Comment Public Policy Problem (Score 1) 354
This entire mess is a public policy problem that grew from several roots.
The main root is that technology changed the game. As has been mentioned before, part of the issue is a broken business model. Enforcement of copyright protection in a digital age of access to anything from anywhere is broken and the laws supporting the business model have been twisted to the point that they no longer work to protect the artist as much as they work to protect corporate control. And more control simply stifles creativity and encroaches on privacy. It's as if in the early 1900's, blacksmiths had passed legislation against car makers in order to protect horse based transportation.
The copyright thistle grew another root with the introduction of the DMCA legislation that for the first time placed a legal requirement on ISPs to assist a copyright holder in the enforcement of their copyright. It legally required an ISP to have a process in place to accept infringement notices (allegations), required the ISP to privately determine which customer was supposedly associated with an IP address collected by the copyright holder (with no consideration of all the flawed logic behind that assumption), and pass along the infringement allegation to the customer. If the copyright holder wished, they could get an administrative subpoena issued by a court clerk with no formal review or judicial oversight and the ISP was legally bound to identify the customer. An appeal required an individual to expose their identity and open themselves up to separate civil action. Then the copyright trolls/attorneys emerged and developed their extortion based revenue model. Public outrage and judicial opposition to clogging the court system with dubious cases pretty well ended any hope the copyright holders had that the DMCA approach would continue to be viable.
The roots branch and twist and intertwine as well. The situation is further complicated because the largest ISPs are also content producers and copyright holders. They have a vested interest on the enforcement side, but whether or not an ISP holds copyrights on content (most don't outside of the top 5), they are still - under current law - required to do something or they become legally liable for copyright infringement themselves. Basically, without some type of copyright policy and procedure in place, they can lose what's known as "safe harbor" or their status as a "simple conduit" provider of communication services with no associated liability for the type of content that traverses their networks. So legally, the ISPs are in a box (in part of their own making).
The point here - remember I'm just talking about existing causes - is that under existing US law, ISPs are forced into the role of assisting with copyright infringement enforcement efforts. Some of the largest ISPs had a hand in creating those laws, but there were many other powerful companies involved as well. So similar laws would have been put into place regardless.
The ISP industry could - in theory - fight back against legislation that forces them into the role of assisting with copyright enforcement. The incentive to do so would be to remove legal liability, reduce operational expense by eliminating notification programs, and avoid alienating their customers. But the biggest ISPs are also media content owners and providers. They need legal access to media content. Unrestricted access hits many of the largest ones on the cable TV, media sales and licensing side. They also face liability exposure from powerful copyright holders that are not in the ISP industry and they don't have unilateral control over lobbing efforts to introduce change. If they pushed hard for legal change, it would help, but the opposition would still be fierce. So they don't try.
The "6 Strikes" effort tries to gain a little improvement on both sides of the issue (from their perspective) by introducing this compromise(d) approach of information and education with no real intent to shut off services or take anyone to court. Sort of an informal version of DMCA Light. But by this time, the public is so jaded by the copyright enforcement fiascoes of the past few years, that all hope of reasoned discussion or acceptance is long gone.
Venting about evil empires blows off some steam, but until there is an organized public effort to educate US citizens (good luck) about the issues, to re-establish "safe harbor" for telecommunications carriers in terms of content transiting their networks, and to mobilize the public to force meaningful legislative change surrounding copyrights, we're stuck with this weed patch.
In my opinion, the public policy goals should be:
- protect individual privacy
- ensure that disputes are dealt with based on the premise of innocent until proven guilty by a court of law
- ensure the artist is able to profit from, protect, and enjoy the fruits of their creativity
- ensure reasonable protections for copyright holders but not stifle creativity and growth in other industries
It does no harm to wish upon a star, but I won't count on this dream coming true.
(Is that last line fair use or infringement ? That there is even a hint of doubt says it all).