Internet Doomsday: Wrongs and Rights of Copyright Fortune Telling

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As the war of words over PROTECT IP and SOPA ignites the Internet, the MPAA has issued a reminder that "opponents" of past copyright laws have been wrong before. But while some fears over 1998's DMCA and 2005's Grokster ruling didn't come to pass, some things are absolutely guaranteed. If the entertainment industries don't get their way - or even if they do - they'll be back for more. Again and again.

The recent outrage over the PROTECT IP and SOPA proposals has been unprecedented. While opposition to new legislation is hardly a new phenomenon, it’s rare for so many entities to disagree with the stances of the mainstream entertainment industries.

Over the past months, fears that SOPA will “break the Internet” have been repeated dozens, if not hundreds of times. But both the MPAA and RIAA feel that people are blowing things out of proportion, forecasting an Internet doomsday where none exists.

In his article “Predictions of Internet’s Demise Have Been Greatly Exaggerated”, the MPAA’s Paul Hortenstine points out the inconsistencies between the historical predictions concerning the consequences of 2005’s “Grokster Decision” and the actual effect the ruling had.

The next day Hortenstine was back again, this time with a post titled “Critics of Current Legislation Have Been Wrong in the Past about Content Protection Law.”

The piece begins by highlighting an article by Variety which chronicles anti-Protect IP and Stop Online Piracy Act comments made by Consumer Electronics Association CEO Gary Shapiro, noting that he was wrong not only about the predicted chilling effect of the Grokster ruling, but also that of 1998’s DMCA. The implication is that since Shapiro was “wrong” then, he must be wrong now.

But powerful people like the MPAA need outspoken opponents to bring them into line and with SOPA they certainly have them. When tech giants such as Google and Yahoo are prepared to leave the US Chamber of Commerce over its support for this proposed legislation, something is seriously amiss.

Later in his article Hortenstine goes on to call Shapiro out again, this time over his claims that passing the DMCA had been “a huge mistake,” going on to state that eventually the DMCA was recognized by Wired as the “law that saved the web.

“So when you hear Gary Shapiro and others proclaiming that the current legislation will be the end of the internet just remember that they’ve been wrong before and they’re wrong again this time,” concludes Hortenstine.

As Wired noted in their comprehensive article, “….it was the DMCA’s notice-and-takedown provision [that] has proven even more crucial to the growth of the internet. The provision grants immunity to so-called ‘intermediaries’ — ISPs, for example.”

So when we read  via a CNET report, that the RIAA are now saying that the DMCA isn’t working, one won’t be surprised to hear what is coming next.

“I think Congress got it right, but I think the courts are getting it wrong,” RIAA lawyer Jennifer Pariser said during a panel discussion at the NY Entertainment & Technology Law Conference. “I think the courts are interpreting Congress’ statute in a manner that is entirely too restrictive of content owners’ rights and too open to [Internet] service providers.

“We might need to go to Congress at some point for a fix,” Pariser added. “Not because the statute was badly drafted but because the interpretation has been so hamstrung by court decisions.”

Essentially, since courts have ruled time and again that the burden of policing infringement is the responsibility of the content owner and not the service provider, the RIAA want that revisited, reworded or otherwise changed.

One of the court decisions that “went against” the RIAA’s interests was in the case of Viacom versus YouTube. Viacom is now asking the 2nd U.S. Circuit Court of Appeals to overturn last year’s ruling which deemed that YouTube is not liable for copyright-infringing Viacom material uploaded to the site. Viacom argued that YouTube should not have safe harbor under the DMCA.

Nevertheless, despite lacking this protection, Viacom chief Philippe P. Dauman collected a raise of nearly 149% last year, a renumeration of $84.5 million. This is not an enterprise in trouble from infringement, clearly.

But in addition to Viacom and indeed the RIAA wanting to tighten up or reinterpret the DMCA to hold the likes of YouTube more responsible, for good measure they also want PROTECT IP / SOPA.

So when “opponents of content protection legislation” (as Hortenstine describes them) make predictions that don’t immediately come catastrophically true, they aren’t necessarily guilty of getting their predictions wrong, only of not putting an accurate enough date on the impending doomsday.

The Internet may not break tomorrow or even next year, but there are people out there that really care, people that simply don’t want to risk it all for an ill-conceived attempt at stopping illicit downloads.

Because, as these “nay sayers” know and as history has shown, once one set of legislation is sent through the MPAA and RIAA only come back for yet more. And when those don’t go as planned they come back for an adjustment here, and a tweak there.

It is this environment of much-wants-more that leaves the likes of Gary Shapiro, Google, Yahoo and everyone else concerned that although the Internet isn’t broken now, there’s a real danger that in the name of copyright protection these corporations will keep fixing it until it is.

So-called “opponents of content protection legislation” can see the end game, and fighting that starts now.


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