A post yesterday on the Second Life blog Shopping Cart Disco pointed me to a new vendor system that hope to be able to stop a large part of the content theft and copyright infringement in its tracks.

The new system, entitled ReachWorks SecureVend, changes the way people buy goods in game and makes it more difficult to simply copy goods out of stores rather than purchasing them.

The idea is actually pretty ingenious and very simple. Rather than putting the objects in the stores, they are instead stored in a secure location with limited access. The store only contains a series of scripts to handle the transaction and delivery the goods. Without this physical access to the work, one can not copy it until after they purchase it, no matter how broken Second Life’s copy protection is.

A real world comparison would be what a lot of video game retailers do, putting displays out in the public but keeping the actual disks in the back. The only difference is that, rather than waiting for a human to deliver the merchandise, the process is automated, not requiring any human interaction at all.

But while it is a great idea that will help many shopkeepers out, especially considering that it is currently being offered for free to all legitimate sellers right now, it isn’t the end game but, as the post on Shopping Cart Disco said, a step in the right direction.

Before relying on DRM and technological means it is important to take a few lessons from the physical world and understand that, while technology can help with content theft issues, it is only part of the solution.

Technology is an Answer, Not the Answer

Though SecureVend is not DRM in the traditional sense, meaning it doesn’t restrict what people can do with content they own (though there are features built into SL that do that), its helpful to think of it as such because it has a very similar function, the prevention of unauthorized copying.

DRM systems in the physical world have been plagued with two problems.

1. Restricting Legitimate Use of Content
2. Being Easily Defeated and Only Punishing Legitimate Users

This is not to say that SecureVend has any of these issues, without having used it I can not say, but they are the issues that have dogged DRM on other digital goods until, in most cases, they’ve been dropped. The classic example being Apple’s move away from DRM-encoded files.

The problem is straightforward. DRM, usually, is easily cracked and broken, making it so that the only people that have to deal with the limitations of DRM are the legitimate customers. This causes an outcry from those who obey the law and does nothing to stop piracy, possibly even encouraging it.

Though some DRM systems have been accepted, such as Valve’s Steam, it’s because the DRM actually improves the customer’s experience by offering better prices, easier access to content, adding achievements, etc.

However, Steam has not stopped piracy of PC games nor slowed it down. People continue to illegally download games online and the numbers continue to rise. Even though it has been a boon for the industry, it hasn’t solved all of its problems.

Similarly, it is unsure what effect SecureVend will have on second life content theft, even if it is widely adopted.

Going Beyond DRM

There are two truths about SecureVend that must be realized.

1. The System Will Be Hacked: Though it makes it more difficult to obtain free stuff, it is only a matter of time before the scripts are hacked somehow, someway. Even the best DRM schemes fall eventually and deteriorate into a game of cat and mouse. If there is enough motivation to break it, it will be broken.
2. It Doesn’t Protect Outside the Shop: Perhaps more dangerous is that the service can not protect outside of the shop. Once someone has purchased an item, it can be copied easily in the outside world. Most games, CDs and other copyright goods aren’t shoplifted before being pirated, they are bought first by someone who then makes the work available to others. So, even if the system does work, it will likely only push the copying to a different location.

If the system works reliably and doesn’t inconvenience customers, meaning no one would prefer a store without this system to one that has it, then it likely should be used. If it encourages legitimate sales, it can be a good thing. However, it is not a magic bullet and it should not be undertaken lightly.

After all, the greatest way to encourage piracy is to put up roadblocks to legitimate customers, something the music and movie studios are just now figuring out. If this system frustrates legitimate customers, content creators in Second Life could find themselves in an even worse position than before.

Bottom Line

The goal of this isn’t to say that content creators shouldn’t celebrate or use this new system, but that it should be approached with caution and as part of a larger initiative. Business models will have to come out to fight piracy and encourage buyers as well as a greater push from Linden Lab on the front. Technology, law (in this case both real world law and Linden Lab) and business models need to be a part of the solution as none alone can solve the problem.

SecureVend appears to be a great tool but great tools only achieve great things when paired with strong ideas and hard work. Now is not simply a time to celebrate, but a time to plan and build.

If Second Life is going to thrive as a market for content creators, the content creators have to be ready to take risks, experiment and serve customers well while also trying to tackle piracy in productive ways.

