A work in Progress
It becomes more and more apparent each year that the historical frameworks governing copyrights and patents in this country (if not the world) has become strained under advances in modern technology, and particularly, the internet. The digital millennium has changed the face of content creation, distribution, and consumption to such a degree that legislation governing copyright, infringement, and plagiarism can scarcely keep up.
One of the principal tools in use today in the United States is the Digital Millennium Copyright Act (DMCA), passed into law in October of 1998. We are all at least somewhat familiar with the Digital Millennium Copyright Act. At least, we know it has to do with “protecting” copyrighted works online, and that it allows online content to be “removed with” the simple issuance of a “takedown” notice by the party alleging infringement, usually to the hosting entity.
In broad strokes, the DCMA requires that, upon receipt of an infringement notice, the Internet Service provider or hosting site must block or remove public access to the alleged infringing material in order to be protected from liability under “safe harbor” rules built into the DMCA. In the meantime, the content host generally notifies the user or customer who posted the content, who is then free to file a counter-notice establishing that the content does not, in fact, infringe as claimed.
The above description is intentionally broad and vague, because I am not an expert in copyright or the DMCA. In addition, more detailed information abounds online. You can start HERE if you want more information. In short, the DMCA was a step forward in that it established explicit measures protecting internet service providers and content hosting sites from being held liable for infringing content uploaded by users.
Big Media, for the Takedown
I am proposing that the DMCA has potential to be a reasonable compromise in terms of bringing copyright enforcement kicking and screaming into the modern age (ok, at least to the eighties or nineties). The problem at present is that, like many things, the current implementation is one-sided in the extreme, unduly favoring the plaintiff, which is most often a heavily-lawyered, well-healed large corporation. Essentially, all one need do to get somebody’s content blocked, even temporarily, is issue the takedown notice. It then becomes the problem of the content publisher to demonstrate that the posted content does not, in fact, infringe upon the plaintiff’s work.
Certain major media companies have taken to issuing indiscriminant take down notices, apparently using internet search algorithms and “web crawling” technology to identify potentially infringing content. In some cases, it appears that content is targeted based upon keywords, titles, or other criteria which may well identify infringing works, but also a good many other sites which are not in fact plagiarizing or pirating the work of others. Often acting through surrogates, big media companies seem to favor a shoot first, ask questions later approach, issuing the take down notices indiscriminately. The current law provides no penalty for this, and the result is that, if YOUR content happens to contain the right combination of keywords, your content might be yanked, pending resolution through a counter notice.
Balancing the Equation – a Common-Sense Solution
I propose that the DMCA be modified to penalize those who issue a takedown notice which turns out to be invalid. If someone is going to claim MY content infringes upon their previously published work, they should be damn sure that it does if they are going to step on my livelihood. Just as in civil court, if I sue you, and I lose, I will be required to pay your attorney’s fees and other legal costs. Under the modification I propose, at the very least, those who are found to have issued a bogus or insufficiently researched takedown notice should have to pay for my costs to get my content restored, plus any lost revenue arising from the period during which my content was off line. Other penalties should also be levied, since at present, there seems to be no mechanism to regulate the profligate issuance of these takedown notices in a slash-and-burn manner by big media companies.
I am very much against plagiarism and piracy. I think that those who seek to profit by illegally distributing copyrighted materials, and/or through plagiarism, should be punished accordingly. But I don’t feel that the laws by which this is accomplished are balanced fairly at the moment, and the situation is skewed too far in the direction of the big publishers.
Don’t steal. Don’t plagiarize. And don’t throw out the baby with the bathwater.
We can do better.
John on Google
We’re from the government. We’re here to help.
There is a war going on with respect to the internet, but it is not the war most people think it is. We hear concerns about digital piracy from the entertainment industry, the RIAA and MPAA in particular representing the most vocal representatives. We hear rumblings from the publishing industry, as the printed word begins to decline relative to digital content. And we see ever-increasing numbers of consumers spending more and more of their income through on-line purchases.
We hear concerns about security and privacy, and the need to essentially “protect” the user from predatory companies which seek to exploit the user data for commercial gain. The current explosion in “Social Networking” and “cloud computing” has set the stage for the next big struggle. Large software companies, hardware manufacturers, and web-based social networks, creating what they call “ecosystems” and what many others call “walled gardens” represent the next battleground in the war.
The RIAA and the MPAA, arriving late to the party, have finally figured out that the internet is the content delivery mechanism of the future. The entertainment industry is in the content delivery business, and for decades have controlled most aspects of how we access, choose, and pay for their goods. They are not going to sit idly by and watch the empire crumble. And because they missed the boat at the beginning, it is too late for them to grab the early foothold the needed in order to bring something fresh to the game. So they will fall back on what they know. Lawyers, lawsuits, and lobbying.
The MPAA, in the news of late due to its heavy lobbying investment (failing) to pass the SOPA and PIPA legislation, has in its CEO the perfect, iconic representation of the problem at hand. Former US Senator Chris Dodd, barely out of office, seems to land himself the cushy gig of CEO to the Motion Picture Association of America. Is this because of his imminent qualifications and experience in the motion picture industry? I think not. It is because of his political connections, and favors performed while in the senate. By now, most are familiar with Dodd’s poorly-conceived response following massive protest of the SOPA/PIPA legislation. But this is how they are trying to play it.
Remember the “Big Three?”
Now that the internet represents the obvious distribution mechanism for all levels of content, and provides smaller publishers an equal platform on which to compete, the media companies are running scared. The war is not truly about piracy. Piracy is a very real problem, for these and other industries. However, it is not going to go away, despite new legislation or enforcement efforts. The war is, at its core, for control of the internet. Media companies have controlled the radio, television, and cable airwaves for decades. The internet, representing the ultimate replacement of those delivery mechanisms, is now the primary target.
Mark my words. While piracy, copyright, and patent protections are the buzzwords of the moment in this war, it is only the beginning. Think about this. If the realm of the internet is made “safer” or “protected” for rights holders at the expense of the overall freedom, we have lost. In 10 years time, if we allow it to happen, the internet will look a whole lot more like the broadcast television spectrum of the ‘70’s and ‘80s, and the cable networks of the ‘90s. Big media will dominate, and control most of the space. There will likely be some “fringe” domains in which “public access” occurs, but the bulk of the web will be all about big media and advertising.
Your Papers, Please?
The large corporate interests will accomplish this through heavy lobbying, for progressively more restrictive legislation which “protects” the interest of rights holders at the expense of our (the public) freedoms. It won’t take long before the costs associated with domain applications, the inevitable licensing requirements, and compliance will be so great that the average user will find the barriers to entry too high.
Arguments about piracy, privacy, security, and the safety of the “social web” are all very real and very valid concerns. However, in the next few years, these terms will be bandied about by large corporate interests, inside and outside the hallowed halls of legislatures, boardrooms, and smoky back rooms with the general goal of re-purposing the web infrastructure. If we, the public, allow ourselves to buy into it, the internet as a free vehicle of personal access, enlightenment, and engagement will cease to exists.
In its place will be another version of “Over 500 channels of crap for just $79.99 per month – some restrictions apply”
John on Google