Fixing IP laws, part 4 - Positioning Copyright

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Copyright's Position has Shifted

Copyright was originally designed to be held by individuals, and used by individuals.

For individuals, litigation is expensive. But for corporations, it's much cheaper.

In a way, you could say copyright's position hasn't changed at all, but that society has shifted around it. That's probably an argument for another day, though - what's important to note is that copyright has an implicit assumption that the owner operates in certainty and at great expense.

That's what prevents routine abuses of copyright. The great expense for the individual.

But corporations don't have that problem, and they have - for some time now - been getting more and more egregious in their abuse of others via copyright law.

The DMCA and its Abuses

The U.S DMCA law has many bad points, but it does have some good ones as well.

In particular, one of my favourites is the fact that is establishes the concept of a Safe Harbour, and allows for a "Takedown notice".

Safe Harbour means that someone hosting other people's content isn't responsible for it. So, for example, if you upload a video to Youtube that isn't yours, Google isn't responsible for it so long as they remove the item.

Takedown notices are a way for copyright holders to tell a Safe Harbour about infringing content - must be responded to within certain time limits, and can be appealed by the person who uploaded (and therefore presumably owns) the content.

So the DMCA tried to establish a decent due process for removal of infringing content - but I feel that process has failed and is abused too often.

The problem is that a takedown notice means immediate removal of the content, which can then be appealed. Private individuals often use this to remove messages that they don't like, and larger companies use them to remove Fair Use by their competitors.
The penalty for such a false takedown is, in theory, prosecution for Perjury.

Note that I say in theory. I've looked for examples of this happening, and they seem very rare. In fact, a DMCA takedown appears to have little to no risk attached to it at present.

Fixing Takedown Notices

So a takedown notice can be issued without any real risk, and is therefore abused too frequently.

How do we fix this?

Well, perjury evidently isn't something that prosecutors are caring to follow up. So why not replace it with a statutory fine?

Money, after all, makes the world go round.
(Have I infringed on something by saying that?)

If we are to go with a fine, how large?

Well, let's set a minimum of a thousand dollars. But let's also set a mechanism that allows a "bad actor" to be properly punished. Almost all digital distribution mechanisms keep count of how many accesses, so we should factor that in too.

But multiplying a thousand dollars by the number of accesses is cruel and excessive - let's base it on the value of the content!

So, there we have it - a fine for bad takedown requests that is a minimum of a thousand dollars or the value of the content multiplied by the number of downloads.

The Value of Content

Dealing with takedown misuse by switching to a fine based on the value of the content has an interesting side effect...

It requires an honest declaration of the value of the material!

A persistent problem with tackling copyright infringement online is that there are rarely any decent statistics on how much is lost due to infringement. By requiring the issuer of the takedown to declare the value, we get accurate reporting of those losses. By linking the value to the possible fine for an incorrect takedown request, we prevent inflation of the figures.

Gaming The System

Yes, this is an attempt to introduce game theory to copyright law.

But the position of copyright law is almost always in favour of the copyright holder, and game theory is probably the only tool we have to try and correct that.

Note, for example, that I didn't address the idea that the takedown notice has immediate effect. That's why they're used to censor content - once submitted, the content is gone very quickly. I dislike that, as it makes for dubious due process - the punishment is made before any evaluation of the claim! But I accept that in the case of a genuine takedown notice, it is appropriate, as the internet allows for very large scales of distribution.

But we must make it fair by making sure that any false claim is correctly punished, and that is where game theory comes in.

Summing Up - Honest Actors Have Nothing to Fear

I've spoken mostly about copyright, but this applies to patents too. I've saved patents for an entire entry of their own - but you can be assured that some level of game theory will be in my proposals there!

This is because honest actors have little to fear from this. Which is surely what we want - laws which allow honest people to use them, and punish the dishonest when they abuse them.

Next up - Policing Patents.