By Alea Mitchell
Edited by Cary Mayberger
Innovative hosting of user-generated content on the Internet, and a subsequent increase in unauthorized copyrighted material among this content, means reimagining copyright jurisprudence. The issue of how we protect an owner’s “exclusive” right to reproduce, distribute, and publicly perform his or her work, while not stifling advances in global communication and technology, underlies the concern in recent infringement suits brought against online hosts like YouTube, eBay, Hi5, and Veoh. See 17 U.S.C. § 106(1), (3), (4) (1976). But while the legal system has risen to the challenge with reinterpreted rules and legislation, Facebook continues to defy categorization.
This comment attempts to demonstrate the difficulty in categorizing certain service providers by looking at Facebook in the wake of the Viacom International v. YouTube, Inc. decision, No. 07 CIV. 2103, 2010 WL 2532404, at *8-9 (S.D.N.Y. June 23, 2010), of which Facebook filed a joint amicus brief in support of the defendants. Part I of the comment presents a brief overview of the Viacom court’s interpretation of “safe harbors” provided under the Digital Millennium Copyright Act (“DMCA”) and Facebook’s amicus brief. Part II explores whether certain activities on Facebook constitute copyright infringement. Finally, Part III pools these two together and examines why the DMCA “notice-and-takedown” process, as articulated in Viacom, may not be a workable copyright protection scheme for Facebook. Ultimately, I suggest that Facebook’s blurred private/public structure makes it unlikely that the DMCA notice-and-takedown scheme can adequately protect copyrights infringed by Facebook users. (more…)