theory. The basis for this theory comes
from the definition of distribute, which requires an actual transfer of ownership from one

6 Marrs, Scott D., and John W. Lynd. "Viral Video Often Constitutes Copyright Infringement." Copyright Infringement. Ed. Roman
Espejo. Detroit: Greenhaven Press, 2009. Opposing Viewpoints. Rpt. from "Viral Videos PublicizeBut Infringe." National Law
Journal (8 May 2008). Opposing Viewpoints in Context. Web. 10 Apr. 2015.

7 Aufderheide, Patricia, and Peter Jaszi. "Many Viral Videos Use Copyrighted Materials Legally." Copyright Infringement. Ed.

Roman Espejo. Detroit: Greenhaven Press, 2009. Opposing Viewpoints. Rpt. from "Code of Best Practices in Fair Use for Online
Video." 7 July 2008. Opposing Viewpoints in Context. Web. 13 Apr. 2015.

person to the next. The courts have gone to the dictionary to define what is the proper definition
of distribute. Even here, different dictionaries have different definitions, so there is no clear
answer.
Kollin J. Zimmermann, an intellectual property lawyer, notes an interesting relationship
between the terms publication and distribution. In the Copyright Act of 1976, the word
distribution is not defined, however, the word publication is. It is at one point defined as,
the offering to distribute copies. Throughout the legislative history of the copyright act,
Zimmermann notes, Congress seems to treat the two terms interchangeably. Zimmermann
acknowledges, however, that this could be seen as a classic example of the logical fallacy known
as affirming the consequent, that just because all distributions are publications, that does not
mean that all publications are distributions.8
The emerging trend in the past ten years has been larger companies attacking smaller ones and
even single individuals online due to copyright issues. These large companies fear the advancing
technology and many seek legal action first, and think second. Instead of trying to find a new and
innovative solution to the problem, companies band together and suggest initiatives such as the
Copyright Alert System. This system was not using the internet to rethink and change copyright,
but simply to more efficiently inform users of the pre-existing law.
The system works through most of the major internet service providers, and is based on a
six strike rule. Its creation was seen as a major accomplishment, the uniting of large groups to

8 Zimmermann, Kollin J. "Peer-to-Peer Services Facilitate Copyright Infringement." Copyright Infringement. Ed. Carol Ullmann and

Lynn M. Zott. Farmington Hills, MI: Greenhaven Press, 2014. Opposing Viewpoints. Rpt. from "Actual Transfer' Versus 'Making
Available': A Critical Analysis of the Exclusive Right to Distribute Copyrighted Works." The Computer and Internet Lawyer 29.8 (Aug.
2012). Opposing Viewpoints in Context. Web. 13 Apr. 2015.

support a moral cause. It was implemented in February of 2013, and over two years later the
system is just as broken and not a single improvement has come about due to this initiative.9
While the large and powerful companies were creating this new system for the users
protection, they were fighting a legal war with the same users they claimed to care about. Eriq
Gardner, a journalist who one day in 2011 decided to google himself, was put into a very strange
situation. He found an article online in the Las Vegas Sun stating that he had been sued for
copyright infringement by a company called Righthaven, whose sole purpose was to sue
copyright infringers. Gardner had used a picture belonging to a company who was a client of
Righthavens in a blog post.
Gardners use of the picture was protected under fair use, and indeed almost every case
Righthaven was involved with resulted in a loss for themselves. Eventually they closed their
doors, but not before suing chronically-ill and autistic bloggers. While most lawyers agreed that
Righthaven did not do its job and abused the law, going after individuals legally is not a new
phenomenon. The Recording Industry Association of America took legal action against 30,000
individuals over the span of six years.10
Amazon, commonly known as the worlds largest online store, has created a near monopoly on
the E-Book market. Often an author allows work to be sold on Amazon, unbeknownst the him
that Amazon will possibly drop the prices significantly and take the majority of the profits. Even

9 "The Copyright Alert System Will Prevent Copyright Infringement." Copyright Infringement. Ed. Carol Ullmann and Lynn M. Zott.

Farmington Hills, MI: Greenhaven Press, 2014. Opposing Viewpoints. Rpt. from "Music, Movie, TV and Broadband Leaders Team to
Curb Online Content Theft." RIAA.com. 2011. Opposing Viewpoints in Context. Web. 13 Apr. 2015.

