dmcaHas there ever been a piece of legislation less loved than the Digital Millennium Copyright Act? We e-book fans dislike it for its anti-circumvention provision, of course—the part of it that makes it illegal to break DRM even if the reason you do it would otherwise be legal. Not that this stops some e-book users from doing it anyway, given that nobody will ever know if they do it in the privacy of their own homes and don’t tell anyone, but it still has a definite chilling effect in terms of keeping the average person from being able to do it easily.

But the far more controversial provision of the DMCA is the “safe harbor” provision. This provision protects websites against being sued over content a user posted as long as the website pulls the material immediately once a rights-holder has complained about it. The user then has to post a counter-notice saying that their content is legit to get it posted again. Civil liberties groups and copyright reform advocates hate this provision, because it frequently gets abused to censor perfectly legitimate material (such as that video of the baby dancing to a Prince song) until such time as the counter-notice can go through, and the provision of it that’s supposed to punish abusers has no teeth.

But it seems that the content providers it’s meant to benefit aren’t terribly fond of it, either. In a Forbes op-ed (found via Ars Technica), RIAA chairman and CEO Cary Sherman complains that the notice-and-takedown system isn’t actually useful:

Copyright law provides a “notice and takedown” system theoretically intended to deal with such theft. In exchange for a legal “safe harbor” from liability, online service providers must deal with instances of theft occurring on their site or network when notified. Unfortunately, while the system worked when isolated incidents of infringement occurred on largely static web pages—as was the case when the law was passed in 1998—it is largely useless in the current world where illegal links that are taken down reappear instantaneously. The result is a never-ending game that is both costly and increasingly pointless.

He also posits that major streaming music distributors are taking advantage of this loophole in notice-and-takedown to force record companies to “accept below-market deals or play that game of whack-a-mole.” That part kind of leaves me puzzled. I know that record companies have been complaining for some time about the level of royalties from Spotify and other such services, but I hadn’t heard about them streaming works without permission and then changing the links when called on it. I wouldn’t think that would even work, given that safe harbor is meant to apply only to users who upload content, not the employees of the service itself. Is he talking about something else?

Or is he talking about YouTube, which has so many people uploading so much content all the time that there’s just no way to sort through it all? Those civil liberties groups and copyright reform advocates I mentioned would note that the RIAA and its members don’t seem to do a terribly good job of making sure they’re even trying to whack the right moles. (That dancing baby matter, in which an appeals court ruled that Universal Music should have considered fair use before sending a takedown notice, is a case in point.)

The DMCA is a compromise, trying to balance the rights of individuals versus the rights of content producers, making it possible for the Internet to function without websites continually getting sued for copyright violation because of something a user posted. As with any compromise, it ends up with nobody really happy. But there doesn’t seem to be a good way to fix that going forward.


  1. As in numerous other areas, we’re trying to use laws to solve problems that are best addressed by healthy cultural attitudes.

    * Not stealing movies is best addressed by believing that stealing in wrong.

    * Debates on campuses should be conducted in a climate that disagreement is normal and productive not one that selects certain speech as ‘hate speech’ and other speech, often nastier but defending politically correct causes, as good.

    And to create the circumstances where that censorship can be defended in court, which is likely to look for content-neutral regulations, campuses dominated by a PC bureaucracy often create a host of regulatory barriers (campus laws) to free speech. They demand that applications be filed a month in advance or that “free speech” only applies to, in some cases, a mere 1-2% of the campus. That hurts everyone on campus whatever their politics. The fact that the administrators intends to use those ‘laws” selectively doesn’t eliminate the harm done by all that red tape.

    Someone made a marvelous cartoon that showed the tiny, permitted “free speech” area on one college campus colored in red. The space was barely visible. Next it was a map of where free speech in constitutionally protected. It was a map of the entire U.S., all colored red.


    There a numerous reasons for these ills, including what people see as most important. In the BA (Before Amazon) era, people expected to pay for books, movies, and music. It was their duty to reward those who had created something they benefited from. Most discussions center on how good are bad a particular book, movie or song was. Price was secondary.

    Now, living in the AE (Amazon Era), all too much of the discussion about books, movies, and music centers on what each costs not whether it is good or bad. The reason isn’t hard to spot. Amazon is selling exactly the same book as B&N. It’s only advantage is likely to be a lower price, hence Amazon wants to get us thinking price is all that matters. Some simply take that one step further. If cheaper is good, free is even better.

    A thousand DCMAs constantly revised and enforced by a brutal copyright Gestapo aren’t going to fix that mistaken attitude.

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