1: Digital Economy Bill approved by House of Lords

First off today, the House of Lords in the UK has approved the Digital Economy Bill, paving the way for a “three strikes” system in the country and also for the blocking of Web sites that contain large amounts of infringing material. The House did drop a controversial amendment that would have allowed ministers to edit copyright law without Parliament’s review. However, many of the details, including some of the more controversial ones, will need to be handled by the House of Commons when they take up the bill shortly, including how Web sites can challenge a block in the country.

2: Brazil Details Retaliation on U.S. Copyright, Patents

Next up today, a dispute over cotton farming may spill over to the copyright arena as Brazil, with blessing from the World Trade Organization, may increase fees and tighten regulation on U.S.-based copyright holders in the music and audiovisual industry. The dispute stems from a U.S. subsidizing cotton farmers in the country, who export their crops to Brazil at extremely low rates.

3: Japan and China Sign Copyright Deal

Finally today, Japan and China have signed a copyright memo which calls for a series of meetings to hash out copyright issues and, according to Japan, will hopefully make it easier for their entertainment industries to market to China, where they have historically faced very high piracy rates.

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.

Yet, out of the last 40 spam blogs I’ve looked at, 32 of them were located within the United States. The few that remained were in countries such as Iran, Russia and Ukraine, where copyright law makes it hard to stop them.

So why are so many spam blogs American despite the obstacles to setting up shop in the United States? The answers are surprisingly simple but do not bode well for the future of fighting spam here or abroad.

An American Tradition

The beautiful thing about the Internet is that it is possible to set up shop just about anywhere in the world and, in turn, have anyone else in the world come visit you. Geographic borders are meaningless, until you look at legal issues.

Legally-speaking though, the U.S., much like the EU and similar legal climates, seem to be very hostile places for spammers. Not only does copyright law give easy recourse for those who are scraped, but hosts are very well versed at dealing with spam and often take action without prompting.

It seems logical that spammers would start to take their operations and move them overseas, into countries with weaker laws and enforcement. A stable home would mean longer-running spam operations, that would mean more trust with the search engines and, theoretically, more money.

But despite this, spam seems to be an almost purely American tradition. American hosts are rife with spam blogs and there seems to be no rush on the part of spammers to move to other nations. Despite greener pastures, the purveyors of junk are fine working with in the United States and, when one looks at the reasons, it is clear why that isn’t going to change any time soon.

Sticking Around

Spammers aren’t staying within the U.S. to make it easier for American bloggers to shut them down, rather, they have their own interests in mind. Consider the following:

1. Cost: Hosting is extremely cheap in the United States and, with the dollar falling, it is only getting cheaper. For six dollars per month you can get a hosting account that lets you host unlimited domains. It is cheaper to risk having accounts cut than to pay a premium for hosting elsewhere.
2. Free Hosts: The vast majority of free hosts are located within the United States. Spammers that want to target sites such as Blogspot are pretty much forced to stay within the country.
3. Still Vulnerable to DMCA: Even if a spam blog sets up shop in another country, they would still be vulnerable to American laws with regards to the search engines. Since Google, Yahoo!, MSN and Ask are all American companies, a copyright holder can still use the DMCA to effectively blacklist them from search.
4. Search Engine Trust: Though I have not been able to find evidence of this, it seems only logical that search engines would put more trust into sites closer to their searchers. A site hosted in Iran may do well in Iranian searches, but would not likely perform well in the bulk of search results.
5. Cooperative Hosts: Despite the laws in the U.S. that prohibit this, there are still no shortage of lesser-known hosts that will gladly turn a blind eye to spam and copyright infringement. These hosts can typically get away with it because U.S. law makes it so difficult to sue for copyright infringement.

The end result is that the life of a U.S.-based spammer is far from easy, but it certainly is fruitful and, with a little bit of creativity and effort, the obstacles can be easily overcome.

Mitigating the Problem

With the current legal and hosting climate in the United States, there is very little Webmasters can do to outright stop this problem. However, there are steps that we can all take to minimize this issue.

