Time For A Quick Lesson In Why The DMCA Safe Harbors Are Important And Make Sense
from the back-to-school-time dept
Two examples of this type of thinking are represented by Paul Resnikoff, of Digital Music News, who suggests that the Veoh ruling is correct under the law, but the real problem is the DMCA's safe harbors are out-dated and should be done away with (or at least adjusted in favor of copyright holders). Then there's entertainment industry lawyer Chris Castle, who suggests that the ruling itself makes no sense and leaves copyright holders "without a remedy." Castle, in his usual manner, also spends some time insulting anyone who might disagree with him as well, which is quite charming.
Law professor Peter Friedman, who knows a thing or two (or much more) about copyright, does a nice job debunking Castle's questionable thesis, but I wanted to take things back a step and discuss both why the DMCA safe harbors are smart, exactly what Congress intended, applied correctly, and why that's all a good thing -- as opposed to the suggestions of Resnikoff and Castle.
First, you have to go back to one of the reasons why the safe harbors are even in the DMCA. The entire DMCA was basically a love letter to the entertainment industry -- giving them yet another massive extension of copyright and the power to control all sorts of things well beyond the Constitutional purpose of copyright ("to promote the progress..."). The most troubling of all was the anti-circumvention clause, which effectively gave copyright holders a veto (or at least a long legal speed bump) on technological device innovation. Equally troubling is the notice-and-takedown provision, which allows for content to be taken down on accusation, rather than actual evidence of infringement.
However, if Congress was going to grant this massive expansion of rights to the entertainment industry, which would allow them to lord over various internet companies, the internet companies wanted to make sure they had one thing: protection against misapplied liability. In an ideal world, such safe harbors wouldn't be needed, because it would be common sense that you don't sue the tool maker for how the tool is used. You don't sue AT&T if someone uses a phone to commit a crime. You don't sue Ford because someone broke the law with a car. Yet, people keep wanting to sue the tools providers on the internet. So, Congress, smartly, added the safe harbors for a single purpose: to make sure liability was properly applied. Liability should be on those who actually infringe the copyrights, not those who provide the tools that were used.
How could that possibly be controversial? Resnikoff's main complaint is that it's "an impossible task" for content holders to police their own works online. To which the only reasonable response is: as opposed to what? If it's an impossible task for copyright holders, it's more than impossible for the service providers. At the very least, the copyright holders know whether or not a use is authorized. The tool provider has no idea. Plenty of smart copyright holders are now releasing content for free on user-generated content sites like YouTube on purpose. Putting the onus on Google to figure out which ones are legit, and which ones are not makes no sense at all. Resnikoff also complains that the safe harbors do not require any sort of proactive effort, such as a filter, but that is a meaningless complaint. Due to so many lawsuits and a made up threat of "contributory infringement," pretty much all serious UGC companies have installed filters anyway, to help protect themselves against an "inducement" claim. So, that's hardly a complaint.
Castle's suggestion that this acceptance of the basic DMCA safe harbors leaves copyright holders "without a remedy" is a statement wholly without support. Jammie Thomas and Joel Tenenbaum -- facing huge awards from infringement trials -- might disagree, for example. All the safe harbors have done is say that the "remedy" should be from the party actually infringing, rather than the tool provider. This was exactly as Congress had intended, and not just in-line with the law, but also with basic common sense and common fairness.
So, as you hear stories being spun about how the safe harbors are somehow problematic, take a step back and understand what they're designed to do. Most of the assumptions being used against the DMCA's safe harbors are misunderstanding their purpose, and assuming that the point of the DMCA itself is to give near total control to copyright holders (never an intention of copyright law at any time in history). Instead, the safe harbors were to make sure that liability was applied properly: on those doing the actual infringing. Those complaining about the safe harbors seem to wish for a world where liability is applied to the easiest target, rather than the accurate target. Thankfully, Congress knew better than to allow that to happen.