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.