Have “Real-Time” Services Altered the Balance of the DMCA?

Please note that this post is from 2009. Evaluate with care and in light of later events.

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The DMCA has a bad reputation with those who prefer to see greater freedom of information flow. Its anti-circumvention provisions provisions have attracted particular antipathy, and many believe the DMCA takedown provisions are regularly abused.

The point of the DMCA, I believe, was to further the general goal of IP protection in the United States: foster distribution while also encouraging innovation (through granting temporary monopolies). Thus, “providers of online services” (generally thought of as ISPs, but potentially more broadly interpretable to include other online facilitators of content, such as YouTube and similar services) have a “safe harbor” to protect them from charges of direct or indirect infringement, provided they meet certain criteria and take certain legal steps in response to claims of infringement (thus the existence of “takedown notices”).

With the shift away from the more straightforward ISP model to include more modern services like YouTube, content owners are increasingly frustrated with the DMCA. It puts the burden on content owners to “police” sites themselves, instead of required service providers to proactively do it for them. This has led to a “whack-a-mole” problem: take down one, and another appears in its place. Some service providers have voluntarily gone beyond the law to try to assist in proactively helping content owners, with the goal of reducing the overhead of dealing with multiple takedown requests and, more recently, to try to encourage copyright owners to put their content on their sites. (A kind of quid-pro-quo negotiation.)

Thus it does not surprise me to see this article, Copyright Meets a New Foe: The Real-Time Web, in BusinessWeek, essentially pointing out this very problem (and, I should add, presenting it entirely from the perspective of owners and not end-users):

Copyright law wasn’t written with today’s content consumption in mind. The way online video copyright functions is based on a reading of the 10-year-old Digital Millennium Copyright Act that equates video hosting sites with Internet service providers. That law provides a “safe harbor” for hosts who respond to copyright claims by taking down infringing content “expeditiously.”

If you’re a copyright holder and you want to keep up with your pirated content flitting about the Web – well, good luck. The way the DMCA is set up means you’re always chasing, and the real-time Web is racing faster than ever before. Analytics services are only just emerging that will tell you where your views are coming from on a semi-real-time basis.

Generally, I am of the opinion that business models need to change to meet new technology, and that changing the law to protect stale business models is not the right approach. Nevertheless, the DMCA was created in a different era of the Internet – perhaps it truly needs to be revised. If so, I hope lawmakers will consider both the very difficult issues of copyright owners (we do still need to create incentives to generate innovations and new content) facing real-time technology, along with the even more critical (in my opinion) importance of distribution to end users.

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