Category: Intellectual Property

LA Times editorial addresses outdated DMCA

The 1998 Digital Millennium Copyright Act is obsolete, and everybody knows it.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particular theme has been distorted by technology interests to convey the message that copyright law as a principle is obsolete in a market that has been transformed by the capacity of the internet to enable mass, cheap distribution of media.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.

Strange Metaphors & Bedfellows (in response to Ammori)

Sad looking siblings with arguing parents behind them
istockphoto.com

Silicon Valley lawyer and tech-industry activist Marvin Ammori wrote a strange little blog post that appeared a few days ago on Slate in its “Future Tense” section. In an attempt to be cute, Ammori likens some unnamed body of Hollywood “copyright lobbyists” to a stalker ex-boyfriend who won’t take the hint that nobody wants him around anymore.  It’s an obnoxious simile prefacing a set of assertions that are all untrue, but if you’re going to lie, arrogance is usually the best way to sell it.

Several great responses have already been written to Ammori’s post.  AdLandTV and The Trichordist have been quick to point out that Future Tense is not merely the name of new department on the Slate TOC, but is actually a part of the The New America Foundation, possibly funded by the tech industry and certainly chaired by Google’s Executive Chairman, Eric Schmidt.  The Trichordist has rightly called Slate’s journalistic integrity into question on this matter, but at least that site also hosts the best response to Ammori — in fact one of the best responses yet written about these issues — from Sons of Anarchy creator Kurt Sutter.  It’s a must read, if you haven’t already.  Sutter writes:

“Every writer, producer, actor, musician, director, tech wizard, and fine artist working today needs to be aware of what this all means for our future—we will lose the ability to protect and profit from our own work. Every kid out there who aspires to be an actor or musician or artist: This is your future that’s at stake. More importantly, everyone who enjoys quality entertainment: This impacts you most of all. Content excellence cannot sustain itself if it loses its capacity to reward the talent that creates it.”

I’ll let the matter of whether or not Google & Co. are buying the “news” on a site like Slate play itself out; but I can’t help thinking about Ammori’s dumb dating metaphor and how revealingly wrong-headed it is.  Leaving sexual identity aside, Ammori is right to imply that the other ex that is the internet industry is a lot like the one who signals a “talk to the hand” every time rights holders want to discuss ways — voluntary, legislative, technological, or social — to mitigate rampant and careless devaluation of the creative industries.  But the metaphor here isn’t about a couple who were just dating or had a fling, and now one of them doesn’t know it’s time to move on. The appropriate metaphor, if we’re going to be adults about this, is a couple who were once married and have some kids (let’s call them society); and while there may be some irreconcilable differences, this couple has no choice but to discuss certain matters like reasonable adults if they don’t want to screw up the kids.

So, when the subject of voluntary measures to curb mass copyright infringement is on the table, why is the ex that is Silicon Valley pimping out smug articles like this one, invoking SOPA (and lying about it) and the DMCA (and lying about that), and depicting  the millions of stakeholders in creative rights like they’re just some loser they woke up with one morning and are trying to forget?  Because, for now, it seems Silicon Valley is the ex going through its slutty, bad parent phase.  It wants to screw everybody while it’s still young enough and keep letting the kids do whatever they want — pirate movies, find cheap drugs, create revenge porn, act like trolls, etc. — so it can look like the cool parent while the ex who’s trying to deal with multi-billion-dollar economic reality will sound like an old stick in the mud.  This dysfunction has to end because real people are getting hurt.