Background

The Roots of Intellectual Property

The idea of intellectual property is rooted deeply in the writings of John Locke. As early as 1680, in Book II, Chapter 5 of his Two Treatises on Government, Locke notes that people have a natural right to the fruits of their labor. 1

United States Law

In the United States, this right is enshrined in our Constitution. Our founders decided to protect intellectual property in order

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. 2

Copyright Term

This original copyright term was encoded in the Copyright Act of 1790. Copyrights were to have a term of 14 years with the right to renew for one additional 14 year term if its holder were still alive.

Through subsequent legislation, copyright term is now far more complicated. In short, works created on or after January 1, 1978 are granted a term of the author’s life plus an additional 70 years. For works made for hire—that is, those owned by corporations—the term is 95 years from publication or 120 years from creation (whichever is shorter). 3

Digital Millennium Copyright Act

In 1996, the United States took a seemingly proactive step toward protecting intellectual property in a soon-to-be digital world.

The Digital Millennium Copyright Act, or DMCA, implements two treaties of the World Intellectual Property Organization (WIPO). Notably, the DMCA increased penalties for copyright infringement if such infringement takes place on the internet. 4

Section 512 of the DMCA provides “safe harbor” protection to service providers in certain cases. This means that they are shielded from monetary liability for their users’ copyright infringement. 5

To receive this safe harbor, online service providers must meet certain criteria.

They have to:

The third criterion is sometimes referred to as a “DMCA takedown notice.” 6

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  1. Locke, John. (1689). Two Treatise on Government, Book II, Chapter 5: "Of Property." ↩

  2. U.S. Const. art. I, § 8, cl. 8 ↩

  3. United States Copyright Office. (2013). Duration of Copyright (Circular 15A.0811). Washington, DC: U.S. Government Printing Office. <http://www.copyright.gov/circs/circ15a.pdf> ↩

  4. United States Copyright Office. (2013). The Digital Millennium Copyright Act of 1998 (U.S. Copyright Office Summary). Washington, DC: U.S. Government Printing Office. <http://www.copyright.gov/legislation/dmca.pdf> ↩

  5. Liu, K. (2013, March 06). The DMCA Takedown Notice Demystified. Science Fiction & Fantasy Writers of America. <http://www.sfwa.org/2013/03/the-dmca-takedown-notice-demystified> ↩

  6. Digital Millennium Copyright Act. (n.d.). Electronic Frontier Foundation. <https://www.eff.org/issues/dmca> ↩