Tuesday, October 28, 2008

Did the DMCA Save the Web?

When it comes to copyright law and the internet, there is perhaps no more hated, heavily criticized, and notorious internet policy that exists than the Digital Millennium Copyright Act (DMCA). So netizens were somewhat shocked to read this afternoon at Wired.com that the DMCA is actually "misunderstood", and even going so far as to proclaim that it "saved the web".

Did the reviled policy really save the web (in which case, many of us have been grossly delusional), or are the writers at Wired simply off their rocker?

Here's what you need to know to answer that question. At issue are the following two central elements of the DMCA: 1) its "anti-circumvention provisions" which basically make it illegal to bypass the encryption on things like CDs, DVDs, and software; and 2) a separate provision that "provides ISPs, hosting companies and interactive services near blanket immunity for the intellectual property violations of their users".

Active netizens have spewed vitriolic hatred at the DMCA for a decade because of the first "anti-circumvention" provisions, arguing that it strips away consumer rights that have existed for decades and often violates the Fair Use Doctrine of copyright law. In plain English, they're angry because it makes it illegal for, say, a school teacher to distribute copies of material that they found online, or for people to make mix music tapes or even copy a DVD (which they've legally purchased) to be able to play it in both their living room and on their computer.

But Wired suggests that despite all this, not enough attention is given to the second "immunity" provision. They trace the development of virtually all Web 2.0 services, such as YouTube and Facebook, to this single provision, arguing that such sites never would have come into existence if they had to check every single video and photo for copyright infringement before it could be posted, or else face a lawsuit themselves. In other words, by the DMCA granting YouTube immunity from copyright infringement lawsuits, and making only the person who posted the video liable rather than the company itself, only through this have the YouTubes of the world been able to flourish.

It's definitely a valid point, and Wired is right in pointing out how this is often overlooked. However, does that constitute "saving the web"?

Not a chance. Like virtually any public policy, the DMCA has its good points and its bad. The immunity provisions may have opened up some new business opportunities, but the anti-circumvention provisions simultaneously stripped consumers of their existing rights. Its hard to assign one of these more social value than the other, but if you go by the public outcry over the DMCA since its passage, focusing on the benefits of the immunity provisions may be similar to looking at the government's recent $700 billion bailout plan of the financial system, and choosing to emphasize the portion of it that's going to building a new yarn museum in Missouri.

Make no mistake, the DMCA remains one of the worst policies ever devised to regulate cyberspace, and research has demonstrated that it was little more than a gift to Hollywood and the music industry (whose lobbyists actually wrote the language of the original bill).

Perhaps the real legacy of the DMCA will simply be its serving as a dramatic example of how governmental policies retain a strong power to shape the online environment.
  

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