Category: Law & Policy

LA Times editorial addresses outdated DMCA

The 1998 Digital Millennium Copyright Act is obsolete, and everybody knows it.  The DMCA was the topic in the House Judiciary Committee hearings on copyright review about two weeks ago, and much has been written about its flaws both from pro and anti-copyright perspectives.  A recent editorial in The Los Angeles Times leads with a headline “Congress should bring copyright law into the 21st century.”  Unfortunately, for far too long, this particular theme has been distorted by technology interests to convey the message that copyright law as a principle is obsolete in a market that has been transformed by the capacity of the internet to enable mass, cheap distribution of media.  In reality, though, the story that is finally being told is that certain aspects of copyright law, like the DMCA, are inadequate protections for rights holders in the digital age.  Quite simply, the technologies of 2014 enable and reward piracy on a scale that no entity of any size can combat with a 1998 mechanism.

The Times article does a good job of summarizing the flaws with the DMCA, both for rights holders and legitimate internet companies; and it makes the radical suggestion that companies like Google might want to collaborate with media interests to simultaneously strengthen protections for creators and craft a legal framework that would be more efficient for entities like YouTube, which receives a tremendous volume of takedown requests under the DMCA.  It was just a couple months ago that YouTube passed the milestone of receiving its 100 millionth takedown request from the recording industry alone.

See the full LA Times editorial here.

For some perspective on just how useless DMCA is for an independent content owner, watch this video from Fast Girl Films and VoxIndie:

 

Red Flag or Bloody Shirt – The MP3Tunes Case

So, what happened this past week is that a jury found that the former owner of a now-defunct music site called MP3Tunes was liable for copyright infringement because he ignored the fact that users were uploading illegal copies to his cyber-locker based site.  Safe harbors contained within existing copyright law are designed to protect website owners from this kind of liability on the grounds that it is, of course, possible for users to upload infringing content without the site owner’s knowledge or permission.  If, however, the site owner(s) can be found to have knowledge, particularly of frequent or high-volume infringement, then they effectively forfeit safe harbor protection and are subject to a liability claim.  That makes sense, and nobody really disputes this premise.  When these cases go to court, what is usually disputed is the idea that a site owner’s knowledge can be proven, and some of the more preposterous clowns in this circus like Kim Dotcom and the owners of The Pirate Bay have been known to say things like, “I don’t know what people do on my site, I’m not responsible for what they do, and anyway file sharing is good.”

According to Jeff John Roberts, writing for GIGAOM.com, the MP3Tunes case signals an important shift in legal precedent that ought to be concerning for internet and technology advocates.    Roberts writes:

“The significance of the case has little to do with MP3Tunes, which has long been closed, but instead stands as a strategic victory for copyright owners. That’s because the jury found Robertson liable on the basis of so-called “red flag” knowledge rather than “actual” knowledge. The distinction may sound arcane, but it’s one the studios have fought hard to establish as part of their strategy to change the level of proof needed to prove piracy.”

The distinction between “actual” knowledge and “red flag” knowledge may have a legal definition, but in this kind of case, it doesn’t sound arcane so much as it sounds childish.  If an owner of an actual website can measure actual traffic and assess quite accurately where that traffic actually goes; and then that actual traffic results in actual dollars in the owner’s actual pocket, I have to assume, as a prospective member of the jury, that the owner in question had what I call knowledge of the kind of files that were making him money.  So, while Roberts seems to suggest this case sets a bad precedent for the rights of site owners who ought to be protected by safe harbors, it looks to me a lot more like common sense is being applied to those site owners who clearly should not be protected.  Nevertheless, Roberts projects some very dire implications of this kind of ruling thus:

“The upshot of all this is that studios, sensing that safe harbors are weaker than they used be, may feel emboldened to go after more sites for alleged infringement. Conversely, weaker safe harbors could make entrepreneurs less willing to experiment with new platforms and technologies.”

There’s that narrative again.  The “studios” are chomping at the bit to go after every little site owner that might be infringing, and this is going to stop “innovation.”  Seriously, with all the money the internet industry has, they might be want to buy a new mantra because this one is getting really boring.  For one thing the “studios” have neither the interest nor the resources to go after the small-scale infringements out there.  Given the scope of piracy worldwide, I think the “studios” would be thrilled to mitigate the problem by some percentage and move on.  Second, after about three years of listening to internet activists tell us people are going to be afraid to innovate, I haven’t heard one legitimate example of a prospective innovation doomed to the dustbin because copyrights are protected and enterprise-scale pirates are prosecuted. Not in editorials, not on blogs, not in testimony before the House Judiciary Committee.  It’s always just some vague reference to innovation in general.  This narrative the industry and its activists keep selling, waving the bloody shirt of the early post-Napster days, has little relevance to the contemporary market, the state of piracy, or current strategies to protect IP rights.

