Punditry Saturday: Why I Hate the DMCA

This site deals heavily with the DMCA. How to file a DMCA notice, how to contact Google, what the host’s rights are under the DMCA and so forth. This gives some people the notion that I’m a DMCA-lover, a bona fide copyright zealot.

However, I teach the DMCA and use the DMCA, not because I love it, but because it is the law and I have to. It’s what the lawyers require, hosts expect and Webmasters need to know. I may not like it, but there are dozens of laws on the book today that I obey, even though I don’t agree with them. The DMCA is no different from any of them.

Still, the DMCA is a bad law written by the wrong people with somewhat decent intentions. Though the goal was to update the outdated copyright code for the online world, it’s had a million unintended effects that have done anything but protect copyrights and creativity. My area of expertise, fighting plagiarism, was one of the first to suffer.

Though the DMCA has thousands of good reasons to hate it, such as the whittling away of fair use, the potential for silencing free speech and the inability for us to control the electronic media we buy, the notice and takedown provision has been especially damaging to small Webmasters such as myself.

The concept of notice and takedown is that, if I provide the host with a properly formatted DMCA notice of infringement, they have to remove the infringing works quickly and can only replace them if they get a properly formatted counter-notice. Since a counter-notice requires a binding statement under perjury and a great deal of legal dancework, most plagiarists simply won’t bother either because they don’t know how or are afraid of legal consequences.

This sounds like something to cheer, a simple, direct way of handling incidents of plagiarism. However, Webmasters who celebrate the notice and takedown provision either never saw or have forgotten what life was like in the days before the DMCA was widely enforced.

Even before the DMCA put a gun to their heads, most hosts respected copyright. However, rather than filing a DMCA notice with a designated agent, you simply filed your copyright infringement claim with the abuse department. Abuse departments, fundamentally, are people who sit around all day and delete accounts that abuse the system. They have the authority, on the spot, to make such judgments and were trained to be quick in doing so.

This system had several advantages over the current one, the first being that it was much quicker. If abuse complaints go to abuse departments, DMCA notices go to lawyers. Lawyers, though certainly working very hard, are considerably slower. They have to examine the complaint for proper formatting, kick it back if it doesn’t, have someone check to make sure the content is actually hosted on their servers, shuff the paper around, add cover sheets, file it away and, when it’s all said and done, contact the abuse people to delete the account. It’s a slew of extra steps in a fundamentally simple process and caused the average response time to shoot up from a few hours to five days or more.

Second, it removes a human element to the judgment. The lawyer never checks to see if plagiarism or copyright infringement is actually occurring. He’s not supposed to under the law. He just checks the formatting and orders the work removed if it is acceptable.

Previously, when filing with an abuse team, the contact person would actually do research into the matter, quickly looking at the claimed infringement and the source. This “research” would only take a couple of seconds, but would go a long way to ensuring that infringement actually took place and this wasn’t simply a matter of someone trying to shut down a site they didn’t agree with.

It also made varying punishments possible. With the DMCA, there’s only one punishment offered, removal of the infringing works, with abuse teams, they could either remove the work with a scalpel, as with smaller cases of infringement, or simply delete the account in the case of larger ones.

To make matters worse still, with the DMCA, plagiarists can simply lie and get the works replaced with a properly filed counter notice. Though I am yet to have this happen to me, there is always the possibility that, even if the evidence is clear and the host is aware of that, that a plagiarist might be able to have his stolen content reposted, simply by being crafty enough to use the same law to his advantage.

Finally, before the DMCA, Webmasters and hosts coexisted in an atmosphere of cooperation. Though, yes, some hosts did take advantage of the lack of obligation to refuse to remove works, however, most showed a great deal of respect for copyright and were actually very nice about it since a gun wasn’t up against their head forcing them to anger a customer.

In the end, I think my success rate when talking to hosts is virtually unchanged since the DMCA became widely enforced. The major thorn previously, as well as today, is international hosts who are immune to the DMCA anyway.

On that note, though the DMCA became law in 1998, it wasn’t widely enforced until just a year or two ago. The first time I was not even asked for a DMCA notice was about a year and a half ago and that was copying and pasting a few lines into a standard LiveJournal abuse form. The first time I was asked to give a full notice was just under a year ago by theplanet.com. Before those two incidents, I had dealt with dozens of cases of plagiarism, including dealing with most major Web hosts, and had no problem despite my complete lack of DMCA understanding.

In the end, the DMCA was supposed to protect copyright holders help secure copyrights online. However, it was a law custom built for a hand full of deep pocketed copyright holders who can afford the attorney fees and the time. It wasn’t built for individuals like you and me. In short, the club the DMCA offers is too big and too bulky for your average citizen to wield effectively.

The main thing to remember is that the DMCA doesn’t just hinder the public, but also copyright holders. It’s a bad law that’s vulnerable to abuse and protects only a small percentage of copyright holders. Now that the DMCA is being widely enforced, copyright holders like myself are finding it more difficult than ever to protect their copyrights, battling more legalese, slower turnaround and fewer cooperative hosts.

It’s destroyed the climate that was on the Web leaving no hope for its return. The good ol’ days are just a memory now and we have the DMCA to thank for that.

[tags]Plagiarism, Copyright, DMCA, Intellectual Property, Copyright Law[/tags]

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