Category DMCA

SOPA hysteria

Have you heard of SOPA? If you have, chances are you have heard one or other variation on the quite hysterical opposition to it which is being organised online. Various websites are planning to “go dark”. Companies with the temerity to support it are subject to boycotts to get them to back down. The end of the internet is being foretold. This is all about evil big businesses (media companies) trying to destroy and criminalise ordinary people and nifty internet startups (like, um, Google). So we’re told.

I don’t propose to go into a lengthy debate about the issues because once a debate has descended into such cartoonish caricatures, most intelligent people will be naturally sceptical anyway (having said which, see the update below). If a reasoned and reasonable debate is being had, it’s probably not happening anywhere in the first few pages of Google search results. (On the other hand, this article might be helpful).

For me, the core issue is simple. Do we need the internet to be better at supporting those who seek to earn their living from creativity? In my view: yes. If so, do we need the law to help? In my view: yes.

One particular article, though, did strike me as richly ironic.

Cory Doctorow, never exactly restrained on the subject of piracy and copryright, says that his website Boing Boing could never exist in a post-SOPA world because “making one link would require checking millions … of pages…”.

Leaving aside the ridiculousness of that statement, the irony is that right now, that’s exactly what copyright owners are required to do in order to try to police and defend their rights. Thanks to the ill-conceived “safe harbour” provisions of the DMCA and their equivalents in other laws, copyright infringement is effectively unactionable without constant, active policing of the whole internet. Which is obviously not feasible. That is one of the reasons why some of the biggest companies on the internet are able to exploit and profit from content without ever checking rights at all, and why so few companies which invest in content creation are able to thrive online.

So even if it were true, Doctorow’s outrage would ring a bit hollow to all those whose investment in creativity is constantly undermined by an internet built for piracy. SOPA, which fundamentally asks for people to take responsibilty for their actions, in his mind, “…is more than foolish. Foolishness can be excused. It’s more than greed. Greed is only to be expected. It is evil, and it must be fought.”

Such hyperbole is an insult to the idea of intelligent debate. By reducing the issue to a David v Goliath, Good v Evil, Big Bad Media Companies v Ordinary People it also insults the millions of people who would aspire to make a living by being professional creators.

 

Update. I thought I could get away without explaining about SOPA at all but a couple of people have askefd for a little background. SOPA stands for Stop Online Piracy Act and a piece of proposed US legislation aimed at making it easier for content owners to take action against sites which are dedicated to piracy. Some of the arguments against it focus on the possible unintended consequences (sites innocently linking to other sites which host infringing content getting caught  by the rules) and others on other details. There is lots online about it, mostly saying why it’s awful and the end of the internet as we know it. There are other more calm and thoughful articles to be found as well. This one, for example. And this WSJ leader.

Smart legislation would be great, lets get rid of the dumb laws too

We might, as Neelie Kroes suggests, be losing the battle to enforce copyright. The hearts and minds of many users might already be lost to the more tempting promise of limitless supply in a copyright-free world. But what role has the law played in creating this situation and what could politicians do to fix it? The e-commerce directive and DMCA need to be back in the spotlight, and the dreadful, if unintended, consequences of those hasty laws need to be recognised and reversed.

 

Neelie Kroes has made an interesting speech, much of which it’s hard to disagree with. Her theme is “who feeds the artist” and it refocuses the discussion about copyright on its core objective: to ensure that creators get paid.

She states the following objectives for copyright:

Legally, we want a well-understood and enforceable framework. Morally, we want dignity, recognition and a stimulating environment for creators. Economically, we want financial reward so that artists can benefit from their hard work and be incentivised to create more.

And she says she’s an “unconditional supporter” of these objectives. Which is good news. I agree.

She comes out as a strong supporter of a better licensing infrastructure, making it easier to legally acquire the rights needed to use content legally. I agree with this too. It’s more or less the same line of thinking I have been promoting since the idea of ACAP was a twinkle in my eye, and it’s strongly supportive of the approach which the Linked Content Coalition is now developing actively.

Smart legislation

She says that “smart legislation” can play a role in bringing about her vision of a better future for creators. Three cheers for that, I say, because the bleak choice to litigate endlessly and expensively is not appealing to anybody least of all the beleagured creators.

I also hope that along with introducing “smart legislation” she also gives consideration to abolishing, or at least modifying, some dumb legislation of the past.

Kroes says:

legal enforceability is becoming increasingly difficult; the millions of dollars invested trying to enforce copyright have not stemmed piracy

This is true, and this is a problem which has been in no small measure caused and exacerbated by the law. Specifically one law.

