The Web Thrived In Spite Of The DMCA, Not Because Of It

from the too-much-credit dept

Tue, Oct 28th 2008 2:27pm — Mike Masnick

While I was pointing out all of the reasons why the DMCA needs to be re-examined from scratch, Wired has put up an article detailing the one single positive aspect of the DMCA: the safe harbor provisions that protect service providers from liability for copyright infringement done by users. However, I think Wired, and the various people quoted in the article, give way too much credit to the DMCA for a variety of reasons. In fact, Wired goes way too far in claiming that the DMCA "saved" the web and allowed it to become what it is today, suggesting (incorrectly) that things like blogs and YouTube wouldn't be successes without the DMCA.

First, the claim by an MPAA representative that without the DMCA movie studios wouldn't have moved to DVDs is, at best, stretching the truth. While some studios would have been nervous, it wouldn't have taken long for some studios to more aggressively experiment with DVDs, and early success would have made studios unwilling to hold back. Besides, it's not as if the DMCA has actually done anything to protect DVDs. DVD ripping software is widely available.

As for the safe harbor provisions, there's plenty of reason to believe that we would have reached the same legal situation even without the DMCA's safe harbors. Two years prior to the DMCA, the CDA was passed, and while pretty much all of that law was thrown out as unconstitutional, the bit that remained was the famous section 230, which provides a very similar safe harbor for non-copyright issues. It's not difficult to believe that in the absence of a DMCA, section 230 would have been expanded to cover copyright. And, even if section 230 wasn't extended explicitly, one would hope that the courts would have established the exact same precedent by noting how ridiculous it is to blame a service provider for the actions of its users. The fact that we even need safe harbor provisions is ridiculous. It should be common sense that liability should be placed on the actual party to do the action, rather than any service provider that was used in the process.

Finally, Wired talks up the whole notice-and-takedown process, which has been a tremendous burden for many sites. While Wired does highlight how the notice-and-takedown process has been regularly abused, it still gives too much credit to the whole system. If Congress really had to have a formal takedown process, it makes perfect sense to have a notice-and-notice system, where the accused infringer would have a chance to respond to the charges before the content is taken down (innocent until proven guilty, blah blah blah).

So, yes, the safe harbors provided by the DMCA are a good thing -- but to extrapolate from that and a few other questionable points that the DMCA is responsible for the rise of things like blogging and YouTube is hard to square with reality. It's quite likely that things wouldn't be all that different in the absence of the DMCA -- except we'd have a lot fewer abuses of it.

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Filed Under: copyright, dmca, fair use, notice and takedown, safe harbors

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Space Pirate von Dizzle Esquire, 28 Oct 2008 @ 3:37pm

Blame Someone!
I'm sure you've read but it was recently noted that banks have begun suing local governments who provided roads which were used in the course of conducting bank robberies. The roads themselves should (obviously) have been embedded with features that would have allowed them to identify and halt traffic which had participated in such a haneous activity.
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Dre, 28 Oct 2008 @ 4:05pm

Agreed, but?
While agree that it is stupid to blame the service provider for the actions of its users, similar logic has worked in other areas. For example, whole companies have been sued for the actions of individuals within the company. Large companies have had to pay out for a single worker who sexually harasses someone in the company. The idea is that company policy created an atmosphere which contributed to the harassment. Thus, the new business, training employees in what is and is not allowed with regard to sex, race, religion, etc. So, I can easily imagine a hotshot lawyer arguing that service providers create an atmosphere in which users are encouraged to engage in illegal behavior. Sad.
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ChimpBush McHitlerBurton, 28 Oct 2008 @ 4:10pm

Re: Blame Someone!
SO TRUE!

Although you missed the obvious and necessary addition: All automobile companies are and have been similarly complicit in the commission of bank robberies by their flagrant disregard for public safety by *providing the means* by which bank robbers make their famous "getaways".

Shocking.
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ChimpBush McHitlerBurton, 28 Oct 2008 @ 4:14pm

Re: Agreed, but?
No, that lawyer would be more of a "dumbshit" than a "hotshot".

There is a big difference between an employee, (who is driven by your internal policies or lack thereof, and benefits you by his actions on your behalf), and a customer of your service (who acts wholly on his own behalf).
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Johnny Canada, 28 Oct 2008 @ 4:35pm

DMCA type law coming to Canada
The government up here is trying to have a DMCA law passed up here.

It is basically writen by the U.S. Music and Movie Industry.

It will make unlocking a cell phone, which you paid for in full unlawful.

Oh the long arms of your corporations.
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Elliott Back, 28 Oct 2008 @ 4:40pm

Arrrrrrrrr!
I think you're not giving it enough credit. It's not perfect, but it's our most precious legal tool against spam.
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[a], 28 Oct 2008 @ 4:52pm

Re: DMCA type law coming to Canada
Sorry man. I'm from Texas so I not only have to apologize for America's shortcomings but also George W. Bush's. It's a rough gig. I write a lot of apology letters.
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mike42 (profile), 28 Oct 2008 @ 6:15pm

Assimilated...
I guess no one told these guys that Orwell wrote 1984 as a warning, not a manual. (Or a bible!) The fact that Wired is pretty consistently running these articles is really disturbing. They were rebels, now they're corporate muggles.
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Anonymous Coward, 28 Oct 2008 @ 9:27pm

Re: Re: Blame Someone!
And, in recent news, after being named by the banks in a lawsuit, Nike has discontinued the production of their large athletic bags. A spokesman for Nike has said that they will resume manufacturing once a system that will cause the bag to disintegrate when stolen money is placed in it is invented. Other bag producers have stated their intentions to do the same.
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Luna Loof, 29 Oct 2008 @ 6:34am

Even the most well-known German online news magazine posted a link to that article yesterday. While reading it, I did think that this whole article could only be satire, but it seems like I've been wrong.
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