Passed on October 12, 1998, by a unanimous vote in the United States Senate and signed into law by President Bill Clinton on October 28, 1998, the DMCA amended Title 17 of the United States Code to extend the reach of copyright, while limiting the liability of the providers of online services for copyright infringement by their users.
It is 1998 – The Senate Now Has E-Mail
Let’s Have a Party!
18 years ago today the Digital Millennium Copyright Act was passed. I would wager that very few people even know what the DMCA is, but it has affected modern life substantially. It is in many ways just one more version of an old story of plunder by larger more powerful entities, and the taking advantage of the smaller, but often more vibrant creators. In many ways, it has made it so the copyright laws in such industries as music are pointless.
But let’s back up a bit. Everyone can remember the transition that happened when CDs came out and then everyone was ripping their CDs to MP3s and handing off 100 gig drives full of music files to their buddies. Then there was Napster that simply stitched all these drives together in one big mass orgy of free MP3s. Napster got the injunction primarily because the established music industry had no cut of the racket. Along come tech giants like Google, Apple, Microsoft and Samsung and to cover their liability the DMCA made perfect sense. If someone has “illegal” music on their devices, they should not be held accountable. Furthermore, if someone uploads a Beatles tune as a video with a picture of Ringo Starr as the graphics to YouTube, why should YouTube be held accountable for such blatant infringement? All good and well. But that was 1998. Today is 2016. I am certain that in 1998 most members of the Senate had no idea the true implications of the DMCA. In 1998, most of the members of the Senate probably did not even know how to manage their own email. They were still licking stamps.
The DMCA’s principal innovation in the field of copyright is the exemption from direct and indirect liability of Internet service providers and other intermediaries.
Let’s look back a bit. In 1998 the leading browser of the day was Netscape 2. Internet Explorer was at version 5.5. If anyone remembers IE 6, imagine how terrible IE 5.5 must have been. Windows 98 had probably just been released. Man, that is scary. My point is that the DMCA has not been updated for 18 years and is an extremely flawed piece of legislation. The large tech companies have in many ways based their entire industry on the Digital Millennium Copyright Act. It allows for basically everyone to break the law everyday and not have to worry about it. When was the last time that a cop pulled someone over and wanted to check if the person had pirated music on their phone? There probably is thousands of dollars of contraband on everyone’s devices. Ain’t gonna happen.
Times Have Changed – Google Is Our Master of Information
But this is what is disingenuous about the DMCA. Companies like Google know just about everything about you. What you buy. What websites you visit. Your birthday. Your favorite color.
In 2016 they have the ability to determine if a piece of music is copyrighted via matching wave forms, and indeed this is how they “monetize” this work. But YouTube refuses to acknowledge this UNLESS they are in a position to make money off of that music – they make money anyway but that is another post. The only way the copyright holder can get the videos of their music taken down is with take-down notices. If a song is popular, this can mean hundreds of separate videos with the same song on it. The artists cannot simply tell the ISP such as YouTube “I do not want my work on your network.” YouTube is sort of like that creepy neighbor running a crack-house who borrowed your weed-whacker last spring and refuses to give it back claiming ignorance. Musicians, songwriters and composers have better things to do with their time than chase down illegal version of their work.
YouTube is sort of like that creepy neighbor running a crack-house who borrowed your weed-whacker last spring and refuses to give it back claiming ignorance. Musicians, songwriters and composers have better things to do with their time than chase down illegal version of their work.
Which brings me back to 1998. Do you really think in 1998 anyone could predict such entities as YouTube or Facebook? And unlike the owners of these companies, I believe these entities are not just platforms, they are simply publishers with free content providers and creators. These publishers have to take responsibility as well for copyright infringement. It is within their technical realm but they are playing dumb as the Digital Millennium Copyright Act of 1998 suits them just fine. The DMCA is to their advantage.
The real master of deception with the Digital Millennium Copyright Act is YouTube. Facebook, Twitter and the like have simply entered personal lives and monetized birthdays and other important life events until people depart from this world. Personalized marketing on steroids that the users all agree to though without really reading the privacy policies.
But all such companies are the modern-day plunderers. Instead of grabbing continents, forests, rivers, enslaving the natives and digging for gold, they are plundering your personal events and consumer habits along with the likes of great artists like James Brown, Elton John, Charlie Palmieri, Vince Gill, Willie Green, Slayer, Bette Midler, Woody Guthrie (the list is endless) and any person who has recorded or published a piece of music in the last hundred years.
The Digital Millennium Copyright Act needs to be reexamined and rewritten every five years to reflect and take into consideration the changes in technology, creativity and platforms. It is an important part of combating the many inequities in our society.