The Other DMCA Provision

by on October 27, 2006 · 4 comments

My DMCA paper focuses on the law’s most controversial section, the part that prohibits circumventing DRM schemes. When I was writing it, I briefly considered discussing its other provisions, most notably the “notice and takedown” provisions of §512. After all, EFF has a whole web site documenting the chilling effects of that provision. But although I think EFF has some legitimate gripes, I ultimately concluded that the anti-circumvention provision was far more problematic, and decided to focus my paper exclusively on that section.

Today Tim Wu has an interesting article in Slate arguing that we should be grateful we got §512, because if Hollywood had gotten its way, things would have been much worse:

This summer, Sen. Ted Stevens, R-Alaska, earned the bemused contempt of geeks everywhere when he described the Internet as “a series of tubes.” But back in 1995, Hollywood was insisting that the Internet be characterized as “a bookstore.” And a bookstore, unlike a series of tubes, breaks the law if it “carries” pirated novels. So too, Hollywood urged, Internet companies should be liable if they carry any illegal materials, whether the companies know it or not.

Had that view prevailed, there would probably be no YouTube today, and also no free blog sites, and maybe not even Google or Web 2.0. What venture capitalist would invest in a company already on the hook for everything its users might do? But, in one of the lesser-known turning points in Internet history, Hollywood never got its law. Its unstoppable lobbyists ran into an unmovable object: the Bell companies, who own those “tubes” over which the Internet runs. In the mid-1990s, fearing a future of liability, the Bells ordered their lobbyists to fight Hollywood’s reforms, leading to one of the greatest political struggles in copyright history. (This paper provides a history of this and other struggles.)

Hollywood employs legendary lobbyists, like Jack Valenti, but when they ran into the Bells, it was like Frazier meeting Foreman. The Bells quickly put holds on all the legislation the content industries wanted. Telecom lobbyists like Roy Neel, a close friend of Al Gore (and later Howard Dean’s campaign manager), went to Congress and began saying things like, the “copyright law threatens to put a damper on the expression of ideas on the Internet.”

Copyright law is at its worst when it’s unclear where the boundaries of liability lie, because then deep-pocketed, risk-averse companies will decline to take the risk of incurring large copyright liabilities. The “safe harbor” provision gives businesses clarity regarding what they need to do to avoid liability when it comes to user-generated content. And that, in turn, has allowed individuals to push the boundaries of copyright law and produce absolutely brilliant works of likely copyright infringement.

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