The Copyright Wars: Protecting Authorship in the Age of the Internet
The invention of the printing press in the fifteenth century has been argued to be one of the most consequential moments in human history. This invention can be indirectly credited with the emergence of the dissemination of news on a global scale, the advancement of the Italian renaissance, the religious reformation of Martin Luther, the Scientific Revolution, and much more. It can also be credited with the creation of copyright law. As technology advances, society and the paradigm of law and policy that rule us often struggle to maintain a sense of balance and justice. Centuries after the invention of the printing press. the Digital Revolution, also known as the Third Industrial Revolution, presented a great number of these struggles, and some of these struggles continue to play out over thirty years after the invention of the Internet. When man gained the capability of instant global communication, maintaining fairness in the marketplace of ideas became more complicated; the delicate balance between the rights of authors and the rights of the public needed to be applied to a completely new framework of communication. By analyzing the “copyright war” of the 1990s, one can understand the way that corporations, not authors, created and maintain our current digital copyright landscape.
The Copyright Wars
According to Jessica Litman, the John F. Nickoll Professor of Law at the University of Michigan, “from the very first copyright law, the power to control and shape the system and the laws has been in the hands of the intermediaries, who have used that power both to enrich themselves with rents… taken from the pockets of authors and readers and also to make it difficult for upstart businesses to compete with them.” This has continued to be the case to this day, and it is clear as ever in the series of events that resulted in our present copyright paradigm on the internet.
The printing press was introduced in England in 1476, prompting the English monarchy to spend the next fifty years adapting regulation to censor and limit the copied material produced by this new invention. This introduced the concept of intellectual property protection to England, and these laws have adapted throughout the world to accommodate technological progression that threatens the status quo. Tim Berners-Lee invented the World Wide Web in 1989, and with the introduction of the internet into American homes through the next decade, much money stood to be made from the rapid exchange of information. Thus, lobbyists from content producing industries requested (or demanded) new legislation to ensure this new cash flow would be heading their direction. At the same time, an organization called the World Intellectual Property Association (WIPO), which had joined the United Nations as a specialized agency in 1974, passed two treaties, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty to establish copyright in the Digital Age. As a member state, the United States was required to incorporate these protections into domestic law.As legislators drafted the Digital Millennium Copyright Act to address this required update, corporations lobbied hard on two sides: content producing companies wanted protection against unlicensed use of their product, and online service providers (and other growing internet companies that were seeing massive investment) wanted protection against liability from user copyright infringement. According to start-up attorney and author Amir Hassanabadi, “these companies lobbied Congress to modify the DMCA to fulfill the dual purpose of both fostering investment in the Internet as well as protecting copyright owners and their intellectual property investments.” Thus, the DMCA as we know it was formulated to meet the needs of these two financial interests.
The resultant DMCA “safe harbor” provision, sometimes referred to as the “grand bargain” by legal scholars, attempted to strike a balance in this “dual purpose.” This provision created the current Notice and Takedown procedure. A copyright owner can identify infringing material and formally notify the OSP, and the OSP must then remove the material. Following this procedure would shield the OSP from liability, so long as they meet the other requirements of the DMCA.These other requirements include that the OSP has no “actual knowledge” of the infringement prior to the Notice, and that they remove or disable the material “expeditiously” after being notified. The former requirement created the “red flag” standard, which Amir Hassanabadi describes as follows:
“The red flag test… has two parts that an OSP must meet. First, a court must find the OSP to be subjectively aware of the circumstances relating to [an] infringement. Second, a court must also find that the infringement would have been apparent to a reasonable person operating under similar circumstances as the OSP.”
Thus, even if an OSP was not notified of an infringement by a copyright owner, the OSP could still be liable for the infringement if it was both aware of the activity occurring and also that the activity is infringing.
Thus, both the OSP companies and the content creation industries/copyright owners successfully lobbied for their desired protections, resulting in the same DMCA that governs internet copyright over twenty years later.
YouTube: DMCA Today
This history of the Digital Millennium Copyright Act makes it clear that financial interests were the driving force behind our current online copyright legislation. Building on this history, an examination of current day grievances with the Notice and Takedown procedure shows that the power still lies in the hands of corporate interests. As a popular content sharing platform, YouTube is an active legal battleground between the DMCA, content production industries, users, and Google, YouTube’s parent company. The push and pull between these interests on YouTube is an excellent measurement of the application of the DMCA, since the website is so wildly popular, and it has operated for over fifteen years in the digital copyright landscape.