SecureVent can be another step, but just that, a single step.

Second Life, the virtual world created by Linden Lab, is an interesting microcosm for the copyright issues found on the rest of the Web. Its creators have been plagued by a variety of content theft issues ranging from simple copying of virtual goods for sale for personal use to the creation of entire shops based on reselling stolen goods at reduced prices.

Content creators in SL have banded together in a way that seldom happens on the larger Web and there is much that bloggers and other artists can learn from that.

But while the campaign seems to have born some fruit, including the recent mass-banning of infringers, the overall situation hasn’t changed and it appears that the tension is thick between Linden Lab and many of the residents, so much so that one has actually sued the company over intellectual property violations.

My heart goes out to Second Life creators but there is precious little that I can do since I am not an active player. However, as an outsider who has see what does and does not work on the larger Web, I may be able to offer some help on this front. So, with that in mind, here are six suggestions I have for making Second Life a better place to create and sell content.

1. Pressure Linden to Improve its DMCA Process

Though Linden Lab seems to be taking the issue of content theft more seriously, it is still throwing up unneeded roadblocks to filing DMCA notices. Where the vast majority of hosts gladly accept email DMCA notices, Linden does not, saying the following:

Can I submit my notices over email?
Unfortunately, email addresses posted on public website pages quickly become the target of spam, making it difficult to review legitimate communications.

Microsoft, Yahoo!, Godaddy and even Google Blogger all accept email or form DMCA notices. There is no reason Linden could not if they wanted to.

In fact, as I pointed out yesterday, there is an (admittedly hidden) way to do so but even then it is needlessly complex.

However, given the nature of Second Life, it would make more sense for there to be an in-world process for this. Unfortunately, that has not been developed either.

These roadblocks are unnecessary and are, almost certainly, intentionally designed to make filing of DMCA notices more difficult. More importantly, they are likely signs that Linden needs to reduce the number of takedowns they handle, likely pointing a problem with the process itself. It could simply be that the process for executing a takedown is so inefficient that they could not handle the volume they would see should they open up access to the process.

On that note, pressure needs to be applied on Linden to make the process more efficient, to open it up more and speed up response time. Otherwise, no progress can ever be made.

2. Work with Artists Outside SL

There is a tendency both within SL and on the larger Web to view the world as an island unto itself. However, it is nothing of the sort.

The works of artists and musicians outside of SL are infringed in-world fairly regularly, often, by the same people who engage in content theft of in-world works.

Artists outside SL can be powerful allies when dealing with Linden Lab and infringement in general. If these issues came to the attention to artists who were not Linden’s customers, these problems would not longer be treated as customer service issues, which they seem to be sometimes, and instead as a more serious outside legal issue.

This is especially powerful if the artist has resources and willingness to take on Linden if needed. This can ramp up the pressure on Linden to improve its system and its protections in a way that in-world creators alone can not do.

3. Change the Sales Pitch

It is very easy for people both in and out of Second Life to write off content creators in the world. Most don’t realize how much work goes into creating a single item or how the business model within SL is supposed to work.

Part of this is because most people have never tried to actually make anything in the game and see how much is involved in the process. However, some of it is also the way SL creators market themselves, often times as “designers” of various virtual goods.

Second life creations are essentially digital 3D art. Yes, it may be functional in-world, but that is precisely what it is. It’s much easier for people to understand than “Second Life Fashion Designer”.

It is important to be clear and be public about what is required in the creation of these virtual goods. Look at Wil Wheaton’s post regarding his audiobook as an excellent example. This will not only help non-creators in world, but those who don’t play Second Life, to better understand why this is important and why they are worth the money that is being asked.

4. Push Legitimate Alternatives

My admittedly limited experience with SL, I’ve seen a lot of this going on already, but content creators of all stripes need to make others aware of the places they can legitimately obtain free merchandise. There are plenty of such places on the grid but they don’t always get the attention they deserve.

The problem is that to get people to buy products in Second Life people have to first convert real money into Linden Dollars, something many are hesitant to do. As such, free alternatives can help appease players who don’t wish to participate in the Second Life economy, an unavoidable consequence of the system, and keep them from pirating content from shop owners.

