According to RIAA President Cary Sherman, the DMCA doesn’t work for the content industry because it doesn’t make service providers responsible for policing copyright infringement.
In statements made as part of a panel discussion at an event hosted by the Technology Policy Institute, Sherman said, “the DMCA isn’t working for content people at all.”
He went on to explain, “You basically cannot monitor all the infringements on the internet,” later adding, “everybody has to do something about piracy.”
This line of reasoning is nothing new for the RIAA, but it remains as flawed as ever. It requires that you accept a number of assumptions which simply don’t hold up to any real scrutiny.
The most obvious is that there’s any way to stop piracy. It’s easy to say somebody has to do it, but there’s no evidence anyone actually can.
According to the Sherman the solution is for everyone from ISPs on up to do get involved. But this creates some significant legal problems.
How does an ISP monitor the content of on their network without violating federal wiretapping law?
And that’s without considering that figuring out whether fair use is involved requires human intervention, which would automatically disqualify the provider from DMCA safe harbor protection.
So if ISPs can’t find infringement what about services like RapidShare? Sure they could use a filtering system like YouTube has implemented, but what’s to stop people from switching to a new service with no such arrangement in place?
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RIAA President Cary Sherman recently posted a statement responding to last week’s summary judgement in the Viacom lawsuit against YouTube decrying the decision as a “dangerously expansive reading of the liability immunity provisions of the DMCA.” He also called it “bad public policy.”
He went on to claim the decision will “will actually discourage service providers from taking steps to minimize the illegal exchange of copyrighted works on their sites.”
This is nothing surprising coming from the RIAA. Like the MPAA and Business Software Alliance (BSA), they have consistently argued service providers should be responsibile for identifying copyright infringement rather than the content owners themselves.
But as Judge Louis Stanton pointed out in his decision on YouTube’s DMCA defense, this responsibility falls solely on the shoulders of the content owners except in rare cases where the infringement is obvious without any investigation.
He wrote, “The DMCA is explicit: it shall not be construed to condition “safe harbor” protection on “a service provider monitoring its service or affirmatively seeding facts indicating infringing activity.””
Judge Stanton went on to explain, “the present case shows that the DMCA notification regime works efficiently,” pointing out that it took less than a single business day for YouTube to remove nearly 100,000 videos once they received Viacom’s takedown notices.
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MySpace.com and Viacom’s MTV have hooked up with Auditude as part of its quest to create revenue streams from online video piracy. Nowadays, Internet video piracy doesn’t just exist on BitTorrent sites or P2P networks. User-driven sites like YouTube and MySpace are packed full of videos published without authorization, providing easy access to the content and little or no control to owner of the content.
That’s where Auditude comes in. Auditude, theoretically, through partnerships with online social networking sites and content providers, gives another option besides removal; gaining advertising revenue. On the surface this sounds like a logical and professional move for content distributors to take. It can provide revenue with little or no extra work put in by the content companies. The work to get the content online is taken care of by the user and the bandwidth costs are covered by the service involved.
However, what it does take away from the content companies is a level of control. One thing that most content providers always want control of, is the distribution of its copyrighted works. Apple’s iTunes service sold billions of legal downloads after launching in an era of rampant music piracy, yet the control it demands over aspects of distribution has caused serious tension between the company and record labels.
Gaining partnerships like MySpace and MTV shows some confidence in the idea however, but whether or not Hollywood studios would embrace the service with open arms is not a question easily answered. Auditude’s technology is now being used by MySpace and will give Viacom the opportunity to place advertisements beside content from MTV published by users of MySpace.
