DMCA and Fandom

I attended the “The DMCA and Fandom” panel on Sunday at ConJosé. The official description reads:

How has the Digital Millennium Copyright Act affected Fandom? Fan writers, editors and lawyers discuss recent actions and activities surrounding Fan Fiction.

The participants were Cory Doctorow (author and EFF Outreach Coordinator), C. E. Petit (Harlan Ellison’s attorney), Deborah M. Geisler (an acdemic, fan, and writer), Christy Hardin Smith (attorney and author), Julie Stephenson (fan and attorney, with an interest in writing), and John F. Hertz (attorney, fan, and dance master), who moderated.

The ostensible subject, fans, fandom, and copyright was never really thoroughly addressed—in part I think because the subject was really too large. It should have been divided into two panels, one on the DMCA, and another on Fandom, Fan writing, and copyright and trademarks. More often then not, in the case of say, Buffy fan fiction, or Trek fiction, it’s less a matter of copyright and more one of trademarks, and protective studios. The panelists made a good effort to get there, and the very end of the panel did discuss fannish issues.

The panel spent a fair amount of time, understandably, discussing the DMCA itself. Perhaps Mr. Petit said it best when (I’m paraphrasing) he said that it’s really two unconnected parts. The first part of the DMCA deals largely with the ISP (Internet Service Provider)’s Safe Harbor. The second half deals with “piracy prevention” or “Anti Circumvention.” Mr. Petit described the second half of the DMCA as “bad law, unjustified, just a bad idea.” I want to thank him for a very clear effort he made to be understandable and specific—and for his well-worth perusing web site on copyright from an author-centric stance.

Much of the discussion dealt with the Notice of Takedown, and the problems with the way plaintiffs execute the notice. Often no reason for the notice—no specific text or passage—is given, and often it goes to the ISP not the user. The user may never be told his or her site was taken down because of a DMCA complaint. If the user doesn’t know that a DMCA complaint triggers the “Notice of Takedown,” then the user can’t respond with a “Counter Notification,” explaining why the content does not in fact infringe copyright.

Cory Doctorow (who was also clearly making an effort to be clear but non-confrontational), near the end, made a wonderful point, almost a paen, about the original intent of copyright in the U.S. He was, I think, riffing on the original bit in the Constitution Art I, Sec. 8, Clause 8:

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

The idea was to promote publication, to increase the number of works available to the public, and to encourage their dessimination, and to eventually have those works return to the commons. We need to remind our legislators of that.

At the same time, I do very much want creators rewarded for their efforts. I just don’t think the DMCA is a rational way to do that. As written, the DMCA invites abuse. I’m increasingly also leaning towards a version of the European droits moral as a partial solution. And I think that creators should be able to decide what rights they are reserving and what rights they are licensing—Lawrence Lessig’s Creative Commons strikes me as a very smart solution to some of our problems, and throwing out the DMCA and starting over for others.

More from Others on the Berman-Coble p2p Bill

See what happens when I waste my time working on my dissertation ? I miss really thoughtful and intelligent posts, like this DaveNet piece from Dave Winer. Read the whole thing, but I very much like this bit:

Further I do not advocate people using creative work without paying for it, but so far the entertainment industry has not offered a system that works the way honest users want it to. That’s the place to begin the discussion, not by hobbling, invading or hacking our computers to turn the clock back to a pre-Internet distribution system. The Berman-Coble bill is the product of an industry run amok, and elected representatives who appear to not be listening to the electorate.

On the Berman p2p

I intended to write something polemic and scathing about the Howard Berman (D- California) and Howard Coble‘s (North Carolina) so called “Peer to Peer Piracy Prevention” bill to allow rights owners to create and use malicious software to engage in flooding, or bringing down a computer or network by “flooding” it with demands for attention (this is a denial of service attack, and it’s usually illegal), spoofing (creating false files that masquerade as legitimate content), and redirection (hijacking a connection and pointing to an alternative server). These are actions that are less than legal under most circumstances, but the Berman bill frees rights owners to engage in these attacks, with protection. Rights owners do not need to prove “reasonable cause,” and the victim must prove (assuming one can identify and track the attack) that he or she suffered financial loss. You can read CNET’s take here.

I discovered that Doc Searles has done a much better job of explaining the issues, both of the P2P bill, and the various RIAA/Internet radio debacles. So go read what the excellent Doc has to say. Then take a look at the EFF’s commentary.

I’m not in favor of illegal file trading, and don’t engage in it myself. But this bill is an astonishingly technologically stupid idea, and it provides the same kind of opportunity for false claims of copyright violation and abuse that the DMCA does. Let’s say a rights owner suspects that an individual is illegally trading files. The rights owner launches an application to “flood” the user’s network. The file trading is halted as the entire network is crippled. In other words, the rights owner has indulged in the digital equivalent of stopping turnpike traffic to issue a citation to one driver who did not pay the fifty cent toll.