It’s important to decide if you’d rather a citizen who will not pay for anything copy your work or obtain legitimate content from a free competitor. It’s a devil’s choice, but if your work is superior to free alternatives, then the latter is clearly better.

5. Experiment with New Business Models

Even if Linden Lab does ramp up enforcement and improve security, content theft will always be a problem in Second Life, it’s a matter of whether or not it is rare enough to still support the businesses that rely on the sale of goods.

However, there’s no reason the shops can’t try to beat the pirates at their own game. Much as the music industry has done with Spotify (at least in Europe), you may be able to find ways to earn money while giving away at least some of your products.

One suggestion has been to charge for goods for the first six months (or some other time frame) and then make them available for free within one’s own shop. Another has been to offer free and paid versions of products, with free versions doubling as advertisements for the paid ones (much like shareware).

This can help undercut pirate operations (and even casual infringers) by creating less incentive to obtain illegal copies.

6. Register With the Copyright Office

Finally, I want to encourage those who are creating content in Second Life, especially those who are making a business from their efforts, to register their works with the Copyright Office. Not only does this open up the potential to sue infringers in the U.S., but it also shows a level of seriousness and dedication to enforcement that both Linden Lab and others will be inclined to take seriously.

If you are serious about protecting your work in Second Life, this is not a step you can skip over or take lightly.

Bottom Line

In the end, my heart goes out to second life creators. I think artists all over the world can learn a great deal about how to protect their work, especially when it comes to cooperating with people who, otherwise, would be competitors.

However, I feel that there is a lot to learn on both sides and I hope that these thoughts and ideas are useful in at least some capacity. With all the great work being done in Second Life, it would be horrible to see it ruined completely by content theft issues and my hope is that Linden will step up and treat these issues seriously and that such misuse reduced to manageable levels.

It will take a combined effort of artists, both in Second Life and elsewhere, along with an effort from Linden to make that happen. It will not be easy, but it is important and worthwhile.

Linden Lab, the creators of Second Life, has one of the most controversial takedown regimes I know of. Not only has the content theft issues on Second Life been receiving a lot of in-world attention, thus putting the company’s DMCA policy under close scrutiny, but the company also seems to follow Google’s footsteps, requiring either a faxed or an email DMCA notice (though Google changed that policy for Blogger)

Indeed, Linden’s site makes it very clear that they do not want you to send a notice via email. The third question in the FAQ on their DMCA page reads as follows:

Can I submit my notices over email?
Unfortunately, email addresses posted on public website pages quickly become the target of spam, making it difficult to review legitimate communications. Please submit information as requested above; if digital files are necessary to identify materials in question, we can make arrangements for digital delivery.

They in turn do not provide the email address on their site and, instead, provide only info to send DMCA notices via either Fax or postal mail.

However, that does not mean the email address does not exist and can’t work. They actually do have an email address listed with their filing with the U.S. Copyright Office, (PDF). The filing, which is one of the requirements for DMCA safe harbor protection, plainly lists an address that can be be used to send in DMCA notices to the company.

What this means is that you can file a DMCA notice with Linden Lab via email if needed. However, given the requirements they lay down, you may want to take the steps that I listed in emailing a DMCA notice to Google, which has a similar process.

Since I do not use Second Life, I can not attest if this actually works. However, there is no reason that it should not. They have registered the address as a means to send a notification and, if they ignored proper notices sent to that address, they would likely be opening themselves up to liability.

Still, if you have had your works infringed upon in-world, whether you participate in Second Life or not, you may want to look at this as a quicker means of filing the notice. It should help both you send the notice more quickly and Linden respond faster.

On that note, I’ll return to this topic tomorrow with a longer post my observations on Second Life, the company behind it, the artists that operate within it and what can be done to fix the problem.

1: ISP, Content Owners in Copyright Court Battle

First off today, all eyes are on Australia today as a Federal court in the country is hearing a case between the Australian Federation Against Copyright Theft, which counts 34 major copyright holders as members, and local ISP iiNet.

Copyright holders have accused iiNet of not taking reasonable steps to prevent copyright infringement on its network. With their previous win against Sharman Networks, the makers of Kazaa, hope to expand that win to cover traditional ISPs. However, there are many hurdles in their way including safe harbor protections and a telecommunications act that could bar the action the copyright holders want to see.

