Reform The DMCA? OK, But Only If It's Done Really, Really Carefully

from the running-into-minefields dept

The DMCA is a weird law. It's comprised of two almost completely unrelated provisions: Section 512, with its platform safe harbors, and Section 1201, which forbids circumventing technological measures. Both parts are full of problems, but to the extent that the DMCA provides platforms with liability protection via the safe harbors, it is also a critically important law. We are therefore fans of the DMCA because of this platform protection it provides, but it's like being fans of a terrible actor who had one absolutely fantastic performance in a classic movie we can't stop loving, even though the rest of his work is unwatchable dreck. In other words, we can't pretend the law is without its appeal, but we nevertheless fervently wish it were a whole lot better since we're stuck having to deal with the rest of it.

Which brings us to Senator Tillis, who has expressed interest in reforming the DMCA and already started to lay the groundwork. We dread where this reform effort might go, because we know (see the Copyright Office's 512 study) that many people are championing for the things already terrible about it to be made worse. But at the same time it would be great to fix the terrible things already there so that it could actually become an unequivocally good law that does what copyright law is supposed to do: stimulate expression and promote the spreading of knowledge.

Last month Senator Tillis put out a call for stakeholder input on the reforms he is thinking about, and earlier this week the Copia Institute submitted its response. Instead of answering his specific questions, which all seemed to presume way too much about what allegedly needs fixing in the DMCA, and not necessarily correctly, we made two larger points that need to apply to any reform measures: (1) There needs to be a clear, data-supported understanding of what needs to be fixed and why so that any implemented change actually helps, rather than hurts, creators, and (2) the statute must scrupulously comply with the First Amendment, which unfortunately it currently falls way too short of in way too many ways.

On the latter front we made several points. First, for the DMCA to be First Amendment-compliant, fair use cannot continue to be treated as an afterthought. It is not a minor technicality; it is a fundamental limit on the reach of a copyright and therefore needs to limit the power of what a copyright holder can do to advance that right. Thus, as we wrote in our submission, Section 1201 should no longer obstruct a fair use, and Section 512 should no longer enable the censoring of a fair use either. Protecting fair uses must be a central tenet of any DMCA revision in order to ensure that fair use can remain meaningful in the digital age.

There are also a number of problems that have emerged over the years in the way the Section 512 system operates that have turned it into an impermissible system of prior restraint. Platform protection is hugely critical for fostering online expression, but the irony is that this protection comes at the expense of the very expression it is supposed to foster. The basic problem is that, unlike Section 230, the platform protection the DMCA provides is conditional. But the even bigger problem is that the protection is conditioned on platforms acting against speakers and speech based only on allegations of infringement, even though those allegations may be unfounded. When a law causes speech to be sanctioned before a court has ever adjudicated it to be wrongful it is prior restraint and anathema to the First Amendment. But current judicial interpretations of the DMCA have made Section 512's critical platform protection on just this sort of thing, with dire consequences to speakers and their speech. Reform is therefore needed so that platform protection is no longer contingent on this sort of constitutional violation.

Similarly, we noted that Section 512 also undermines the First Amendment right to anonymous speech, given the operation of Section 512(g) (governing counter-notices) and Section 512(h) (establishing a special type of federal subpoena). But an even more significant constitutional defect with the DMCA overall is with Section 1201. As we've talked about before, Section 1201, and its prohibition against circumventing technical measures, chills security research and innovation and forecloses fair uses. None of these things are constitutionally permissible, and all undermine the overall goal of promoting progress.

Which brings us to our second main point. The whole point of copyright law is to promote progress. And that means encouraging expression so that the public can enjoy the fruits of it. But not every proposed change to the DMCA will lead to that result. In fact, many would do the exact opposite.

The problem is, many of the proposed changes presume that strengthening the power of a copyright holder automatically advances that greater interest. But in reality it doesn't. And we suggested that the reform effort was being sidetracked by a string of misguided assumptions that needed challenging.

First there is the idea that digital technologies are causing economic harm to copyright holders, but it is an idea that should be treated with skepticism. For one thing, it treats the consumption of every "pirated" digital copy as a lost sale. It also ignores that some works are only consumable at a price of $0 and overlooks that copyright holders have historically flourished even when works were available for free, such as in libraries or on over-the-air radio. In other words, the consumption of copyrighted works for free does not automatically equate to economic harm to copyright holders.

