CNET News is running a story about how Jerry Scroggin, the owner of Louisiana’s Bayou Internet and Communications, expects big media to pay him for complying with DMCA takedown notices. No doubt Scroggin gets a little PR boost for his maverick attitude, and CNET keeps its traffic up by covering a provocative topic. After all, people love to see the little guy stick it to the man.
Here is something from the article that caught my attention:
Small companies like [Bayou] are innocent bystanders in the music industry’s war on copyright infringement. Nonetheless, they are asked to help enforce copyright law free of charge.
A couple of assumptions in this statement need addressing. I submit that:
ISPs are not innocent bystanders.
As much as one may disdain the RIAA, the organization is enforcing legitimate copyright rights. Though an ISP may have no bad intent to help people infringe (i.e., the “innocent” part), infringing content does pass through their systems. And few would disagree that the owner of a system is in the best position to control what happens in that system. So unless we’re going to turn the entire network over to a government, we must rely on the ISPs at the lower parts of the web to comply with the DMCA. They owe a duty. It’s in this way that the ISPs are anything by innocent bystanders in the copyright wars. In fact, they’re soldiers (albeit perhaps drafted).
Though the administrative burdens of DMCA compliance fall on the ISPs, the work is not undertaken for free.
The safe harbor that ISPs enjoy in return for compliance is a huge compensation. An entity in the safe harbor has more certainty that a suit for infringement would be unsuccessful. Were there more doubt about the outcome, there would be more litigation. More litigation equals more cost. And I guarantee you that those litigation costs would dwarf the administrative costs associated with taking down content identified in a notice. So substract the administrative costs from the hypothetical litigation costs, and there you have the compensation paid to ISPs for compliance.
What do you think?
Pirate Christmas photo courtesy Flickr user Ross_Angus under this Creative Commons license.
December 22, 2008
I'm fine with both propositions, but you might make your assumptions more explicit. You may be assuming that copyright owners send legitimate DMCA takedown notices after doing a minimum level of review. However, copyright owners also spam service providers with automatically-generated or poorly researched takedown notices and force service providers to spend significant time reviewing the legitimacy of the takedown notices. 512(f) is supposed to deter such spamming, but it's been relatively toothless. As a result, the cost-benefit analysis may be more complicated. Eric.
December 23, 2008
How about making the INFRINGERS paying for the takedown efforts? Many copyright owners don't have the resources of the RIAA (artists, photographers, authors). Of course, that begs the question as to how to make them pay.
December 24, 2008
Isn't this post a non-sequitur? Scroggins is talking about intimidating and even banning his paying customers who are accused of infringing, which is not the same as taking down a hosted file pursuant to a DMCA notice. Maybe the safe harbor compensates him for the latter, but there is no such regime with respect to file sharing. Am I missing something?
December 24, 2008
Brandon – My first impulse was to disregard your comment but since you dropped the Latin in there I have to take it seriously!
Anyway, did you interpret the correspondence sent on behalf of the copyright owners to be anything other than notice sent pursuant Section 512? The correspondence I read had all the elements of a 512 notice, including identification of the works alleged to be infringed and the "under penalty of perjury" boilerplate.
Remember, the DMCA safe harbor concerns more than just hosted content, but also transmissions of content and search engines. What's more, I don't think any of us should be so naive to assume that if the copyright holders were to pursue an infringement action against Bayou, that Bayou wouldn't shout "DMCA Safe Harbor!" as loudly as it could, right out of the gate.
December 24, 2008
How about a presumption of fair use? Sticking with the holding in the Universal case, let the copyright owners offer some evidence that there is no fair use involved.
December 31, 2008
Your question, and the article you are linking to are about two very different things. You are asking about DMCA takedown notices. Like you, I think the ISP should not be paid for responding to these. A proper takedown notice includes specific details on the location of the information to be removed, and that the information is located on a server under the direct control of the ISP. Little or no effort is required to respond to such a request, and the elimination of legal liability is more than sufficient compensation for this.
The article is commenting on disconnecting the ISP's customers due to unproven allegations made by the recording industry. This is more or less equivalent to asking the phone company to disconnect your phone service because the gas station down the street thinks you're using the phone to plan a robbery. At the very least, the ISP would be forced to do enough investigation to defend itself against a breach of contract lawsuit. That sort of investigation is not cheap, nor are the legal bills in defending against a lawsuit negligible. If the recording industry wants that kind of service, then either pay for it up front, or accept full liability for any damage claims from the disconnected customers. As far as I can see, the recording industry is not willing to accept any liability for anything, and it is not fair to force this onto someone who is guilty of nothing more than providing a communication service.