Industry Voices Stick to Playbook Talking DMCA

Remember when I posted A Guide to Critiquing Copyright in the Digital Age?  Quite a few people read it and seemed to enjoy it, which is cool.  And most recently, it seems that Joshua Lamel, executive director at Re:Create, wrote an article for the Huffington Post about prospective revision to the DMCA, in which he appears to have followed this guide fairly closely.  In response, let’s see how he did based on the recommended guidelines …

1. Remind readers how cool it was when we killed SOPA.

Check! Lamel scores 100% when he writes in his lead:

“Defeating the Stop Online Piracy Act (SOPA) and PROTECT IP Act (PIPA) – products of the entertainment industry’s intense and well-financed lobbying campaign – was a watershed victory for consumers, free speech and technology innovation. But the fight is not yet over.”

2. Remind readers that all remedies to infringement are basically SOPA.

Kudos!  Lamel is into his third paragraph of an article that is supposedly about potential revision to the DMCA, but notice that he is still aligning the discussion with SOPA when he writes:

“After failing to persuade Congress to pass SOPA and PIPA, they are now targeting different entities and state legislatures, government agencies, the courts, ICANN, the European Union and international treaties – these are just some of their chosen venues. But neither their misguided demands nor the potentially disastrous consequences have changed.”

Lamel gets high marks here for remaining entirely detached from reality, glossing over basic truths, like the fact that rights holders are just beginning to ask lawmakers to review DMCA safe harbor provisions. Or the fact that safe harbors have been consistently abused by many of the largest ISPs and platforms, getting away with tens of millions of monetized infringements. Lamel successfully avoids any acknowledgement that the outdated DMCA problem is substantial; that the conversation is in early stages; that there are no specific remedy proposals on the table; and—this is really why his grade is so high–as an attorney, Lamel knows full well that the mechanisms in DMCA have nothing to do with SOPA.  So, he scores another 100% for meeting the goals of Guideline #2.

3. Remind readers that the copyright industries hate the future.

Remember:  the purpose of this guideline is to help the reader avoid considering specifics and reduce the conversation to good guys and bad guys. Lamel’s work here is solid but I feel could have been stronger.  While his article does contain implications that the entertainment industry is willing to stifle the potential of the Internet, I’m going to have to give him an 85% for failing to suggest that the entertainment industry is eager to stifle the potential of the Internet.  This isn’t bad …

“The implementation of excessive and over-broad intellectual property protection measures would strangle the freedom and innovation essential to growth of the Internet.”

But after four years of repeating the theme “strangling the growth of the Internet”, it just doesn’t make the blood boil like it did in 2012.  Readers may be less susceptible to this kind of vague, scare-mongering gibberish. In particular, anyone who might be following the real story may even notice that many of the remedies people keep saying will stifle speech and innovation have actually been applied repeatedly in the U.S. and abroad without stifling speech or innovation.  Lamel did good work here, but it’s a little mailed in.

4. Make some crazy shit up.

In scoring Lamel on this guideline, however, I have to give extra credit.  It’s honestly hard to pick which crazy shit to highlight as his best work.  It could be conflating the US, Europe, and the DMCA in the same paragraph despite the fact that Europe doesn’t have the DMCA.  It might be the specifically burdensome mechanisms he alludes to despite the absence of even a single word’s worth of proposed revision to the existing law.  But I think the most impressive made up crazy shit is this:

Imagine a world where just the mere allegation of infringement would permanently keep that content down. This would have huge implications for everyone when it comes to sharing a video on Facebook or quoting song lyrics. That’s because social media networks would be forced to suppress user generated content, as they would not know if it was licensed or not. Parents can forget posting videos of their kids dancing to music and candidates would not be able to post campaign speeches because of the music that plays in the background. Remix culture and fan fiction would likely disappear from our creative discourse. Live video streaming sites would cease to exist. Notice and staydown might seem innocuous, but in reality it is content filtering without due process.

High marks indeed. Not only does Lamel cite a whole range of ordinary, social media activity that would be entirely unaffected by a prospective tweak to Section 512 of the DMCA, not only does he ignore the fact that the entertainment industry continues to forge new deals to support remix culture and fan fiction, etc., but he leaps all the way over the candlestick to insist that a revision to DMCA (which has not even been substantively discussed) will automatically remove due process from the law as it currently stands. In particular, this assertion can help the reader ignore the fact the requirements in question in the DMCA are more akin to voluntary conditions that are either met or not met prior to actual legal proceedings.  So, this is some excellent made up crazy shit, and I give Lamel an extra fifty points for a score of 150% on meeting the goals of this guideline.

5. Write a misleading headline.

This is a tough one to score. Technically, both the headline and the article are grossly misleading, and the headline will garner Likes and shares and retweets by users who won’t bother to read the article.  So, all of those are points in Lamel’s favor.  On the other hand, the promise of the headline is fulfilled by the article, which is a departure from the guideline recommendations to be even more misleading.  It feels like an 80%, giving Lamel a final grade of 103% for adhering to the Guidelines to Critiquing Copyright in the Digital Age.


