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Frank Guzman

Abstract

The globalization and increasing ease of Internet access allow more people to share content than ever before. A substantial amount of this content relates to another’s copyrighted material, whether it is infringing content such as piracy or noninfringing content such as commentaries, criticisms, parodies, or other material falling under fair use. Due in part to piracy concerns, the Online Copyright Infringement Liability Limitation Act (OCILLA) created a process meant to expedite removal of infringing content hosted on the Internet. However, this takedown process has been used to remove noninfringing content that uses another’s copyright material, but falling under fair use.

This usage of the takedown process is enabled by the requirement that the original copyright owner only needs a good faith belief that the target’s use is not authorized, and by the nature of fair use determination­­—the consideration of various factors—which makes determinations of individual works difficult. Due to this difficulty, copyright owners are able to easily meet the good faith standard, endangering fair use speech on the Internet. Therefore OCILLA needs to change in order to decrease the chilling effect on this type of speech.

Proposals have been made to ameliorate this situation. However, most of them overreach and impede copyright owners from expeditious removal of clearly infringing material, contrary to the purpose of OCILLA. This comment suggests a different solution: creation of safe harbor provisions where certain narrow categories of content are irrebuttably presumed to be fair use. Though this solution does not alleviate the problem on fair use content in general, it allows for greater certainty to people who want to create content based on another’s work while qualifying as fair use, without obstructing copyright owners from protecting their works through removing infringing material.

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