The case is expected to last into November and is being closely watched by ISPs all over the world.

2: Linden Lab Rounds Up and Ejects a Bunch of Copyright Infringers

Next up today, Linden Lab, the maker of the virtual world Second Life has banned some 50 users from the world after they were found to be using an unofficial viewer to infringe upon copyrights.

What is interesting about the case is how the users were caught. A legitimate viewer would not demand all of the objects nearby, however, the unofficial ones would ask for more than they were allowed and Linden Lab used that knowledge to slip in objects that phoned home and then tracked those objects and their copies to boot infringers for both violating access rules and copyright.

Members of Second Life has been cheering this ban and most seem to hope that there are other similar actions in the future.

3: Susan Ross Pleads Guilty in Davis School District Case

Finally today, the husband and wife team of Susan and John Ross plead guilty to money laundering and aiding and abetting in forging fraudulent copyright notice respectively. The two had been indicted on some 47 counts of mail fraud, money laundering, theft from a state agency and copyright infringement.

The two were at the center of a scam where they created illegal copies of various textobooks, which they sold to another company, which in turn sold them to a local school district.

Though neither have been sentenced, Susan Ross has been recommended for a sentence of 27 months in prison. John, who was convicted of the lesser crime, has not had a sentence recommendation. The two will also have to pay back approximately $350,115 and forfeit another million in assets. This comes after the two are accused of defrauding the district of over $4.3 million.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Saturday morning for the live recording of the Copyright 2.0 Show or wait and get the edited version Monday morning right here on Plagiarism Today.

1: Skype founders go to court to seek damages

First off today, the founders of Skype, which was purchased by the online auction company eBay in 2005 is now suing its parent company in court for copyright infringement.

According to the suit, when eBay purchased Skype, they purchased the company but not the core copyrighted works that make up the service. Instead, they obtained a license to use it from the owners. However, after the founders left the company, eBay began to alter those core technologies in violation of that license.

The case, which was filed in London, estimates that the copyright is being violated every time someone downloads a copy of Skype, up to 100,000 times per day, making the total damages per day up to $75 million, an amount eBay would have to pay half of according to their contract with Skype. All of this comes as eBay is hoping to sell Skype by the end of the fourth quarter this year.

2: Near-instant book printer adds Google Books titles

Next up today, multiple sources are reporting that today Google and On Demand Books, maker of the Espresso Book Machine will be announcing a partnership to print on demand public domain works through Google Book Search.

The Espresso Book Machine is a printer capable of turning out a paperback novel in a matter of minutes, it is commonly used by print-on-demand houses and has been considered for use by Barnes & Noble and other bookstores for similar ventures. However, Google will be using it to print out on-demand copies of various public domain works that it has digitized and included in their library.

This service should not cause any controversy and is unrelated to the ongoing Google Book Search settlement dispute, where Google, along with many publishers and the Author’s Guild, seeks to scan and display in-copyright but of print works in Google Book Search.

3: Second Life Sued For Allowing Sale Of Impostor Virtual Goods

Finally today. Kevin Alderman, a maker of erotic goods for the online virtual world Second Life, has sued the game’s creators, Linden Lab, for allowing his goods to be pirated within the world.

Alderman, who allegedly has brought in some $1 million off the sale of virtual sex beds, claims that Linden has allowed others users to upload and sell his virtual goods and profits from the venture since they earn money off of money transferred into and out of the world. According to his theory, this means Linden sacrifices its DMCA safe harbor protection and is at least partially liable for the infringements.

The suit is seeking class action status though it is unclear if others are planning on joining it.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Saturday morning for the live recording of the Copyright 2.0 Show or wait and get the edited version Monday morning right here on Plagiarism Today.

1: 9th Circuit Finds for PI Firm Over Theft of Firm’s Web Site Content

First off today, the 9th Circuit appeals court has sided with Brayton Purcell, a personal injury firm, in a lawsuit against Recordon & Recordon a smaller firm that allegedly used marketing material from Brayton’s site in their own.

This may seem to be ho-hum but could easily be one of the most important copyright cases in the past few years.

The reason is that, Brayton is located in San Francisco and Recordon in San Diego. Brayton sued Recordon in the northern district, their district, and the appeal was on the issue of jurisdiction. The The judge found that Brayton could sue Recordon in their home district because Recordon had “expressly aimed” its conduct by using content from a company in the northern district.

