Slashdot Log In
10 Years Later, Misunderstood DMCA Is the Law That "Saved the Web"
Posted by
ScuttleMonkey
on Tue Oct 28, 2008 12:40 AM
from the not-perfect-the-understatement-of-the-year dept.
from the not-perfect-the-understatement-of-the-year dept.
mattOzan writes "On the tenth anniversary of the Digital Millennium Copyright Act [PDF], Wired Magazine posits that the DMCA should be praised for catalyzing the interactive '2.0' Web that we enjoy today. While acknowledging the troublesome 'anti-circumvention' provision of the act, they claim that any harm caused by that is far outweighed by the act's "notice-and-takedown" provision and the safe harbor that this provides to intermediary ISPs. Fritz Attaway, policy adviser for the MPAA weighed in saying 'It's not perfect. But it's better than nothing.'"
Related Stories
This discussion has been archived.
No new comments can be posted.
The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.
Full
Abbreviated
Hidden
Loading... please wait.
Safe Harbor made innovation work (Score:4, Insightful)
It's true, the notice-and-takedown is a bitch for the user but without the safe harbor that it provides, the service providers would do a lot more validation and the web 2.0 would not be so user oriented.
Now the DMCA applied to hardware makes me scream so it's not perfect but the safe harbor is one thing that they got right.
Re:Safe Harbor made innovation work (Score:5, Insightful)
Now the DMCA applied to hardware makes me scream so it's not perfect but the safe harbor is one thing that they got right.
It would be righter if there were actual penalties for falsely sending a takedown when you don't have the authority to do so (you don't actually own the copyright to the material).
Parent
Re:Safe Harbor made innovation work (Score:4, Insightful)
There is - perjury. The problem is that nobody pursues it.
Parent
Re:Safe Harbor made innovation work (Score:5, Insightful)
Parent
Re: (Score:3, Informative)
Nobody prusues it because congress knew the clause was a joke when they made it a part of the law. I can not find one instance where perjury charges have been brought against false and/or purely malicious DMCA take-down notices. The reason being is that the DCMA being a federal law, your local/state DA doesn't care, and good luck getting the feds to ever go after corporate corruption, unless they aren't paying their taxes.
Re:Safe Harbor made innovation work (Score:5, Informative)
There is - perjury. The problem is that nobody pursues it.
Everyone misunderstands that clause. The penalty is not perjury if you don't own the copyright. The penalty is perjury if you didn't have a "good faith" belief that you own the copyright. So if you send your take-down to something that has a similar name to your movie, you can prove that you had a "good faith" believe that it was your movie, even if it was something else.
THAT is why nobody pursues it. It's almost impossible to prove that the person did committed perjury. They really need to fix that clause because, as it stands, it's completely toothless.
Parent
Re:Safe Harbor made innovation work (Score:5, Insightful)
Parent
Re:Safe Harbor made innovation work (Score:5, Interesting)
It is neither desirable nor easily practical to conceal the identity of the accused; in fact, it is desirable and practical for the opposite to happen.
What do you have against people being able to publicly confront their accusers and be confronted in turn?
Parent
Re:Safe Harbor made innovation work (Score:5, Interesting)
It is neither desirable nor easily practical to conceal the identity of the accused; in fact, it is desirable and practical for the opposite to happen.
What do you have against people being able to publicly confront their accusers and be confronted in turn?
What do you have against anonymous speech?
Parent
Re: (Score:3, Funny)
What do you have against anonymous speech?
Absolutely nothing!
Re:Safe Harbor made innovation work (Score:5, Interesting)
Parent
Re: (Score:3, Interesting)
What do you have against anonymous speech?
The fact that is dissociates action from responsibility, and in this context, allows the speaker to break the law with impunity.
I don't believe in absolute free speech either — and neither does any contemporary legal system that I know of — but in any case, if something is important enough to broadcast to the world like this, then it is important enough to put your name to.
Re: (Score:3, Insightful)
What do you have against people being able to publicly confront their accusers and be confronted in turn?
Not everyone has the courage to stand by what they say. That doesn't mean they don't have a right to say it, and it doesn't mean what they want to say is unimportant. Sure, anonymity brings out the worst of the population, but if we allow it to continue, perhaps we will also see it coax out the best.
