Bob and Carol and Ted and Alice and DMCA and SOPA and PIPA

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Bob and Carol and Ted and Alice and DMCA and SOPA and PIPA

After yesterday's blackout protests, and the news that many makeup conglomerates support SOPA and PIPA, I thought I'd talk about the two bills, and about its precursor the DCMA, and what all this means for you. And why I think that SOPA and PIPA are the corporations being lazy.

The Digital Millenium Copyright Act (DCMA) was created specifically to protect copyrights online. It listed out what people can and cannot do to protect their copyrights, defend their right to fair-use, and provides a way for both sides to communicate according to the rules. It lays out dance steps, if you will. It also lays out what roles service providers - like web hosts, of which I have been a web host since 2002 - have to do to protect themselves from being sued silly. They can't hide behind "I don't police everything" walls, but they also aren't turned into content police. They also can't fail to give out a valid method of contact for persons accused of copyright violation - but they aren't encouraged to give out everything or make our clients' contact information publicly visible to any Tom Dick and Harriet. The web site Chilling Effects has a very good summary of what needs to be done by all sides in a copyright dispute. The steps are thus:

  1. The legal copyright holder (LCH), or a legally designated representative acting on the copyright holder's behalf, finds something (a web site, video, article, post, whatever) which violates their copyright.
  2. The LCH contacts the poster of the content, if they can determine who that is. Their contact must follow a specific format and contain specific information - namely, they have to identify themselves as the legal copyright holder or a legally designated agent of same; they have to list which file or files are violating copyright; and they have to define exactly what is being used without permission (a song, a bit of prose, a photo, some certain lines of code, what have you.)
  3. If that contact is not possible or is unsuccessful, the LCH can contact the service provider with that exact same information, list their dates and methods of attempted contact (establishing their good-faith efforts at contacting the individual themselves) and ask that the poster or user be contacted on their behalf and notified of the copyright violation, and asked to either remove the specific content that violates copyright, or pay the licensing fees as designated by the copyright holder.
  4. All service providers should have a DMCA contact, which is where all DMCA requests are sent. The DMCA contact makes sure that the DMCA removal request meets the required formats and provides the required information. If it doesn't, they can kick it back to the copyright holder and ask that the request be refined. If the DMCA removal request meets the standards, the service provider then passes this notification along to the person who posted the offending content.
  5. The service provider can then temporarily suspend the user's account, or temporarily remove the exact content which violates copyright (depending on how broad the claim is and how many files are specified, and the service provider's own policies), and notify the user of the DMCA claim against them. The next step is up to the user.
  6. If the user believes that, okay, they used something that they knew was copyrighted (a Prince or Beatles song in a YouTube video, for example) but thought that the copyright holder would just let it go...they can now remove the copyrighted material and re-post the remaining content (ie, swapping the Beatles soundtrack for something else, or using different graphics or photos.)
  7. If the user believes that they used the material under fair use provisions, or believes that no one had copyrights to the material in question, they can contact both the claim filer (who damn well should have provided accurate contact information with their claim) and the service provider within two weeks, state that they used the material in good faith that they had full rights to use the material in the way that they used it.
  8. Once the service provider receives the notice from the accused person that 1) they've received the notice; and 2) that they had no reason to believe that any copyright violations took place; then the service provider then restores the disputed content. At this point, the service provider has acted in good faith, and the copyright violator cannot legally go after the service provider for noncompliance if legal proceedings move forward. This is known as the DMCA Safe Harbor clause, and was put in place specifically to make sure that service providers could not be bullied into handing over user information for fear of being named as 'complicit' in copyright violation lawsuits. This little clause also ensures that when someone who hosts a torrent site is sued, and their web site possibly forcibly taken down, your web site which is hosted on the same servers by the same company won't suffer so much as a minute of downtime or slowed responses.
  9. Once the LCH receives counter-notice from the user who posted the alleged infringing content, the copyright holder can either reach a one-time accomodation with the user or can begin legal proceedings against the user, for posting the specific material listed in the original DMCA claim notice.

