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Three Proposals For Moderate Copyright Law Reforms

>implying these will ever see the light of day

Submitted by kmeisthax on Tue, 02/16/2016 - 21:32 in Rants

YouTube's new copyright policies are better than nothing, but quite simply put, they aren't enough. It's gotten to the point where YouTube creators are starting to cannabalize smaller channels in the name of "protecting" their "intellectual property". Quite frankly, it's an insult when copyright owners use the excuse of "author's rights" to force other authors to only create on their terms. Overprotection of rights is tantamount to infringing on others' rights; everything must be a balance. But for so long, copyright law has been anything but.

In 2011, the overreach of copyright law might have hit a breaking point with the protests against SOPA and PIPA. Finally, major Internet services were actually pushing back in ways that had a real effect. However, the committment of said services to their message appears to have wavered. As much as I like what happened back in 2011, we have to face the unfortunate truth that it was very much a reactionary campaign; a "knee-jerk" response. But that's not enough, because preserving the status-quo is still giving copyright maximalists what they want. We need to push for a single, unified platform of new law that reforms copyright into a fair system rather than one that allows it's creators to accrue the most capital.

I am advocating for a series of changes that the technology industry needs to seriously consider lobbying for. I offer no model legislation, only ideas:

  • Regulating YouTube Content ID and similar services.
  • Rolling back the harmful edges of the DMCA anti-circumvention provisions.
  • Extending the DMCA "safe harbor" to cover spurious claims.

Regulating YouTube Content ID and similar services.

Far from merely being automated anti-piracy utilities, things like YouTube Content ID function as collection agencies. Unlike traditional collection agencies, however, these entities arbitrate ownership over content and monetization revenue almost completely outside the legal system. Even if you are dead-set on pursuing a legal claim, the system requires you to wait until both a dispute and an appeal have been processed before a counter-notification is possible; and earnings made within that very lucrative time period are given to the claimnant.

Automated content identification systems that serve the purpose of a rights collection agency must be legally required to hold claimed funds from monetization in escrow until the claim is resolved. Under the current system, someone can claim other people's work and profit off of it for up to 60 days before they have to file a legally-actionable notice of copyright infringement. This isn't fair; this harms artists' ability to profit from their work and is contrary to the purpose of copyright.

The DMCA attempts to protect people whose work is being claimed as infringing by allowing courts to punish notifications made in bad-faith or without consideration of fair use. This also needs to be adapted for automated content identification systems, with respect to the content originally uploaded into the system as well as the claimnant's decision to pursue the claim further when a dispute is brought to it's attention. Automatically reclaiming disputes should similarly be considered not a good-faith action and carry additional penalties.

The DMCA counter-notification provision needs to be an option at every step of the way through a Content ID claim process, even before the claimnant has had a chance to review a dispute. The time limit on disputes and appeals exist to give claimnants a time to respond. It's also intended to provide a repository for actual pirates to be told no without necessarily having to open them up to legal action. However, a legitimate content producer who is willing to pursue their right to create in court should not have to sit in a queue for two months before they can file a proper counter-notice.

Rolling back the harmful edges of the DMCA anti-circumvention provisions.

The biggest harm that W3C EME compliant DRM don't-call-them-plugins pose to the open web is not just the presence of content only decodable by certain proprietary browsers. It also harms the security of the web by adding more attack surface that security researchers are not allowed to examine for fear of legal reprisals. The moment that a cybercriminal figures out how to use an Adobe DRM plugin in an in-the-wild exploit, we are going to hear multiple security researchers who knew about the bug and chose not to disclose it to it's vendor. This is not okay.

The kind of law that could be passed to address this issue would be minimal at best. Unfortunately, DRM anti-circumvention is very much "settled law", in that it's just accepted as the necessary underpinnings of a capitalist economy and therefore untouchable. Hollywood needs their security blanket to feel safe. Ideally, the web should be legally protected from DRM, as an extension of existing DMCA exceptions for software compatibility purposes. However, I would probably have to settle for a narrow provision stating that security research on DRM plugins that does not disclose a circumvention method is legal. This may actually be achievable through the Copyright Office's DMCA exceptions provision; if it is not already recognized by the courts as covered under the original set of exceptions put into the law.

Speaking of those exceptions, that process needs some work too. Currently, the Copyright Office gets to make narrow exceptions to the anti-circumvention laws, but they only last for 3 years each. Furthermore, the Copyright Office often rejects exceptions simply on the basis that they do not feel that Congress would approve of them. This means that the exceptions process isn't doing it's job. The Copyright Office needs to have the power to renew an exception with prejudice - that is, let it continue to be automatically reinstated every 3 years unless someone is willing to campaign for it's removal. Finally, the wording on the exception provision needs to be changed to empower the Copyright Office to make larger exceptions, especially in realms such as the right to repair, accessiblity technologies, abandoned works, and jailbreaking.

Finally, the DMCA anti-circumvention provision needs to incorporate fair use somewhere. The reason why distributing circumvention software (and, in access-control cases, merely using it) is illegal regardless of the purpose is because it's just as blind to copyright law as the DRM it's trying to remove. We need an arbiter of fair use that can make exceptions for specific organizations to break DRM for specific fair use purposes. Consider it like the Copyright Office exceptions hearing but for individual instances of DRM breaking that would otherwise not be eligible for an exception.

Extending the DMCA "safe harbor" to cover spurious claims.

YouTube rejects spurious DMCA claims at it's own peril. For all of the actions that the DMCA considers not in good faith, the service provider needs to be empowered to reject those claims without opening up the possibility of losing their safe harbor status. It should not be enough for a DMCA notification to say "this is infringing": they need to provide an explanation of what is infringing. Furthermore, if the content does not match what is being claimed as infringing, then service providers should have the right to reject the claim without losing safe harbor status.

Furthermore, the DMCA counter-notification provision is not always a suitable mechanism for rejecting sprious claims. It requires revealing one's personal identity and home address to the claimant, which is assumed throughout the whole process to be a law-abiding citizen. This is not good enough - not only is the DMCA a useful censorship tool; it can also be used to obtain personal information to be used for further harassment if the target decides to counter-claim. This is not okay. There needs to be a process whereby targets of spurious claims can maintain their anonymity while fighting the claim in court, at least for the purpose of obtaining a summary judgment against the claim.

So far, I have yet to see an instance of "doxing-by-DMCA", but I fear it may be only a matter of time until it happens.

I don't expect any of this to actually find it's way into law, primarily because it's not even written to be a law yet. These are merely proposals that we as a unified Internet need to fight for in 2016. Perhaps the EFF or someone can push these into concrete proposals that the wider technology industry can lobby for. But these I see as the biggest immediate copyright issues facing us today.

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