Consumers and Copyright: Thoughts about reforming the Digital Millennium Copyright Act (DMCA)

The Digital Millennium Copyright Act (DMCA) is much maligned, but, I think, not fully understood by very many people. Today, a visitor to our Software Law class from Microsoft presented a very good explanation of the 1998 law. He explained some aspects that are not spoken about too much in the general tech community, like the ISP “Safe Harbor” provision—which actually applies quite a bit beyond the traditional ISP and could easily include YouTube or even your average blogger. In many respects, the DMCA is quite generous, requiring limited policing of content, provided one is handling 3rd-party uploads, for example.

We finished with a discussion about what changes to the DMCA might be beneficial. One point he made was that ISPs (remember, this includes YouTube, for example) should be required to take more active “filtering” or policing roles, instead of forcing content-owners to do the work of identifying infringing content.

To me, this approach reflected a content-owner perspective on the law, and attempting to balance that somewhat with the needs of corporate ISPs (including the likes of Google). The ideas he had are arguably good changes to close perceived “loopholes” in the DMCA and to better reflect the original Congressional intent behind the DMCA.

However, the end result appeared to me very corporate focused. It attempts to re-balance the needs of these two interest groups while ignoring what our professor termed the “third pillar” of copyright and content: the consumer. Thus, I asked, what exactly do I get out of restricting use of copyrighted content? More content? More stable companies? Perhaps.

But the “black-or-white” alternative of eliminating intellectual property rights rubs me the wrong way, too. Are we not all content producers these days? While I often appreciate finding my content re-purposed, I prefer that I still, at the very least, receive credit for my work. I think an author/creator (but not necessarily an IP “owner”) deserves recompense during a reasonable (i.e., not the current length of time) for use that generates revenue. In other words, if you want to sell my work, I should get a slice of what you receive for that. But if you truly give it away, credit is all I ask. (For this site, I actually use the Creative Commons Attribution-Noncommercial 3.0 United States License.)

The U.S. Constitution does not require IP protection as we have it now. Its focus is on promoting “progress” (whatever that means, of course) in science and the arts (through limited monopolies). The goal is to benefit society, at least in the longer term, not to enrich property owners. So, I ask, do current IP protections truly promote progress? I don’t think they do so at all effectively.

Perhaps we should be pulling more from the French tradition of “moral rights” of authors to find our way out of this quandary. Other than companies and their vested interests, most of the objections I hear from people is the idea that creators are exploited by “pirated” works (but aren’t musical labels in the exploitation business, too?). So why not protect against this by, for example, requiring attribution and revenue-sharing?

This does not address the issue of control, though, another feature of French-style “moral rights.” Should a creator be able to refuse a particular use of his or her work? I think there is a good argument for allowing this in at least some situations. In fact, perhaps this kind of right should last longer than other copyright protections or the right to revenue.

This applies to the creator or creators. But should those rights be transferable? I have no real problem with the revenue-generation portion being transferable (with, perhaps, some reservations to avoid exploitation original authors, and with a more limited duration), but I do not think other “moral rights” should be transferable. (Of course, much creation is collaborative, so one would need to deal with the lack of single authorship too.)

There is much to think about still, but I think the take-away lesson for me is that too often IP law focuses on the large players (and especially on content owners) and ignores the people involved–and especially ignores consumers (perhaps we assume the market will take care of that side… which is another additional discussion…) All in all, a good class and a good presentation about the topic.

For more on consumers and copyright, see, for example:

• A Response to “A Reader’s Guide to Copyright” at the Copyright Advisory Network
• Copyright Doesn’t Just Grant the Content Creator Rights at techdirt
• Creative Consumer Copyright Act by Kevin Donovan
• Copyright Law’s Theory of the Consumer by Joseph Liu (on SSRN)