Fortifying the Safe Harbors : Reevaluating the DMCA in a Web 2.0 World

This article posits that the Web 2.0 environment has altered the landscape of the Internet in a way that calls into question several DMCA requirements. In particular, the DMCA-embedded concepts of direct financial benefit, interference with standard technical measures, and the legislative red flag test for identifying infringing material are significantly challenged by the new ways that intellectual property is distributed on the Internet. The general policy inherent in the DMCA is that the burden for policing the Internet for copyright infringement is primarily on the copyright owner, and that online service providers must only cooperate when necessary to eliminate copyright infringement. This Note argues that this burden may be inequitable in light of the Web 2.0 movement and that a balancing test would be more appropriate for determining when OSPs should be expected to do more than simply cooperate with copyright owners