Digital Millennium Copyright Act celebrates a quarter century of takedown notices
- Reference: 1698685214
- News link: https://www.theregister.co.uk/2023/10/30/digital_millennium_copyright_act_25/
- Source link:
The [1]DMCA has its basis in treaties passed in 1996 by the World Intellectual Property Organization aimed at dealing with copyright in the age of the internet. As well as heightening the penalties for copyright infringement on the web, it also criminalized technology designed to circumvent measures to control access to copyrighted works.
Notably, it also exempted internet service providers (ISPs) from liability if their customers used those services for purposes deemed nefarious in the eyes of the law.
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While the DMCA continues to cast a long shadow over the tech world, it is also a relic of its time. Back then, Internet Explorer 4 was still the primary web browser for many users, and the initial version of Napster – an infamous peer-to-peer file-sharing application – was on the eve of its general release.
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Into this heady world of innovation stumbled the DMCA, with perhaps the best of intentions but not the greatest of executions.
There is no doubt DMCA takedowns were initially a handy tool for the removal of copyrighted materials, although the explosive growth of services such as YouTube can make the process somewhat onerous. It was, however, the anti-circumvention provisions – intended to shore up anti-piracy technology – that continue to see heavy-handed use.
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According to the [6]Electronic Frontier Foundation (EFF) [PDF] : "Rather than focusing on pirates, some have wielded the DMCA to hinder legitimate competitors."
Several large tech companies did indeed make use of the legislation over the years to threaten rivals and hobbyists that modify technology.
[7]Right to repair advocates have a new opponent: Scientologists
[8]Almost all classic US video games 'critically endangered'
[9]DMCA can't be used to sidestep First Amendment, court rules
[10]In latest DMCA review, US Copyright Office eases rules on computer security research, right to repair
[11]I've got a broken combine harvester – but the manufacturer won't give me the software key
However, looking back on a quarter of a century under the DMCA, it is clear the legislation is more significant for what it doesn't do rather than what it does. Its exemptions meant the companies that came in its wake – including Facebook, YouTube, and Twitter X – have been able to use content creators to their benefit and collect personal information for marketing purposes.
While the DMCA is a US law, lawmakers around the world have grappled with regulatory questions posed by changes in technology over the years. As such, the DMCA is ripe for a revisit.
So, a good thing or a bad thing? The DMCA is a valuable tool for fighting off copyright infringement yet it also has the potential to stifle innovation and fair use. It has been amended over the years to address concerns and criticisms. However, one cannot escape the feeling that it is in need of modernization. ®
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[1] https://www.copyright.gov/dmca/
[2] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=2&c=2ZUA1nN6uf@cF-jWa@kUX5QAAAJc&t=ct%3Dns%26unitnum%3D2%26raptor%3Dcondor%26pos%3Dtop%26test%3D0
[3] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44ZUA1nN6uf@cF-jWa@kUX5QAAAJc&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[4] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33ZUA1nN6uf@cF-jWa@kUX5QAAAJc&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0
[5] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44ZUA1nN6uf@cF-jWa@kUX5QAAAJc&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[6] https://www.eff.org/files/2014/09/16/unintendedconsequences2014.pdf
[7] https://www.theregister.com/2023/09/01/right_to_repair_scientology/
[8] https://www.theregister.com/2023/07/11/classic_games_extinction/
[9] https://www.theregister.com/2022/06/23/dmca_cant_be_used_to/
[10] https://www.theregister.com/2021/10/29/2021_dcma_rules/
[11] https://www.theregister.com/2021/07/27/right_to_repair_activists_welcome_policy_wins/
[12] https://whitepapers.theregister.com/
DMCA fails on all fronts.
The era after it's passing was one of the most prolific eras of media piracy, and also one of banner profits for the media players that pushed for it.
Every premise it was built on was flawed or an outright lie. What got people off the pirate feeds was cheap streaming content from the likes of Netflix, Pandora, and Spotify. Google got it's star acquisition not only exempted from enforcement but in the process got itself a sweetheart deal paying pennies on the dollar of what the other music and media companies could negotiate. Essentially permanent most favored nation status.
YouTube was founded on pirate content. During the trial they showed that their own employees were responsible for uploading massive amounts of material that formed the core of high quality content that allowed the platforms explosive growth. That lawsuit only went away because nobody in the valley wanted to be on the wrong side of Add Daddy. So Google fed the content industry most of it's competition, and the studios signed a Faustian pact with the devil to allow Google to continue to profit off mass piracy.
The DMCA thus failed at it's legitimate purpose, and what remained was for it to be used over and over to attack security researchers, open source developers, and competitors. To harass and intimidate journalists and musicians with fake takedown notices. (or real takedown notices based on bogus claims).
The DMCA and the patriot act were both disasters, and instead of repealing them, we are still living in their shadows decades later. These terrible laws help normalize an era of predatory laws protecting the narrow interest of the largest players, and normalized a bold new era of looking the other way while leaving things utterly and obviously broken.
How'd that work out for us again?
DMCA and hosts
I disagree that the DMCA should have anything to say about the relationship between those hosting content and those generating it, as far as legitimate submissions are concerned. If a given host is too burdensome with its T&Cs* then the creator should take their business elsewhere or self-host. If offering up content to a large platform is beneficial due to a larger audience or private hosting is excessively costly, then there's the quid to the quo of host content monetisation.
*It might be reasonable for legislation to require clear T&Cs to be enforceable.