Have "Real-Time" Services Altered the Balance of the DMCA?

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The DMCA has a bad rep­u­ta­tion with those who pre­fer to see greater free­dom of infor­ma­tion flow. Its anti-​​circumvention pro­vi­sions pro­vi­sions have attracted par­tic­u­lar antipa­thy, and many believe the DMCA take­down pro­vi­sions are reg­u­larly abused.

The point of the DMCA, I believe, was to fur­ther the gen­eral goal of IP pro­tec­tion in the United States: fos­ter dis­tri­b­u­tion while also encour­ag­ing inno­va­tion (through grant­ing tem­po­rary monop­o­lies). Thus, “providers of online ser­vices” (gen­er­ally thought of as ISPs, but poten­tially more broadly inter­pretable to include other online facil­i­ta­tors of con­tent, such as YouTube and sim­i­lar ser­vices) have a “safe har­bor” to pro­tect them from charges of direct or indi­rect infringe­ment, pro­vided they meet cer­tain cri­te­ria and take cer­tain legal steps in response to claims of infringe­ment (thus the exis­tence of “take­down notices”).

With the shift away from the more straight­for­ward ISP model to include more mod­ern ser­vices like YouTube, con­tent own­ers are increas­ingly frus­trated with the DMCA. It puts the bur­den on con­tent own­ers to “police” sites them­selves, instead of required ser­vice providers to proac­tively do it for them. This has led to a “whack-​​a-​​mole” prob­lem: take down one, and another appears in its place. Some ser­vice providers have vol­un­tar­ily gone beyond the law to try to assist in proac­tively help­ing con­tent own­ers, with the goal of reduc­ing the over­head of deal­ing with mul­ti­ple take­down requests and, more recently, to try to encour­age copy­right own­ers to put their con­tent on their sites. (A kind of quid-​​pro-​​quo negotiation.)

Thus it does not sur­prise me to see this arti­cle, Copyright Meets a New Foe: The Real-​​Time Web, in BusinessWeek, essen­tially point­ing out this very prob­lem (and, I should add, pre­sent­ing it entirely from the per­spec­tive of own­ers and not end-​​users):

Copyright law wasn’t writ­ten with today’s con­tent con­sump­tion in mind. The way online video copy­right func­tions is based on a read­ing of the 10-​​year-​​old Digital Millennium Copyright Act that equates video host­ing sites with Internet ser­vice providers. That law pro­vides a “safe har­bor” for hosts who respond to copy­right claims by tak­ing down infring­ing con­tent “expeditiously.”

If you’re a copy­right holder and you want to keep up with your pirated con­tent flit­ting about the Web — well, good luck. The way the DMCA is set up means you’re always chas­ing, and the real-​​time Web is rac­ing faster than ever before. Analytics ser­vices are only just emerg­ing that will tell you where your views are com­ing from on a semi-​​real-​​time basis.

Generally, I am of the opin­ion that busi­ness mod­els need to change to meet new tech­nol­ogy, and that chang­ing the law to pro­tect stale busi­ness mod­els is not the right approach. Nevertheless, the DMCA was cre­ated in a dif­fer­ent era of the Internet — per­haps it truly needs to be revised. If so, I hope law­mak­ers will con­sider both the very dif­fi­cult issues of copy­right own­ers (we do still need to cre­ate incen­tives to gen­er­ate inno­va­tions and new con­tent) fac­ing real-​​time tech­nol­ogy, along with the even more crit­i­cal (in my opin­ion) impor­tance of dis­tri­b­u­tion to end users.

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• A Warning for DMCA Filers (pla​gia​rism​to​day​.com)
• Google: Most take­down notices are ille­git­i­mate (news​.cnet​.com)
• Everyone Assumes Copyright Only Applies When They Like It (techdirt​.com)
• Thoughts about reform­ing the Digital Millennium Copyright Act (DMCA) (inpro​pri​a​per​sona​.com)
• YouTube sails out of safe har­bor to rein­state mar­riage video (arstech​nica​.com)