from the dangerous-ideas dept
When COICA was first introduced last year, we pointed out that, based on the very broad definition in the bill of "dedicated to infringing activities,"
all sorts of useful technologies would have been banned, had it been the law at the time. This is a big problem. As Matt Mason and others have shown repeatedly, new technologies that are almost exclusively used for infringing are often a
leading indicator of innovation -- showing what consumers want, what the technology allows... and how it challenges old business models based on artificial scarcity. Over time, the market adjusts and adapts and everyone is better off. But that's only if we don't ban things based on the belief that because they're mostly used for infringement today, they'll be used exclusively that way forever.
And, of course, we've pointed out the shift in language choice by copyright maximalists in the last year or so, such that they keep talking about how these legislative and enforcement efforts are solely focused on
"rogue sites." Because who's going to argue with that? It's a sneaky and misleading language choice, because a "rogue" site can be defined in all sorts of ways.
Canadian IP lawyer Howard Knopf has an excellent point about how you could easily
define Google as a "rogue site", based on the way some maximalist supporters define the term:
The issue of "rogue" websites arose at the recent Fordham conference. I asked a question along the following lines that raised a lot of eyebrows:
Q: What would you call a website that allows one to instantly find thousands of free unauthorized files of a specified type (such as "torrent") of Lady Gaga, Pirates of the Caribbean or whatever else may be of interest?
A: The answer, of course, is Google.
Here are official instructions from Google itself on how to do precisely the above.
So, if you are doing legal research and want to find anything I’ve written or that refers to me and want it to be in PDF format, simply do a Google search for:
filetype:pdf Howard Knopf
Likewise, if you want to find lots of free and likely illegal torrent files of music or movies, simply enter:
filetype:torrent Name of singer, song, movie, etc.
Is Google a rogue or pirate website or "dedicated" to such activity? Hardly.
Can it be used to find illegal copies of music, videos, etc.? Yes - easily.
Should this feature of Google be disabled? Absolutely not because there are countless perfectly legal and useful torrent files out there waiting to be searched and downloaded.
Thankfully, the new definitions in PROTECT IP, while still quite vague, are pretty clear that to be defined as a rogue site, a site has to have no non-infringing value -- but already we've seen that sort of definition stretched, with the
seizures of some sites that were posting content given to them
by the copyright holders for the sake of promotion, but which the government insisted were all infringing, based solely on a statement from a lawyer at the RIAA, who was not in a position to know. Similarly, when technologies like radio, photocopiers and the VCR came on the scene, they, too, were used almost exclusively for infringing efforts because the legacy industries hadn't yet figured out how to embrace them and use them for valid reasons.
Yet, with PROTECT IP, the goal is to freeze the existing setup at a moment in time, and not allow any of these services to advance and find those additional non-infringing uses. The industry, of course, will insist on two things: that (a)
it will come up with those non-infringing uses on its own and (b) these sites have no intention of ever obeying the law. Yet, history shows neither assertion is true. The legacy industries will fight actually adapting (or make half-assed efforts at it), rather than allowing the innovators to lead the way forward. On top of that, we should be quite fearful of how this definition will inevitably expand over time.
If there's one thing that's constant, it's that the industries propped up by copyright law are
always seeking to expand the law and to expand the definitions in its favor. PROTECT IP is problematic for all sorts of reasons, but its ability to hinder such important innovations by blindly declaring them "rogue" is one we should be quite fearful of.
Filed Under: copyright, infringement, innovation, protect ip, rogue websites
Companies: google
