Consumers and Copyright: Thoughts about reforming the Digital Millennium Copyright Act (DMCA)

The Digital Millennium Copyright Act (DMCA) is much maligned, but, I think, not fully under­stood by very many peo­ple. Today, a vis­i­tor to our Software Law class from Microsoft pre­sented a very good expla­na­tion of the 1998 law. He explained some aspects that are not spo­ken about too much in the gen­eral tech com­mu­nity, like the ISP “Safe Harbor” provision—which actu­ally applies quite a bit beyond the tra­di­tional ISP and could eas­ily include YouTube or even your aver­age blog­ger. In many respects, the DMCA is quite gen­er­ous, requir­ing lim­ited polic­ing of con­tent, pro­vided one is han­dling 3rd-​​party uploads, for example.

We fin­ished with a dis­cus­sion about what changes to the DMCA might be ben­e­fi­cial. One point he made was that ISPs (remem­ber, this includes YouTube, for exam­ple) should be required to take more active “fil­ter­ing” or polic­ing roles, instead of forc­ing content-​​owners to do the work of iden­ti­fy­ing infring­ing content.

To me, this approach reflected a content-​​owner per­spec­tive on the law, and attempt­ing to bal­ance that some­what with the needs of cor­po­rate ISPs (includ­ing the likes of Google). The ideas he had are arguably good changes to close per­ceived “loop­holes” in the DMCA and to bet­ter reflect the orig­i­nal Congressional intent behind the DMCA.

However, the end result appeared to me very cor­po­rate focused. It attempts to re-​​balance the needs of these two inter­est groups while ignor­ing what our pro­fes­sor termed the “third pil­lar” of copy­right and con­tent: the con­sumer. Thus, I asked, what exactly do I get out of restrict­ing use of copy­righted con­tent? More con­tent? More sta­ble com­pa­nies? Perhaps.

But the “black-​​or-​​white” alter­na­tive of elim­i­nat­ing intel­lec­tual prop­erty rights rubs me the wrong way, too. Are we not all con­tent pro­duc­ers these days? While I often appre­ci­ate find­ing my con­tent re-​​purposed, I pre­fer that I still, at the very least, receive credit for my work. I think an author/​creator (but not nec­es­sar­ily an IP “owner”) deserves rec­om­pense dur­ing a rea­son­able (i.e., not the cur­rent length of time) for use that gen­er­ates rev­enue. In other words, if you want to sell my work, I should get a slice of what you receive for that. But if you truly give it away, credit is all I ask. (For this site, I actu­ally use the Creative Commons Attribution-​​Noncommercial 3.0 United States License.)

The U.S. Constitution does not require IP pro­tec­tion as we have it now. Its focus is on pro­mot­ing “progress” (what­ever that means, of course) in sci­ence and the arts (through lim­ited monop­o­lies). The goal is to ben­e­fit soci­ety, at least in the longer term, not to enrich prop­erty own­ers. So, I ask, do cur­rent IP pro­tec­tions truly pro­mote progress? I don’t think they do so at all effectively.

Perhaps we should be pulling more from the French tra­di­tion of “moral rights” of authors to find our way out of this quandary. Other than com­pa­nies and their vested inter­ests, most of the objec­tions I hear from peo­ple is the idea that cre­ators are exploited by “pirated” works (but aren’t musi­cal labels in the exploita­tion busi­ness, too?). So why not pro­tect against this by, for exam­ple, requir­ing attri­bu­tion and revenue-​​sharing?

This does not address the issue of con­trol, though, another fea­ture of French-​​style “moral rights.” Should a cre­ator be able to refuse a par­tic­u­lar use of his or her work? I think there is a good argu­ment for allow­ing this in at least some sit­u­a­tions. In fact, per­haps this kind of right should last longer than other copy­right pro­tec­tions or the right to revenue.

This applies to the cre­ator or cre­ators. But should those rights be trans­fer­able? I have no real prob­lem with the revenue-​​generation por­tion being trans­fer­able (with, per­haps, some reser­va­tions to avoid exploita­tion orig­i­nal authors, and with a more lim­ited dura­tion), but I do not think other “moral rights” should be trans­fer­able. (Of course, much cre­ation is col­lab­o­ra­tive, so one would need to deal with the lack of sin­gle author­ship too.)

There is much to think about still, but I think the take-​​away les­son for me is that too often IP law focuses on the large play­ers (and espe­cially on con­tent own­ers) and ignores the peo­ple involved – and espe­cially ignores con­sumers (per­haps we assume the mar­ket will take care of that side… which is another addi­tional dis­cus­sion…) All in all, a good class and a good pre­sen­ta­tion about the topic.

For more on con­sumers and copy­right, see, for example:

• A Response to “A Reader’s Guide to Copyright” at the Copyright Advisory Network
• Copyright Doesn’t Just Grant the Content Creator Rights at techdirt
• Creative Consumer Copyright Act by Kevin Donovan
• Copyright Law’s Theory of the Consumer by Joseph Liu (on SSRN)