And then there is the presumption that copyright holders and creators are one and the same, and thus economic harm to the former means that there's economic harm to the latter. In fact, copyright holders and creators may frequently be entirely different entities – and even stuck being entirely different entities – with entirely different economic interests. Furthermore, advancing the interests of copyright holders may actually be adverse to the interests of creators, with the former potentially wanting to maximize profit from specific works, and the latter potentially more economically advantaged over all if they can develop robust market interest for their works over all.

Next we pointed out that hobbling digital technologies imposes its own economic harm, which should be the last thing for copyright law to encourage. We noted that it is not good that Veoh Networks got financially obliterated by the process of trying to assert its DMCA safe harbor defense (which was ultimately vindicated), because the Section 512 safe harbor provision is so needlessly cumbersome to deploy. It is not good that we now have one less competitor to YouTube and one less outlet available for creators. Nor is it ok that Seeqpod, a search engine dedicated to helping locate creative works, is now no longer available for people to use to find the works of artists they might then choose to support. The loss of these companies, their jobs, their innovation, and their economic energy is a loss that copyright law, including the DMCA, should lament, not exacerbate.

The loss of these platforms also directly harms the economic interests of creators. Here we challenged two assumptions, one, that the economic interests of platforms are somehow in conflict with creators', and two, that creators and platform users are somehow different. In reality creators are platform users. When the DMCA causes platforms facilitating user expression to disappear, or even the expression itself to disappear, those users themselves are creators who are being affected. And that affects their economic interests by depriving them of outlets to promote their works or even directly monetize them. None of these consequences are consistent with what copyright law is intended to accomplish, and any reform effort should make sure to avoid them too.

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Filed Under: 1st amendment, copyright, dmca, dmca 1201, dmca 512, fair use, free speech, notice and takedown, prior restraint, thom tillis


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  1. identicon
    Anonymous Coward, 4 Dec 2020 @ 7:49pm

    Ooh, boy

    This could be good or bad. Hopefully the former.

    Also, archived the first post of techdirt.
    https://archive.is/B1y63

    reply to this | link to this | view in thread ]

  2. icon
    mvario (profile), 4 Dec 2020 @ 8:10pm

    Nope

    I dislike the DMCA, but if there is going to be an attempt to "improve" it I wouldn't trust it to come from Tillis. Perhaps if Ron Wyden were involved I would think differently.

    reply to this | link to this | view in thread ]

  3. icon
    thefantodayhtml (profile), 4 Dec 2020 @ 8:31pm

    I somehow doubt Thom Tiliss is working in good faith here...

    While I have no special knowledge of this particular issue, I doubt the man who spent his tenure in the state government waging war on electoral democracy, rule of law, local autonomy, and the concept of separation of powers for the sake of advancing corporate interests and leaving voters without any ability to check his party's power is particularly interested in some sort of genuine attempt to do right by his constituents.

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, 4 Dec 2020 @ 8:41pm

    Seems like the text of the law is superfluous to actual events or anything "real". They can't even secure dangerous spectrum use or stop the false flag of every nation from being used in an act of trafficking or war or hostage taking or whatever. Lawful copyright use is dead.

    If you didn't understand, the copyright law is the false flag law for war or law enforcement purposes in most nations.

    reply to this | link to this | view in thread ]

  5. identicon
    Paonier, 4 Dec 2020 @ 9:17pm

    Re: Nope

    .... nobody in Congress can be trusted to do anything correctly or Constitutionally.

    Since year 1790, Congress has constantly expanded Copyright privileges to private special interests at the expense of the public interest specified in U.S. Constitution, art. I, sec. 8, cl. 8.

    There is no hope whatsoever that current Copyright/DMCA can be "improved"-- it is a bizarre, non-constitutional, incomprehensible, unsalvageable mess.
    Abolishing it all and starting again from scratch is the only rational path forward (but Conress is incapable of that).
    But I'm optimistic otherwise.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, 5 Dec 2020 @ 4:36am

    Idea / Expression

    You hit fair use with Golan. But before that, Eldred reminds:

    In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations. First, it distinguishes between ideas and expression and makes only the latter eligible for copyright protection. . . .

    Second, the "fair use" defense . . .

