The Authors Guild Petitions Congress for Unworkable "Notice and Stay Down" Provision
On Friday The Authors Guild published an open letter (a text-free PDF, no less) that calls upon Congress to amend the DMCA and replace the existing notice and take down setup with the notice and stay down setup that has been proposed by the "let’s break the internet" crowd.
Under current US copyright law, internet service providers are shielded from liability for the actions of their users so long as the ISPs respond to legal notices from copyright holders. This is known colloquially as the DMCA safe harbor provision, and it’s the legal bulwark that protects everything from Youtube to online forums.
US copyright law currently puts the onus of fighting copyright on copyright holders, where it belongs, but The Authors Guild is hoping to change that. The Authors Guild is adding its voice to the chorus calling for Congress (or the courts) to force ISPs to fight piracy on behalf of the copyright holders.
This is what is called the "notice and stay down" system. or as The Authors Guild put it:
We are asking for a “Notice and Stay-Down” regime: once a webhost knows a work is being infringed, it should not continue to receive “safe harbor” immunity from claims of infringement unless it takes reasonable measures to remove all infringing copies of the same work.
There are a couple absolutely ginormous problems with their proposal. (Edit: For one thing, this is merely SOPA under another name.)
The first and most obvious is that the term "reasonable measures" cannot be discretely quantified; it is a matter of opinion. To ask Congress to legislate that idea into law is not a solution to current piracy issues so much as it is an invitation for lawyers to spend years in court running up millions of dollars in fees as they hash out the nuances.
But the larger issue with The Authors Guild’s proposal is that they based it on the mistaken assumption that one can readily identify pirated content.
This is laughable on its face; Viacom proved that when it couldn’t even identify what content it had uploaded to Youtube when it sued Youtube.
But more importantly, The Authors Guild believes that "Google and other ISPs clearly have the means to keep their sites free of most pirated content", when in fact a cursory review of piracy prevention efforts makes it clear that it is damned difficult to separate pirated content from the chaff of legally used content.
For example, how would you build an automated system to block a pirated Doctor Who stream but not block the legit Hugo Awards stream? How would you block a pirated song but not remove a home video of a bouncing baby or block the audio of a robotics competition because that song was briefly heard in the background? And how would you create an automated system to block to prevent the upload of a pirated ebook without also blocking texts that engage in literary criticism?
My point is that this is not nearly as simple as The Authors Guild makes it sound. What’s more, they’re asking for a system which is already in place on some services and has been repeatedly shown to be flawed.
It doesn’t work, and no amount of wishful thinking on the part of The Authors Guild can change that fact.
image by Yogma