Anti-copyright lobby sees the world backwardsBillboard reported on a SXSW panel  “Copyright & Disruptive Technologies” held last week in Austin.  The panel included moderator Margot Kaminski, executive director of the Information Society Project at Yale Law School; Andrew Bridges, partner at Fenwick & West LLP; Ben Huh, CEO of the Cheezburger Network; Derek Khanna, visiting fellow at Yale Law’s Information Society Project; and Wendy Seltzer, policy counsel to the World Wide Web Consortium.

Not exactly a “balanced” panel on the issue, so it wasn’t surprising to hear them echo well-worn talking points critical of current U.S. copyright law.  As is typical of such panels, real facts presented seemed few and far between.

Attorney Andrew Bridges’ secured the chutzpah award for the day when he suggested that copyright owners should “lose” protection under copyright law if they sent more than 6 erroneous DMCA takedown notices.  According to Billboard:

People on both sides of the SOPA/PIPA debate can probably agree that copyright law and enforcement ensnares some undeserving individuals and businesses. Attorney Andrew Bridges, a partner at Fenwick & West LLP, recovered the domain after the Immigration and Customs Enforcement (ICE) determined the New York-based hip-hop site had violated copyright law. ICE dropped the case after a year of secret requests for more time to file paperwork….
Bridges had a suggestion to prevent record labels and movie studios from sending false-positive infringement notices: copyright owners lose protection under copyright law if they send six false infringement notices. The comments were met with loud applause.

The crowd’s pleasure not withstanding, it’s important to understand that a takedown as part of the government’s “Operation in Our Sites” anti-IP theft enforcement,  is not equivalent to a filmmaker, or musician, sending a DMCA notice to demand takedown of an infringing file.   Certainly these such takedown notices are occasionally sent in error, but does the harm done by that really outweigh the harm done by the massive online copyright infringement (piracy) that currently thrives online?  If a rights holder is forced to send literally tens of thousands takedown notices to safeguard their content is it really unreasonable to believe that a few erroneous ones would be sent?

The idea that there’s any actual harm done by false takedowns is vastly overblown.

In the anti-copyright lobby’s opposite-world a takedown sent to an “innocent” party brings the spectre of prison and/or poverty.  In the real world it’s generally an email.  If sent in error, the aggrieved party can, often with the click of his mouse, respond with a counter notice and explain why the takedown was in error.  Usually that’s the end of it.  Case closed.

If the sender of the original DMCA notice wants to ultimately enforce what they believe to be a legitimate takedown they must then go  to court (and spend money) to prove their case.  If anything, this set-up favors pirates who knowingly upload infringing content.  I’ve witnessed situations where counter-notices where filed (even though the uploader didn’t own rights to the material) thus nullifying the original (albeit legit) takedown.   It ended with the infringing content remaining online because the rights owner couldn’t afford to go to court.  What do pirates have to lose by filing a counterclaim, even if it is a lie?

Sometimes an uploader will file counterclaim based on the principle of “fair use.”  If it’s legit, rights holders will generally allow it to remain online.  However not every “fair use” claim is valid.   I’ve had the experience on YouTube where my entire film was uploaded.  When I filed a takedown notice the user specified “fair use” as the justification for the upload.  In that case I sent a friendly email to the uploader and included a link explaining the perimeters of “fair use.”  The file was ultimately removed, no courtroom required.

In other instances, the line between fair use and copyright infringement is not so clear.  The oft-sited Dancing Baby video, featuring Prince’s “Let’s Go Crazy” was taken off YouTube after a complaint by the Universal Music Group.  The uploader filed a counter-notice and the video was restored to YouTube.  Not satisfied with having the video restored, the uploader sued UMG for “bad faith” in having sent the original takedown.  In that case no apparent “harm” was done, yet the issue ends up in court and the uploader becomes a “free speech” hero (her case supported in part by the EFF, the Electronic Frontier Foundation ) while the creator is vilified.

Yet, Dancing Baby aside, it’s important to note that despite hyperbole to the contrary, “record labels and movie studios” are not the only entities that send takedown notices.  Independent artists, who don’t have a bevy of lawyers (or an entity like the EFF) at their disposal, are particularly vulnerable to the damages of piracy, but generally cannot afford to fight (false) counterclaims.  Tell me again who is the victim in this scenario?

The  talking points echoed by the panel at SXSW reflected the anti-copyright lobby’s disingenuous mantra that content creators seeking to protect their work from theft should be viewed as criminals, while those who brazenly steal (and monetize) the work of others are somehow the “innovators.”  Are you serious? I hate to break it to these folks, but the tech industry does not have first dibs on the adjective “innovative.”  Creative artists have always thrived on the cutting edge–and while the modern-day tech industry has developed new means of delivery and consumption–their innovations would be useless were it not for the content their products deliver.  In many ways, creative content is the fuel has fed the tech revolution.  Why can’t we have a discussion that acknowledges this symbiosis, rather than diminishes it?

As for the ICE seizures, it’s certainly a subject worthy of discussion, but not one that should be equated with DMCA takedown notices.  Of course muddying the waters to obscure the truth plays to the advantage of those who see copyright law, and any effort to enforce it, as “disruptive” to their bottom line.