    Veering off on a tangent… it might be worth remembering that both Eldred and Golan were RBG opinions. And, come to think of it, she dissented in Kirtsaeng (along with Scalia and Kennedy, now that I look that one up just to verify what I already knew).

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, 5 Dec 2020 @ 4:47am

    Maybe we should reform congress before we attempt to reform any laws.

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, 5 Dec 2020 @ 5:12am

    Re: Idea / Expression

    Elaborating slightly on the intuition that prompted my first post… Lexmark v SCC (6th Cir. 2004) recalls the interaction between the DMCA and the idea/expression dichotomy in the “vexing” setting of computer programs.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 5 Dec 2020 @ 5:22am

    Re:

    Maybe we should reform congress before we attempt to reform any laws.

    Pelosi needs Hollywood money for the Georgia runoff.

    Maybe worth talking to the Republican side of the Senate right now.

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, 5 Dec 2020 @ 6:09am

    Re: Nope

    Perhaps if Ron Wyden were involved…

    Over in the other chamber, maybe Zoe Lofgren could explain why Pelosi's already selling us down the river.

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, 5 Dec 2020 @ 7:00am

    Re: Re: Nope

    "nobody in Congress can be trusted to do anything correctly or Constitutionally ... There is no hope whatsoever ... Abolishing it all and starting again from scratch is the only rational path forward"

    Dear Chicken Little,

    Modern medicine is capable of helping you with your depression.

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, 5 Dec 2020 @ 7:03am

    Re: Re: Nope

    I heard it was selling us up the river, is there a difference?

    Not sure if I would prefer being sold down vs up the river, seems it would not make much difference but hey - idk.

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, 5 Dec 2020 @ 7:07am

    Re: Re: Re: Nope

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, 5 Dec 2020 @ 7:11am

    Re: Re:

    "Maybe worth talking to the Republican side of the Senate right now."

    Not sure what good that would do, most of them have gone full batshit crazy.

    reply to this | link to this | view in thread ]

  15. identicon
    Anonymous Coward, 5 Dec 2020 @ 7:16am

    Re: Re: Re:

    Not sure what good that would do…

    See what they're really offering.

    reply to this | link to this | view in thread ]

  16. identicon
    Anonymous Coward, 5 Dec 2020 @ 8:08am

    Re: Re: Re: Re: Nope

    I assumed that was widely known.

    reply to this | link to this | view in thread ]

  17. identicon
    Anonymous Coward, 5 Dec 2020 @ 8:10am

    Re: Re: Re: Re:

    "See what they're really offering."

    They offer more lies. Based upon the past several decades, I think that is all they know how to do - prove me wrong.

    reply to this | link to this | view in thread ]

  18. identicon
    Anonymous Coward, 5 Dec 2020 @ 8:23am

    Re: Re: Re: Re: Re:

    … prove me wrong.

    You know, that particular phrasing, and style of argument seems to ring some sort of bell 'round here.

    Anyhow, we can all see that your support is flatly committed to one party — no matter what.

    reply to this | link to this | view in thread ]

  19. identicon
    Anonymous Coward, 5 Dec 2020 @ 8:55am

    Problem:

    How can we reform congress?

    reply to this | link to this | view in thread ]

  20. identicon
    Anonymous Coward, 5 Dec 2020 @ 9:40am

    Re: Re: Re: Re: Re: Re:

    "Anyhow, we can all see that your support is flatly committed to one party — no matter what."

    The pot is calling the kettle black ... color me not surprised. And this is your proof that I am wrong - lol.

    Also, I suggest you speak for yourself as others probably may not share your opinions.

    You know, that particular phrasing, and style of argument seems to ring some sort of bell 'round here. "

    No, I do not know - sorry. This is first time I have used that particular phrase on this website, not that it matters.

    reply to this | link to this | view in thread ]

  21. identicon
    Anonymous Coward, 5 Dec 2020 @ 9:46am

    Re: Problem:

    "Problem: How can we reform congress?"

    Good question. The first step is the asking.

    I have no good answers and I admit it, unlike our esteemed leaders calling for the election to be overturned via martial law.
    I would like the answer to be one that meets the needs of the nation, not just the desires of those who want to eliminate opposing voices.

    reply to this | link to this | view in thread ]

  22. identicon
    Anonymous Coward, 5 Dec 2020 @ 10:47am

    If you're going to reform DMCA, just reform copyright to be even less of a joke that it is now.

