Wednesday 24 August 2011

Is the DCMA biased?

The decision in Capitol Records v MP3tunes neatly encapsulates the different tensions that US legislators faced when they put together the Digital Millennium Copyright Act - and in particular the rights of creators and content owners to protect their content and monetise that content, against the rights of technology companies and internet service providers to develop new technologies and new systems in the digital age, without unfair restrictions and the threat of endless litigation. Or put it another way - were the US content industries (film and television companies, record labels, music and book publishing companies, and the games and software companies) worth more or less to the US legislators than the new technology and internet companies - Apple, Amazon, Google, the telecoms giants and the ISPs - to name but a few! Surely Professor Hargreaves' review of Intellectual Property law in the UK was written against a similar backdrop.

According to the Observer, in Free Ride, Former Billboard magazine editor Robert Levine argues that the worldwide web took the content industries by surprise and in the ensuing melee it was the technology companies who were far more adept at exploiting the confusion and lobbying for favourable laws such as the DCMA. Levine argues that these legislative changes, coupled with academic and other social comment from 'internet gurus', promoted a new environment that was toxic to the content industries, saying "for media companies, getting advice from technology pundits was like letting the fox lead a strategic management retreat in the henhouse".

Is online piracy and the 'free culture' business model slowly destroying culture - or at the very least the culture industries? Make up your own mind, but Robert Levine's thoughts can be found in Free Ride available for £15.99 from or call (UK) 0330 333 6846.


Crosbie Fitch said...

Online piracy, aka the people's cultural liberty, is slowly dissolving the industries based upon constraint of cultural exchange, aka copyright in the hands of immortal publishing corporations.

Cultural liberty cannot destroy culture. If anything, it is its constraint that causes cultural stagnation and decay.

If you want an artist to produce art, pay them to do so.

If you want a printer to print copies, pay them to do so.

Queen Anne's 1709 grant of a reproduction monopoly is long overdue for abolition.

Mankind is born with the liberty to freely share and build upon its own culture.

Kim said...

Another way to look at the 'bias' or lack thereof in the DMCA is to see that the online safe harbours being decried here as balanced by other provisions designed to strengthen IP: including anti-circumvention law, RMI rules (and, in other countries, things like the creation of a right of communication to the public covering online publications). The fact that some of the provisions designed to protect IP - namely, anticircumvention law - haven't turned out to be as useful as hoped doesn't mean that the deal struck at the time was biased one way or another.

Robert Levine said...

Rob Levine here -

Thanks for mentioning the book. Since this is a specialized audience, I'd love to clarify a few things -

I argue that, in the late '90s, *telecom* companies out-lobbied media companies and got a better deal out of the DMCA. I'm not really talking about technology companies, since at the time most of them didn't have much lobbying power. But telecom companies outspent media companies then and they still do now.

The anti-circumvention provision of the DMCA helped Hollywood but it didn't help the music business, which never stopped releasing music in unlocked formats.

The takedown provisions of the DMCA were designed for ISPs more than businesses like YouTube. And they were _certainly_ not designed for an era of automatic re-posters, where any file taken down from online storage lockers comes back immediately.

Also, I hope this is OK to mention - I am now blogging myself at

Crosbie Fitch said...

Hey Rob, have you checked out the comments to Ben's recent item: Kiwi ISP boss says that three strikes is the wrong...?

Mr. LemurBoy said...

I have to wonder if the issue isn't to much that telecom companies lobbied harder, or that the law is unfair to the entertainment industries (it's not like there's not plenty in it that favors them, and a provision that's meant to ensure that blame is placed on the proper party doesn't sound like it should be considered a hardship), but more that, regardless of what's in the law, technology is just very very good at routing around what doesn't work. It's difficult for a static law to exert complete control over a constantly changing and adapting industy.

Rob Levine said...

@ Crosbie,

Yes, but it isn't surprising that a guy who makes money on piracy doesn't favor a law that would reduce it. I don't know enough about the law to comment on it. But he favors what will put money in his pocket - same as the entertainment business.