Copying and the Internet: A Never-Ending Saga of Infringement

Photo Credit: Paste Copy Paste Copy by Chris Christian used under CC BY-SA 2.0
Photo Credit: Paste Copy Paste Copy by Chris Christian used under CC BY-SA 2.0

Guest post by J. Michael Allen. an intellectual property attorney and Co-founder of Copypedia.

It’s 2014 and the internet continues to evolve and amaze – today we routinely use tablets and touchscreens, and utter phrases like “Google it” or “there’s an app for that”.

Luckily just like the thankful death of black and white TV, gone are the days of dial up modem connections (and irritating disconnections) and clunky laptops.

Today you can be riding in a car, and with a simple ‘click’ on a mobile device, send (or post, share, Tweet, Like, etc.) information to another person on the other side of the planet in the blink of an eye.

A Culture of Copyists

Unfortunately just as easy and fast as it is to send information in the digital age, it is just as easy to copy someone else’s content, and with the sheer magnitude of people (some say 2 billion-ish) using the internet, let alone robots or other automatic programming, there is zero chance to stop it.

After all, “right-click, copy, paste” is something we all do over and over again on a daily basis, and these actions ultimately continue into the online environment.

Contributing to a culture of copying is the reality that most people don’t know (or don’t want to know) that unauthorized copying (or ‘infringement’), is illegal and against the law. Too many times we hear from artists we work with that the response they hear back from someone using their material without permission is “I didn’t know,” which is not an excuse nor a defense to unauthorized copying. Just because you could download (or file share) via the old Napster did not mean you had the right to do it – some found out the hard way. Such a mindset only propagates the problem.

The Digital Millennium Copyright Act (DMCA) & the “Compromise”

But back in the advent of the internet the problem of copying was foreseen, at least to some measure of degree.

In fact, as the eventually enacted Digital Millennium Copyright Act (or DMCA) made its way through various congressional committees and hearings, it became readily apparent the most contentious aspect of the legislation was how the inevitable problem of mass copying would be dealt with.

In the end, the powers that be and related stakeholders came up with the ‘compromise’ of the so-called 512 Safe Harbor provisions.

What the ‘Safe Harbor’ said was [paraphrasing], “Ok, companies like AOL, Netscape, etc. – you grow the internet, and rest easy that you won’t be financially responsible for acts of copyright infringement by your Users, so long as you take down material upon proper notice from owner Creatives” and “Creatives, you go ahead and notify those companies of acts of infringement of your content, and they’ll be responsible for taking it down. Trust us – you’ll see – it’ll be easy and no problem. Just follow all the statutory requirements to a ‘T’”.

How the DCMA is Failing Creatives

Section 512, and particularly 512(c), may have been the most short-sighted component of the DMCA.

Today, millions, perhaps (and probably) billions, of acts of infringement occur on the internet, and somehow some way Creatives are supposed to be able to undertake, handle, and have the resources necessary to stop it?

Never going to happen.

Not even with devoted 24/7 policing. And with no monetary or legal incentive to do otherwise, companies that profit from copyright infringement (ever seen infringing material on sites like CafePress or Zazzle, or an advertisement next to infringing material on YouTube or Facebook?) have no problem with the status quo.

Skip forward from the passage of the DMCA to today, and there can be no doubt that the legislation successfully resulted in (or at least contributed to) the growth of the internet.

But the DMCA also disastrously failed at helping Creatives monitor and otherwise control against infringing acts of their content/material.

The Digital Music News summed it up fantastically by noting, “Google Receives Its 100 Millionth Piracy Notice. Nothing Changes…”

Nothing changes.

Oh sure, you can improve or otherwise squeeze more efficiency from the DMCA Notice & Takedown process, but that just plugs another hole in the dyke. What is needed is a change – a change in mindset. It starts with the simple understanding and admission that copying on the internet will never end.

Innovating A Change In Mindset

Getty Images, well known for its staunch copyright enforcement activities, seems to have figured something out (at least partially). Faced with the reality of never-ending infringement, the company recently announced millions of images could be used for free, albeit presuming users are in compliance with various terms.

While the fine print of Getty’s new plan let’s one realize the ‘change’ is fairly minor, and potentially problematic to those that don’t comply, it is a step forward. Other companies are likely soon to follow.

After all, those involved with the passage of the DMCA should get credit for emphasizing that it encouraged private solutions between Service Providers and Creatives to address copying. Still, the lesson abounds: don’t let Congress be the end all be all to whatever problems arise on the internet.

Foundation for a New Mindset: Crediting the Creatives

In the future, addressing the problem of copying starts first and foremost with one very basic tenant: getting or giving credit to the Creative. This is in stark contrast to the present. To understand this, consider the rigmarole involved with a proper DMCA Notice & Takedown process.

First, it requires (and ultimately wastes) time and resources for both the Service Provider and the Creative.

Second, the work is taken down – thus, the User information, the Creative information, and the fact that a Creative’s work was used, all evaporates into a cyber abyss. Time, money, and chance for credit or attribution are gone. Forever.

And then the fruitless process is repeated. Again, and again, and again. Never-ending.

It’s time for a change to a mindset that results in support and advocacy for responsibility, not just for the users of creative works, but also for the Creatives themselves. At Copypedia, we’re excited to be part of leading this change.

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About the Author: J. Michael Allen is an intellectual property attorney and Co-founder of Copypedia. As a result of working with Creatives over the last couple years (essentially on a daily basis), he has witnessed first-hand the difficulties and challenges encountered when it comes to protecting intellectual property in the online world. After nearly a year of development, Copypedia is a new medium for people to document and publish reports of authorized or unauthorized use in order to help foster attribution, accountability, and amicability for all involved in the use of creative content in an ever changing online world.