This is a continuation of posts on how to avoid liability while posting content on the internet. To be notified of future posts, ‘like’ us on facebook here.
I’ve recently posted a few pieces regarding the use of copyright-protected material online, and how to do so in such a way that decreases your risk of liability. I’ve written about such a topic primarily as it applies to users of social media, those who run podcasts, and for everyone: how and when to obtain permission.
The feedback has been positive. So I continue. This post regards the trouble of policing copyright infringement in a digital world, and what Congress has done to try to keep up.
A reporter recently asked me the following questions. My answers follow.
There have been several court cases involving video or music sharing sites. Is a body of law emerging that will set a precedent for the legalities of sharing this material? If so, what are the trends?
The law is always changing, and I can’t think of an industry that changes as fast as the music industry has been changing—with legislation that has trouble keeping up. But there have been attempts. In 1998, The Digital Millennium Copyright Act (DMCA) was unanimously passed and then signed into law by Clinton. Among other things, the DMCA makes it easier for copyright holders to police the use of their works on the internet. When they find an infringement, they can issue a takedown notice to the site (a relatively quick and easy procedure), which then must take the offending content down, after giving the other side a chance to respond. However, the (law-breaking) uploader can merely upload the content again. This has resulted in a terribly endless game of wac-a-mole for many copyright holders, some hiring a team of people merely to issue takedown notices day after day. The DMCA also allows one to make ephemeral copies of a work for archival purposes, and sets new lines as to what is infringement and what is not so as to accommodate the new digital age. Laws have been established that favor copyright owners, and others have been established that favor sharing and the public domain.
But what is the legislative trend? At the beginning, we had the Misappropriation Rhetoric that protected the rights of the copyright holders, but after our culture became richer and expression became a value, we switched over to the Public Domain Rhetoric (valuing that which can be shared). But now things have evened out, and new ways of tracking the performance of works have been created. So now we have been coming into the New Economic Rhetoric (which I’ll call the ‘Click-for-a-Penny’ Rhetoric) that advocates the convenient use of another’s work for a small sum, while allowing free sharing of works that the author no longer cares to profit from. Swiping your credit card on an airplane to watch a movie or to stream on Hulu, or accepting a Creative Commons license to repost a blog, are all examples of this. Where will we go from here? One can only wait and see.
How is it possible to police the vast world of the internet for copyright infringement? Can it ever be brought under control?
Just as Performing Rights Organzations like ASCAP, SESAC, and SoundExchange (for artists) use emerging technologies to track the performance of songs on the radio, similar technologies are emerging for doing so on the internet. Many technologies embed each song with a digital fingerprint that a computer can detect every time the song is played. The question is how quickly the laws can keep up with emerging technologies and uses of those technologies.
Given that the internet is a relatively recent development, what future direction do you think the law will take regarding its use? Are greater restrictions likely to come into play?
This is largely political. There are people on the Copyleft, fighting for a larger and more accessible public domain. Then of course there are the policers, fighting for more profit and more control.
The cycle is that as new technologies emerge, many pioneers push the boundaries of copyright law, naturally upsetting the others, who sue. Then, one by one, judges draw the lines, which are then again blurred by new emerging technologies, and the whole process starts again.
The question is not whether greater restrictions are likely to come into play, but whether smarter ones are. No one can know what will happen, but I certainly hope the law understands that one cannot contain the internet — a completely new type of animal — in the old type of cage originally meant for phonorecords.
One analogy I favor, used by Lawrence Lessig: Before the airplane was invented, the law gave a property owner ownership over his land, the soil below, and the sky above. But airplanes came along, scaring many farmers’ chickens who ran into the barn wall to their death. Farmers sued for trespass, and the Court acknowledged that “it is ancient doctrine that common law ownership of the land extended to the periphery of the universe.” If this was the internet today, the courts would set up a licensing system such that the airlines would pay a monthly fee (according to the amount of properties they’d be crossing) which would go to the landowners. (This would conform to our ‘Click-for-a-Penny’ Rhetoric). But then, Judge Douglas saw that with new technology, the law would have to change. Now we (obviously) do not require an airplane owner to “ask permission” before flying over another’s property. I hope that in the same way common sense will prevail as we try to legislate around this new toy we call the internet.
What do you think have been the most significant cases regarding copyright on the internet thus far?
Well, A&M Records, Inc. v. Napster was the first big case directly dealing with peer-to-peer file sharing, which it ruled, was a big no-no. This dramatically slowed down the market for such sharing, arguably affecting the industry more than any other case in years, or even since the Sony case that wrestled with the invention of the VCR. Now many cases making the press regard the use of one’s social media statuses or tweets against in court, often for extreme criminal charges. U.S. v. Meregildon, — F.Supp.2d —, 2012 WL 3264501 (S.D.N.Y. August 10, 2012). Youtube is often in litigation (recently with Viacom and other parties) about how responsible it is for the content uploaded on its sites. Just a few days ago, the majors were granted a permanent injunction against Grooveshark that will significantly limit Grooveshark’s ability to stream music. All of these cases will shed light on how our laws are applied, at least until new technologies emerge, blurring those lines once again.