A Copyfighter’s Musings

So, in today’s IOP Internet and Civil Liberties Study Group, Blythe Holden and I got  to help out, explaining and debating the DMCA 512 Safe Harbor provision for OSPs.  A couple of thoughts:

1.  I still find this to be one of the toughest subjects to deal with regarding the DMCA and perhaps the copyfight in general.  The balance is off in 512 – too many problems regarding anonymity, privacy, and speech rights.  Too much potential for abuse, given where the burden of proof is on the accused and too little on the accuser.  Even if there were a higher standard of proof for the accuser, copyright holders generally have more money and time to handle such actions; your average person will never be able to contest notice-and-takedown on an equal ground.

But, though I can (try to) make the case that we shouldn’t outlaw fair use via 1201, I can’t really make the case that copyright holders should have no means to go after infringers.  I can make a lot of arguments regarding why DMCA 1201 should be abolished completely and can’t be easily reformed to limit its chilling effects and abuses.  But, I can’t easily make the argument that we shouldn’t have anything like 512 in the law; I want OSPs to have some safe harbor, and I can’t easily argue that copyright holders should have no means to go after infringers.

With 1201, the law is hindering completely legitimate uses. On ther other hand, being able to go after infringers doesn’t stop legitimate uses.  1201 stops you from making a fair use, but notice-and-takedown doesn’t stop you from downloading public domain materials from a P2P service, for instance.  It’s only when 512 is abused that there’s a problem.  And, I wonder if we can ever completely stop those abuses, or, rather, what level of abuse would be tolerable.

Or whether it even matters.  If the RIAA/MPAA step up their efforts to go after individual infringers, will it actually have an impact on piracy?  Probably won’t outside of the US.  So far, it hasn’t seemed to affect fringe networks like Blubster and Soulseek, let alone KaZaA and Morpheus.  In some ways, I feel like the problem of  512 and going after individual infringers is yet another reason to examine copyright’s core, not just its edges.

Any thoughts?  (Obviously, my thoughts are fairly rough – wouldn’t mind hearing how people would fill in the gaps).

2.  We got into a discussion about what the RIAA/MPAA is responding to in its notice-and-takedown requests: is it uploading/sharing or downloading? 

This was an issue in the Verizon ruling.  As reported by TheStreet.com, “[The RIAA did not accuse the file-sharer of]  downloading, but uploading. And not even uploading — simply ready to upload. The RIAA made no allegation as to how many copies of the files at issue were actually made from the files at issue. Compounding Judge Bates’ error, numerous news outlets repeated the ‘downloaded 600 files in a day’ accusation. People who should have known better. Institutions you would think get tech. Places like CNBC. CNN. Reuters. The Washington Post. The San Jose Mercury News. The Atlanta Journal-Constitution. Newsday. And, oh yeah, TheStreet.com.”

As Professor Zittrain noted in the study group, this doesn’t mean that the sharer wasn’t guilty of infringement; even if it’s the copyright holder who downloads those files, the sharer has committed infringement.   But I’m interested: does anyone know of someone being accused of downloading, rather than uploading?  It has been my assumption that people had been threateend because of downloading too. After all, if Brown University is telling students to delete files from their hard drive, I assume that the implication is that the students do not legitimately own the files.

But wait a second: I can be sharing a copy of a song without it being an illegitimate copy.  Why should I be forced to delete that legitimate copy?

So, two questions for those of anyone who knows about this stuff:

1.  Can RIAA/MPAA track downloads?  Can they go after people who are not simply sharing songs/movies?  Have they done so?

2.  If not, is there any reason why universities should be forcing students to delete the material without further investigation?

I’m going to write to the people at Brown first, and then hopefully try to find out from other universities what’s going on. If you have any info, I’d love to hear it.

Filed by Derek Slater at 7:19 pm under General news
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