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 Lamel successfully avoids any acknowledgement that the outdated DMCA problem is substantial; that the conversation is in early stages; that there are no specific remedy proposals on the table; and—this is really why his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 – 2017, David Newhoff. All rights reserved.

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