DMCA: Denying Monetary Compensation Always
COLUMN: Okay, I admit that those four dreaded letters, DMCA, do not actually stand for a law that prevents copyright holders from making a living. DMCA actually stands for Digital Millennium Copyright Act. And what that stands for is allowing big corporations to make more profits at the expense of the little guy. In other words, copyright holders are prevented from making a living.
Passed by Congress in 1998 and signed into law by President Clinton in one of his sops to big corporations, the DMCA does contain some good provisions. (Sound of crickets chirping in the dry wind.)
No, seriously. For example, Title I of the Act brings the United States into line with two World Intellectual Property Organization treaties: the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. I have no problem there. The DMCA also contains special exemptions from copyright infringement for libraries and educational institutions. Again, no problem.
On the other hand, Title V of the DMCA is a bit strange, as you can tell from its name, the “Vessel Hull Design Protection Act.” This section deals with the design of hulls and decks of vessels that are no longer than 200 feet.
Don’t believe that this is in the bill? You can look it up, if you like.
* On page 17 of the Summary:
* Or on pages 47-59 of the entire Act:
But to hull with that aspect of the DMCA. It’s in a different area of the Act where I am concerned. It’s Title II, which has had some interesting ramifications during the past decade. First, it decimated the record industry, which may not bring much sympathy from most people (myself included), but I think it’s only fair to point out that the stupidity, greed, and arrogance of the major record labels only contributed to their economic woes while the true cause was Title II of the DMCA. (More on why in a moment.)
“So what if it hurt big record labels?” I hear you saying. No one is on the side of the major record labels except all the families of all the employees who lost their jobs in the record industry. But the Act is also responsible for raping the pocketbooks of songwriters from coast to coast and putting untold billions into the coffers of huge conglomerate organizations.
How the DMCA Steals from Creators
For the reason why music theft occurred and continues to occur, just turn to Title II of the DMCA, the “Online Copyright Infringement Liability Limitation Act.” This is the so-called “safe harbor” provision, a mega-profitable boon to such companies as Verizon, AT&T, Cox, Charter, and Comcast, to name a few.
The polite way of describing Title II is that it “creates limitations on the liability of online service providers for copyright infringement.” In reality, it lets ultra-rich corporations profit from the stealing of music, movies, photographs, artworks, books, papers, magazines and anything else that belongs to creators and copyright holders.
“It is always understandable that people, such as the end users, like to get things for free. Who doesn’t?” observes Roger S. Thompson, an intellectual property attorney with Cohen Pontani Lieberman & Pavane LLP. “That doesn’t mean that the artists who create the work that others want to get for nothing shouldn’t be rewarded for their efforts. If a user likes listening to a song, then let them pay for a copy. That’s what gives the artist the compensation and encouragement (I would emphasize encouragement) to create other works that, hopefully the user also likes.”
Title II of the DMCA is one of the biggest ongoing examples of thievery most people have ever seen. Apologists for the Act, and those damned souls who are paid to say nice things about it, tend to make statements like “Blogs, search engines, e-commerce sites, video and social-networking portals are thriving today thanks in large part to the notice-and-takedown regime ushered in by the much-maligned copyright overhaul,” which David Kravets wrote in a well-composed piece of propaganda posted on Wired(dot)com.
Well, okay, if paid operatives of corporate greedwhores are going to be posting nonsense about the DMCA, I guess we have to assume there will be rubes who might fall for their blathering. So let’s address those, um, shall we call them “arguments” instead of “lies” just to maintain civility?
First, blogs have no need for protection against copyright infringement because a real blog does not steal copyrighted material. If the writer of a blog is making a point about a song, book, movie or art work, small sections of the work can be referenced without infringing on the copyright. Even if the writer is making an idiotic statement like Kravets, this is still covered by the “fair use” provision of copyright law, which allows some small sampling of a copyrighted work for educational purposes.
Next, search engines are merely showing the way to where information is stored. They were never in danger of copyright infringement so long as they were not taking the step of amassing the data itself. You might as well say that a roadmap is abetting crime because it points out routes to and from the bank, 7-11 and jewelry store.