1. Use The Laws: The fact that most spam is within the United States is something of a gift. Most hosts respect the DMCA and will remove infringing works. Taking advantage of that is a powerful start. The DMCA has been around in the U.S. for ten years and most hosts have effective policies for dealing with such notices.
2. Target Search Engines: Hosts that are uncooperative need to be pointed out to the search engines in the form of spam reports. The reason is that, if enough spam is reported in an IP range, Google will start to distrust the entire host and that will affect their bottom line, both driving away spammers and legitimate customers.
3. Use Search Engine DMCAs: Though working with Google may be tricky, once a spam report has been filed sending a DMCA notice to the search engines can decapitate the spam attack, making it useless.

These are not perfect solutions, but they are ways that everyday Webmasters can hit back at the spam problem without having to go through the hassle of finding an attorney.

Conclusions

The U.S. is in no danger of being dethroned as the Web spam king. Though spammers will diversify as the Web becomes even more international, like wolves hiding in a flock, they will follow the rest of us in a bid to fit in.

But as frustrating as this is, it does serve to our advantage and give us some powerful tools to fight back. All it takes is the no-how and willingness to take action.

Fortunately, it seems that more and more are fed up with Web spam and are doing something about it.

Meanwhile, the rest of Americans, as well as the vast majority of copyright holders, were threatened with prison if we used the logo without permission.

Though the commenters to the original piece were worried about the nature of the logo and the preferential treatment that the government was giving big copyright, the FBI logo is relatively harmless abuse. It hasn’t done anything to stop piracy and, aside from being a slap in the face, has very little meaning to your average copyright holder.

However, the FBI logo is just a microcosm of the larger problem. The United States stands alone in the world as a country that has created a copyright class struggle by unfairly stacking the deck against your average rightsholder.

In short, the entire copyright system in the United States is tilted to favor big copyright. It makes possible both the $222,000 Jammie Thomas ruling and the recent misappropriation by Fox Sports of a cherished family photo.

This system ensures that individuals have almost no protection of their works while corporations are free to sue for massive amounts of money. The scariest part of all, the process only requires two simple laws, both of which should have been fixed a long time ago.

Registration Requirements

When the United States joined the Berne convention in 1988, one of the supposed requirements was that the U.S. was supposed to do away with all copyright formalities, making protection automatic upon creation of the work.

However, the United States dodged that requirement. Though they did make protection automatic upon fixation, it was decided to still require registration before either suing in a Federal court or obtaining statutory damages and attorney fees.

So, while you technically have all of the same rights on a registered work as an unregistered one, you can not enforce those rights without first paying the $30 or $45 fee to register your work with the United States Copyright Office. Ideally, this registration needs to be filed before the work is infringed to ensure that you can claim the maximum amount of damages.

The problem with this is very simple. Most individuals can not afford to register every single work and most don’t have time to file for registration before posting it online. Of the photographs, blog entries, stories and even novels posted on the Web, only a tiny fraction of a percent are actually registered.

Big copyright holders, such as the RIAA and MPAA, have no trouble with this requirement at all. When your spending thousands or even millions on a single copyrighted work, the registration fee is barely noticeable. Their distribution model also makes it possible to register before the work is seen outside their studio.

The result is that only a handful of copyright holders in the U.S. have access to our courts. Without registration many cases are thrown out and works registered after the infringement are, generally, only eligible for actual damages. Without statutory damages and attorney fees, such cases are rarely worth pursuing.

But when big copyright holders show up in court, they are able to sue for very big damages. Not only does the law make it possible, but since such cases rarely reach courtrooms, even these days, judges and juries have little reason not to give big judgments.

In short, one Jammie Thomas ruling makes sense, but if every copyright holder who was infringed could make that much or more, the system would fail. Both the law and the judgments would undergo something akin to a market shift and more reasonable rates would have to be reached.

Unfortunately, we don’t have that kind of access. Not only does this keep rulings artificially high, but also enables them to take copyrighted works with relative immunity. Since we have no effective legal recourse, they can do, in many cases, exactly what they please.