This means that, at least theoretically, one can sue for copyright infringement in their home district, regardless of where the infringer resides. This also means anyone can be hauled into any other district for a copyright complaint.

Obviously, this could create a major shakeup in the entire system, and all of it over a relatively minor issue in this case.

2: Apple bans App Store’s 3rd-most prolific developer

Next up today, Apple has taken the unusual step of giving the boot to an entire company from its App store, due largely to copyright issues.

The company Perfect Acumen, which is owned by Khalid Shaik, has had their developer license stripped after Apple claims to have received numerous complaints of copyright infringement involving various applications they produced.

Perfect Acumen, which appears to be based in India but has most of its employees in Pakistan, seemed to specialize largely in photos of celebrities, possibly explaining the copyright issues.

Perfect Acumen was, reportedly, the 3rd largest iPhone developer in terms of library size.

3: Lindens Announce Upcoming “Content Seller Program” — The End of (Most) In-World Content Theft to Follow?

Finally, though I don’t talk a great deal about Second Life news, this story seemed to be worth a mention.

Linden Lab, the maker of Second Life, is setting up a “content seller program” that it hopes creators will use to register their works and will require the filer to provide a real name and certify that “all necessary intellectual property rights and licenses have been obtained for all content that the Resident has for sale.”

This is aimed to strengthen the reputation and brands of sellers in Second Life, who create virtual goods that are often copied without permission, and may help make cases of copyright infringement more clear cut.

The company also said that they are streamlining their DMCA takedown process and a “sticky” licensing system that will apply to works taken out of Second Life.

This comes after years of content creators expressing concerns over content theft in Second Life, with little done by Linden Lab, other than following a very difficult and time-consuming DMCA process.

Suggestions

That’s it for the three count today, we’ll be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Saturday morning for the live recording of the Copyright 2.0 Show or wait and get the edited version Monday morning right here on Plagiarism Today.

The SL universe is made up of nothing but intellectual property. Everything from the ground you walk on to the people you meet all fall, in one way or another, under the jurisdiction of copyright.

However, the digital nature of this world makes it incredibly easy to copy and rip off other people’s work. Even though there is a permissions system that is designed to prevent that from happening, the fact is that the system is hopelessly broken and even casual users are able to copy “protected” items almost at will.

To make matters even worse, Linden Lab, the creator and maintainer of the “grid” has proven to be almost completely ineffective at copyright enforcement. Though they accept and act on DMCA notices, they require them to be sent via fax and postal mail and only remove in-world items, not those in inventories or other copies of them.

This results in delays and limitations that destroy the process and create a complete inability to actually remove infringing works from the grid completely.

Yet, despite this, SL has a thriving economy with many people earning money and even a living from selling works on the service. This seems to run counter to much of the logic present on the Web.

So what can second life teach Webmasters about copyright infringement, I see a lot of potential lessons.

A Protection-Free Environment

photo credit: Ravenelle

For all practical purposes, SL residents are forced to assume that they have no protection of their works and that they can and will be copied regularly. Worse still, there seems to be very little in the way of means for getting them removed after the infringement took place, especially if they are held in inventories.

This has put Second Life creators in a strange position. How do you sell works at a retail price when illegal copies are available for either free or pennies on the dollar? With so little in the way of traditional enforcement to deter people from just copying and running, creators need to find other ways to reach customers.

However, for the most part, they have been successful. Though copying is still rampant and some designers left the service due to these issues, most have stuck around and continue to sell goods, with at least some success.

So how can Webmasters, bloggers and artists working on the Web take advantage of these lessons, I think there are five points to be gleaned.

Lessons Learned

When looking at the relationship between content theft and Second life, the following elements leap out.

