What’s wrong with DMCA, ACTA and all that?

The name on the box doesn’t matter if the contents do something else

I’m no freeloader. I don’t have an iPod full of bootleg tracks. I don’t have much time for the shenanigans of either Big Content (“the web is eating my lunch”) or Big Technology (“copyright is breaking the web”). Or freeloaders. If I represent anything besides myself it’s artists and their rights, and consumers and their rights.

We’ve heard a lot of noise from both sides of the Big Web Content battle and seen a lot of legislation and legal activity too. Big Content has been suing everyone it can think of and Big Technology has been facilitating infringement in as many ways as it can. The impact on artists and consumers is what concerns me.

“I have confused things with their names, that is belief.”

Jean-Paul Sartre

Yes, it’s my old favourite. I’m not saying Jean-Paul would come down on the same side as me but I think he had a point. Behind the rhetoric are vested interests—actions speak louder than words. I simply don’t trust the motives of the record industry or the Internet lobby. We have seen what they say and we have seen what they do. It doesn’t add up.

The DMCA provides a safe harbour for web sites that (ostensibly without knowledge) host infringing material, on the understanding they will remove it when they know. DRM (from SDMI through the Sony rootkit fiasco and beyond) was intended to safeguard digital copyrights. More recently we’ve seen SOPA, PIPA, ACTA and many other proposals kick up an almighty row leading to no solution at all. And I’m sure there will be more (some variant of 3-strikes under ISP police is popular at the moment).

I support the record industry taking copyright infringers to court, whether or not it made sense they were entitled to do it. On the other hand the damages they claimed (in one case more than the annual earnings of the USA) were ridiculous. And their preference for settling overblown amounts without testing them in court wasn’t right. They had a righteous cause but treated the accused as if they were guilty, without trial.

Likewise the Internet lobby had a reasonable case for DMCA, it sounds rational, then we saw how Google, Grooveshark and others used it. The man in the street can’t get material removed from YouTube, even a journalist on The Guardian can’t get infringing material removed from Grooveshark. Google keeps record labels sweet by taking down their material on demand—even when it turns out not to be theirs at all. But what good is the DMCA for you and me?

When Big Content brought ACTA forward I didn’t trust them because we see how they use DMCA. ACTA, the Anti-Counterfeiting Trade Agreement, sounds like a good thing but we already had an international IP treaty, WIPO. Shouldn’t IP trade sanctions refer to that?

Where has all this legal noise got us? Is copyright better protected? Does the Internet offer us a great music experience? No and no. And while old and new vested interests wrestle each other for control of web content their propaganda is echoed by media pundits who take one side or the other. The debate is a classic establishment puppet show—self-serving outrage and mumbo jumbo.

If that debate mattered much I’d get stuck in, but I don’t think it does. This whole mess is being resolved slowly by events, not the pipe-dreams of big business academics and bureaucrats. Both sides are quite mad and they are both losing the war. Increasingly what matters is a new music economy with no big business champions or media voice, one that grows while the others shrink.