Time to Reboot?: DMCA 2.0

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Donald P. Harris

Imagine this scenario. Mary Saint Francis was a longtime librarian of limited means. She had always dreamed of becoming a successful writer and living the way “the other half” lived, retiring from the library and traveling around the world. At 56, and after a number of unsuccessful and little known short stories, she was beginning to believe this would never happen. In March 2013, things changed. Mary wrote a saucy and stimulating novel about being a librarian: The Real Life of a Librarian. Surprisingly, Real Life became an instant success. Over the next year, Mary’s novel achieved critical acclaim, was the subject of Oprah’s Book of the Month, was the topic of numerous talk shows, and was discussed on various news and radio spots. Mary also traveled “the circuit,” courtesy of her publisher, to promote the book. Mary’s dream was soon to be realized—or so she thought.

Mary’s novel also became the most downloaded book on the Internet. As a result, Mary did not get rich. In fact, Mary received very little proceeds from her novel due to unauthorized downloading. Dismayed, Mary questioned why people were able to upload, copy, and distribute her book without paying. Mary knew a little about copyright law and thought that having a copyright on her novel protected her, or that someone would (and should) be liable for unauthorized copying and infringement. Mary’s publisher explained to her that under the 1998 Digital Millennium Copyright Act (“DMCA”), Internet Service Providers (“ISPs”) were not liable for the copyright infringement of its subscribers as long as the ISPs followed certain guidelines. Mary could sue each of the individual infringers separately, but the cost of doing so would be prohibitive. Frustrated, Mary went back to work at the library, never to write again, and never to realize her dreams.

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