Finally, is it necessarily the case that applying a rationale which logically incriminates someone who is actually guilty of a crime automatically weakens rights for the rest of us? Were safe harbors really weakened here?  I haven’t been to law school, but it sounds like a stretch to me in this case.  Or is this really all about Google?  Roberts rightly points out that Google is a “powerful advocate for safe harbors,” and you bet they are.  With a site the size of YouTube and users uploading videos at a rate of 100 hours every minute, I think it’s a given that company’s executives are going to be firm supporters of the “we didn’t know” defense.  There’s just a little problem in that Google’s mission is to “organize the world’s information,” and the company seems to be pretty damn good at knowing quite a lot about a great many things, including you and me and what we do, say, and see online.  So, if the “we didn’t know” defense is lately springing a few leaks, it’s possible the only “innovators” actually worried about it are a handful of billionaires who run an American company that just might have to clean up its act.

It’s Always Amateur Hour in the Digital Age

Photo by GlobalIP
Photo by GlobalIP

When the 1991 Gulf War put CNN on the map, that was the beginning of the end.  Ted Turner’s experiment in 24 hour news had found a spectacle — a popular and relatively safe war — that defined the model for how a network can fill a round-the-clock broadcast, even without news to report, and certainly without depth or context.  From the soiling of sleep-deprived Bernie Shaw at the al Rasheed Hotel to young Wolf Blitzer’s insipid repetition of the question, “Will we carpet-bomb Baghdad?” at the Pentagon briefings, CNN was, in my estimation, the true vanguard of the of the inevitable rise of the amateur, who now dominates the digital age.  I would argue that we can draw a line that begins with that Gulf War coverage and ends (or at least pauses) with the Redditors who contributed to the online lynch mob chasing the wrong man as events were unfolding in the wake of the Boston Marathon bombing.

Take the worst aspects of 24 hour news — the false value of the scoop, the show business cult of personalities, the general egomania, the political biases — add performance-enhancing drugs, and you get Social Media.  For one thing, both the design and the dynamics of Web 2.0 are dominated by the sensibilities of males 18 – 24, which is the same demographic whence most terrorists, anarchists, and other extremists come.  Okay, most of this demographic is comprised of decent people, but there’s no getting past the fact that males 18 – 24 can be the dumbest creatures on Earth because they’re mostly made of testosterone and ego.  And when we give these beings tools like Reddit and a mission in the form of a thread called “findbostonbombers,” we shouldn’t be surprised when it fosters a virtual posse, who indeed spent many hours pursuing and harassing the family of an innocent young man.

Sunil Trapathi was found dead this week from an apparent suicide, although it is important to note that his taking his own life has not been linked to the online pursuit.  Trapathi, a solid student at Brown University, apparently suffered from depression and had been missing; and his disappearance may have been a factor in the initial rumors that snowballed into the swarm of media and private citizens harassing Trapathi’s parents both at home and on the Facebook page they had created in an effort to search for their son.  So, these careless Redditors and the news “professionals” who followed their lead didn’t contribute to Trapathi’s death, only to his family’s pain and suffering coincident with his death.  In light of the outrage and near martyrdom following the suicide of Aaron Swartz, it may be time for certain Redditors to do a little soul searching AFK, as it were, on the potential for the righteous crowd to do great harm.

Of course, the irony that jams hard in the throat in this case is that Reddit and its users are highly vocal advocates of the “open web” and are not shy about using incendiary, uninformed language to lambaste precisely the kind of surveillance techniques used by trained professionals to track the right guys.  There is literally no end of ill-considered, mathematically impossible, fear-mongering out there on the subject of privacy invasions and government overreach; and while I certainly advocate staying on top of our government, this does not mean that every lummox with a keyboard is suddenly a qualified analyst in forensic criminology.  And I believe if the majority of the people involved in the forum chasing Trapathi were honest with themselves, they’d have to admit that their motives were probably part ego, part cool-factor — what we might call social-media overreach. But this appears to be an underlying orthodoxy of the next generation vis a vis the Web — that nobody in a position of experienced authority actually knows anything, and that the almighty crowd, connected through technology is superior to other systems of social order.  It is a mindset that we might say puts the hack in hacktivism.

Executives at Reddit have publicly apologized for these events, although I’m not sure why, as this is inconsistent with their baseline position and indeed the position of nearly every major stakeholder in the dynamics of Web 2.0.  Not unlike the NRA, the general attitude from Reddit, from Google, from Twitter, etc. is that their technologies are merely tools, and that people will use them as they see fit. “You cannot blame the road,” they will say, “because you were hit by a truck.”  And I couldn’t agree more.  People will use these tools as they see fit, and these tools are well designed to ensure that self-righteous vigilantism, bullying, and, yes, even the messages that inspire young men to make bombs are now part of  everyday life.