Dumb legislation

The European e-commerce directive (along with its counterpart the Digital Millennium Copyright Act in the USA) has created the giant loophole through which the coach-and-horses of businesses contemptuous of copyright can be driven.

This directive created the “safe harbour” (to use the american term) which makes internet companies effectively immune from liability (or damages) for the infringements of their users.

In so doing, it went beyond protecting vulnerable new players from the possible  consequences of old law applied to the new world. It also created a huge opportunity for anyone to build a business which can make vast sums of money exploiting content – as long as they don’t do anything to monitor or proactively act on infringements.

Ignorance is not just a defence, it’s a necessity

As far as copyright is concerned, their obligation is to do no more than wait for complaints and then act on them. In fact if they do do more than this they actually increase their liability – ignorance of the infringement is their defence. So the law actually rewards a lack of governance and punishes responsible behaviour. Ignorance, in this case, is not just a defence but an obligation.

Their users aren’t similarly immune, of course. They are expected by the law to take full responsibility for their actions. On the face of it this seems fair; there’s still someone who has liability, it’s just not the internet company who merely provided a facility which a naughty user abused.

ISPs are immune, users are unreachable

However, while the liability may pass to their users, the internet companies don’t actually have to know who their users are to benefit from the immunity the law gives them. Nor are they obliged to hand over whatever details they do have about their users, and most of them will refuse to do so without a court order (after which it may turn out they have little or nothing to give – the one time I pursued this all I got at the end of it was an IP address belonging to a university).

So the copyright owners have to police the entire internet, all the time, in respect of every piece of their content, in order to get infringing copies removed. In reality taking further action against users is expensive, unlikely to result in any meaningful recompence and often impossible even if they are prepared to go to court twice (once to obtain the user details and then again to actually take action against them). And internet companies, freed from the irksome responsibility of even basic governance, are able to build huge businesses with very little cost or risk.

So, unsurprisingly, some of the biggest businesses on the internet depend on this for their viability and enormous profits.

Legislate in haste, unintended consequences guaranteed

One way of thinking about this law, and the DMCA, is that they codified the status quo on the internet at quite an early stage. The internet had largely grown up from a utopian vision of a world free from many of the constraints of the regulated world outside.

This utopian vision used to extend well beyond copyright. I remember when people thought that they were truly anonymous on the internet, that they couldn’t be traced or monitored as long as they used a pseudonym. When people thought that national laws would be unenforceable and that traditional law would never reach the internet. It was truly a utopian vision, from the perspective of those who built it starting with a blank sheet. The hope of many of them was that commercialism and old legal frameworks would never rule the day because in the intangible, borderless new world of cyberspace individuals held the power.

But gradually the real world has chipped away at that vision. Some of it is still there, but just like the real world we have seen the full mix of human nature move online. And as it has the internet has changed. Criminal activity has had to be curbed. Regulation and law enforcement have become an ever growing reality. Surveillance and intrusion has become a fact of life too, with complex steps needed for those who want to try to evade it. Security has improved, peoples willingness to trade online has improved too, and the ingenuity of criminals has raced ahead. An endless cat-and-mouse game. It was ever thus.

Almost no aspect of the internet is recognisable from those utopian early days from the way in which web pages work to the protocols which underpin the most basic functionality

Copyright has been excluded from the evolution of the internet

However, strangely, the internet is no better at dealing with copyright than it ever was. Despite the ability of the internet to simplify immensely complex things – from finding a website to dealing with your banking – copyright remains as old-fashioned and clunky as ever and the internet’s ability to deal with it remains entirely undeveloped. Buying a licence – or even knowing who to buy one from – is, as Kroes points out, is absurdly complex and expensive.

As far as copyright is concerned, the internet remains much as it was when Tim Berners-Lee had the first twinkle of a web page in his eye. Which is unfortunate because at that stage the internet without any effective mechanisms for managing copyright at all.

But why was copyright left behind as the internet raced ahead? What held it in that simplistic, stunted state of evolution?

Well, in part it suits those who have the greatest influence over the way the internet works, so they have (at best) avoided putting any resource into the issue and (at worst) done everything they can to prevent other initiatives from gaining ground. Whether for ideological or commercial reasons (and one very often masquerades as the other) they have no desire for change and can kill any attempts by pronouncing that they would “break the internet”.