Powers Collide: Viacom v. YouTube
In 2007, the media giant Viacom owned a large component of the film and television industry. Viacom’s intellectual property was very vast. Viacom’s property ranged from the works from the very numerous Paramount Pictures properties such as the Godfather or Friday the 13th, to Dreamworks and Nickelodeon properties such as Shrek or Spongebob Squarepants. YouTube, which hosted a wide variety of user generated content, threatened Viacom’s bottom line because of the availability of Viacom’s copyrighted works on the website. After failed negotiation between the corporations, Viacom filed suit against YouTube, alleging that “YouTube did not qualify for the DMCA safe harbor provision §512(c)(1)(A) because YouTube had ‘actual knowledge’ and was ‘aware of facts or circumstances from which infringing activity [was] apparent,’ but failed to ‘act expeditiously’ to stop it.” Essentially, Viacom was alleging that YouTube failed the “red flag test,” because YouTube founders and governance was allegedly “generally aware” that copyrighted content comprised a large portion of YouTube’s user traffic and “specifically aware” of a number of individually infringing videos. YouTube’s defense was that they did comply with the Notice and Takedown procedure as required by the DMCA, and they denied general or specific knowledge of infringement due to the fact that Viacom content was regularly uploaded to the site with authorization, or even by Viacom agents uploading from fake accounts in “an effort to engage in ‘stealth marketing.’” In short, YouTube defended their protection as a safe harbor due to the fact that Viacom material in particular was difficult to distinguish as infringing using the red flag test, and that they therefore complied with DMCA requirements. The Court granted summary judgement in favor of YouTube, holding that YouTube “swiftly” removed infringing material upon official Notice from Viacom, and therefore met the requirements for safe harbor protection. The Court also found that YouTube may have had knowledge of the prevalence of infringing material, but not “actual knowledge” as required by the DMCA.
These billion dollar companies duking it out in court has huge ramifications for both individual content creators and viewers on YouTube. YouTube policy explicitly shifted in response to this litigation. In 2007, YouTube implemented a Content ID system that automatically identified infringing content. As YouTube explained in a blog post:
“Participating rights holders provide us with reference files of their content, and before we publish any videos to YouTube we check them against these reference files. If we find a match, the rights holder gets the choice of blocking, tracking, or making money from the video.”
Over the next three years, this system would identify over one hundred million videos for copyright infringement. However, the Content ID system does not check for fair use exceptions. Resultantly, a video can be automatically removed for including any portion of audio or video, regardless of fair use. For example, imagine you’re a full time movie reviewer on YouTube, that’s your main income, and you want to post a review of Jaws this week. In order to provide comment and criticism, you include a ten second clip of the film within your ten minute video. Although this would almost certainly comprise fair use of the copyrighted content, YouTube’s Content ID is an algorithm, and there is no human review of the content before it is flagged by the system. Resultantly, when you post your video and it’s flagged for copyright infringement, Comcast, the corporation that owns Jaws, has the option of blocking your video, tracking who watches it, or monetizing the video for their own profit. According to YouTube, monetization is the most common option chosen by copyright holders. You worked hard on your review, and now you are not only not making income from your work, but Comcast, a multi-billion dollar corporation that you have no connection to, is making the money instead. You may appeal this, but it takes additional time out of your schedule, it may not work, and often the damage has been done by the time your appeal is reviewed and approved, which can be months. Further, there are many cases where the Content ID system flagged content in error, such as one case where a user posted white noise intended for sleep therapy, and he received five copyright infringement claims. This Content ID algorithm threatens small content creators’ livelihoods, and this policy is explicitly the result of YouTube’s litigation with Viacom. In this way, content creators on YouTube are beholden to the copyright framework managed by corporations like Comcast, Viacom, and YouTube.
More generally, copyright litigation online favors corporate interests because of the cost of litigation. According to YouTuber Tom Scott, “under the current system, it often doesn’t matter who’s actually in the right, even if the answer to ‘is it fair use’ is clear, it’s actually about whether you can afford to defend [the] case. You could be 100% sure [your content is] fair use, but unless you’re prepared to spend the time and the money to actually fight that in court, it doesn’t matter.” If money decides what is and is not copyright infringement, then the online copyright landscape is effectively created and managed by corporations that will act in their own financial interests.
The Future of Digital Copyright Protection
In a perfect world, copyright law should be debated and decided by individual content creators and the public. The balance of copyright should be between the rights of the authors of content and the right of the public to enjoy that content, rather than between the rights of one company to make billions of dollars or another company to make billions of dollars.
Scott argues that this can be rectified with three changes: first, copyright law should be updated- completely rewritten to meet the needs of the Digital Age with the interests of the public and small creators at the forefront. Second, a small claims court should be established to allow pro-se litigants to effectively argue their copyright case. Presently, the proposed Copyright Alternative to Small Claims Enforcement Act (CASE Act) seeks to create a Copyright Claims Board within the US Copyright office to meet this need. This bill passed in the House of Representatives and awaits approval by the Senate. However, it is highly controversial, due to, in short, the fact that it is voluntary for both parties, the enforcement of the judgement lying with federal courts, and the fact that it would enable corporations to sue individuals quickly and easily, creating a “default judgement mill.” Lastly, Scott argues that we should shorten the duration of copyright, in order to expand the content available in the public domain. These three policies would be a massive shift of power in the copyright system from corporations to individuals, and that is exactly what we need to restore balance.
Conclusion
The influence of corporations on copyright law and policy is undeniable. The “copyright war” of the 1990s is one event in a legacy of this pattern. In order to restore the power to authors and the public, we need to make huge changes in copyright law. Imagine, for a moment, a world where legislation didn’t even attempt to keep up with the advancement of technology- fairness in such a scenario is completely unimaginable. Why, then, has the last thirty years of the advancement of the internet not been met with vast changes to copyright law? Furthermore, why should an increasingly small number of corporations be the driving force in the changes that do occur? In order to modernize copyright law, we need to completely rewrite our legislation- and this time, individuals should be at the table, not corporations.
Bibliography
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