    160 years until something enters public domain? Get real.

    reply to this | link to this | view in thread ]

  23. icon
    Stephen T. Stone (profile), 5 Dec 2020 @ 10:59am

    we can all see that your support is flatly committed to one party

    Of the two major political parties, only one generally refuses to accept the fact that Donald Trump lost/Joe Biden won the 2020 election. Only one has thrown their support, hesitant or full-throated, behind a man who would declare himself “king for life” if he could. Only one has attempted to disenfranchise millions of Americans through voter roll purges, closing polling places ahead of elections, gerrymandering voting districts so the votes of certain groups of people will be effectively meaningless, and — as of 2020 — backing the baseless legal challenges meant to overturn the will of over 80 million voters and install the loser of the election as the winner because he can’t accept the fact that he lost a free and fair election.

    And it sure as shit ain’t the Democrats doing that.

    reply to this | link to this | view in thread ]

  24. identicon
    Anonymous Coward, 5 Dec 2020 @ 11:05am

    Re: Problem:

    Avoid being caught planting the explosives.

    /s

    reply to this | link to this | view in thread ]

  25. identicon
    Anonymous Coward, 5 Dec 2020 @ 12:13pm

    Re:

    How else might one encourage the original creator to continue creating new works if not for a copyright period of 160 years?

    What ... you got something against zombie artists?

    reply to this | link to this | view in thread ]

  26. icon
    ECA (profile), 5 Dec 2020 @ 12:17pm

    Lots of problems in all this.

    "(1) There needs to be a clear, data-supported understanding of what needs to be fixed and why so that any implemented change actually helps, rather than hurts, creators,"

    Digital can only do so much,m as seen with the Mass DMCA going around.
    Even if you added:
    the 10-15 second rule.
    With acknowledgement to the author(not the CR holder)

    The way the system is so convoluted now, there are 2-4 CR in a song. from the Melody, the words, effects and editing..There is TO MUCH COVERED to be an individual Owner/creator.

    Now there is a way. But the RIAA/MPAA are having a ball controlling things. There is a Lease you can pay that Most Bars pay because of the Jukebox Music played. Even your Doctors cant play music unless its Muzak, cant even take a Elevator ride unless someone pays a Fee.
    And if the Music industry had its way they would charge you PER HEAD.
    But as time has passed, those Fee's keep going up. Anyone remember the problem that SAT music had? Look it up.
    OUR RIAA/MPAA is insinuating itself Around the world, strangely. In that it Used to be we could play other nations music with no recourse. then they got the EU to join up, and now they are even in India. You cant play most ANY music from anyplace now if it involves a Public location, where others can hear it.

    reply to this | link to this | view in thread ]

  27. icon
    Stephen T. Stone (profile), 5 Dec 2020 @ 12:52pm

    For starters, I like my brains right where they are.

    reply to this | link to this | view in thread ]

  28. identicon
    Anonymous Coward, 5 Dec 2020 @ 7:30pm

    When it’s congress

    What is good that is left will be wiped out.
    What is worse will be made even worse.

    So no

    reply to this | link to this | view in thread ]

  29. identicon
    Anonymous Coward, 5 Dec 2020 @ 7:35pm

    Re: Re: Re:

    “Most of them have gone full batshit crazy”

    Most of them just said “we are god now” when the voting went against.

    As concerned to that party they would put everyone in chains....well more of them.

    reply to this | link to this | view in thread ]

  30. identicon
    Anonymous Coward, 5 Dec 2020 @ 7:38pm

    Re: Re: Re: Nope

    The sky is not falling.

    But you can see man trying to pull it down.

    reply to this | link to this | view in thread ]

  31. icon
    That One Guy (profile), 6 Dec 2020 @ 5:01am

    Bless your heart

    After Tillis' tantrum when Twitter refused to step into his trap anyone who thinks that he's engaged in good faith here or has any interest in reforming the DMCA to better serve the public is either ignorant or incredibly naive.

    The current DMCA may be broken and lopsided as hell but it can always get worse, and given who we're talking about 'worse' is pretty much a given if he's allowed to tinker.

    reply to this | link to this | view in thread ]

  32. identicon
    Anonymous Coward, 6 Dec 2020 @ 10:53am

    Re: Bless your heart

    … either ignorant or incredibly naive.