This can also be turned around to say: If something is incorrectly stated, why do you need to confront the person when you can confront the falsehood instead? Isn't it more important to discern what's right
Two laws. (Score:5, Insightful)
Trouble is, the DMCA is two laws rolled into one. On the one hand you have the way hosting sites such as Youtube are not held responsible for copyright violations of user-uploaded content so long as they immediately withdraw material on allegation of infringement. This is what the article is saying is responsible for current sites such as Youtube, MySpace and others. This is a supportable argument (i.e. you may or may not agree with it, but there is certainly a case to be argued). On the other hand, you have the restrictions on circumvention technology. An entirely distinct law that most people here would probably agree is far less supportable from the viewpoint of social good. Yet these two very different things have been rolled into one, probably to increase the chances of getting the latter part passed. This has the effect of making it much harder to evaluate or debate the DMCA law in the USA.
Parent
Re: (Score:3, Interesting)
The deregulation started in the 1970's. Learn your history. He only continued doing what everyone else was. Besides, Bill couldn't have vetoed that bill since it was passed as a veto-proof majority.
Re: (Score:3, Informative)
From the article: "President Clinton signed into law exactly a decade ago Tuesday."
Well good job Bill! (cheers). By the way, you're the same joker who signed into law the Gramm-Leach-Bliley Act, [...]
Don't forget the Communications Decency Act and the Child Online Protection Act, both subsequently struck down as abridging First Amendment rights.
http://en.wikipedia.org/wiki/Communications_Decency_Act [wikipedia.org]
http://en.wikipedia.org/wiki/Child_Online_Protection_Act [wikipedia.org]
Re: (Score:3, Insightful)
Re:Safe Harbor made innovation work (Score:4, Insightful)
If there was no DMCA, we wouldn't need the safe harbor.
Except for that pesky Copyright Act of 1976.
Parent
Re:Safe Harbor made innovation work (Score:5, Insightful)
Well the alternative before the DMCA safe harbour is that sites like Youtube would be held accountable for every single copyright violation on them. Think about that for a moment before you go calling someone a moron. The DMCA is far from perfect but, as was previously stated, is better then nothing for certain cases.
Parent
-1, Troll (Score:3, Insightful)
This article is complete and utter bullshit.
How about we celebrate rape and murder too, while we're at it? After all, if it weren't for rape and murder, we wouldn't be living in this violence-free Utopia.
DMCA caused web 2.0? (Score:4, Funny)
DMCA saved me (Score:5, Interesting)
Praising the DMCA is going a bit far (Score:5, Interesting)
It's kind of like praising No Child Left Behind. Something like it was necessary, but did we have to have the result?
In an economy where knowledge, software, and creative work is paid for, you do have to have some legal protection for those works. Despite what some may wish, this isn't a Brave GNU World where everything is free as in give it all away. People want paychecks.
That said, what we desperately need is a system that both protects the copyright of these works, and allows common sense fair use for the end customer. We don't have that with a Wild West kind of no-copyright system, and we don't have that with the DMCA.
Re: (Score:3, Informative)
Re: (Score:3, Insightful)
And they are then free to resell, or even to give away your work. All that hard work and the bastards are just giving it away for free!
Wait, maybe the GPL is about being free. (Free speech, and free beer. CentOS is the perfect example of the GPL in action. Even if RedHat already give away the source to everyone.)
Re:Praising the DMCA is going a bit far (Score:5, Interesting)
The question is: if such protections didn't exist, and every piece of "intellectual property" would thus be created either because someone wanted to or someone wanted it to exist enough to pay someone else to make it, would the world be better or worse off ?
At this point, I wonder if we'd be better off by repealing the copyright laws and simply paying the MAFIAA an annual "protection" cost equal to its current profits. The MAFIAA would get its paycheck, we'd end up paying less money overall due to less waste, and get rid of the perverting effects the copyright cartels have on our society and technology (such as DRM). It would be a net win for everyone.
That, or we could simply point out that people wanting to be paid doesn't mean that they should be. Unless, of course, I'm entitled to be paid every time someone views this comment.
Parent
Re: (Score:3, Insightful)
To be fair (Score:5, Informative)
The DMCA is an umbrella act of at least five different acts (well, four and a few miscellaneous stuff). The article's praise is for the Online Copyright Infringement Liability Limitation Act, whereas most of the criticism over the past decade is actually aimed at the WIPO Copyright and Performances and Phonograms Treaties Implementation Act.
