Activists Promote Revisionist History of DMCA

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Earlier this month, Rolling Stone published an article by Steve Knopper called Inside YouTube’s War With the Music Industry.  I would characterize the article as more of a glimpse than an inside view; but setting that aside, the article contained a quote about the DMCA that caught my attention.

Knopper focuses on the fact that several major stars like Taylor Swift, Paul McCartney, and Beck recently signed an open letter to Congress demanding revision to Section 512 of the DMCA.  The article is actually too short and broad to really get into the nitty-gritty, but anyone who follows the issue knows that the crux of all artists’ complaints with the DMCA is that it has unintentionally enabled platforms like YouTube to distribute works without a negotiated license and to monetize mass infringement of works without providing rights holders an effective means of control—as the law was meant to do.

Toward the end of the article is a quote from Corynne McSherry, legal director of the Electronic Frontier Foundation.  Keeping in mind that her statement is brief and can be taken out of context, McSherry said, “I don’t think copyright owners appreciate what they got [with the DMCA]. In 1997, if you wanted to get music taken offline, you had to go to court.”

I don’t know if McSherry added any nuance to that statement, but as presented, it connotes a revisionist history that feeds a general misunderstanding of DMCA and how it got here.  Both tech-industry advocates and mainstream reporters are apt to continue the narrative that Section 512 is principally a takedown provision that happens to have a liability shield (safe harbor). In fact, it’s the other way around, and the difference is actually rather important.

Why the DMCA is seen as flawed for rights holders.

Drafting of Title I of the DMCA began in December of 1996 in order to implement the WIPO Copyright Treaty adopted that same month.  The treaty was a special agreement under the Berne Convention to which the US has been a signatory since 1989.  Title I is primarily known for Section 1201, which prohibits circumvention of technical protection measures (TPM) used to protect copyrighted digital goods. In the late 1990s, this would largely have applied to products like DVDs and CDs, but the DMCA was intended to anticipate copyright enforcement on the internet.  (1201 has its own criticisms, as noted in a recent post.)

While Title I was being debated, major ISPs, which at that time were telecoms led by Verizon and AT&T, petitioned Congress for a shield from monetary liability for copyright infringement—the shield we now call the “safe harbor.”  These service providers knew that users would continue to upload infringing content but argued that only the rights holders could know what was infringing and that the rights holders were in the better position to identify infringements than the ISPs were.  These service providers further argued that, if they were constantly vulnerable to litigation for contributory infringement, this would stifle the development of the still-fledgling internet.

It is worth noting that when the ISPs initially argued that the responsibility of “ferreting out” online copyright infringement should fall to the rights holders, Roy Neel of the United States Telephone Association highlighted the availability of “spiders” (now called “bots”) that owners could use to automate search for infringing files.  Today, this same automation, which has grown in scale in an effort to keep up with the scope and frequency of infringement, is regularly characterized by the internet industry and “digital rights” activists as an overreach that cannot help but chill speech online. The history that this automation was a key component of what the ISPs initially lobbied for is rewritten almost daily with statements like the one by McSherry.

In response to the ISPs’ request for the liability shield, major rights holders, including the MPAA and RIAA, negotiated conditions the service providers would have to meet in order maintain the “safe harbor” status—most prominently that the ISPs had to adopt systems for removing infringing material upon request (i.e. takedown). The result of these negotiations are the provisions in Title II of the DMCA, particularly Section 512, which is the part of the law the aforementioned music stars are asking Congress to amend.

So the request for safe harbor came first, and the takedown provisions were one part of the conditional compromise.  Rights holders had not petitioned Congress for a takedown provision in order to avoid the burden of litigation, which is what McSherry’s statement can imply to the casual reader.

Meanwhile, in 1996, we were all still dialing into AOL; Napster was three years away from changing everything; YouTube would not launch until 2005; and users could only rather slowly view a single photograph online, let alone stream HD video. At the time Title II of the DMCA was drafted, neither Congress nor the rights holders—nor perhaps some of the online service providers—quite anticipated the massive growth in online infringement that was to come.  Plus, the parties were—perhaps naively—sanguine about the prospect that new technological protection measures would be adopted through collaboration between the ISPs and the rights holders—which happens to be exactly what Congress had instructed both parties to do. That collaboration never quite happened.