1. DRM Fails: It is as simple as this, DRM does not work. Protecting your content with DRM will only frustrate legitimate users and will not prevent copying. Reliance on DRM is the path to madness.
2. Community Enforcement Works: The SL community has banded together and protested content theft as well as in reporting and ostracizing people who copy without permission. Since SL is a social site, this has proved as effective, if not more so, than DMCA enforcement.
3. Most People Are Good: Despite the abundance of free or low-cost illegal goods, most people who buy products in SL still try to buy from legitimate stores. The bigger problem comes when the copycats are able to fool others into thinking that they are the authentic source.
4. New Works Trump Old Copies: The longer a work has been on the shelf, the more illegal copies of it that will be distributed. Thus, the best designers are constantly turning out new items to ensure that people come to them, not the shady dealers.
5. Name Recognition is Everything: If people know who you are and trust you, they will come to you. Well-known designers in SL are among the most copied, but continue to receive business because people know to go to them first. In short, advertising and word of mouth mitigate against plagiarism.

While I am almost certain that designers would prefer that the DRM in SL was more effective or that, at the very least, Linden would be quicker and more thorough with its response, they have done reasonably well for themselves despite the rampant copying that exists on the service.

Not All Roses

This isn’t to say that things are great for SL designers. Times are actually very tough on the service right now and have been increasingly difficult for some time.

However, most of the problem stems from factors outside of the service itself including a slowing economy, a decline in the paid user base and new competitors to the service.

Clearly, making a living or even a second income in SL is not as easy as it was during the hype-filled months several years ago, before the desertion of many of the corporate partners, but it is still possible.

If Linden and the citizens of SL can recruit new users and grow the population, not just the hours spent, SL could still rebound and the artists currently established would have an upper hand in the revitalized economy.

Conclusions

Though SL is not perfectly analogous to the Web, there are many similarities and the fact many copyright holders there have been able to make a living despite rampant copying has a great deal to teach everyone.

Though the future of SL is uncertain, as a world based solely upon copyrighted material, it may have far greater impact as an experiment on the nature of how people treat non-material creations.

In short, if the creators of Second Life can survive and thrive, then there is definitely hope for rest of us on the Web. It just may require a change in the way we think.

Related Links

• Avenue Models: An interesting infringement case in the SL modeling community and a rather humorous way of getting caught.
• Fresh Baked Goods: A case where a DMCA notice was, according to the article, filed against an original creator instead of an infringer. Excellent look at the Linden DMCA process.
• Gwyn’s Home: A great discussion about switching to a service economy in SL.

Further Discussion

• What other lessons are there for Webmasters in SL?
• What more can SL users do to protect their work and grow their businesses?
• Is a virtual economy ever going to be free of this element?

The proposal calls for Linen Lab to periodically publish, among other things:

• The number of notices filed
• The average delay in action on a DMCA notice
• The number of takedowns executed
• The number of counter-notices filed
• The number of takedown notices that resulted in a putback

But while the idea is especially good for Linden Lab, whose DMCA policies have been under pointed fire in recent months, it is an idea that can easily be expanded to all Web hosts.

It is an proposal that those both in favor and against the notice and takedown provisions of the DMCA will likely agree on and something that could bring a great deal more understanding the entire process of dealing with copyright infringement on the Web.

The Importance of Transparency

One of the major problems with the current notice and takedown regime is that a copyright holder can send in a DMCA notice and track the response to it but no idea where that notice fits into the larger picture.

How many notices does a host receive? How long, on average, does it take them to reply? How many do they discard for being incomplete? How many counter-notices do they receive? These are all questions that are typically closely-guarded secrets for Web service providers.

Many fear, rightly or wrongly, that providing this information could result in legal difficulties should a DMCA dispute go into the courtroom.

However, this has made understanding the full impact of the notice and takedown system almost impossible. With few hard facts, we are left largely with just anecdotal evidence of DMCA abuses and successes. Unfortunately, this evidence is completely useless when trying to understand the larger picture and obtain information upon which future policy may be written.

Even I, having personally sent hundreds of DMCA notices to many dozens of hosts, have only a tiny fraction of the DMCA picture. My experience is colored sharply the types of cases I have handled, all of which have been plagiarism-related, and the hosts I have worked with.

Despite the years I’ve spent working with the DMCA and hosts on copyright matters, my information is, at best, an educated guess. Sadly, that’s all anyone who does not work for a Web host can provide as we can not see what takes place behind the scenes.

It is a frustrating problem and, sadly, the attempts to address it have largely failed.

Past Attempts

The Chilling Effects database is probably the best-known attempt to provide DMCA transparency.

