SOPA, Copyright, Safe Harbor and What It Means For “Regular” People – Part I – Overview

We’re going to continue to hear about SOPA, the proposed legislation to address digital piracy, although this week President Obama basically said the legislation isn’t going to happen. There’s lots of commentary about what this is all about, but most of it centers on how “the big media” giants want this legislation, while the “civil libertarians” object. In fact, the existing legislation, and its failure to protect all creative products is affecting millions of people, both creators and webmasters, and people who read, view, and listen. In other word, you and me.

In this first of several parts, we’ll provide an overview of what exists now, and the whole issue. Please note that I have not read the SOPA proposal, and since I haven’t, I can’t comment or even come out to support it or to criticize it.

The Basic Point of Copyright

First, there is a SINGLE basic purpose to copyright law, the reason it was created in the first place. It exists to stimulate the creation of creative products (books, films, articles, etc). That’s it. The idea is simple: to allow creators to control how their creations are used, so they can perhaps profit from it, and also control HOW and where it will appear. It was never intended to be about the money, which is why infringement is infringement whether there’s profit or not.

Existing Law On Copyright, the DMCA (Digital Millennium Copyright Act)

The current law regarding copyright is the Digital Millennium Copyright Act (DMCA). It has two important aspects to it that will probably be startling to you:

1) Onus on The Victim of The Crime To Enforce The Law

Unlike other crimes, where the responsibility for enforcing the law lies with the State, the DMCA makes it the responsibility to enforce the law one that falls to the victim (i.e., the owner of the copyrighted work infringed). In other words, if one has one’s creative product reproduced illegally on the Internet, one has to file a DMCA takedown notice, which includes evidence of ownership, forward that document to the “publisher” (that could be YouTube, Google, or any other site that hosts illegal material), and hope that the company will remove the material. It’s actually a bit more complex than that, but that’s the essence. While in print media, if the New York Times publishes your material without your permission, you have legal recourse. On the Internet, with so much infringement undertaken by “anonymous” people, you aren’t likely to be able to enforce your rights.

It’s a little like saying to a victim of car theft, that it’s his responsibility to find who stole it, and get it back.

2) Safe Harbor Provision

The DMCA also has what’s called the Safe Harbour provision, which absolves the online “publisher” of any responsibility whatsoever, for damages incurred as a result of their publishing stolen material. So, if a song you wrote is stolen, let’s say, and posted all over the place, along with a faked video of you, and it goes viral on YouTube, (and you object), you can’t recoup any losses from YouTube. At best, you might be able to get it removed. If your material is posted on hundreds of sites, none of those sites have any responsibility under the law, except to take down the infringing material. Safe harbor applies to webhosts, sites like blogger, Facebook, Twitter, and so on.

So, taken together the two aspects of the DMCA simply don’t work. It’s impossible to contact a hundred different sites that have stolen your material to make DMCA requests because if you tried, that’s all you would do, day after day. You can’t recoup the time, cost, or punitive damages from the “publishers”, unlike the case with print media.

That’s problematic, but it gets worse. Your material is posted without permission on Facebook, LinkedIn and a dozen other major sites. Those sites make their money from putting ads on user created content, and the make huge amounts of money doing that. In essence, if we take Facebook as an example, Facebook puts ads on your material, sells space, and PROFITS from the law being broken. Because of the safe harbor provision, you can’t recoup that money. There is no incentive — in fact there is financial disincentive for Facebook to hire enough staff to police user generated content and act promptly. The same for YouTube, or any other platform. And, under the law, they have no other obligation, except to take down material once notified, EVENTUALLY.

Conclusion to Part I

If you don’t create intellectual property, or you blog for fun, perhaps it doesn’t seem relevant to you. But we’ll get to that, and answer your question about how this is all of concern to most citizens.

In Part II, I’ll present some examples, both personal and from webmaster colleagues to explain why this is important for everyone.


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