Meanwhile, many rights holders would argue today that subsequent court interpretations of DMCA have undermined the intent of Congress, giving ISPs so much latitude in the manner in which they conformed to its conditions that the law inadvertently creates an incentive to enable user infringement at the volume we see today. As Robert Levine points out in his book Free Ride, the DMCA’s lead architect, former commissioner of the USPTO Bruce Lehman, admitted at a conference in 2007 that the law had been a great disservice to the creative industries.

But are rights holders better off?

Is Corynne McSherry correct to say that copyright owners are fortunate to have the DMCA because its takedown provisions obviate the need for costly litigation?  It’s hard to imagine this is actually the case.  If we’re talking about major rights holders, like big studios or labels, consider the options …

Option 1 – Without DMCA

Several years of expensive litigation against a single provider for multiple infringements in which the rights holder would stand a decent chance of winning the case, where the rights holder may be afforded some injunctive relief, and whereby the case may act as a deterrent to other providers regarding infringement on their platforms.

Option 2 – With DMCA

A round-the-clock, expensive process of requesting individual files be removed one at a time from multiple platforms only to have the same files reappear while some service providers monetize these uses, become too big to sue, and remain free from liability forever.

I’m not in a position to speak for the major rights holders here, but I don’t know if McSherry really wants to ask them if they wouldn’t choose Option 1.  When Viacom sued YouTube in 2007 for a billion dollars’ worth of infringements and the case was finally decided in YouTube’s favor in 2013, it is not unreasonable to imagine a different outcome absent the DMCA safe harbor provision.  (Keep in mind that this particular post isn’t about anyone’s opinion of how things should be, only a consideration of McSherry’s assertion that rights holders are better off under Section 512 of the DMCA.)

For smaller, independent rights holders, they’re kind of hosed either way but maybe a bit better off with Option 1.  Absent the DMCA, they could not afford to sue the likes of Google anyway; but with the DMCA, the takedown provisions are useless as a means of enforcement because of the Whack-a-Mole problem. If, on the other hand, the majors had successfully sued a big provider like YouTube (i.e. had Viacom gone the other way) independents may have benefitted by proxy.

For one thing, if Viacom had won its case, it’s a pretty good bet YouTube would suddenly discover a remarkable capacity for mitigating infringement on its platform.  Secondarily, had Viacom set the opposite precedent, this would have empowered independent rights holders to either litigate or threaten to litigate as a means of enforcing their rights across the web.  So, McSherry’s note that if you wanted to get music offline in 1997, you had to go to court is only partly true and not necessarily the lesser alternative for rights holders, as she implies.

Yes, YouTube itself would have evolved differently—and a few billionaires might only be multi-millionaires today—but do the social benefits of web platforms have to come at the expense of permission and compensation-free exploitation of other people’s work?

Over the weekend, I watched a 1912 film on YouTube called Falling Leaves by Alice Guy Blaché—a file that silent film accompanist and historian Ben Model uploaded along with his own piano composition.  To me, this is a great example of the information-age ideal.  I can research an important work in film history, which has long been in the public domain, and discover a contemporary artist/historian at the same time. Great. Love it.

But was the progress of YouTube—whose growth was substantially subsidized by copyright infringement—the only history that could possibly have resulted in my seeing Guy-Blaché’s film and finding Model’s work in 2016? Not necessarily. So, I don’t know if McSherry really meant to play the alternate histories game here, because it is certainly possible to imagine the benefits of the internet evolving since 1997 without the hundreds of millions of infringements that occur every month. And that was certainly what Congress expected when Title II of the DMCA was being negotiated. So, now that it’s clear the intended consequences did not come to pass, maybe amending the law isn’t such a crazy idea.

To support revision to the DMCA, click the link in the sidebar to sign the Take Down/Stay Down petition.

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