dmcaYesterday Brad Buckles, Executive Vice President of the RIAA’s Anti-Piracy unit, wrote that “it’s time to rethink the notice and takedown provisions of the DMCA.”  In a piece posted on the RIAA’s blog, he went on to outline the various ways that the DMCA (Digital Millennium Copyright Act) isn’t working.  Up to this point we’ve heard a lot of discussion, mostly from copyright skeptics, about how the DMCA hurts innovation and thus tangentially, consumers.  Little notice has been paid as to how the law (passed in 1998) has failed musicians, filmmakers, authors, journalists and others who create content–content now largely distributed via the digital realm.

Clearly the law is due for an overhaul, update, revision…. use whatever term you’d like.  The bottom line is that the DMCA does little to help us (creators) safeguard our work, and by extension, our livelihoods.

Much is made (up) about supposed abuse of the DMCA takedown procedure by evil movie studios and record companies.  It’s an issue that’s been overblown and is, frankly, one that pales in comparison to the daily barrage of pirated or plagiarized copies of their work that creators discover online each day.  As I wrote in an earlier post on this blog:

Piracy apologists like to focus on erroneous takedowns and highlight stories whereby a 9 year-old in Finland had her computer confiscated, or a grandmother in Colorado had her ISP account wrongfully suspended.  Certainly mistakes happen, and when they do it’s unfortunate, but they are few and far between when compared with the cumulative harm being done to those whose livelihoods are damaged by rampant online theft.  For every search result removed in error there are thousands, if not hundreds of thousands, removed for valid reasons.  Sensationalistic anecdotes make for splashy headlines and provide convenient red herrings for those who defend the piracy status quo–big bad Hollywood versus the grandmothers of the world–but meanwhile the genuine stories documenting piracy’s ruin are routinely minimized or ignored.

Also lost in this debate is the fact that if one takes the time to read the DMCA, it’s easy to see that the law actually favors the reported party, not the other way around.  If a site has been removed in error, the owner can use the Google website to file a counter-claim with a click of a mouse.  That immediately puts the onus on the party that filed the original DMCA request to go to court and prove the legitimacy of their claim.  If that next step isn’t taken, the takedown becomes moot.   Filing a court case is a costly endeavor so it’s unlikely that those whose file false DMCA claims, whether in error or purposely, would bother to spend money to enforce a bogus DMCA.  Conversely, those content creators who don’t have deep pockets have little recourse when it comes to enforcing a valid DMCA takedown if the other party, representing an infringing (pirate) website, chooses to file a counter-claim.

In his post Buckles also points that the current system is largely impotent against a tide of online piracy for profit:

…the targets of our notices don’t even pretend to be innovators constructing new and better ways to legally enjoy music – they have simply created business models that allow them to profit from giving someone else’s property away for free. So while 20 million might sound impressive, the problem we face with illegal downloading on the Internet is immeasurably larger.  And that is just for music.

We are using a bucket to deal with an ocean of illegal downloading.  Under a controversial interpretation by search engines, takedown notices must be directed at specific links to specific sound recordings and do nothing to stop the same files from being reposted as fast as they are removed.

This warped system sustains an environment where  (distribution) decisions that should up to the creator are instead made by profiteers too lazy (and cheap) to create their own content to monetize.  Spin aside, the fact is that piracy does dilute the market for legitimately distributed content and does negatively impact the a creator’s bottom line.  While the economic costs are obvious, a more insidious, but perhaps equally important reality is that this theft is gradually eroding the quality and diversity of creative work contributes to our collective culture.  The sad truth is that we won’t realize how much we are missing if it’s never made.

Silicon Valley is thriving and millionaires made daily–but at whose expense?  An industry that “innovates” on the back of another’s labor without due compensation is simply exploitative.  Can’t we do better than that?  Can’t we revise the DMCA so that it will shelter content creators from theft in a manner that is effective and affordable for independent artists and larger entities alike?

The real problem with the DMCA is not so much with the takedown process, but with the “safe harbor” provision the oft-abused language that provides shelter to digital thieves at the expense of rights holders.  “Safe Harbor” has enabled the growth of a criminal cancer and it’s a cancer–that as of now–cannot be beaten, only kept (marginally) at bay.  As I’ve suggested previously, any update to the law should include a requirement that in order to qualify for the limitations to liability that safe-harbor offers,  user-generated content sites must implement reasonable technology to mitigate content theft.

Just as technology has evolved that facilitates the easy, worldwide dissemination of content– fingerprinting technology exists that could automate the takedown process.   YouTube has already done so with its Content ID System.   In order to qualify for “safe harbor” why can’t the future Kim Dotcom’s of the world do the same?

Digital technology can serve not as our nemesis, but our savior.  Let’s craft legislation that leverages these technological capabilities to safeguard our creative work.  Of course it will add somewhat to overhead costs, but so what?  Why shouldn’t these businesses have to bear capital costs just as creators do when they produce a film, record a song, or write a novel?

Buckles writes “Creators of all types and sizes – and especially the individual creators who try to protect their content on their own, spending their own time and money sending takedown notices instead of making the movies and music to which they’ve devoted their lives — will tell you that the system isn’t working.  The balance is off.”

Indeed, the balance is off, and as momentum builds in Washington to address issues of copyright and digital piracy, let’s hope creators voices are heard above the din of hyperbole and political posturing.   As Buckle points out, “something isn’t working with this system which was intended to balance the rights of content creators with the rights of companies like Google.”  Over these past 15 years the tech industry has thrived in large part because the DMCA is a flawed piece of legislation.  Now let’s see if they–along with other interested parties–step up to help fix it keeping everyone’s best interests in mind.