August 09, 2015

It's Time to Go Nuclear Against DMCA Abuse

OK boys and girls. That's the last straw. The straw that broke the camel's back. The jumping of the shark.

It's the end of the line for playing nice regarding entertainment company abuse of the Digital Millennium Copyright Act (DMCA).

The DMCA is like the weather. Everyone talks about it, but nobody seems to do anything very effective about it.

Of course that's not really completely true. There are entities out there trying to change it -- and most of them want to replace it with something even worse -- a draconian mandate for search engines to act as "censorship agents on demand" for the entertainment behemoths.

Granted, the DMCA is a double-edged sword. In key respects, it's aspects of the DMCA that have permitted services like YouTube to exist in the first place, by creating a regime that is significantly enabled by a range of imperfect but ever evolving dispute resolution processes.

But overall the DMCA still remains massively skewed to favor the giant entertainment conglomerates, with its "guilty until proven innocent" model that is a recipe for enormous corporate abuse at the often literal expense of the little guys.

And we now have a new example of this corporate DMCA abuse that is so pure and clear in its stupidity as to once and for all demonstrate that the DMCA imbalance needs to be corrected -- right now.

Adam Sandler's new film "Pixels" has been a horrendous flop. But it may have done some good after all, by demonstrating the lack of regard for accuracy that has become the status quo in DMCA takedown orders -- which, we must remember, are required by the DMCA to be accepted as factual until proven otherwise.

As we learn from:

a massive takedown campaign attacked Vimeo demanding the removal of essentially every video that contained the word "pixels" in its title!

You can imagine the results.

All manner of videos were (as required by law) blocked by Vimeo on the basis of those takedown orders, including totally and utterly unrelated materials that had committed the "crime" of ever using the word "pixels" in their titles -- and (ironically) even the trailer for Sandler's movie itself.

Thank goodness the producers of the various films named "She" over the years didn't try this stunt. Or how about a move titled "The" for real chuckles?

The impact of such takedown abuse is indeed the Internet equivalent of saturation bombing -- with no consideration given to the innocent parties who will be affected, and in the case of the DMCA, then have to find the time and money to fight back against this abuse -- simply to get their videos back on the Net.

Again, it's the fundamental imbalances of the DMCA that allow this, because there is essentially no cost involved in filing massively overbroad and sloppy DMCA orders. All the power is on the side of the traditional entertainment conglomerates, and they generally don't care how many ordinary folks get hurt in the process.

The righteousness of an appropriate "nuclear option" to provide some balance is obvious. And the basic structure of that "weapon" seems relatively straightforward to visualize.

We must make it expensive with a capital "E" to voluntarily file mass DMCA takedowns that are sloppy, haphazard, and likely to negatively impact significant numbers of innocent parties.

It has to cost. It has to cost big time.

Such abuse has to be made so expensive that even the entertainment industry moguls with the gold-plated toilet seats will start to feel the pain.

We can argue about the order of magnitude for these fines and how they should be assigned, but in the final analysis the totals must be so large that nobody in their right mind would willingly issue an indiscriminate large-scale DMCA takedown ever again.

I'd suggest that these determinations would best be made by some independent body, to make decisions regarding accidental error vis-a-vis purposeful culpability, and to assign the fines to be paid.

There are also other ways we could ultimately reach the same necessary DMCA balance, but inaction is no longer a viable alternative.

Legitimate rights holders should be able to appropriately protect those rights -- but not by muzzling -- and steamrolling over -- an array of innocent parties.

It's time to fight back. Enough is enough.


Posted by Lauren at August 9, 2015 04:41 PM | Permalink
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