Moral Rights

Another element of the Berne convention that the U.S. did not implement was the issue of moral rights.

In most countries, including Canada, artists have rights to the work that go beyond traditional copyrights. These include the right to attribution and the right to protect the integrity of the work, even after it has been sold.

In many countries, especially in Europe, these rights are inalienable, meaning they can not be bought, sold or given away. You can agree not to enforce those rights, but you can never outright surrender them.

Moral rights are an important protection for individuals in other countries. It means that, even when sells or gives way some or all of their copyright, the work will still bear their name and continue to work for them as it is distributed and copied.

Many see it as an anti-corporation set of rights as it protects the creator of a work against the publishers and distributors that purchase or acquire copyright interest in the work.

According to the United States, there was no need for specific moral rights legislation since much of it was covered under other statutes, specifically slander and libel.

But despite that claim, the U.S. did implement some moral rights in the Visual Artists Rights Act (VARA). However, those rights were limited in nature and restricted solely to certain kinds of visual artists. Writers, musicians and other copyright holders still have no concrete moral rights protection.

This means that, once you have sold commercial interest in your work, there is little that you can do to protect it, even if a third party comes along and plagiarizes it. This greatly limits your control over your name and reputation while putting control over the work in corporations with very little motive to defend your work.

However, since moral rights restrict what a copyright buyer can do with a purchased work, even if only slightly, corporations have typically opposed implementing any serious moral rights regime.

This, in turn promotes a “sell and forget” system that encourages copyright holders to sell away their works without questioning how they will be used once they are bought. This kind of complacency serves big copyright holders well and ensures that they are the only ones actively enforcing rights in the courtrooms.

Fixing the System

The solution to the problem is simple, fully implement the Berne convention standards, both in law and in spirit. Other countries have had these items in effect for decades and have not seen the kind of copyright insanity we see here in the United States.

Yes, there are some oddities in foreign laws, but overall they do a better job of protecting artists, the people copyright is supposed to protect, without trampling on users.

Basically, the U.S. copyright system was built from the ground up to be an almost purely commercial system. The rights of copyright holders are expressed almost exclusively in terms of dollars and cents, not creativity and art.

This has lead to the rise of not just big copyright as an entity, but a two-tiered copyright system. Even as more and more individuals are self-publishing and becoming copyright holders with a legitimate stake in their own work, albeit not always a financial one, the system does not treat them as such.

If the United States fulfilled the promises it made decades ago, this issue would be significantly lessened.

Unfortunately, given the grip that big copyright has on our current legal system, it seems unlikely that such a change will happen any time in the near future.

Conclusions

Before we can talk about copyright reform or adjusting the rights that copyright provides, we need to first make sure that all rightsholders are treated equally.

Simply put, any copyright reform that only impacts one kind of rightsholder is no more fair than the current system. Furthermore, as long as big copyright has all of the power and all of the court access, it is very hard for the majority to be heard.

But since the current system prohibits most copyright holders form leveraging their rights in a courtroom, it is easy for the corporations to cull the “us vs. them” system to obtain newer and stronger laws that benefit them alone.

Rather than looking at us as content creators and copyright holders, the system treats us primarily as consumers, even if we are producing over 99% of the copyrighted works available.

Once we have equal access and an equal voice, then we can talk about fixing the system. Without balance between the classes of copyright holders, there can be no balance between creator and consumer.

This class warfare greatly behooves big copyright. It is time to stop it and the way to start is to demand your own rights equal to those that the RIAA and MPAA gets.

It seems a strange way to reform the law, I admit. But is the only way we are going to be heard and taken seriously. Until we have legal power behind us, we are simply too easily ignored.

But while hosts definitely bear at least some of the responsibility for the antiquated DMCA list, the USCO needs to take some of the blame as well. There are many ways they could have constructed and operated this list, almost all of them acceptable, but instead they chose to do it almost the worst way possible.

