It's no surprise that the RIAA is unhappy with the DMCA, given how fervently
the organization supports the beautifully named E-PARASITE Act. However, a lawyer from the organization has shed new light on exactly why
the recording industry (and presumably the MPAA as well) thinks the Digital Millenium Copyright Act is broken. "I think Congress got it right, but I think the courts are getting it wrong," Pariser said during a panel discussion at the NY Entertainment & Technology Law Conference. "I think the courts are interpreting Congress' statute in a manner that is entirely too restrictive of content owners' rights and too open to [Internet] service providers. "We might need to go to Congress at some point for a fix," Pariser added. "Not because the statute was badly drafted but because the interpretation has been so hamstrung by court decisions."
The "hamstringing" in question refers to the safe harbor provision of the DMCA. There've been a number of important cases on this topic—UMG v. Veoh and Viacom v. YouTube are the big ones—but what it boils down to is that the courts are refusing to strip safe harbor protection from sites like YouTube. The DMCA requires that ISPs and sites like YouTube follow certain rules, like removing content immediately if a copyright holder informs them that the video in question has been inappropriately posted.
E-PARASITE is the best name for this sort of bill that we've ever heard of.
You just have to remember it applies to the sponsors, not the people it would be used against.
In both cases, the copyright holders argued that the sites in question profited from the infringing material and/or failed to take appropriate action to prevent further infringements from taking place. The applicability of the safe harbor clause is obviated if the websites in question are judged to have been "aware of facts or circumstances from which infringing activity is apparent." The RIAA, generally speaking, believes that it's the job of YouTube to both police itself for infringing content, and ban users attempting to circumvent copyright protection technology. This last is a catch-22. A company that actually does
police itself runs the risk of losing safe harbor protection because it no longer qualifies as a neutral service provider.
There's an informative blog post over at ipinbrief that discusses these issues from the content holder's perspective. Whether you're sympathetic to their view or not, it's a good way to understand the issue from the other side. The central problem with the RIAA's stance is that the sort of deep packet inspection and content policing the content holders want is technologically unfeasible and highly susceptible to the Streisand Effect
. This is where E-PARASITE is meant to come in. The ability to peremptorily shut down foreign websites merely on the accusation that they "induce infringement" is an enormous power grab that hands broad censorship authority to the Attorney General's office, outside the inconvenience of judicial oversight.
The problem with all of the "solutions" coming from copyright holders is that they rely on unacceptable invasions of privacy, impose ridiculously severe punishments, and, in the case of E-PARASITE, call for legal powers that would undermine the US's international standing and diplomatic relations with other nations. Any attempt by the US to exercise hegemonic control over foreign-owned websites will reignite and lend credence to claims that the US is attempting to control and police the Internet to its own benefit, regardless of the impact on everyone else.
We support the RIAA and MPAA's right to enforce their copyrights, but their legal strategy is aimed at preserving a distribution model that's been dying for the past 15 years. Killing Napster didn't stop file sharing. E-PARASITE, even if it passes, won't either. All the revisions in the world to the DMCA won't change the fact that you can't put the genie back in the bottle.