The Web Thrived In Spite Of The DMCA, Not Because Of It
from the too-much-credit dept
First, the claim by an MPAA representative that without the DMCA movie studios wouldn't have moved to DVDs is, at best, stretching the truth. While some studios would have been nervous, it wouldn't have taken long for some studios to more aggressively experiment with DVDs, and early success would have made studios unwilling to hold back. Besides, it's not as if the DMCA has actually done anything to protect DVDs. DVD ripping software is widely available.
As for the safe harbor provisions, there's plenty of reason to believe that we would have reached the same legal situation even without the DMCA's safe harbors. Two years prior to the DMCA, the CDA was passed, and while pretty much all of that law was thrown out as unconstitutional, the bit that remained was the famous section 230, which provides a very similar safe harbor for non-copyright issues. It's not difficult to believe that in the absence of a DMCA, section 230 would have been expanded to cover copyright. And, even if section 230 wasn't extended explicitly, one would hope that the courts would have established the exact same precedent by noting how ridiculous it is to blame a service provider for the actions of its users. The fact that we even need safe harbor provisions is ridiculous. It should be common sense that liability should be placed on the actual party to do the action, rather than any service provider that was used in the process.
Finally, Wired talks up the whole notice-and-takedown process, which has been a tremendous burden for many sites. While Wired does highlight how the notice-and-takedown process has been regularly abused, it still gives too much credit to the whole system. If Congress really had to have a formal takedown process, it makes perfect sense to have a notice-and-notice system, where the accused infringer would have a chance to respond to the charges before the content is taken down (innocent until proven guilty, blah blah blah).
So, yes, the safe harbors provided by the DMCA are a good thing -- but to extrapolate from that and a few other questionable points that the DMCA is responsible for the rise of things like blogging and YouTube is hard to square with reality. It's quite likely that things wouldn't be all that different in the absence of the DMCA -- except we'd have a lot fewer abuses of it.