In typical government fashion, the USCO created the list in a way that is costly to hosts, increases the amount of work involved on everyone’s part and completely strips the list of any usefulness to users. For a list created to comply with a law designed to keep up with technology, the methods of maintenance are nothing short of obsolete.

The entire list is a waste of resources and it is time for it to either be fixed or done away with. The current setup is simply not acceptable, even by the standards of the USCO.

It’s time for a change and, fortunately, there are at least two ways that the list can be fixed.

How It’s Done Right Now

Currently, if you’re a host wanting to protect yourself under the DMCA Safe Harbor provisions and thus register your designated DMCA agent. You have to visit the USCO’s Web site, download a simple one-page form (PDF), fill it out and send it in with an $80 fee to the USCO.

Once the USCO receives the file, after a few weeks, they will scan your form as an image PDF and upload it to their list, which is in alphabetical order and display it in a long list with the other forms they’ve received. Users are then free to come along, download your respective PDF and contact you regarding DMCA issues.

If this sounds very simple, that’s because it is. The system used to maintain the DMCA agent list is, quite literally, the most simple system imaginable. This system, as one could imagine, took almost no time to set up or develop and would have been ready to go within minutes.

However, this apparent desire to get the system up and running as quickly as possible has created a model of inefficiency. The adage of “haste makes waste” could not be better illustrated than by the USCO with its DMCA agent list.

Problems with the System

When looking at reasons the system needs changing, consider the following issues:

1. Difficulties Updating: Though it might make sense for a host to have to send in their first registration via mail, changes to the that information go through the same process, including the same form, the $80 fee and the lengthy delay. This motivates hosts not to update their information and leave outdated material on the USCO site for weeks or months at a time.
2. Usability: The current DMCA agent list is not search able, not indexable and completely useless for anything other than one-time checks. As the list grows, it gets harder and harder to find the host that you need, especially since many hosts register under multiple names.
3. Inefficiency: Though it might have been quicker and easier for the USCO to set up this system in the beginning, as the list has grown, it is getting harder and harder to maintain and, since they have to process every single application by hand, rather than letting hosts maintain their information, they are spending much more labor on this than necessary.
4. Expensive: The $80 fee is simply not justifiable. Under the DMCA hosts are required to register with the USCO if they want to obtain safe harbor protections. Eighty dollars is not only almost double what the optional standard copyright registration costs, but significantly less is obtained for the money. There is no certificate of registration, no search able index of the work, nothing. Just a scanned form available on its site, it is borderline blackmail.
5. Accessibility: Finally, since the USCO decided to use image PDFs, the content in the scanned forms can not be copied/pasted and, worst of all, is not accessible to those who use screen readers, namely the visually impaired. This may even violate Federal accessibility standards. There are reasons to obfuscate the email address, but other information should be stored in clear text. It is a shame that the private sector is having to go through and deal with this problem.

All in all, there is very little to like about the current system. In the age of MySQL databases and powerful search engines, the technology has moved well beyond what the USCO has employed.

However, the system can be fixed and there are at least two ways to do it, one is easy, the other much more difficult, but would at least bring the DMCA agent list into the 21st century.

Fixing What’s Wrong

The easiest way to fix the broken system is to simply do away with it and re-write the DMCA so that hosts no longer need to register with the USCO but, instead, need to post the information on their own site. It would be no different than the privacy policy, terms of service and other pertinent legal information that hosts are required or asked to display on their home pages.

While that would eliminate the central repository of contact information and the usefulness it could provide, most of the time it simply isn’t necessary. When one looks up the host of a site, they usually, at some point, wind up at the host’s home page and it is much easier to look for the information there than to visit the USCO and hunt through their lists. Since the vast majority of hosts already provide this information without any obligation to do so, it would be almost painless to them and almost painless to your average user.

The other alternative is to keep the list but modernize it. Such a list would use a true database and allow hosts to submit and maintain their own information. This would involve a lot of work. First, it would require converting all of these images into clear text, then it would necessitate confirming the identity of hosts and then providing them with login credentials.