If you use a cable modem, your connectivity is shared, so if your neighbor is a file-trader targeted by a rights holder in a denial of service attack, you suffer as well. The putative rights holder does not have to prove that your neighbor was trading copyright protected data, never mind “his” data. If you’re an ISP, and you have three or four (or 100) users who are under equipped in the ethics department, your entire user base suffers—and you must prove in court that you suffered financial loss. If you’re a university, well, you’re screwed. You can’t shut off access to the ports or otherwise block p2p users because that’s a violation of rights, and you will hear from users and their lawyers, never mind administrators and faculty. (We know this because universities tried to prevent access to Napster when the popularity of downloading lots of mp3s began causing bandwidth problems.) But if you don’t violate users’ rights then your network is going to be constantly under attack, to the point of impairing daily and mission critical operations.

Moreover, the sweeping permissions offered by the bill, and the limitations on liability, make the bill not only open to abuse, it practically invites abuse. All the onus for proof lies on the end user, the “trader,” not the rights holder. The vague language provides opportunity for other kinds of malicious attacks.

HP uses the Digital Millenium Copyright Act to Hide Security Problems

HP uses the Digital Millenium Copyright Act to Hide Security Problems

I didn’t think it could get even more idiotic than the Disney/RIAA shenannigans, but yes, Hewlett-Packhard has managed to wrench copyright to even new, more disgusting levels of idiocy.

You should read “Security warning draws DMCA threat “Declan McCullagh ‘s CNet article, but essentially, HP has threatened researchers from SnoSoft who publicized a vulnerability in HP’s Tru64 Unix operating system. The vulnerability is a bug, a serious one, and one HP had been alerted to last year. However, rather than acknowledging the flaw and fixing it as rapidly as possible, when an individual, independent of SnoSoft, published the information, HP sent a letter in which an HP vice president threatens SnoSoft with DMCA damages for copyright infrngement, including fines “up to $500,000 and imprisoned for up to five years”.

Let’s be very clear about this. This was a warning about a vulnerability, one that could allow an intruder to takeover a system. This was in no way an infringment of copyright!. Moreover, HP had plenty of time to issue a fix. They chose not to. Then, they sued the group, not the individual who released the information, and they still have not fixed the bug!

UPDAT 08/01/2002: CNET reports that HP is backing off the DMCA prosecution.

What about the Artists?

I’ve already ranted about copyright, but it’s time to rant some more. I’m perfectly willing to pay for a product I want, but there need to be some changes to the way recordings, especially digital recordings, are sold. We need to protect consumers’ rights to make personal copies of lawfully purchased recordings, and insure that artists can directly distribute their performances via digital files, and internet broadcast, without needing expensive licensing arbitrage, and five or six adminstrative drones raiding the till. Right now, very little profit trickles down to the artists; most of the money goes to the drones.

I’d like to buy digital music files over the net, and from a kiosk at the mall. I’d also like to see the artists’ rights respected, and I’d like to see them getting paid. I’d like to be able to explore the work of unfamiliar artists, by downloading digital music files, and by listening to Internet Radio. The RIAA doesn’t want me to do any of those things, and so I’m boycotting the RIAA.

As I explained earlier, we’re not buying CDs from RIAA distributors/producers. Right now in fact, we’re not buyiing CDs at all. We want to be able to use our CDs where we want, and how we want, including making personal copies. We also want the artists to be paid. Right now, they frequently aren’t.

First of all, in case you’ve forgotten about it, or never read it, here’s Courtney Love talking about the corrupt nature of the biz, and how the real pirates are involved in the recording industry. You really need to read the whole piece—it’s intelligent, facutual and thought provoking. Ms. Love points out that “The system’s set up so almost nobody gets paid,” and talks about how “work for hire” with regard means that record companies, thanks to RIAA buying Congress, can own copyright in perpetuity. As she points out (the links are mine):

Last November, a Congressional aide named Mitch Glazier, with the support of the RIAA, added a “technical amendment” to a bill that defined recorded music as “works for hire” under the 1978 Copyright Act.

. . .
That subtle change in copyright law will add billions of dollars to record company bank accounts over the next few years&7mdash;billions of dollars that rightfully should have been paid to artists. A “work for hire” is now owned in perpetuity by the record company.

Next, I particularly want to point you to Janis Ian, yeah, that’s right that Janis Ian. She makes some very good points about the “internet debacle,” responding to the typical naive assertions about digital distribution as “thievery.” Among other things:

Most consumers have no problem paying for entertainment. One has only to look at the success of and the few other websites offering books and music at reasonable prices to understand that. If the music industry had a shred of sense, they’d have addressed this problem seven years ago, when people like Michael Camp were trying to obtain legitimate licenses for music online. Instead, the industry-wide attitude was “It’ll go away.” That’s the same attitude CBS Records had about rock ‘n’ roll when Mitch Miller was head of A&R. (And you wondered why they passed on The Beatles and The Rolling Stones.)