But in all seriousness …

Both the takedown procedures and the safe harbor provisions in the DMCA are mechanisms of great importance to ISPs, copyright holders, and general users.  And there is no straight line dividing the needs and concerns of the various parties into side a or b.  Many copyright holders have a strong interest in safe harbors, yet the tens of millions of takedown notices sent monthly by some rights holders–in the chronic game of Whack-a-Mole–over large-scale infringement was never envisioned when the DMCA was passed in 1998.

Any proposed revision to DMCA will seek the same balance as was initially sought in the law; it will contain language that can be debated and discussed; and proposed remedies may or may not include the kind of algorithmic “filtering” alluded to by Lamel and others.  When we look at cases like BMG V COX, the Grooveshark case, and this recently announced suit by photographer Jen Reilly against Twitter, we see that a chronic point of contention among rights holders is that ISPs push the limits of good faith with regard to the safe-harbor conditions as written in the DMCA today.  Hence, it is feasible that these behaviors can be remedied without requiring any new technological paradigm. To say otherwise is jumping to very early conclusions while ignoring the real problem.

If and when DMCA revision becomes truly active, we can expect this same kind of editorial from the same voices; but at this point in the discussion, the fact that Re:Create and EFF are already  leading with straw man arguments is typical of the kind of “cooperation” rights holders are used to from many of the companies these organizations represent.

© 2016, David Newhoff. All rights reserved.

Follow IOM on social media:

7 comments

  • Section 512 of the DMCA, has had a devastating impact on every working artist in America. Authors, filmmakers, musicians, photographers and every creator whose copyrighted work can be distributed over the internet has been negatively impacted by online piracy.

    Under Section 512 of the DMCA nearly every ‘alleged’ pirate site has been operating openly within the limits of the law since the take down provision in Section 512 was enacted in 1998.
    Take Down and Stay Down is Not SOPA.

    SOPA would have established an oversight committee to determine which infringing websites would be shut down. Take Down and Stay Down grants legal recourse to the individual copyright holder to determine who can use their copyrighted work. Take Down and Stay Down eliminates the main impediment to SOPA’s passage, the potential for censorship.

    For those who support artists’ having control over who uses and monetizes their work please consider signing this petition: http://www.takedownstaydown.org

  • The specter of SOPA and PIPA can only carry the dialog so far. SOPA and PIPA was, in reality, a once-in-a-lifetime moment for the law’s opponents. That kind of rallying will be almost impossible in the future as we’ve seen with similar efforts already.

    The problem is you can’t recapture that moment and the more laws you claim to be SOPA 2 the more you risk becoming the boy who cried wolf.

    • This is certainly true, Jonathan. Though I’m not going to stop mentioning that SOPA 1 wasn’t a wolf in the first place.

      • Agreed. When the whole SOPA thing was going down and people would ask me what I thought about the law, my most common response was kind of “Meh”. I didn’t see the law as particularly great or horrible. We’d seen site blocking in other countries well before SOPA and without devastating consequence but also without great effectiveness

        SOPA may have been a boon for some it wouldn’t have been for me and the people I work with. But it also wouldn’t have been a disaster. It was a campaign fueled by misinformation and buzzwords.

        Anecdotal proof of this is that I messaged some of my non-copyright friends on Facebook who were posting about it. I asked them one simple question: What did SOPA stand for? None could answer without Googling.

        Basically, in 2012 the hunter showed up for a wolf that wasn’t really there. Now in 2015 the hunter is getting burned out and, to make matters worse, the real wolf has started investing in kevlar.

      • Well said, Jonathan. The insane distortions about SOPA were what got me started writing about these issues, not just because that bill was about piracy but because of how lazily I thought everyone jumped on the bandwagon. There were only a handful of people looking at the mechanisms of the bills themselves. Everyone else, including most members of the press, just helped the hyperbole go viral. What bothered me most–and still does–is how easily one industry manipulated the public on just one relatively innocuous issue. On the one hand, it showed how potent social media can be, but the same manipulators failed to recognize how fleeting and impotent it is as well, which is why subsequent attempts to ring the same bell have been met with tepid response. Frankly, I’d be thrilled if these guys would drop the dramatics and engage in a more nuanced and frank discussion of the facts, but I don’t think that’s part of their culture.

  • I know I’m an old angry curmudgeon but can anyone tell me why the ability to post videos of little kids dancing is a good response to any serious legal contemplation of property rights? Even if the entire “little kid dancing” genre was regulated out of existence would that be any kind of loss to the world?

    • Sf46, curmudgeonliness is always welcome here. By all appearances to anyone who knows the facts, Lenz v UMG is a poor example of DMCA “abuse”. In fact, even when an organization like EFF files a brief or makes a public statement about DMCA abuse, they will cite various examples that are far better and more blatant. The reason they seem to have made that case the poster child, though, is because it involves an innocent act, a dancing kid, a big rights holder, and the star Prince. And it’s really easy to misunderstand the details, so lazy reporters and bloggers will perpetuate the outright lie that UMG sued a mom over a YouTube video. I’ve had people cite the case to me as overreach of rights holders, utterly unaware of the basic fact that EFF has been suing UMG, not the other way around. After the video was restored by counter-notice!

      So, I agree that in the big picture there is no great loss to culture if people’s home movies disappeared from YouTube, but it also isn’t remotely necessary to allow organizations like EFF, et al to worry consumers over such restrictions. It’s a false flag. Thanks for commenting.

Join the discussion.