The DMCA (at Cornell’s Legal Information Institute)

The digital millennium copyright act (DMCA), copyright law’s online presence, attempts to grasp several areas in its provisions including: (1) “transitory” digital communication, (2) system caching of others’ work, and (3) systems serving as repositories of other’s content. Although the DMCA applies equally to most parties, it has become the main weapon of the RIAA, MPAA and copyright-holding media conglomerates in their fight against online infringement.

Section 512(c) of the DMCA is one of the most hotly contested: the “Safe Harbor” provision. This part of the DMCA exempts ISPs and other content-hosting services from copyright infringement liability — if they agree to behave in particular ways. These behaviors include:

(1) Upon notice, “act[ing] expeditiously to remove, or disable access to, the material;”

(2) “Upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.”

While choosing to not comply with these behaviors does not automatically make these content-hosts “guilty” of copyright infringement, it is very desirable since most groups would choose to avoid any litigation. In this way, some copyright holders have pressured large hosting sites to take down “potentially infringing” material without having to actually bring a suit. These are usually called “DMCA takedown notices”.

But what does this have to do with power laws?

Section 512(c) of the DMCA (”Safe Harbor”) is the battleground over the long-tail copyright-infringers. The task of managing DMCA-compliance for the millions of users in the long-tail is infeasible — it would be much easier to pay attention to the “short head”, the content hosting sites, and use their exponentially greater size to enforce the DMCA.

http://www.washingtonpost.com/wp-dyn/content/article/2007/03/28/AR2007032802057.html

In the above “Letter to the Editor”, Google responds to Viacom’s general counsel accusation that YouTube should not receive Safe Harbor protection for various reasons including profit generation and active policing of some content. The Viacom general counsel admits the burden that pursuing each individual would place on copyright holders — and thinks that this is not right. Google responds by pointing out that the shifting the burden to hosting services would completely change the face of the DMCA, and that this is an issue for Congress.

Both are somewhat right.

As discussed in class, normal law distributions do not capture certain phenomena correctly. Online infringement should be modeled as a power law / long-tail activity, if just for the sheer number of minimally participating internet users (who may just download copyrighted content) and the recognition of a much smaller number of extremely large hosting sites like YouTube, Flickr, MySpace, etc. Viewing infringement as a power law activity suggests that viewing the average site/user as a moderate infringer is incorrect.

Pursuing Takedowns is a Burden on the owners.

Viacom is right. That seems to be the reason they’re so eager to shift the burden to the short head — where they can leverage the short head’s exponentially greater size to effect takedowns. However, takedowns are not fixing the problem, it is a remedy and it ignores the fact that, for the most part, these sites are not producing the content themselves — the long tail is. Kicking a seedy dandelion.

The Short Head would not be any less-burdened — and that’s not the law.

Google is also right. These copyright-holders seem to be asking for special changes to the way the DMCA works and a shift toward closely policed online media. While the Internet allows a leveraging of power law participatory communities, there is no inherent reason that the few largest parties should be culpable for the actions of others. And what about innovation? As we know, information cascades are an important part of online social and business interaction, and they can be extremely fragile. Network externalities and direct-payoff effects drive P2P, social networking sites, online advertising and many other lucrative businesses. Burdening these hubs, the platforms (the short head) with network effects, could have a very negative effect beyond the scope of copyright infringement.

Many other posts on this blog have introduced important examples of online information cascades and network effects. The DMCA seems to be a legal battleground for understanding how power law distributions should be treated.