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The Authors Guild Petitions Congress for Unworkable "Notice and Stay Down" Provision

2958042706_ea9d118864_bThe Authors Guild has just shown us that while they may have grown more author savvy under the new administration they certainly haven’t become any more tech savvy than they were before.

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

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fjtorres July 11, 2015 um 7:01 am

For about two seconds, last week, those folks almost sounded like they had a clue of what the world is like.
But they just revealed they still just want 1990 back.

Nate Hoffelder July 11, 2015 um 7:15 am

Actually, it’s worse. TAG wants SOPA.

I had forgot to include that link before.

Mike July 11, 2015 um 7:35 am

There is a new potentially catastrophic prohibition like threat every 5 minutes.

Mike July 11, 2015 um 7:10 am

Tell them A OK as long as all the electronic content is in jpeg format.

No napping here! “Notice and Stay Down” Provision | Roxie's Blog July 11, 2015 um 8:23 am

[…] The full article at Digital Reader… […]

neuse river sailor July 11, 2015 um 9:27 am

The more hoops they put up, the more pressure they exert, the less likely I am to buy any newly published books. They don’t seem to realize that people have choices. Personally, I can read pre-1923 stuff for the rest of my life and never really miss the new works. Or I can search through the dreck on Smashwords for the occasional gems – they’re there – and just bypass the establishment author-publisher-retailer setup altogether. Either way, I can do my part to starve these clueless ninnies without ever bootlegging a book.

Haesslich July 11, 2015 um 2:00 pm

Has anyone checked their site lately for content which would get them taken down under that act or SOPA? It would be interesting to see how their response would change.

puzzled July 11, 2015 um 7:55 pm

Add a couple of more scenarios to the automated detection difficulty scenarios:

* Copyrighted works read into the Congressional Record in the US Congress.
* Copyrighted works submitted as evidence in a court of law.

Both of these situations are official public records and cannot be redacted.

JC July 12, 2015 um 12:46 am

The only content I download 'illegally' are ebooks or audiobooks that retailers tell me "we are unable to sell you this content due to publisher’s rights restrictions" and emails requesting to make that content are ignored. I’m a customer. Why should I have to beg to buy content? How would I even know who to contact to make this available? One trad pubbed author I contacted merely sent me a response that it’s out of her control and zi have her permission to torrent the audiobooks of her work that I can’t purchase because of Geo Restriction which Big Publishing seem to love.

Dear draconian, technologically ignorant Big Phblishing Houses (in particular Hachette, Tantor, Penguin), stop restricting legal sales to people outside the USA, or jacking up prices for international customers…. You want piracy to die down? Make your stuff available and at reasonable prices. Many small presses and self-published authors don’t have a problem doing so. Why do you insist on clinging to old-fashioned regional rights restrictions that only make sense with physical goods? Dinosaurs, the lot of you.

The Authors Guild Petitions Congress for Unworkable “Notice and Stay Down” Provision | The Passive Voice | A Lawyer's Thoughts on Authors, Self-Publishing and Traditional Publishing July 12, 2015 um 12:00 pm

[…] Link to the rest at The Digital Reader […]

The Authors Guild Shows That Piracy is Not a Major Issue, Still Wants to Break the Internet | The Digital Reader July 17, 2015 um 11:54 am

[…] I covered the story, I addressed the point that the proposal was unworkable in and of itself, but it turns out that I missed a key detail: that piracy is a relatively minor […]

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