10 Gardner, Eriq. "Copyright Infringement Litigation Creates Legal and Financial Burdens." Copyright Infringement. Ed. Carol

Ullmann and Lynn M. Zott. Farmington Hills, MI: Greenhaven Press, 2014. Opposing Viewpoints. Rpt. from "The Righthaven
Experiment: A Journalist Wonders If a Copyright Troll Was Right to Sue Him." ABA Journal (1 May 2012). Opposing Viewpoints in
Context. Web. 13 Apr. 2015.

bestsellers can enter into an online price war, and what one day was $24.99 soon becomes $6.99,
with no input from the creator of the work. 11
Amazon is also notorious for doing a poor job of regulating self-published works. Despite claims
that there is a review period for two days before publishing an uploaded e-book, Amazon has
been guilty of letting multiple uploads of a single work be sold, most times by an account that
has no affiliation with the copyright owner. The owner can file for removal and Amazon will take
the work down under DMCA regulations, but no money the illegal upload took in is given to the
rightful owner of the work.12
The biggest obstacle for any sort of real change in internet copyright has always been powerful
lobbying by pre-internet groups. The music and film industry are usually seen as the traditional
leaders in the fight against online copyright infringement. These groups throw out facts such as
that the worldwide pirated CD market is worth $4.5 billion dollars and that 373,375 jobs are lost
annually due to copyright infringers.13 These are concerning figures, that is, concerning until one
puts them into context.
A McKinsey Global Institute study, however, provides powerful counter-arguments. It found that
for each job lost due to the internet, 2.6 were created by it. It did find that 70 percent of those
11 Eve, Martin Paul. "Copyright Infringement of E-books Is an Ethical Grey Area." Copyright Infringement. Ed. Carol Ullmann and
Lynn M. Zott. Farmington Hills, MI: Greenhaven Press, 2014. Opposing Viewpoints. Rpt. from "E-Books: Copyright Infringement,
Theft, Materiality and the Virtual." MartinEve.com. 2012. Opposing Viewpoints in Context. Web. 13 Apr. 2015.

12 Essex, Mike. "Self-Published E-books Encourage Copyright Infringement." Copyright Infringement. Ed. Carol Ullmann and Lynn
M. Zott. Farmington Hills, MI: Greenhaven Press, 2014. Opposing Viewpoints. Rpt. from "Ebooks: The Latest Frontier for Spam."
Guardian 23 June 2011. Opposing Viewpoints in Context. Web. 13 Apr. 2015.

13 Department for Professional Employees, AFL-CIO. "Copyright Infringement Hurts the Economy." Copyright Infringement. Ed.

Carol Ullmann and Lynn M. Zott. Farmington Hills, MI: Greenhaven Press, 2014. Opposing Viewpoints. Rpt. from "Fact Sheet 2012:
Intellectual Property Theft: A Threat to US Workers, Industries, And Our Economy." 2012. Opposing Viewpoints in Context. Web. 13
Apr. 2015.

younger than 30 have downloaded music or movies illegally, but only two percent used illegal
downloads for most of their media collection. $4.5 billion dollars lost in CD sales is a lot of
money, but it doesnt take into account the fact that CDs are by and large a dying medium not
due to piracy but simply the rise of digital and cloud libraries. In addition, the global music
industry increased in value $36 billion over five years.14
Facts and figures can and are thrown around in debates over internet copyright all the time. What
is clear to everyone is that the current situation will not last, one side must give. In many ways
the legal opposition from large companies to internet systems is reminiscent of the battles made
against VHS by many of the same companies when it first came out. In that case, VHS won and
the companies were thrust into possibly the most profitable era in their history due to the forced
acceptance of new innovations. The internet seems to be shaking up in much of the same way,
but twenty years is far too long to be dragging behind in regulation. Whether or not its wanted,
the world has changed in the internet era, and its about time to change the way we think about
copyright, authorship, and what it means to create.

14 Salam, Reihan, and Patrick Ruffini. "Innovate or Legislate." National Review (5 Mar. 2012). Rpt. in Copyright Infringement. Ed.
Carol Ullmann and Lynn M. Zott. Farmington Hills, MI: Greenhaven Press, 2014. Opposing Viewpoints. Opposing Viewpoints in
Context. Web. 13 Apr. 2015.