    Do you trust Senate Judiciary's Chairman of the Subcommittee on Intellectual Property to work with House Judiciary's Chairman of the Subcommittee on Courts, Intellectual Property, and the Internet?

    So that Hank Johnson can demonstrate to all his people he's doing fine upstanding work for everybody in Georgia?

    reply to this | link to this | view in thread ]

  33. icon
    Zane (profile), 6 Dec 2020 @ 11:47am

    Compromise

    But the even bigger problem is that the protection is conditioned on platforms acting against speakers and speech based only on allegations of infringement, even though those allegations may be unfounded

    That's the heart of the issue.The compromise was always that platforms weren't held responsible for copyright infringement IF they agreed to comply with take down notices. This was how they avoided being sued like a newspaper would be sued for publishing content they had no right to publish. Of course platforms are free to sue for malicious takedown notices. Is it a perfect system, no. But expecting platforms to only takedown material once it has gone through court after months/years AND not be liable for ignoring a simple takedown notice is just not going to happen. It would make copyright to costly to enforce and meaningless.

    reply to this | link to this | view in thread ]

  34. icon
    Zane (profile), 6 Dec 2020 @ 11:57am

    And then there is the presumption that copyright holders and creators are one and the same, and thus economic harm to the former means that there's economic harm to the latter

    Sure, creators can and do sell their copyright on. They would argue that it was still in the interest to think about those who buy the copyright. If there rights are not considered and protected then why would anyone buy copyight? And who does that hurt, yes that's right the creator, as they're ability to sell on their copyright is reduced. This is all totally inline with what copyright is for, allowing the holder to profit from the work and control how the work is used

    reply to this | link to this | view in thread ]

  35. identicon
    Anonymous Coward, 6 Dec 2020 @ 12:26pm

    512(f) [was Re: Compromise]

    Of course platforms are free to sue for malicious takedown notices.

    Presumably, you're referring to 17 USC § 512(f)

    (f) Misrepresentations.—Any person who knowingly materially misrepresents under this section—
          (1) …
          (2) …
    shall be liable for any damages … incurred … by a service provider, who is injured by such misrepresentation, as the result of…

    (Emphasis).

    Would you please point me to actual litigation “by a service provider” under this section? Sometime in the past two decades that this provision of the statute has gone to court? “By a service provider”?

    reply to this | link to this | view in thread ]

  36. icon
    That One Guy (profile), 6 Dec 2020 @ 12:59pm

    'You get everything, I get nothing' is not 'compromise'

    But expecting platforms to only takedown material once it has gone through court after months/years AND not be liable for ignoring a simple takedown notice is just not going to happen. It would make copyright to costly to enforce and meaningless.

    The current alternative is plenty of perfectly legitimate content taken down wrongly because someone merely asserted that it was infringing, so I'm going to have to go with: Tough.

    If you're going to treat someone as guilty then it damn well should be after a finding of guilt, not merely on accusation. Serious crimes with actual demonstrable harm have a higher burden of proof required to hand out a punishment than copyright does, which is insane, and the solution to that it not to make it even easier to hand out punishments or make platforms even quicker to take content down but the other direction.

    reply to this | link to this | view in thread ]

  37. identicon
    Anonymous Coward, 6 Dec 2020 @ 1:03pm

    Re: 512(f) [was Re: Compromise]

    Would you please point me to actual litigation “by a service provider” under this section?

    Sorry to follow up on myself again, but just to clarify what I'm asking about here—

    In Rossi v MPAA (9th Cir. 2004)

    After receiving notice from his ISP that his website would be shut down, Rossi found a new ISP to host internetmovies.com. According to Rossi, internetmovies.com was offline for "[a]pproximately 1 second to 72 hours," and the amount of money he lost due to the website's shutdown was "unmeasureable."

    My understanding is that Rossi was the §512(f) “alleged infringer”. I'm asking about any cases brought by “service providers” who would be in the position of Rossi's ISP.