Sites that engaged in e-commerce are a different matter. They exist for the purpose of, um, oh what is the word that applies here? Wait, I know: commerce! They do not need or deserve protection from the DMCA because they are engaged in selling goods and services. As such, they must pay for whatever goods and services they obtain from any other party.
Finally, video and social-networking portals. Yes, they might need protection, unless they are profiting from the use of infringed materials. If they are selling access to copyrighted content, allowing copying of copyrighted content, or selling ads next to copyrighted content, then they need to be paying the owners.
Who Benefits from the DMCA?
The ISPs (Internet Service Providers) who are facilitating all this trafficking of stolen material are completely off the hook because of the safe harbor provision. Imagine a company that helped people tap into the water system of your town. On the surface, they are simply selling plumbing and faucets. “Hey, we’re not making money from stealing water,” they might say, “we’re making money on sink fixtures; we can’t help it if the water people run through those fixtures is stolen.”
Yet that is essentially what Title II of the DMCA allows to occur, but with intellectual property instead of water. And by letting corporations profit from services that promote the stealing of copyrights, we send a powerful message to everyone: theft is acceptable if you can get a law passed that exempts you from prosecution.
So screwed up is Title II of the DMCA that even a corporate tool like Kravets owns up to the problem. He writes that the safe harbor provision “…provides ISPs, hosting companies and interactive services near blanket immunity for the intellectual property violations of their users.” In other words, pilfering from the pockets of songwriters and their children is just fine.
The artificial protection given to ISPs has given rise to arrogance on their part. For example, when Great Britain passed the Digital Economy Act, a minor bill to protect copyright owners from piracy, there was immediate huffing and puffing from executives at British ISP TalkTalk. Quoted in Paul Resnikoff’s DigitalMusicNews, TalkTalk Group executive director of Strategy and Regulation Andrew Heaney said “If we are instructed to disconnect an account due to alleged copyright infringement we will refuse to do so and tell the rightsholders we’ll see them in court.”
Burglars in Your Neighborhood
Think about the rise in residential burglary in your neighborhood if pawnshops got an exemption allowing them to sell stolen goods. “After all,” they would say, “we didn’t steal anything in the first place and we’re not responsible if our clients and customers are thieves.” But that is the position of the ISPs because of Title II of the DMCA.
A Word on Google
Some of Google’s actions have come under scrutiny because of their stated intention to offer the full text of every book online. That would indeed be infringing on author’s rights. By way of personal example, I wrote two books under my pen name of Gerald Laurence, the non-fiction “The Ego Diet” (Oak Tree Press, 1984) and the detective novel, “One Bang-Up Job” (Berkley Books, 1989). I have never been contacted about giving my permission to copy, distribute, reproduce, or disseminate those texts, so any use of them would be infringement. Yet the “safe harbor” provision of the DMCA might let this huge corporation offer my work without fear of prosecution.
Keep in mind, I like Google. I use their search engine every day. Other than their deal with the unreliable Wikipedia, they appear to be the most reliable of the search engines (and I test out their competitors at least once a week, comparing search results for terms of interest to me, like Golosio, Scott Joss, Doug Colosio, Jonny Harmonic, James Sotelo, CCC, and so on). Other than image searches, where Bing is much easier to use, Google is a superior search engine in every way. BUT they should not be able to waltz around breaking the law because of Title II.
As noted by Patrick Ross of the Copyright Alliance, “If you get your hands on 18 million books you don’t own, make full copies of them, and look to profit from them online, expect a bit of legal trouble.” What is now known as the Google Book Settlement is currently pending in court after a class-action suit by the Association of American Publishers and the Authors’ Guild.
Meanwhile, there is now another class-action suit against Google from photographers and illustrators. Among the plaintiffs are the American Society of Media Photographers, the Professional Photographers of America, the Picture Archive Council of America, and the Graphic Artists Guild.
The Copyright Alliance’ Ross noted that songwriters and music publishers are not currently involved. “Song lyrics in books typically are licensed,” Ross points out, “and of course there are printed musical scores aplenty. It will be interesting to see if those parties also file their own class-action suit.”
Corporate profit hounds and their stooges have sometimes attempted to lump together the DMCA and the 1996 Communications Decency Act, which provides immunity to giant firms against defamation claims committed by the firms’ users. Why they put these together is impossible to discern, but when one of the DMCA-defenders quoted Electronic Frontier Foundation’s Fred von Lohmann, the two points became conflated: “These two protections for intermediaries have been absolutely crucial for giving us the internet today.”
