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Is DMCA Outdated?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?

  • http://www.ourmonmouthblog.com Our Monmouth

    Jordan- great post.

    It was really timely you made the comment “Oddly enough, I don’t hear many people making this argument about blog scrapers…” This morning I made that very comment in response to Andy’s “Google Turning Into the NRA with its “Right to Share Video” Argument” post.

    The difference between a typical blogger and Viacom is they have the financial means (lawyers $$$,$$$) and a strong argument to prove damages. That doesn’t mean I should not be entitled to the same copyright infringement protection.

    Our Monmouth’s last blog post..Google Fights for the Right to Party (Hide Its Privacy Policy)

  • http://www.leftthebox.com Samirb

    I like this post and you make great points. I don’t believe copyright law should be scraped, but I think that corporations like Viacom should be more adaptable. Do they really think that by suing Google a lot will happen? The Internet and technology will always adapt to make sharing information easier, and Viacom should understand that monetizing the sharing would make more sense than fighting change. There’s a quote from “The Pirate Bay” founders where they said that they don’t understand why Hollywood and Viacom didn’t start their own torrent site, and that if they did the Hollywood torrent site would put all the other torrent sites out of business.

    Samirb’s last blog post..Blogger Goodwill Day

  • http://www.womengeeks.com Janet

    There is no doubt the DMCA needs an upgrade but so do a lot of laws concerning the internet and copyright as well and I hope they all get updated real soon.

    Janet’s last blog post..Salt water as fuel

  • http://darkside.sobek.pl/de/ Dark Side

    DCMA and other kinds of laws will always be slightly outdated, but this is due to the fact that most of them come intoexistence as reaction to a problem and not as a solution to prevent future exploits. If laws were meant to prevent the construction of the whole legal system wopuld be different.

  • http://symbiancorner.blogspot.com Symbian

    DMCA could be updated only with Obama as President.

    Symbian’s last blog post..Nokia S60 Symbian Windows Live client available in Europe

  • Jordan McCollum

    That’s a joke, right? Because in the America I live in, presidents have almost nothing to do with lawmaking (or, GASP, regulating the economy!), and the current president has used the veto power less frequently than any president in the last eighty years—you have to go back to Warren G. Harding to beat him, and Harding was only in office for two years.