DMCA Strikes Good Balance, but Issues Remain, Silicon Flatirons Told
The Digital Millennium Copyright Act strikes a balance Congress probably couldn’t repeat today, said industry and digital rights representatives Thursday, despite hearing one independent filmmaker’s claim of lack of recourse for piracy. Silicon Flatirons panelists discussed Section 512, a safe harbor that makes certain providers -- like Facebook, Twitter and YouTube -- immune from liability for copyright infringement linked to user-generated content.
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Electronic Frontier Foundation Legal Director Corynne McSherry called the DMCA a good balance for service providers, users and rightsholders, saying Congress could have “done a lot worse.” One couldn’t expect a similar bargain on any issue from the current Congress, she said. Senior Vice President Michael O’Leary of 21st Century Fox agreed.
McSherry said it’s not a perfect statute, but it created a space for a lot of powerful innovation and expression. She said the music industry is recovering from the onset of the digital era by working with technology companies and businesspeople to figure out how to compete with “free,” rather than speaking with lawyers in trying to fight it.
Jane Clark, indie filmmaker at FilmMcQueen Productions, said the trailer for her Crazy Bitches received more than 1 million views but sales of about $1,000. The damage was done before the DMCA notices even went out, she said, saying current law has little protection for independent filmmakers. She said the law places too much onus on the content creators to play whack-a-mole.
Entertainment Software Association Vice President-Legal Affairs Jon Berroya said independent creators like Clark unfortunately lack collective power to monitor copyright infringement. ESA sent 4 million DMCA notices last year. He said no law is perfect but the balance on the DMCA feels right to the videogame group. O’Leary said Clark doesn’t have the same resources, but pouring money into DMCA efforts isn’t a very good solution.
Laura Hyunjhee Kim, a multimedia artist at Seica, discussed the ambiguity about DMCA law. Her content is a mashup of music, popular memes, images and other material that carry copyright infringement risks. She detailed struggles in determining what is and isn’t allowed through trial and error, and one “grueling” episode that resulted in her paying a settlement for using a copyrighted image.
There are flaws on both sides, including improper takedowns, McSherry said. The law isn't a perfect solution to the problem, but a new copyright law isn't the fix either, because new legislation tends to “ratchet up regulation.” The solution might not be outside of Washington, she said, at the event livestreamed from Boulder, Colorado.
Google Copyright Counsel Caleb Donaldson, on a separate panel, called the DMCA landscape a cat and mouse game, in which Congress has struck a difficult balance. International Center for Law & Economics Executive Director Geoffrey Manne apologized for throwing a “wrench” into the DMCA “love fest.” He argued that as well as things are working now, what’s forgotten in the discussion is that legal settings and business decisions establish the status quo. Google, for example, has a lot of control over content ID and can somewhat dictate what is fair use, he said. Filtering and takedown processes can be improved, he added.