Global Internet Content Takedown Results from American Law

It is likely that the United States will continue to be both an internet technology and internet law global leader. As such, American internet law will prospectively have global influence.

New Jersey Law Journal November 13, 2020  

By Jonathan Bick | Jonathan Bick is of counsel at Brach Eichler in Roseland. He is also an adjunct professor at Pace and Rutgers law schools, and the author of 101 Things You Need to Know About Internet Law (Random House 2000).

The United States is a global leader in both internet technology and internet law, as most recently exemplified in the use of a novel American copyright infringement law to curtail the use of an American application worldwide. More specifically, the American internet downloading utility youtube-dl, which allows internet users to easily download both videos and audio content from thousands of internet sites around the world may be incapacitated by an American statute in Europe and beyond.

The use of an American authorized internet content take-down demand is the basis for international restrictions on a large international open source project, which accepts contributions from all around the globe. More particularly, a take-down demand written by attorneys on behalf of the Recording Industry Association of America to Github, a third-party Internet services provider, that wraps and enhances internet sites by adding its own features, including web-based graphical interface, a wiki and basic task management tools.

The take-down demand in this instance cited the Digital Millennium Copyright Act (DMCA) a United States law designed to enhance copyright holders in the United States. However, due to the international adoption of American Internet technology protocols and international mimicking of American internet content protection statutes has resulted in global disruption of internet site development processes and disrupts access for youtube-dl users around the world.

United States internet users have long been accustomed to take-down demands based on the DMCA. The DMCA notice and takedown process is a tool for copyright holders to get user-uploaded material that infringes their copyrights taken down from websites. However, failing to do so, it opens the content publisher to potential secondary liability for assisting with copyright infringement.

However, the Recording Industry Association of America’s take-down demand initiated a novel use of the DMCA. Rather than citing DMCA Section 512 (§512(j)(1)(A)) which prohibits the service provider from providing access to infringing material residing at a particular online site on the provider’s system or network, DMCA Section 1201 was cited. DMCA Section 1201 bans breaking digital protection of content.

By citing DMCA 1201, the RIAA take-down demand against youtube-dl cites the criminalization of the distribution of technology that can bypass DRM, also known as the “circumvention of technical protection measures.” The relevant part of DMCA 1201(b) states that: “No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that … is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.”

DMCA 1201 is very broad, allowing rightsholders to legally pursue any “trafficker” in code that lets users retake control of their devices from DRM locks. While intended to ameliorate internet copyright infringement in the United States, since 1996 over 100 countries have signed on to the WIPO Copyright Treaty which in part implements elements of the DMCA.

More importantly, most countries adopted the far stronger DMCA 1201 language in their own implementations, including the DMCA’s anticircumvention provisions which have been adopted by much of the world’s jurisdictions too, including the European Union via the Information Society Directive 2001/29/EC. More specifically, the directive states that member states shall provide adequate legal protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services which:

a.         are promoted, advertised or marketed for the purpose of circumvention, or

b.         have only a limited commercially significant purpose or use other than to circumvent, or

c.         are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of any effective technological measures.

Thus, the EU directive already mirrors U.S. law in that it prohibits the possession and distribution of anti-circumvention components. Transpositions into domestic European law have helped to memorialize US law. Such memorialization in turn has resulted in near world-wide adoption. Said adoption is likely due the adoption of the DMCA by the United States.

The technology of the internet is not based on written agreements but rather on the fact that each user uses the same set of protocols, namely the Internet Protocol (IP). The IP is the protocol which allows internet users to communicate. Because all internet users actually use the same routing protocol, all the internet functions are enabled. IP was based on an American Transmission Control Program in 1974, and has morphed into the internet protocol suite that is therefore often referred to as TCP/IP as a result of amendments and adoption in the United States.

It is likely that the United States will continue to be both an internet technology and internet law global leader. As such, American internet law will prospectively have global influence.