DMCA Reform: If they want to open that door, so do we
DMCA Reform: If they want to open that door, so do we
DMCA Reform: If they want to open that door, so do we

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    I've noticed a recurring meme popping up in the tubes lately, especially in the context of moving and sharing content on the 'net. The theme deals with the ramifications of a service provider, like YouTube, when a third-party posts infringing content to their service. Are the responsibilities of the service provider in the right place?

    Here are a few of the places this meme is mentioned:

    But whether Google produces economic benefit to the copyright owner is for the owner to decide, not Google. Google claims “a legal safe harbor” from copyright infringement under the 1998 Digital Millennium Copyright Act, which allows Internet firms to provide a thumbnail of copyrighted material. The firm also asserts a right to reproduce and distribute intellectual property without permission as long as it promptly stops the trespass if the copyright owner objects. That's like saying you have the legal right to hop over your neighbors' fence and swim in their pool — unless they complain.

    'It's not efficient and I think there is a larger conversation to be had. But this is the world we are living in. This is the reality,' she said. 'It is not the efficient way to deal with it. I think a larger conversation is in order.'

    There are others on this meme of notice-and-take-down, and how some in the content industry don't feel what they bargained for in the DCMA's section 512 provisions is sufficient for today's technology. The content industry wants service providers to actively police their networks for any and all infringements of the content industry's copyrighted works. But that's not the way the law works.

    The trade-off in the DMCA for infringing content hosted by a unknowing service provider was essentially this: no liability so long as you expeditiously take down the infringing content when the copyright holder notifies you. It was done this way because, with most web services on the Internet, they're all automated. To have someone sit behind the curtain and approve every submission that a copyright-able work could be sent through is ridiculous (and remember, just because a work is copyrighted, that doesn't mean a poster needs the author's authorization to post it–try having a submissions monitor do a fair use analysis with every post).

    The effect of section 512 is that the responsibility is placed on copyright owners to actively identify infringement and notify the host services, all themselves. Yes, it may be rough, but heaven forbid that a copyright owner actually actively keep track of his copyrights–it's not like they don't have the weight of civil and criminal copyright law in their corner.

    The law in question, the DMCA, was one the content industry proposed and fought for. This current thread in recent articles suggests that maybe the content industry is not satisfied with their sudo-copyright under the DMCA, and they want to tinker with it. If that's the case, then let us agree to have the debate over how to fix the DMCA–we have some changes ourselves [Updated with some more specifics]:

    • Reinstate fair use for digital works: Rep. Rick Boucher's HR 1201 would go along way to help. Part of the problem with the DMCA is that it essentially says if a copyrighted work is protected by digital locks, consumers who break the locks are infringers, regardless of the reason–even fair use. The Boucher bill works to correct the problem by changing the analysis to consider whether the reason for using the copyrighted work is otherwise infringing; if not, say for reasons of fair use, it's permitted.

    • Extend the Boucher bill to innovators: if consumers could break the lock on a technologically protected work for Boucher bill type reasons, they're going to need someone with technological know-how to help pick the lock and make their otherwise legal use possible. For example, if making video clips of a DVD for a school presentation is legal, software publishers need to know it's legal to provide such video editing software for such legal purposes.

    • Balancing statutory damages: you've heard the horror stories, grandmothers wrongfully sued for copyright infringement. It has cost consumers quite a bit to defend themselves in court against the copyright industry–regardless of a win or a loss. The copyright holders have a big stick to incentivize defendants to settle–statutory damages of up to $150,000 per work. Is $150,000 for illegally downloading a song appropriate when it can be bought for $0.99? How might these cases change if consumers had a similar statutory stick for wrongful claims of infringement?