Another look at DMCA

The other day, some friends and I who had been discussing the Viacom/Google case drifted off again to the issues of the Digital Millennium Copyright Act (DMCA) and the recording industry’s takedown notices. We got to the broader question of what’s wrong with laws such as the DMCA, and court decisions that require extreme measures to prevent copyright infringement.

Now, I first have to point out that everyone involved in the discussion agreed on a key point: we all think that a content creator — someone who produces a piece of writing, a song, a movie, or the like — has a right to choose what can be done with her material. If she wants to make it freely available, that’s fine... but if she doesn’t, that’s fine too, and the law should protect her rights to safeguard what she’s created. Not everyone agrees with this, but all of us having the discussion do.

We’ll also ignore, for this purpose, questions of whether there’s a difference in this regard between the content creator and other parties, such as the RIAA, ASCAP, Sony BMG, and so on. That’s another discussion.

The discussion at hand is to what lengths we should go to protect the content creators. And my answer to it is that laws should criminalize the violation, not the mechanism used to commit the violation. Making the mechanism a crime has two faults:

1. The violators will find another way, anyway.
2. Unless the mechanism has no legitimate use, we will have placed unreasonable limits on reasonable users.

Let’s make a comparison, moving from Internet crime into the real world. Perhaps we’ll notice that bank robbers usually use getaway cars. We could make that harder by banning cars. Now, that’s obviously silly. Bank robbers would still rob banks — they’d just have to make off with the money another way, or else drive getaway cars illegally. And all the people out there who drive to work every day would no longer be able to. We’d shut down too much legitimate use; we’d be throwing the baby out with the bath water.

And that’s what’s happening with laws like the DMCA, and with legal attempts to shut down peer-to-peer data sharing. It’s already illegal to give away copies of copyrighted material, but we can’t make all this technology illegal... it’s the wrong answer to the problem.

Related to this, eBay just got a favourable decision in the lawsuit brought against it in the U.S. by Tiffany:

In a long-awaited decision in a four-year-old trademark lawsuit against eBay brought by the jeweler Tiffany & Company, Judge Richard J. Sullivan of the Federal District Court in Manhattan ruled that the online retailer does not have a legal responsibility to prevent its users from selling counterfeit items on its online marketplace.

The verdict reaffirms that Internet companies do not have to actively filter their sites for trademarked material. Rather, they can rely on intellectual property holders to monitor their sites, as long as they promptly remove material when rights holders complain.

This is very much related to the policing that Viacom wants Google to do on YouTube, and it seems to me, though I am not a lawyer, that Google could use this as a stare decisis argument in its lawsuit.

[Actually, since the two cases are in different federal districts, the New York court’s decision in the eBay case is not binding on the California court in the Google case. Still, it’s a decision of reason, and good news for content hosts and service providers in general.]