    “Platform”, of course, is a rather loose term, and it does occur to me that you might possibly be using it in some other sense than “service provider”.

    reply to this | link to this | view in thread ]

  38. identicon
    Anonymous Coward, 6 Dec 2020 @ 2:28pm

    Encouragement of learning [was Re: ]

    … what copyright is for, allowing the holder to profit… and control

    Both the statute 8 Anne c.19 (1710), as well as the first U.S. copyright statute enacted under the federal constitution in 1790, begin—

    An Act for the encouragement of learning…

    That avowed purpose accords with the explicit grant in Art.I, Sect.8, Cl.8, given understanding that the “science” of that clause means “knowledge”.

    “Allowing the holder to profit” is a means to that end, not the ultimate end itself.

    reply to this | link to this | view in thread ]

  39. identicon
    Anonymous Coward, 6 Dec 2020 @ 2:29pm

    Re:

    If there rights are not considered and protected then why would anyone buy copyight?

    For the same reason that printers bought books for approximately for approximately the first 250 years of printing, without a product they have nothing to sell. Also note that it is possible to release content under a CC license and still get paid to create new works.

    reply to this | link to this | view in thread ]

  40. icon
    Great_Scott (profile), 6 Dec 2020 @ 4:32pm

    Re: Nope

    It's darkly hilarious that the DMCA, long derided for being terrible for almost everyone, it so behind the times that it's better than any new legislation we could hope for today.

    If only the media had passed more "1990's style evil" laws back in the day - we'd have more media freedoms now.

    reply to this | link to this | view in thread ]

  41. icon
    Zane (profile), 7 Dec 2020 @ 4:55am

    Re: 'You get everything, I get nothing' is not 'compromise'

    They don't have to take it down, what they have to do is take a look at the content and decide if it breaks copyright, or if they believe it meets fair usage etc etc. It's not treating them as "guilty", it's putting the onus on them to investigate and justify why they are keeping the content live. That's a step newspaper editors have had to to for centuries, DMCA just lets them avoid that responsibility. I think peoples dislike for the concept of copyright has seriously affected their ability at looking at the issue rationally. The compromise is crystal clear, the compromise is that sites aren't sued daily and put out of business for not constantly locating, removing, or preventing hosting copyright materials. That is the real alternative in the real world.

    reply to this | link to this | view in thread ]

  42. icon
    Zane (profile), 7 Dec 2020 @ 4:57am

    Re: Encouragement of learning [was Re: ]

    Sure, but it's widely accepted that by paying creators allows creators to make a living, thus giving them time to create more works, thus creating more knowledge.

    reply to this | link to this | view in thread ]

  43. icon
    Zane (profile), 7 Dec 2020 @ 5:02am

    Re: 512(f) [was Re: Compromise]

    It's the basic concept that a knowingly false DMCA takedown request is perjury. The lack of litigation is probably because there are few malicious takedowns or platforms simply don't care.

    reply to this | link to this | view in thread ]

  44. identicon
    Anonymous Coward, 7 Dec 2020 @ 6:07am

    Re: Re: 512(f) [was Re: Compromise]

    "The lack of litigation is probably because there are few malicious takedowns or platforms simply don't care."

    I'm sure there are other reasons.

    reply to this | link to this | view in thread ]

  45. identicon
    Anonymous Coward, 7 Dec 2020 @ 6:21am

    Re: Re: 'You get everything, I get nothing' is not 'compromise'

    "what they have to do is take a look at the content and decide if it breaks copyright"
    How would they know? Are they privy to all licensing contracts that a poster may or may not possess?

    " if they believe it meets fair usage"
    Courts have difficulty in this determination, how would a lowly site operator have better insight?

    "It's not treating them as "guilty", it's putting the onus on them to investigate and justify why they are keeping the content live."
    Yes it is, and in addition to being guilty there is the sentencing of being forced to spend money on legal remedies. Investigate what?

    "That's a step newspaper editors have had to to for centuries"
    Because it was the paper that was writing the story, what is so hard about this to understand? In addition, papers had a very limited set of texts to review as opposed to the constant stream of submissions on the internet, for example youtube sees about 300 min uploaded every minute. It is not scalable.