Would this be difficult and time consuming? Yes. But there are systems capable of handling this type of problem already and it would only be a matter of taking an existing system and reapplying it to fill your needs. Even more damming is that, the longer the USCO waits, the more effort it is going to take.

However, no matter how long the effort takes or how much money is required, it will be, in the long run, more efficient to modernize the list than to leave it as it is. Right now the system wastes the time and effort of the USCO, hosts and users alike. A new system could easily streamline the process for all three, saving everyone involved both money and time.

Conclusions

Of course, pushing the USCO toward change is a slow process. The Copyright Office is just now beta testing Internet copyright registrations and such a system is not likely to take advantage of features such as RSS feeds and other technologies that would allow for nearly instant registration.

In the end, it appears that the problem with the USCO is the USCO itself. The entire organization is hopelessly behind the times, with a registration system that penalizes bloggers and hurts all copyright holders, the USCO is a government entity stuck in the mindset of a books and CDs generation when we’re living in a blogs and MP3s world.

I have called for the closure of the USCO before but their incompetence at handling something as simple as a list only furthers those calls. The U.S. is hopelessly behind the times when it comes to copyright law and the USCO is the embodiment of that problem.

If we are going to catch up with the world and have our laws catch up with technology, we first have to remove the dead weight. That can start with either ridding ourselves of much of the USCO’s function or, at the very least, modernizing it properly.

If our copyright system can not keep up, we will, inevitably, fall behind in very severe ways.

This is great news to hosts who, before 1998, were operating in a fog of legal uncertainty. Before the law was passed, there was a large debate about whether or not hosts could be sued for infringement, even if they were unaware of it taking place.

But while the legal clarity is great news for hosts, it is also great news for everyone else. Because, as the Web has become more interactive, nearly everyone with a Web site or blog is now a host as well.

The time has come for everyday citizens, not just traditional hosting companies, to look at designating a DMCA agent to better protect themselves against the actions of their readers and the copyright holders they might upset.

Why Designate An Agent

When you accept user generated content, you don’t know what you’re getting. You have no idea if that poem or photograph is really the property of the user that posted it or merely ripped off from another site. Since you don’t know what is potentially infringing and what isn’t, that means you can’t do anything to stop the infringement in advance other than set firm policies against posting copyrighted material.

This means, over time and with enough material, that it becomes almost certain that someone, at some point, has posted an infringing work to your site. However, without DMCA safe harbor protection, you could be held partially liable for that infringement. The risk goes up dramatically based upon the amount of work posted, the popularity of the site and the profit gained from it.

Though very few legal disputes from this type of activity rarely spread to the host, the cost and hassle of dealing with a copyright infringement suit makes even a slight risk unacceptable, especially for independent Webmasters on tight budgets.

Who Should Consider It

If you host content for your users, it is worth at least thinking about registering a DMCA agent for your site.

However, that content can include just about anything. If you accept comments on your site, allow others to post without any editorial control or run a forum that users post their own works, there’s a good chance that you could qualify for DMCA safe harbor protection.

Of course, the risk varies wildly from site to site. If you run a blog and receive mostly very short comments (IE: “Great job!”) the risk is a lot lower than for a forum that encourages users to post their poetry, short stories, essays or photographs. It’s important to be realistic about your risk before deciding to go ahead with registering a DMCA agent.

One important note about the DMCA is that, in order to qualify for safe harbor, the following must be true: “If the provider has the right and ability to control the infringing activity, it must not receive a financial benefit directly attributable to the infringing activity.”

This is something of a legal gray area that has not been fully explored, though likely will be a central argument of the Viacom/Youtube lawsuit.

The bottom line to it is that, depending on how you make money from your site and the role the user generated content plays in that, you may not qualify for DMCA safe harbor, even if you designate a DMCA agent. If you think this might apply to you, you probably should take a pass on it, at least until the rules are clarified.

Finally, it is important to remember that the DMCA is a United States law only applies to hosts residing within its borders. Even if you host your site with an American company, you, as a host independent from the company that runs your server, need to be an American citizen before you consider filing a DMCA agent.