This system has been in place since 2000. I

So, you see, the studios and the makeup conglomerates have had ways to find persons who are violating copyright, have had ways to notify them, have had ways to have the violating sites temporarily suspended (or permanently deleted, if the user does not make a counter-claim within the specified time frame), and have had ways to build a paper trail. One of the talking points of SOPA is that it targets violating sites' income, but having worked with Paypal for years, and knowing how straightforward it is (sometimes almost too easy) to get Paypal to cut off peoples' account accesses while they investigate something, I find it really difficult to believe that there aren't other, pre-existing legal methods that the MPAA and the studio systems could use to cut off funding for sites that are found to be guilty of violating copyright. They don't need something as broad as SOPA or PIPA, which doesn't allow people any counterargument to accusations of copyright infringement. SOPA and PIPA just let the copyright holders - the big studios - skip all those pesky steps like listing out what files are and are not violating copyright, notifying the copyright holder, going after the actual person doing the infringing, or even hiring people to scan the web for copyright violations. They turn the various service providers into their own copyright-holder police, because the service providers can either police all their user content or get sued into bankruptcy.

Or perhaps that's the whole point? Cut off sites' funding, they won't be able to legally defend themselves. Cut off sites' funding, they'll be intimidated not to countersue. Broaden copyright holders' ability to accuse, and to force service providers to be their police, and the copyright holders don't have to do nearly as much work to fight copyright.

My words for such persons are 'lazy' and 'bullies'. They have tools, but they want to be able to scare the bejeebus out of people so that they don't have to use those tools. They're so used to being The Sole Purveyors of any entertainment, that not only do they not want to have to work as hard to protect their copyrights, but they want to do whatever they can to maintain their monopoly on entertainment - even if that means that they could go after people who make their own webseries who use some stock-snippet of music, honestly believing that it can be used by anyone, if that snippet of music turns out to be copyrighted. Or they can claim that since it was written by a composer who is under some kind of contract with the studios, that anything that composer does is copyright to the studio in question (kind of like Wozniak had to go get his then-employer, HP, to cede all patent claims on his microcomputer invention before he could sell it himself. I don't know if such a thing exists for studios, but I know that software companies write into employee contracts that anything created by the employee while they're employed by Firm X, is automatically the property of Firm X. Even if it was written while the employee was on a 6-month sabbatical, for example.) SOPA and PIPA are great big unwieldy tools that would NOT keep jobs in the entertainment industry, WOULD decimate the Internet and technology industries, would NOT stop piracy would just drive it back underground, and would keep a monopoly in the hands of a group of people who flat out refuse to innovate until it's way too late. It also tries to extend US copyright law globally, since so many sites are hosted in the US that even if the pirate company is in Russia or Singapore, if they collect money using Paypal or any other US-based payment provider, the MPAA would be able to choke them off by approaching the US-based company and wouldn't have to deal in the laws of whatever other jurisdiction that user or service provider might be under. And let's not even get into the fact that there are so many sites located outside the US, not hosted on US servers, that offer pirated movies and music...that the US economy and infrastructure (and defense, let's not forget that the Internet is a child of DARPANet, a DOD project to build and create a communications network that would keep working in the event of a catastrophic attack like nuclear strikes) would take a beating while piracy would -=still=- be happening in all the foreign markets all around the globe.

How is this good?

(I know there are bits that I left out, and other bits that I've glossed over. I have read, for example, that the US entertainment industry now gets more money from foreign sales and licensing than it does from domestic sales and licensing; but I couldn't find any figures to substantiate that. But if that is indeed the case, it's just another way that SOPA and PIPA would be utterly ineffective at what they are ostensibly designed to do. I say "ostensibly" with my tongue so firmly in my cheek that I'm about to poke a hole in my face.)

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