Now, von Lohmann is an intelligent guy, but it doesn’t look like you could prove it from that statement. I exchanged e-mails with him (he was the only person mentioned herein who made himself available for comment) and he makes the point that these are important pieces of legislation “without which the Internet would look nothing like it does today. Of course, we may disagree about whether the Internet as it looks today is a good thing.”
Still, I have a problem when Von Lohmann states that “You could not run a blog without these. You couldn’t run MySpace, AOL without these two things.”
I beg to differ. As was pointed out, “fair use” takes care of any possibility of infringement for blogs. If you are tapping out a few sentences in your little online diary, you do not need to feature large chunks of someone’s song, movie, painting, photography, and so on. If you quote some lyrics from “Amazed by the Light That Is You” with attribution (copyright 2001 by John Scott G of Golosio Publishing, in case you’re wondering), then you’re good to go; feature the entire song and you are infringing on copyright and removing a songwriter’s opportunity to be paid for his efforts.
It is true that, without the DMCA, you would not be able to run MySpace or AOL in the rapacious way they currently ply their trade; but they certainly could function while making payments to copyright owners for work they display, transmit or disseminate. After all, they make money off the use of those works; therefore the owner of those works should also make money.
Besides, quite a bit of material featured on social networking sites appears at the discretion of the copyright owner. When I post songs or music videos of Golosio artists like Jonny Harmonic, Bella Swan Bass Society, The G-Man, or Scott Joss & Doug Colosio, I am doing so to help spread the word about these artists and their work. The social networking sites are not infringing at that point.
But when the sites want to use our work to help promote or sell other services which they offer, that is when they must ask for permission and work out a payment schedule. And the only leverage a copyright holder has for protection is the opportunity to use the courts to levy fines against the infringement. Take that away and creators are left with no income and no method to redress the grievances.
A Word about YouTube
“Without this safe harbor, sites like YouTube could not exist,” YouTube general counsel Zahavah Levine has written. I have seen Levine speak on a panel of the California Copyright Conference, so I know she is sharp, but the fact is that YouTube could exist without the safe harbor provision, they just couldn’t feature infringing material without paying for it.
Would the legal niceties of paying owners for their work slow down sites like YouTube? Yes. Just like the legal niceties of paying owners for their work slows down grocery stores, furniture stores, clothing stores, book stores, and all commercial enterprises in every corner of the world.
Fritz Attaway, an Executive Vice President and Special Policy Advisor to the Motion Picture Association of America, has been quoted as saying that the DMCA was a compromise from its very beginning. “It’s not perfect. But it’s better than nothing.” To which every songwriter would agree, at least to the first half of his statement. We probably would put it like this: “The DMCA perfectly pleases large corporations while assuring that we get nothing.”
Assessing Both Sides of the Argument
Attorney Roger Thompson sees both sides of the issue: “ISPs profit from the ability to send the works of others around and distribute them to the wider public. That’s a good thing. But the ISP can’t be deliberately blind to theft that is taking place under his nose and then complain that he is being made to share the profits he makes from trafficking in stolen goods. ISPs should get some safe harbor, but the harbor now is too large, too deep and can drown the artists who feed the public’s demand for new works.”
Speaking as a representative of some of these artists, and as an artist myself, I sense the rising waters. “If the artists don’t get fed,” Thompson continues, “the whole enterprise starves, and that is bad for everyone, especially the public who loses the opportunity to see new works and enjoy their old favorites. Without the creative artists, there is nothing to distribute, and everyone suffers, even the ISPs who will stop making money if no one cares to sign up any more because everything is a rerun.”
Clinton’s Disingenuous Statement
Back in 1998, in a statement made at the time he signed the DMCA, Clinton said it was a law that was “carefully balancing the interests of both copyright owners and users.” Sure, in the same way you might praise the careful balance of a law that let you protect your family from home invasion using only a wet paper towel.
Amend the DMCA
There is only one proper path to take: Title II of the DMCA needs to change. As it stands, corporations make money from the use of artists’ creativity. It is only right that the artists make money, too.
Copr. © 2010 John Scott G.