Reasons Not to Register

Even if you do easily qualify for safe harbor protection, there are several reasons to consider not registering a DMCA agent:

1. Cost: If the risk is very low and the budget is tight, the $80 fee to file might seem a little steep.
2. Privacy Issues: Filing a DMCA agent requires giving up a great deal of information including email, address and phone number. Though this is only made available on the U.S. Copyright Office (USCO) Web Site, if you are designating yourself as the agent, which would be the most common person one designates in these situations, it is a lot of personal information to give away on the Web and, unlike whois information, it can not be made private.
3. Maintenance: It’s not enough to just send the information to the USCO and be done, it has to be maintained. As you move, change numbers or switch email addresses, you need to update your information at the USCO.

It’s very important to balance the insurance that such a registration provides with the risks, expenses and hassles that may come with it. Though there are ways to mitigate against all of these factors, they are important issues to consider when deciding whether or not to go ahead and designate your own DMCA Agent.

How to Designate An Agent

Once you’ve made the decision to designate your own DMCA agent, the process of doing so is very simple.

1. Print out the “Interim Designation of Agent to Receive Notification of Claimed Infringement” form (PDF).
2. Fill it out and mail it to the USCO with the $80 filing fee.
3. Later, sometimes months later even, the USCO will process the application, scan it as an image-only PDF and then upload it to their directory of agents.
4. The process is done.

Generally, the hardest part about designating an agent is determining who to designate and what information to use. To that end, there are several things you need to think about to make the designation more useful and protect against problems down the road.

• If Possible, Don’t Use Yourself: If you have a regular attorney, use him or her as your designated agent. They might charge a small fee, but it protects your privacy and gives you a buffer against angry copyright holders. Alternatively, consider using a copyright consultant, such as myself, as they are more familiar with the law and can serve many of the same functions, only turning cases with complicated legal issues over to attorneys.
• User Permanent Addresses: To avoid having to amend your registration, and thus pay the $80 filing fee a second time, use permanent addresses and phone numbers. Though the USCO will not accept P.O. Boxes (save where it is the only available address), some P.O. services will let you use suite numbers. Make sure that it’s a box that is checked regularly as a failure to respond negates the benefit of registering a DMCA agent.
• Upse Portable Phone Numbers: Considering using a cell phone or even a Skype In number as they are more portable and are changed less frequently. Once again, make sure that the number is one that will actually be answered when called. Finally, for the fax number, considering using a Fax-to-Email service to ensure that the number stays the same and can be checked from anywhere in the world.
• Include All Sites: If you run multiple sites, include them all on one registration to save money. There is no reason to file multiple registrations if you are the operator of the site and are using the same agent for all of them.

If you do all of those things, you can greatly reduce the hassles and expenses that come with registering a DMCA agent while still enjoying all of the benefits.

That alone should make it worth taking the few extra moment to ensure that it is done correctly, the first time.

Conclusions

The big question remains, who should file register a DMCA agent for their site? There is no cut and dry answer. The larger your site is and the more user-generated content you host, the more seriously you should be thinking about going through with it.

Not only does it guard against potential lawsuits by providing you safe harbor from liability, but it also provides protection against your host using the nuclear option and temporarily shutting down your site due to infringement by one of your users.

Still, most people will attempt to contact the owner of a site before running to their host. More important than having a designated DMCA agent is being available, at least informally, to answer any complaints of copyright abuse. Having a clear abuse policy and an easy-to-find method of contact will do as much, if not more, to mitigate against shut downs and lawsuits.

Despite that, as copyright issues become more common on the Web, sites that deal with large amounts of user-generated content, including popular blogs that get a large number of comments and active forums, should probably take a lengthy look at going through the motions to designate a DMCA agent.

A little time and a little money can guard against much larger headaches and expenses down the road. Many, including some that never would have considered it before, might find the process more than worthwhile.

As for me, I most likely will not be designating an agent at this time for Plagiarism Today. The nature and quantity of the comments on this site simply does not warrant it right now. I am, however, seriously considering this for other sites that I run.

I strongly encourage others in similar positions to do the same.