But they have been aided and abetted, and latterly incentivised, by laws made in haste for simplistic reasons and which have held the internet suspended in an embryonic form, destined like Peter Pan never to grow up, for the last decade or more.

Poor copyright functionality is complimentary to the new mega-businesses

What it has given rise to is a small cadre of mega-businesses, who monopolise the content-related revenues of the internet and prevent development of new business models. It has impoverished content businesses and destroyed, in many instances, the rationale for investment in creativity.

These mega-businesses, made bullet-proof by the law, have also created a world in which copyright has become demonised and where the less you invest in content the more you make.

Kroes is right to point out in her speech the shame that creators make so little from their creations but she is ducking a big issue if she fails to address the real cause of the problem.

It’s true that enforcement is a losing game but hardly surprising given the protection that the law has given to infringement. Imagine if the law made dealing in guns and ammunition legal and unrestricted, and only criminalised use of guns. Would we have more or less gun crime? Imagine if we abolished speed limits and allowed drivers to decide for themselves how fast to go. Would we have more or fewer road deaths? Imagine if the job of setting duties on fuel were put in the hands of car manufacturers. Would we see cheaper or more expensive petrol prices?

Letting people write the law to favour their own interests is likely to result in laws which minimise their obligations and and maximise their opportunities regardless of the impact on anyone else. That’s why, in democracies, they’re not allowed to do it. The role of politicians is to prevent this happening and ensure that the law strikes a fair balance. With what were doubtless impeccable intentions at the time to protect vulnerable underdogs in the new digital world, the safe harbour provisions of the E-commerce directive and the DMCA have failed the test of time and has proved themselves to be a disaster. ‘

Failed laws should be changed, even if it upsets the status quo

It’s no surprise that these invulnerable internet businesses lobby strongly for the laws which protect them from normal vagaries and costs of business governance, and even for further relaxation to make life even easier for them. Their absurdly self-interested and disingenuous arguments have been given so much exposure, courtesy of their enormous consumer reach and the lobbyists they fund, that they have begun to feel to some as if they are givens, natural truths. We are in danger of getting the world they have wished for.

Nor is it any surprise that their users, who are also the beneficiaries of the impunity to infringe that has been created, dislike copyright and resist attempts to enforce it. Someone threatening to take away the cheap and seemingly limitless fuel that they have grown so used to putting in their cheap and gas-guzzling cars, and they want to keep it.

While it’s great to hear politicians talk about using “smart legislation” to improve things for creators in the future, they shouldn’t consider the recent past as anything other than a salutary lesson. As well as creating better new legislation they need to get rid of the disastrous old legislation which has destroyed much of the opportunities the internet should offer creators.

While I share Neelie Kroes’s frustration about enforcement, I find it equally frustrating to see politicians talking about this as if it’s nothing to do with them. Of course we need to move on, and the first thing we need to do is remove the legal incentives to build massive businesses on copyright infringement.

Giving copyright the $5m finger

Check this out.

bo.lt is a startup in what seems to have become the classic west coast model.

Silly domain name? Check!

Bullshit mission statement? Check!

SF address and previous startup credentials Check!

Big money funding? Check!

Business model entirely dependent on other peoples content? Check!

It’s really extraordinary. Let me quote from the website:

Grab the pages that interest you. Cut out what is distracting, corporate, and irrelevant. Drop in images and text that can make the page come alive again. And share what you have done. Content wants to move in the social world. Give it a boost.

We have created software that helps *you* make the web more interesting to the people you care about. With BO.LT we have taken the shackles off. It’s your turn.

So let me put that another way.

Copy content. Amend it however you like. Change the meaning if you want. Remove the branding, links, context, design (or don’t, even if you have changed the meaning and message of the content). Add some stuff of your own. Re-publish it somewhere else.

Kind of an encyclopaedia of what copyright is meant to prevent. This is a product of the crazy internet utopia that so many west coast startup people seem to live in, believing it to be real. Act as if the world is the way we want it to and maybe it will come true!

There’s a reason why this stuff is illegal. In the case of bo.lt lots of them. I find it hard to fathom that it has to be spelled out. All you have to do is put yourself in the position of whoever created a page or site or piece of content in the first place.

Are they necessarily happy for anyone else to use it however they want? Do they mind if someone alters the content but makes it look like they didn’t? Do they mind if it’s commercially exploited by someone else? Do they care if someone’s marketing department wants to tweak their article to make it a bit more favourable? Do they mind if their brand is mis-used whimsically by anyone who happens to swing by bo.lt?