The idea was to provide a site that hosts and search engines could submit DMCA notices to and have them published publicly (minus personal information). This would, theoretically, allow researchers to access the database and draw conclusions about how the DMCA was being used.

The idea, initially, received a great deal of support and key Internet players, most prominently Google, promised to send all of their DMCA notices to the database.

However, the database has fallen into hard times. Few new letters are published, the most recent on March 5 of this year, and most of the ones that are published are controversial ones such as the Air Force DMCA notice and the recent moves by the NFL.

Google, in their auto-reply to submitted DMCA notices, still says the following:

“Please note that a copy of each legal notice we receive is sent to a third-party partner for publication and annotation. As such, your letter (with your personal information removed) will be forwarded to Chilling Effects for publication.”

But despite that, none of my notices in the past few years have appeared in the database. In fact, only one notice from me appears at all and it is from 2005.

Chilling Effects was used for one study back in late 2005. The report, authored by Jennifer Urban of the USC Gould School of Law, found that nearly 1/3 of all DMCA notices were improper in at least one way. However, as I pointed out in my original article, the use of Chilling Effects may have biased the findings due to the nature of the service.

Unfortunately, the full study has not been released as of this writing and is listed as being “forthcoming” on Urban’s faculty page.

Outside of Chilling Effects and anecdotal accounts from hosts, such as Dreamhost’s recent blog entry on the topic, there has been very little in the way of hard data about how hosts respond to DMCA notices.

A Proposal

Clearly there is a need for hard data in this area and the only people that can provide it are the hosts and search engines. Therefore, there is a need for a broad push to improve transparency in the DMCA process.

However, that being said, a database of actual notices, such as Chilling Effects, is likely not the way to go. Such a database would either be incomplete or too large to be practical.

However, even if we had nothing more than numbers and general information about policies, it would provide us a much better understanding about the DMCA process than what we have now. To that end, Merideth’s proposal is fairly sound.

The idea of encouraging hosts to provide regular updates as to their DMCA actions makes sense. It not only helps copyright holders understand how the the host responds to notices, but it helps users of the site know what to expect should a copyright issue arise.

However, I would make the following changes to Merideth’s proposal to make it more applicable to practical for hosts:

1. Make the Report Quarterly: Monthly may or may not be practical for Linden, but most Web hosts would be doing good to create just a quarterly report. That should be fine in most cases.
2. Eliminate Information That Isn’t Necessary: Initially at least, we should focus on the core information. That would include the number of notices received, the number discarded, the number that resulted in a takedown, the average time between receipt and takedown and the number of counter-notices received. If hosts are comfortable providing more information, that would be great, but since most are not under the level of scrutiny Linden Lab is under, it makes sense to request less.
3. Add Policy Information: Right now, what happens after a DMCA notice is filed is something of a mystery. From talking with hosts I know how some handle it, but there is precious little information about how a notice goes from a submission to a takedown. This might make a natural addition to all Web host’s copyright pages and would be largely static unless there was a change in procedure.

In addition to those changes, I would also suggest that hosts provide a random sample of the DMCA notices they received to an online database similar to Chilling Effects. It would not be necessary to send every single one, just a statistically significant percentage. Hosts could, possibly, send every twentieth or hundredth notice to the database depending on how many they receive.

The bottom line though is that any information we can get that goes beyond the anecdotes and horror stories we have to work with will be a drastic improvement over the current situation.

Conclusions

In the end, it is unlikely that hosts will release this kind of information voluntarily and even less likely that any kind of legislation will require them to do so.

Though those of us who are interested in copyright law, both for and against the notice and takedown provisions, would greatly appreciate transparency from the hosts, these types of statistics are considered closely-guarded secrets and will almost certainly remain that way.

In addition to legal issues that may arise from releasing such information, especially if a host is slow or unresponsive to DMCA notices, many fear that it will color customer perceptions if it is known just how many notices they receive and act upon.

Sadly, it is an area where practical business decisions may overshadow the need for good information and good policy. Few hosts are going to spend time and money to publish information many would consider unsavory, no matter how important it might be.

Still, it would be nice to see hosts take initiative in this area and do something to help others understand just how the DMCA is used. If a host wants to criticize the current law, then giving the public and the government the information to make sound decisions is the first step to fixing the problem.

Without that, then there is pretty much no hope of the law ever changing.