When it comes to the issue of copyright, there is a great deal of legitimate discussion about what the boundaries of the law can and should protect.
But what most creators seem to want is reasonable and effective controls over their work that lets them earn a living from a fruits of their labor. While this means different things to different creators, the main goal remains the same: Adequate control to pursue the business model right for them.
However, like nearly all laws and protections, copyright is sometimes abused. Sometimes it’s by creators simply trying to push the boundaries of copyright too far but, other times, it’s by people who have no interest in copyright at all.
It’s those cases that are not just harmful to the public, but also harmful to creators. When people misuse a law meant to protect creative works to their own ends, it hurts the very people and the very works the law was meant to protect.
Though there are many examples of this, here are three of the more common (and more worrying ones) that have made headlines recently.
1: Inappropriate Use of DRM
Digital Rights Management (DRM) is a controversial topic already. Many decry DRM regardless of how and when it’s being used, calling it anti-consumer. Partly because of that, DRM has been falling out of favor with many creators. iTunes dropped DRM 7 years ago and CD Projekt Group, the makers of The Witcher game series, not only dropped DRM from their products but launched GOG, a DRM-free gaming store.
Still, there are places where DRM is used. Whether it’s copy protection on Blu-Rays, DRM on eBooks bought from the Kindle store and so forth. But one of the more worrisome places is on products where copying isn’t an issue at all. Whether it’s printer cartridges, cars or machines, DRM is appearing in more and more physical goods.
For creators, this can be a serious problem, especially if they want to use DRM on their work.
How it Hurts Creators
Under current law in the United States, it is illegal to circumvent DRM save in a handful of exceptions passed by the U.S. Copyright Office or Congress. This means, for better or worse, the responsibility for stopping this behavior falls on copyright law.
While few rightsholders would object exceptions for cars, printers, etc., when this type of abuse is widespread, it can be difficult to handle with the current (narrow) exception. As such, the law may need to be rewritten and that could pose a real problem for creators who do make use of DRM, even in very limited capacities.
More importantly though, creators have worked to make DRM more fair to consumers, such as what Steam does for video games. However, DRM abuse poisons the social and legal well against all types of DRM, including those that may benefit consumers.
2: Bad (And Likely Illegal) Copyright Transfers
In 2011, a dentist threatened to sue a former patient for copyright infringement. The patient’s offense was posting negative reviews about the dentist on various sites. The dentist tried this because the patient had signed a “Mutual Agreement to Maintain Privacy” that granted the dentist copyright in all reviews posted by the patient.
Fortunately, the patient sued the dentist and rightly won. However it was just one example of providers using copyright to try and stifle negative reviews. In fact, the dentist involved in the case above, used a company named Medical Justice to obtain the contract he used.
Though Medical Justice ended the practice after the lawsuit, the practice has also been an issue on Craigslist, which in 2012 changed its terms of service to claim copyright in posted ads. That was done so Craigslist could more easily take action against scrapers.
A similar TOS transfer is currently the subject of a bizarre legal case involving Ripoff Report, where the site and a person suing them both claim to hold the copyright in a review posted there, a review written by a third party.
How it Hurts Creators
Copyright is supposed to be about encouraging and rewarding creation. However, when TOSs and contracts immediately transfer away those creations to a third party, especially for the purpose of stifling criticism, much of that purpose is lost.
To be clear, sites do need a terms of service and they do need to have their users to sign a license for their content. Otherwise, they couldn’t operate at all. However, when doctors are having patients signing over rights to reviews or Craigslist is asking users to sign over their copyright to stop scrapers, we’re no longer rewarding creators, but solely protecting service providers.
Not only is this against the spirit of copyright, but it’s commonly cited as a reason to reduce or even eliminate copyright. Abusive transfers rob creators of the copyright in the work at issue and then then hurts them later as they go to protect their rights of their other works.
3: Knowingly False Copyright Notices
The vast majority of Digital Millennium Copyright Act (DMCA) notices that are sent are both accurate and proper. Of those that aren’t, most are simple mistakes. These can be as simple as poor formatting, duplicate entries or, in the worst case, mistaken identity.
However, while mistakes will happen (though they should be minimized), there are some for whom false notices are no accident.
Examples of this include a flame war over home births that spilled into federal court over an ill-conceived copyright notice and YouTuber TotalBiscuit had a video removed from YouTube because the game company did not like his review and, of course, the Dentist from above.
Though actual, deliberate DMCA abuse is still rare (and is often exaggerated), it does happen and, when it does, it huts everyone. This includes the target of the notice, the filer (who can be sued) and creators as a whole.
How it Hurts Creators
Most content creators thrive on and love freedom of speech. Larger copyright holders may earn the ire of the internet with strong enforcement practices, but they routinely step up on free speech issues.
Copyright, at its best, supports and rewards free speech. However, many copyright critics view copyright as a form of censorship. Normally that isn’t the case, but the narrative remains.
Still, when copyright is used to stifle free speech, especially criticism that is protected under the current law, it is a form of censorship. The easiest way to make case for whittling down the rights of creators is to highlight the abuses of the law and, to that end, censorship is the most damming of all.
However, the more immediate problem is that DMCA notices are one of the few tools creators have to protect their work outside of going to court, which is often impractical. Though the DMCA’s effectiveness is often debated, DMCA abuse prompts hosts to mistrust notices and, in some cases, put up barriers to filing them.
That, in turn, makes copyright enforcement even more difficult for creators.
Copyright abuse hurts everyone, including the creators that depend on copyright for their livelihoods. It’s very difficult to craft sane and reasonable copyright law when a small number of people are twisting it to do very insane and unreasonable things.
No matter how you feel about copyright, copyright abuse is a problem. Likewise, no matter how big of a problem you believe it to be, it is a problem and is one worth addressing.
If you want the law to be able to perform its function for years and decades to come, it’s important to ensure that it’s not being abused and twisted by those who have no interest in what it is supposed to protect.
That makes addressing abused critical and working to help ensure that those abuses are kept to a minimum and handled swiftly after they happen.
While any law can be abused, when your livelihood depends on a set of laws, it’s important to make sure that they are strong and not being eroded by abuse.