Perhaps they would like to have a say. Perhaps they would like people to ask first. Perhaps they want to be able to say no if they don’t like it. All these rights are given to them by the law, yet here someone has set up a business as if the law simply didn’t exist.

I know that these things go on. I have spent years stopping the most egregious mis-uses of content and brands which I have been managing. But I haven’t often seen quite such a blatant attempt to commercialise what to me is quite clearly illegal activity (bo.lt is a “freemium” service – prices for corporate users start at $2000 per month).

So, if this seems so clearly illegal, how are they getting away with it? Why on earth did someone put $5m into it?

Well, it seems that is all part of the game. Whether something is legal or moral doesn’t really seem much of a consideration. And in the case of bo.lt they reckon the law has given them a killer get-out-of-jail card. They are protected, they say, by the “safe harbour” provisions of the Digital Millennium Copyright Act. Nothing their users do is their problem until someone tells them about it. Never mind their role in facilitating and hosting the infringement – as long as someone else actually did the deed of initiating it, they’re OK.

You can tell how much they care about copyright by looking at their terms and conditions.

If you’re a user you have to agree – by accepting the terms of service – that you will not:

violate or infringe the copyrights, rights of privacy or publicity, or any other rights of any person;

which you will, of course, almost always be doing unless you’re using it to adapt your own owned or licenced content or webpage which would seem a little odd. There may certainly be non-infringing uses of the service but they seem unlikely to be the majority. They have to put that little thing in their terms, to at least try to stay on the right side of the DMCA, but note the informality of it. Nothing done to enforce or check compliance, just a sentence buried in the small print nobody ever reads.

Compare and contrast to what you have to do if your copyright has been infringed:

It is Boltnet’s policy to respond promptly to claims of copyright infringement and to remove or block access to any infringing material as described below. If you believe that any content or pages served by the BO.LT network contains infringing material or property, then please notify us as soon as possible.

If you believe that your work is the subject of copyright infringement and appears on our Site, Services or any pages on the BO.LT network, please provide Boltnet’s designated agent the following information:

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  • Identification of the copyrighted work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a full list of such works at that site.
  • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Site, and information reasonably sufficient to permit Boltnet to locate the material.
  • Information sufficient to permit Boltnet to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
  • A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
  • A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Boltnet’s agent for notice of claims of copyright infringement on this Site can be reached as follows:

By Mail: Boltnet.Inc,

Attn: Ben Smith

3 Pier, Suite 105

San Francisco, CA 94111

By Phone: 415.742.8418

By E-mail: copyrightclaims@boltnet.com

While they’re prepared to take their users implicit word for it that they’re not infringing anyone’s copyright – no need even for a statement “under penalty of perjury” to confirm – despite that being almost vanishingly unlikely in a huge proportion of cases, they are a little less inclined to take a copyright owner’s word for it when their work has been infringed.

So while anyone can effect an infringement by simply pasting a URL into the bo.lt website, the work of a second or two, anyone wanting to protect their work has to not only actively track it down but also provide a slew of paperwork and scary legal documentation to get it removed.

Even after that, it would seem the best you can hope for is that they’ll take down or block access to the content. Nothing there about damages, identifying the user they’re hiding behind to get their DMCA protection, helping right any wrongs. Just the minimum the law demands of them.

It’s a sort of distillation of the contempt with which parts of the online world regard other peoples property. They see it as a free resource, a route to a swift $5m in “series A funding”. The idea that the person who owns something might have something to say about it, or that what they’re doing is simply legally and morally wrong, seems not to come into it.

For sure, it confirms what is already obvious: the DMCA is bad law and gives rise to bad outcomes. Somehow, though, it is worse than that. It seems so cynical, showing a metaphorical finger to copyright and laughing all the way to the bank. I honestly thought it was a spoof. I hope it is. But sadly it seems real.

Footnote: while they seem quite laissez faire about other peoples copyrights, bo.lt are a bit more protective of their own, bringing the full force of the law to bear on anyone who does to their content the thing that they will happily do to anyone else’s

From their terms of service again (emphasis added by me):

Unless otherwise specified in these Terms of Service, all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Boltnet, Copyright 2010 Boltnet, Inc.. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or licensor. You agree not to copy, reverse engineer, or otherwise infringe on our complete right, title, and interest to the business processes, technology, interfaces, designs, or other proprietary property contained in the Boltnet Site or Service.

Ha! Stick their own URL into their service and wait for the knock on the door. Perhaps I’ll try it!

%d bloggers like this: