The Role of the DMCA
The DMCA’s role is to protect copyright and intellectual property holders and ensure that they get paid for their works. It sets forth rules and consequences for those who circumvent DRM and illegally obtain copyrighted material. The purpose of the DMCA is to ensure that copyright holders get paid for their works, as well as, to make consumers and companies aware that if they don’t outright pay for obtaining the copyrighted material, the copyright holders can pursue civil actions against them and get compensated at a much higher rate (than they would have paid if they had not obtained it illegally). If the DMCA didn’t exist, the incentive to possess a copyright would decrease and potential copyright holders might have not develop new technologies and products (because of fear of not seeing payment for their efforts), which would stifle overall economic growth in the U.S. The DMCA also sets forth the notion that digital broadcasts for sound recordings will be paid for (via a statutory license) and also states that royalty rates will be set by law at fair market value which, ensures compensation for musicians, publishers, and record labels.
The DMCA & The YouTube/Viacom Lawsuit
The DMCA will be the primary legal act that will govern the ruling of this case. According to the DMCA, YouTube is a service provider. Viacom should not win the lawsuit because YouTube is technically not breaking any laws (including those set forth in the DMCA). The DMCA asserts that a service provider must adopt and implement a policy to remove infringing material (which they have). The DMCA also limits the liability of service providers who solely act as a data conduit (which YouTube is). According to the DMCA, YouTube does qualify for this liability limitation for the following reasons:
- The transmission of videos is initiated by users (a person other than YouTube)
- YouTube doesn’t select any of the material that is posted (the transmission is carried out through an automatic technical process—user uploading)
- YouTube doesn’t determine the recipients of the material (users log on and choose what they’d like to see), and
- YouTube transmits videos (material) without modifying its content.
According to the terms of the DMCA, YouTube is not doing anything wrong and can’t be held liable for the actions of its users.
A Brief Note About Performance Royalties
According to copyright law, a public performance of a piece of music occurs when music is, “recited, rendered, or played, either directly or by means of any device or process.”[i] “Performance royalties are derived from the public performance of a song, most commonly on radio, television,”[ii] and in bars, clubs, and venues.
A music or video download is not a performance. Downloads are considered to be the equivalent of purchasing a physical product (be it a CD, Music DVD, or a CD Single). A digital performance, as defined by the Copyright Royalty Board, is considered to be the streaming of a track to a user. The digital performance occurs when a song or video is broadcast and consumed simultaneously (as it is with streaming content). A download, on the other hand, typically isn’t consumed until after the music/video is on the computer or mobile device.
The only way a video download could be considered a performance is if consumers download TV shows or movies that contain music (which was not paid for as an online performance). For the original airing of shows and movies, synch licenses were negotiated, however if online synch terms were not negotiated (and a movie or TV show containing that music is downloaded) a performance royalty is owed to the copyright holder.
[i] When A Performance Isn’t A Performance. 13 Apr 2007. The Register. 27 Nov. 2009. <http://www.theregister.co.uk/2007/04/13/steve_gordon_performance_royalties/print.html>.
[ii] Publishing Primer. 1 Jan 2002. Wixen Music Publishing Inc. 27 Nov. 2009. <http://pages.stern.nyu.edu/~wgreene/entertainmentandmedia/Wixen-Music-Royalties.pdf>.