    " DMCA just lets them avoid that responsibility"
    What responsibility?

    reply to this | link to this | view in thread ]

  46. identicon
    Anonymous Coward, 7 Dec 2020 @ 6:26am

    Re: Re: Encouragement of learning [was Re: ]

    Why does no one care about the zombie artists?
    Copyright should be extended to infinity and beyond ... opps I just committed a felony, don't taze me bro.

    reply to this | link to this | view in thread ]

  47. identicon
    Anonymous Coward, 7 Dec 2020 @ 6:54am

    Re: Re: Encouragement of learning [was Re: ]

    Explain the development of human knowledge and culture before 1710. Copyright has everything to do with companies building a business on the creative works of others, and nothing to do with actual creativity.

    Take a good look round the Internet and you will likely come to the conclusion that creative people can make a living without invoking copyright, on the basis that if they are supported they will create new works.

    reply to this | link to this | view in thread ]

  48. identicon
    Anonymous Coward, 7 Dec 2020 @ 7:17am

    Re: Re: Encouragement of learning [was Re: ]

    Sure, but…

    It used to be widely accepted that the limited, statutory monopoly given by the public's grant of copyright to the author was not ever meant to yield excessive profit nor total control of the work.

    For instance, in Bobbs-Merrill v Straus (1908)—

    It [was] contended that [] power to control further sales [was] given by statute to the owner of such a copyright in conferring the sole right to "vend" a copyrighted book.

    The court rejected that contention based on the soon-to-be-amended statute. Neither the copyright act of 1909, nor the copyright act of 1976 undid that specific balance, and indeed it remains in some form today codified in the 17 USC § 109 limitation.

    Previous congresses were wise enough to recognize that simply giving publishers and vendors complete control over the work, although it might increase their profits, was a notion entirely at odds with the ultimate aim of copyright.

    The means ought not defeat the ends.

    reply to this | link to this | view in thread ]

  49. identicon
    Anonymous Coward, 7 Dec 2020 @ 7:54am

    512(c) [was Re: Re: 512(f)]

    It's the basic concept that a knowingly false DMCA takedown request is perjury.

    So earlier, when you wrote

    Of course platforms are free to sue for malicious takedown notices.

    —In that comment, you intended to refer to §512(c)(3)(A)(vi)'s

    … under penalty of perjury, that the complaining party is authorized to act on behalf of the owner…

    Let me rephrase my question then. Can you point to any litigation whatsoever by a “platform” seeking to enforce that specific §512(c)(3)(A)(vi) “penalty of perjury” provision?

    I'll even broaden the question. Can you point to any litigation whatsoever by anyone —regardless of “platform“ or not— seeking to enforce that specific §512(c)(3)(A)(vi) “penalty of perjury” provision?

    reply to this | link to this | view in thread ]

  50. icon
    bhull242 (profile), 7 Dec 2020 @ 7:57am

    Re: Re: 512(f) [was Re: Compromise]

    Other reasons: Case law has made succeeding in a case of §512(f) practically impossible, so few even try. Litigation is espensive and there are too many malicious takedowns to make going after any of them make much of a dent.

    reply to this | link to this | view in thread ]

  51. icon
    bhull242 (profile), 7 Dec 2020 @ 8:12am

    Re: Re: 'You get everything, I get nothing' is not 'compromise'

    Under current law, they have to take it down unless and until they receive a counternotification from the alleged infringer. And it does treat the alleged infringer as guilty until proven otherwise. After all, the content has to be removed ASAP once a DMCA claim has been made.

    I understand where you’re going with this, but I think the balance is far too firmly in the copyright holders’ favor. Give 512(f) more teeth and/or make fair use more important, and then that might be okay.

    reply to this | link to this | view in thread ]

  52. icon
    bhull242 (profile), 7 Dec 2020 @ 8:15am

    §1201

    It seems clear that you think that DMCA §512 is essentially the best compromise we can get on that front. Out of curiosity, what’s your opinion on §1201? I’m not seeing where the compromise is there.

    reply to this | link to this | view in thread ]

  53. identicon
    Anonymous Coward, 7 Dec 2020 @ 8:23am

    Re: Re: Re: 'You get everything, I get nothing' is not 'compromi

    but I think the balance is far too firmly in the copyright holders’ favor.