Draconian Media Copyright Act (Score:5, Insightful)
I've always felt like the DMCA is like an authority figure that tries to sound lenient by saying, "You know, we could have made it a lot worse..." or "Aren't you thankful you can still have your toys/music?"
Not one user ever says, Gee, I wish that today I could do *less* with my music today than I could yesterday.
The DMCA is a corporation-driven, draconian rule that is abused on both sides, by the enforcers and the afflicted. Increased government regulation is rarely the answer to any of our societal/economic ills, much less so in the case of digital media.
Bovine Fecal Matter (Score:5, Funny)
"Better than nothing"? (Score:5, Insightful)
A completely different DMCA could have worked, too (Score:3, Interesting)
A variant of the DMCA that merely granted ISPs the safe-harbor in exchange for identifying who placed the content online, and required a court order from a federal judge for a takedown, would have worked just as well in terms of enabling content hosting providers like YouTube. The RIAA and MPAA would certainly have not liked it. So while the safe-harbor aspect of the DMCA certainly had its benefits, other aspects of the DMCA clearly do not.
It's time to make some revisions on the DMCA, such shortening the takedown period, and requiring a federal judge's temporary restraining order to extend it. There should also be a minimum base damage liability for a false or fraudulent takedown (I propose $250 per day). Thus, even for individuals not making any money from content, there is something to recover from all those embarrassing days their content was gone. There should also be $25 processing fee paid to the ISPs per takedown. No more freebies.
I'm sure a lot of people reading this would argue that it should just go away. Well, that is very unlikely to happen.
Impossible to gauge? (Score:5, Insightful)
Despite the problems and abuses, it's impossible to gauge what the internet landscape would look like today had it not been for the DMCA
Er, you could look at the Internet landscape found in other countries that didn't have a DMCA-style law in 1998.
Responsible for Web 2.0? (Score:4, Insightful)
So if not for a draconian law that takes away fair use rights and introduces excessive and harsh penalties for minor infringements, we wouldn't have a buzzword laden technique for dynamically changing the content on a web page withuot a full refresh.
I don't think I've heard anything this absurd, even on slashdot, in quite some time.
(And yes I know I've over-simplified, but come on people!)
Re: (Score:3, Insightful)
Re: (Score:3, Insightful)
User-generated content would not have had a place to flourish if it were not for the safe harbor provisions of the DMCA.
Funny, I remember plenty of content before the DMCA came into force.
There, that wasn't hard to argue at all now was it?
Re: (Score:3, Informative)
You never had fair use rights in the US. You only ever had an affirmative defence. The distinction is rather significant in cases like this.
Not that I agree with the anti-circumvention principle, but if you're going to make an argument about the legal situation, I suggest that it will normally be more credible if you start from where we are and not where you'd like us to be.
I don't know about you... (Score:3, Insightful)
I don't know about you, but for me it says a lot that the mere fact that any law is being backed by a MPAA policy advisor makes me distrust it more.
illogical. (Score:5, Insightful)
The article contains a serious flaw in logic. Given the legal environment of the DMCA, if the internet we have now is a Good Thing, then how does that imply that the DMCA is the cause, without considering how much potentially better things could have been instead?
This kind of false rationalization is neither legitimate news reporting, nor is it respectful of those who have fought against the abuses of a poorly conceived and implemented law.
After all, it's a bit like saying that because my car got towed yesterday, I wasn't able to get into a car accident. That I had no car to wreck does not mean I am better off for having it towed--in fact, it is very probable the time and money I spent to retrieve it could have gone to something much more rewarding and useful.
Sweet Irony (Score:4, Insightful)
Sounds like the typical "I've done nothing wrong" diatribe of a man who refuses to admit a mistake despite overwhelming evidence to the contrary: http://www.google.com.au/search?q=bogus+dmca [google.com.au]
I'm not impressed, and since I'm outside of the US, I've a good mind to make a bogus DMCA complaint to Wired's Teleco and get the apologist's blog taken down.
It's not perfect. But it's better than nothing? (Score:4, Interesting)
I have to really wonder about this. The DMCA only applies within US borders. Piracy is alive and well. There is thepirate bay, somewhat lame video sites tudou.com and youku.com, and I can still find a ton of infringing material on Youtube. I can't for example upload a 20 second clip that Sony owns an interest in without it getting pulled based on keywords. I've had to deal with offline storage sites that to be fair take a takedown notice as license to terminate an account period without resolve.
Without the DMCA I have to wonder if the web would still be the wild wild west of 2000, and if so would it actually be better. Piracy is pretty damn good advertising.
