It appears that I and the recording/movie industries finally agree on something: The DMCA sucks. Unfortunately, that's where our agreement ends.
Personally, I believe the Digital Millennium Copyright Act is skewed too far in favor of content owners -- that is, the music and movie conglomerates, who are not to be confused with content creators, the artists without whom those conglomerates would not exist. But the RIAA seems to think the 14-year-old law has doesn't go far enough to shield flailing entertainment industry dinosaurs against the scourge of file swapping.
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During a panel discussion at the New York Entertainment and Technology Law Conference, RIAA senior VP of litigation Jennifer Pariser said courts interpreting the DMCA have been too lenient on service providers, whom it seems have not done enough to protect the recording industry.
I think Congress got it right, but I think the courts are getting it wrong... I think the courts are interpreting Congress' statute in a manner that is entirely too restrictive of content owners' rights and too open to [Internet] service providers.
We might need to go to Congress at some point for a fix. Not because the statute was badly drafted but because the interpretation has been so hamstrung by court decisions.
The DMCA gives ISPs safe harbor, absolving them of responsibility for hosting copyrighted content, provided they play nicely and cooperate with legal requests to turn out suspected pirates. ISPs are also required to act on behalf of the content owners if they know of infringing activity. This is where Pariser and the RIAA have their big beef: The ISPs are allegedly ignoring these "red flags," and the courts have allowed them to do it.
Two words: Boo hoo.
That statute the RIAA thinks is so well drafted has been abused countless times by companies seeking to kneecap competitors, silence critics, kill off "fair use," and hound users who may have a legal right to post content but can't afford the lawyers to fight back. According to statements filed by Google in 2009, more than a third of DMCA takedown notices it received were not valid copyright claims, and well over half were filed by businesses targeting their competitors.
That law makes it illegal for you to make a backup copy of a DVD you legally purchased. It allows record companies to threaten mothers for posting YouTube videos of their toddlers dancing to a copyrighted song. It puts you on the hook for a $150,000 fine for uploading or downloading a single song, but offers no way to determine how much a song is actually worth -- allowing for the ridiculous whipsawing of judgments in the Jammie Thomas-Rasset case, to cite one example.
The only protection against DMCA abuse -- and it's pretty thin -- has been the very courts the RIAA is taking to task for being too lenient.
This is simply another tactic in the entertainment industry's war on consumers. After years of demanding $3,000 payouts from 12-year-olds, technologically illiterate grandmothers, and dead people, the RIAA realized this strategy wasn't working, so it went to Plan B: Harass the ISPs.
Over the last few years, the music and movie industries have been trying to get ISPs to snoop on the data flowing across their networks and identify copyright scofflaws. The underlying message: If the ISPs don't comply voluntarily, the RIAA will use its lobbying muscle to get Congress to pass laws requiring them to play copyright cops.
It's true that piracy has hurt the music and movie industries. It hurt them before the Internet too, via bootleg CDs and other unauthorized sales. It's a cost of doing business in a global market. But those industries made the problem much, much worse by acting like total a******s. Is there a teenager alive who doesn't believe that music is theirs to share as they wish? Is there a teen who gives a damn about what happens to these aging dinosaurs?
Even the RIAA doesn't believe that. And there's a second thing we agree on.
Have the courts been too soft on Internet pirates? Should they all be made to walk the plank? Weigh in below or email me: firstname.lastname@example.org.
This article, "RIAA: The courts don't get copyright laws," was originally published at InfoWorld.com. Follow the crazy twists and turns of the tech industry with Robert X. Cringely's Notes from the Field blog, and subscribe to Cringely's Notes from the Underground newsletter.