Is DMCA Outdated?

The Digital Millennium Copyright Act was signed into law 28 October 1998. Or, as Business Week put it today, a time when “user participation was largely confined to AOL chat rooms and peer-to-peer services.” The Business Week opinion piece states that “The DMCA needs an upgrade,” a sentiment that many on the Internet would agree with—but probably not in the way that BW intended.

The general sentiment about copyright on the Internet is probably most accurately described in this comment to the article:

How terrible is online copyright infringement? Is Viacom really losing the income that their lawsuit suggests they are losing? Studies already suggest that illegal downloading and other forms of copyright infringement are not hurting the industry and have done more to promote the work of independent artists than traditional media could. These are the facts: The technology of content delivery has changed, and as result, the traditional role of copyright holders have become threatened by the fact that people are now unwilling (and justifiably so) to pay 14 dollars for a CD. For all of those mourning the death of major entertainment monopolies such as Viacom, I say good riddance. Welcome to the new age of media, where the content creators, not holders, reap the rewards of their work.

Oddly enough, I don’t hear many people making this argument about blog scrapers… Yes, the content creators. Who are those content creators again? Oh, yeah, it’s Viacom and their thousands of employees (the legal concept of “work product”).

Just because the Internet has made it more easy to widely disseminate other people’s copyrighted works doesn’t mean that it’s made it okay to do so. The Internet has also made it easier to learn how to pick locks and make bombs; is breaking and entering or terrorism okay, now, too?

The fact of the matter is that content creators—which includes “major entertainment monopolies” (although the fact that there is more than one monopoly pretty much defies the definition of “monopoly”)—are the ones that have to put forth all the effort and capital to create this content that we enjoy. The simple fact that we enjoy it and we can doesn’t mean that we should be able to appropriate this content.

If we rewrite copyright law to eviscerate its protections for content creators and their employers, who are the ones paying them to create that content and possessing the technology to create a lot of it, just because it’s easier to steal their content now, we essentially remove most of the motive (or at least the financial motive) for creating that content in the first place.

If we as content creators have no assurance that we will be able to protect ourselves from having our products stolen, we can certainly move on to another industry where we will have the know that what we produce will be paid for. Sewing piecework, anyone?

Unlike their commenter (and thousands like him across the Internet), Business Week appreciates the realities of intellectual property—and the difficulties of the current practical applications. They even propose a solution:

Why not make both content creators and Internet companies pay? . . .

Content creators could pay to watermark and register content, and still file initial takedown notices to sites. That way, Web sites would not remove content that creators willingly uploaded, say, to hype a new show.

For their part, Web companies could pay a fee to the same third-party company to scan user-uploaded material against a library of registered content with prior takedown notices. The fee could vary based on the amount of user-uploaded material that the site needs to scan, and thus should take into account the differences between a YouTube and a new startup.

This is most assuredly not what YouTube/Google hoped for when it began posturing earlier this week.

While they are correct that the current DMCA does protect YouTube from liability, forcing Viacom to constantly police YouTube for videos that they’ve already ordered and successfully had removed once and which were later reposted makes YouTube seem almost complicit in the infringement. Clearly, all parties need a better solution. The question is: is this it? What do you think?