Americas, USA, Opinion, Politics, Science & Tech, World

DMCA: Copyright, Censorship, and Fair Use

Copyright is a touchy subject. The law relating to that in the USA is the DMCA, a piece of legislation that has been wrecking havoc for almost 20 years now. Made to protect people’s interest, it mostly causes concerns for all people involved.

It’s a long stretch. How could a law that was designed to protect intellectual property be hurtful to anyone? Simple. By being 20 years old. Over the past two decades, technology has made incredible advances, especially the world wide web. If you had told anyone back then that, in due time, they’d be able to watch 4k resolution movies on a TV connected to nothing but a DSL line they’d be in disbelief. The DMCA (Digital Millenium Copyright Act) is so old it never saw what technology would be capable of down the line, thus having a couple of significant flaws that have bugged the digital space for years now.

If you’ve ever run into a YouTube content error, you know what I’m talking about.

DMCA: Evidence of an Industry Incapable of Change

The DMCA is exemplary for the industry it mainly presents – the MPAA (Motion Picture Association of America) and the RIAA (Record Industry Association of America). It spans all the major recording labels and film studios that wanted their rights to be secured in the digital space.

While that is a fair notion, it mainly represented their inability to accept change and to evolve their business practices with the advancements in technology. With the growing interconnectedness of the internet, major businesses refused to engage with consumers on new levels. Instead, they were concerned of upholding the status quo. If it were for the MPAA and RIAA, we would surely still consume their content on analog equipment.

With the internet kicking into high gear, soon filesharing became a major concern, especially for the RIAA, as music files were small enough to be shared and pirated early on. Sharing services were able to duplicate singular music titles in mere minutes (the good old times) and send them across the globe, robbing companies and artists of potential revenue. The threat was real, and instead of exploring why people chose to pirate their material, major companies didn’t search for a cause but tried a brute force attempt in suing anything and anyone they could get ahold of.

The most prominent moment back then came from metal heavyweights Metallica. While they undoubtedly had a valid claim suing the service Napster back then, alienating some fans for pirating their music on it is something not all of them are willing to forget.

DMCA is Hurting Consumers

While the RIAA got an early taste of how the digital age could create an impasse with the status quo, the MPAA was unimpressed. Video files were far too big to be pirated as easily, or so they thought. The 3 MB audio files back then turned out to be as feasible to download as are 3 GB video files today. Soon enough both MPAA and RIAA were firing off all cylinders to keep the damage contained. And as we know the internet – that’s as if you’re trying to eat a soup with a fork. Tedious, ineffective and you look stupid while doing so.

But we have the DMCA, right? We have a piece of legislation that deals with copyright in the digital realm in the way the US government and the industry deemed effective in 1998. The problem is, that the DMCA, to reduce piracy, hit regular consumers as hard as it did people engaged in piracy. Most notably through DRM (Digital Rights Management) technology preventing access to the material beyond the intended use.

DRM usually prevents users from copying or using material beyond the medium it shipped on. The problem here is that DRM is not hurting piracy but regular users. The music industry has fortunately mostly stepped away from DRM practices, while movies and video games are often still riddled with them. The problem here is that the DMCA prohibits anyone to crack those DRM systems or use/share tools to do so. It undermines one of the most fundamental rights every one of us has: Fair use.

Fair Use and Free Speech Under Attack

Fair use can be manifold, but it mainly means the use of copyrighted material in a way that does not infringe the interests of copyright holders. It ensures the consumers right to make private copies of things they bought for safekeeping reasons for example. It also provides that everyone can use and access copyrighted material and work with it. Scientists and journalists use it for research, and it can also be used to create something entirely new. The problem is, that the DMCA makes it possible for companies that hold rights to specific material can and will use those rights to selectively censor the content they deem not helpful for their cause.

It creates a conundrum. While it is your right to make a copy of the movie you bought – it is against the law to use a tool to circumvent the DRM of that movie. This has implications for scientific research and journalism as well. As a journalist, you may have to bypass DRM measures or other decryption methods to gain access to information to report on. This, nowadays, can result in hefty lawsuits, crippling the journalistic ability to research and inform the public freely.

DMCA Censorship

It is your right to, for example, use another person’s intellectual property and use it to make your own creation, as long as it doesn’t infringe the original’s rights. For example, a journalist reporting on a movie or music might take parts of it and report on it. The problem here is that, while this behavior should be legitimate, companies are known to silence the material they deem hurtful or inappropriate frequently. While, as a creator, it is your right to do that, you would have to go to court and prove your use of copyrighted material is covered as fair use.

As it stands, fair use is protected but has to be confirmed in court, something companies know and use in their favor to nitpick how they want their material to be used, even though it is effectively censorship.

Artists Suffer Under DMCA

But it’s not only the consumer that can be hurt by the DMCA’s approach to copyright protection. The DMCA just doesn’t understand how the internet works. A website, for example, has to comply with the DMCA and offer ways for copyright holders to request the takedown of material they deem hurts their rights. While this, as well, hurts consumers as rights holders can flag anything they don’t agree with even if it’s covered under fair use (and most websites comply just to avoid trouble), it also hurts artists.

As the internet goes – it is a vast collection of links and material and while taking down one infringement, ten more pop up somewhere else. Artists and companies have been vocal about the approach to take down singular files in the expansive world wide web is highly ineffective. It also safe harbors website operators against copyright infringements committed by their users. Again the metaphor of eating soup with a fork. It also has also been one of the major complaints in the most recent and biggest copyright lawsuit so far against Kim Dotcom and Megaupload.

But what’s the solution here? Sadly, there may never be one that is acceptable for both sites. If we make it easier for companies to flag and remove material from the internet in bulk, it may cause further infringements on free speech and make censorship easier and more probable. If we leave it like it is, it will continue to hurt consumers in their most basic rights. The DMCA has to be reworked; there’s no doubt about that – the risk we run is that corporations and big money will have too much influence in doing so. The consumer is already losing the copyright fight, and there doesn’t seem to be much we can do about that.

About Andreas Salmen

Born and raised in Germany, learned a job in IT and Business and ultimately decided that this wasn’t exactly where my life was going to end. Left everything behind to become a writing backpacker instead. The world’s crumbling away anyway so why not write about it and get a few good Instagram pics on the way, am I right?

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