Where Was the Democratic Process (Score:4, Insightful)
The MPAA's Attaway, who calls himself the lobbying group's "old man" for his 33 years of service, recalls that the DMCA was a compromise from the start. "The ISPs wanted safe harbor provisions in return for their support for the anti-circumvention provisions, which was one of the major and most important compromises in this legislation," he says. "It's not perfect. But it's better than nothing."
This MPAA lawyer speaks of a compromise between themselves and ISPs. As if they are the only parties involved.
What about the 300 million actual human bodies that the politicians are supposed to represent? Attaway knows what the MPAA and the ISPs wanted. Does he have a clue what the actual human beings wanted? Did congress?
Evidently the MPAA has successfully convinced Washington that those humans should be considered as "customers" and not "voters".
Electronic Frontier Foundation (Score:3, Informative)
Re:Because our ISPs totally need the protection (Score:4, Insightful)
They have no financial incentive to defend you, and all past activities suggest they'd kick you to the curb and say "Use someone else for your ISP" regardless of whether or not that's possible.
I mean, do you really want Comcast fighting for your rights?
Parent
Re:Yes! It saved the web! (Score:5, Insightful)
How a 'bout a whac-a-mole(TM) analogy?
As a result of whacking the mole on the head with a mallet when it tries to pop up out of four of the five holes, the DMCA is responsible for the mole's successful appearance out of the last hole.
Parent
"Journalism" Wired Style (Score:5, Interesting)
TFA is a total fallacy, there is not even a weak attempt at justifying the conclusion
that the DMCA has had any sort of beneficial effects on technology, much less
"catalyzing the interactive '2.0' web".
There is as much of a cause/effect relationship between the two as
there is between the DMCA being enacted and my balls growing gray hairs the same year.
Here's a link to the definition of Non sequitur: http://en.wikipedia.org/wiki/Non_sequitur_(logic) [wikipedia.org]
Just your typical lame eyeball whoring by Wired, nothing to see move along.
Parent
Re:Not perfect, but not all bad. (Score:5, Insightful)
Without the explicit "fair use" bits, the Web wouldn't look like it does today.
Fair Use existed as US common law over a hundred years ago.
Without the DMCA, those (media) companies would have had to file lawsuits that would have quickly and explicitly carved out the limits of fair use, which would be good for us and not for them.
The DMCA did not give us, the end users, any benefit that I can see.
Even if you want to argue benefits, I don't think it will take much to show the negatives have far outweighed any positives.
Parent
Re:Not perfect, but not all bad. (Score:4, Insightful)
>Without the DMCA, those (media) companies would have had to file lawsuits that would have quickly and explicitly carved out the limits of fair use, which would be good for us and not for them.
I'm not sure I would trust the courts to make the right decisions about fair use when it comes to the Internet.
From the bits and pieces of US court rulings I've heard since the Internet gained popularity (~1993 to present), I've noticed a trend: When US courts are faced with cases involving technology they don't understand the details of, they sometimes ignore the existing well-established law that anyone familiar with the technology could see was obviously relevant and instead toss a coin and follow one party or another's 'creative' (i.e. off-the-wall) theories without anyone providing substantial arguments in support of any of the theories.
I can't remember every unquestioningly-accepted theory that has led me to this conclusion, but off the top of my head, the highlights are:
- Treating domain names as property
- Applying trademark restrictions to queries (e.g. DNS lookups and web searches)
- Deeming linking to a document to be the same as copying or distributing it
- More generally, assigning responsibility for actions automatically carried out by a computer to [any of: the computer's owner, operator, designer, manufacturer, programmer] without suggesting negligence or giving any other reason for this at all
In any case, all of this means that I'm a little uncertain where (or in what ballpark) a US court would put the boundaries for fair use on the Internet. =)
I'm not saying that the DMCA is the answer (it's about 180 degrees from it), but I think another law clarifying things for the courts was (and still is?) what is needed.
Parent
Re: (Score:3, Insightful)
Er... I meant to say that another law clarifying things for the courts is needed _in_the_US_. If you happen to live in a country where courts seem to be able to understand the details of new technology and figure out how existing law applies to it (*cough* http://yro.slashdot.org/article.pl?sid=08/10/27/2134214 [slashdot.org] *cough*) then no special laws plz.
Re:Not perfect, but not all bad. (Score:5, Insightful)
Parent