Higher Education and the DMCA

The nearly twenty-year history of the Digital Millennium Copyright Act’s safe harbor provisions has been marked by criticism from content owners, online service providers, and end users. Content owners complain about the cost of monitoring online content and sending takedown notices. Online service providers complain about the cost of receiving and processing the notices. And end users complain about their legitimate use of copyrighted works being subject to DMCA takedown.

Colleges and universities have been at the forefront of this controversy; as providers of online services to their students, they have been a focus of both Congress and copyright owners. Higher education therefore provides a fitting case study of the effect of the safe harbor provisions, and particularly the nature, volume, and cost of the notice-and-takedown system. This Article presents the results of a survey of colleges and universities regarding their copyright and DMCA practices. The results expose infirmities in the administration of the DMCA system, both within the world of higher education and within the U.S. Copyright Office.

Additionally, the results suggest that colleges and universities need to take better advantage of the safe harbors and correct certain fundamental misunderstandings of important and essential aspects of the DMCA.