    More the balance favours publishers and corporations that purchase the copyrights from a few creative people, giving them excessive power over the self publishing creative people; both sides being copyright holders.

    reply to this | link to this | view in thread ]

  54. icon
    bhull242 (profile), 7 Dec 2020 @ 8:23am

    Re: Re: 512(f) [was Re: Compromise]

    That’s actually a very good question. And actually, Rossi could arguably have been suing both as a platform and alleged infringer. Note this:

    The MPAA followed the "notice and takedown" procedures detailed in the DMCA and sent several notices to Rossi and Rossi's Internet service provider (ISP) informing them of the asserted infringement. [emphasis added]

    Still, one that’s less of a gray area would be nice.

    reply to this | link to this | view in thread ]

  55. identicon
    Anonymous Coward, 7 Dec 2020 @ 8:41am

    Re: Re: Re: 512(f) [was Re: Compromise]

    Rossi could arguably have been suing both as a platform and alleged infringer.

    But first notice:

    Rossi filed this diversity action asserting the following claims: 1) tortious interference with contractual relations; 2) tortious interference with prospective economic advantage; 3) libel and defamation; and 4) intentional infliction of emotional distress.

    What I don't see right now in those claims is §512(f).

    So, instead, take a close look at note 6, where the court used ellipses to elide a potential “service provider” cause of action. The court just wrote:

    ... incurred by the alleged infringer ...

    reply to this | link to this | view in thread ]

  56. icon
    Scary Devil Monastery (profile), 9 Dec 2020 @ 4:51am

    Re: Re: Nope

    "It's darkly hilarious that the DMCA, long derided for being terrible for almost everyone, it so behind the times that it's better than any new legislation we could hope for today."

    Well, as they didn't make safe harbor provisions go away in the first draft and without that the copyright cult doesn't have full veto right over the open internet, now they have to try rewriting it to fit that purpose.

    I almost hope they'll succeed. As usual it won't affect pirates but it certainly will show every legal business why the world can not survive properly enforced copyright.

    reply to this | link to this | view in thread ]

  57. icon
    Scary Devil Monastery (profile), 9 Dec 2020 @ 4:55am

    Re:

    Oh, so you'd starve the poor zombie artists because of your self-serving desires? Stop being such a selfish asshole and give the poor zombies their rightful due, you incurable life-biased bigot.

    reply to this | link to this | view in thread ]

  58. icon
    bhull242 (profile), 10 Dec 2020 @ 9:08am

    Re:

    Uh, the holder can profit from the work by, y'know, selling the work. After several years, you’ve gotten all the profit you’re likely to ever see from that particular work, anyways. I don’t see why one has to sell the copyright to profit from the work. I also don’t see why the value of a copyright to someone other than the author matters to the purpose of copyright. And as for control, that’s not what copyright is for; that’s just a way to help the copyright holders profit by giving them a temporary monopoly. And helping copyright holders profit is itself merely a means to the end of encouraging authors/artists to create new works. There’s also a balance to be struck, as too much control would actually reduce the amount of new works; most arts take inspiration from existing works, after all.

    And there are lots of people who profit without using copyright. For example, FOSS, Creative Commons, musicians who put their tracks up for free downloads, etc. Many find unique ways to profit from their works where the profit doesn’t come from selling the works directly or selling the copyright or licensing.

    I believe that copyright should attach automatically upon being set in a fixed medium for a set number of years, with an application to extend it by a decade or so periodically up to the life of the author or, say, 50 years beyond the initial period, whichever is longer (but only if new copies are made available periodically), and a separate copyright for derivative works that works similarly but doesn’t last as long (max of 25 years beyond the initial period with a shorter initial period? More periodic applications?) (still requires period releases of new derivative works). (This copyright for derivative works does not include moving to a new medium or updated editions, which will be part of the base copyright, but rather sequels, prequels, interquels, spin-offs, AUs, and crossovers. Also, each derivative work will get its own base copyright, but not its own derivative copyright outside of crossovers.) I believe that should be long enough to get sufficient profits from the initial product and allow a series to be made without the issue of zombie artists. Plus, by requiring periodic applications to maintain copyright, the issue of orphan works is taken care of. Most importantly, it directly encourages the production of new works by requiring new copies of the copyrighted work to be made available to the public to retain the base copyright and new derivative works to be made in order to maintain the derivative copyright. I really think the right to make copies of the original, update it, and transpose it into a new medium should be made separate from the right to make other derivative works, and I don’t believe copyright should extend beyond the life of the author unless that period is really short.

    reply to this | link to this | view in thread ]


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