A Requiem For Cease & Desist

A Requiem For Cease & Desist Image
Creative Commons License photo credit: rindsey

A recent comment by Cybele reminded me of an article I wrote in 2006 entitled “Cease and Desist: A Dying Art“.

The article lamented the cease and desist letter was using its usefulness when dealing with copyright infringement issues, giving way to DMCA and other forms of host contact. At that time, less than a quarter of all my plagiarism cases were handled by direct contact with the alleged infringer.

However, it seems that the trend has continued to work against the cease and desist. Social networking, blogging and spamming have combined to make such direct contact almost impossible. Though I remain a big proponent of direct contact, it has become such a rarity that I can almost not remember the last time I successful worked directly with an infringer directly.

This has me both saddened and deeply worried.

There are ways to fix these issues, but it will take a shift in the Internet itself, something that isn’t likely to happen any time soon.

Cause of Death

In the eight years or so since I have started dealing with plagiarism issues, the Web has changed in drastic ways, many of which make personal contact very difficult to achieve. Specifically, there have been three issues that caused the cease and desist letter to gain dust in most people’s anti-plagiarism arsenal.

  1. Social Networking: Though social networking doesn’t create a walled garden of content, meaning that it is possible to detect plagiarism or copyright infringement that takes place on most such sites (Facebook being an exception), they do create a walled garden of contact, making it so that you have to sign up for an account, friend the user and then use their custom messenger to reach out to them. On the most basic level, this is time consuming but it is also very legally dangerous as you have an uncertain paper trail in the event of a dispute.
  2. Spam Blogging: Spammers have become some of the most common and most dangerous infringers but they also go to great lengths to keep their identities and contact information hidden. Furthermore, if you do manage to reach them, odds are they will not respond as they have little to gain by complying.
  3. Fear of Email Spam: As email spam has taken off, Webmasters have become more cautious about putting their addresses on their sites. Bloggers are routinely advised not to put their email address on their site, obfuscated or not, and most seem to focus on driving people to other means of contact that carry other rewards. Whether it is about adding followers on Twitter, friends on Facebook or buddies on IM, email has fallen out of favor. This is compounded by domain privacy services, which this site does use, false whois information and people opting for hosted blogs instead of their own domain.

As such, a surprisingly small number of sites I approach actually have contact information for Webmaster and, those that do, the information routinely turns out to be incorrect. The few times I have made an earnest effort in recent months have all been thwarted by outdated information or stoic silence.

Why This is Bad

At first glance, the DMCA might seem to be preferable in every way. It is faster, standardized, easy to use and takes only a few moments. Best of all, it is amazingly reliable on most sites.

However, cease and desist letters provide some potentially powerful opportunities. First, they provide the chance to educate users about copyright and encourages infringers to handle the problem themselves. Many times infringement is a mistake, not an act of malice and this helps to provide new information and ensure that the person will not repeat the error.

More importantly though, where a DMCA is nothing but a takedown, a cease and desist provides an opportunity to keep the work up, but with proper licensing. If you use a Creative Commons license, for example, this lets the infringer fix the problems with their use and bring it up to code. This encourages not only good content use, but also linking in general, creating a symbiotic relationship.

It is to everyone’s advantage if copyright holders and infringers can work out their differences face to face, but only if it can be done quickly enough to make it worthwhile. Too much effort, and it becomes easier to file the DMCA and move on.

Exceptions to the Rule

There are a few exceptions to this rule, one of the main ones being Web 2.0 companies that may misuse content as part of their service. Sites such as Shyftr were blasted for their content reuse policies but, in at least some of the cases, have been able to resolve their differences with content creators and rebuild their service to everyone’s benefit.

However, this only works for legitimate companies with a real interest in working with copyright holders. Sites that have no such interest and are just seeking to make money in the gray area between aggregation and spamming will not cooperate.

Those sites, sadly, do demand a DMCA notice or other such action to stop the misuse.

Solutions

Fixing this problem is going to be tricky to say the least. There are two possible ways in which the Web could change to make cease and desist letter more practical again.

First, email could make a comeback as a means of communication. Though we are sending more email than ever, it is clear browsing around the Web that many, if not most, people prefer other means of contact. Though services such as Gmail have gone a long way to making email more fun and usable, many still can not wait until the service falls into obsolescence.

The second possibility is that another service, much like email, will rise to make such communication easy again. With social networks trying to open up their doors more and even interact with one another there could come a time when one sends a private message to another user from their native account, even if they are on two different services. Though the result would be extremely email-like in nature, it would fit more comfortably with the social networking scheme that is developing.

However, neither of these things are likely soon and neither would help deal with spammers or others that don’t wish to be found, but it could help with bloggers and others that have a sincere interest in doing the right thing.

Conclusions

It is strange to think that, in this age of near-instant communication with anyone, anywhere, that we are finding it harder and harder to reach out privately to strangers we have an issue with. However, this is exactly the case.

The implications of this problem go far beyond just copyright and plagiarism issues. It is something of a great social experiment where we seem to resolve almost all of our disagreements in the most public of the public spheres and the results have not been that impressive.

If there is one thing that I would change about the Internet, it would be this rush to air grievances out in publicly, to attack others publicly while hiding behind a veil of anonymity and forget that there are people at the other end of every communication we send out.

It’s a tall order, but I do think it would make the Web a better place.

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