Wednesday, October 15, 2008

DMCA and Politics

Fred von Lohmann, my Cyberlaw idol, blogged today about the way the DMCA is chilling political speech. McCain has asked for special fair use rules so his supporters can post clips of the debates, but von Lohmann argues that we don't need special rules for politics, we just need to fix the rules we've got.

The DMCA had a neat provision when it was enacted that makes sure YouTube can't be held accountable if one of its users uploads something subject to copyright. That's a good idea, because it lets services like YouTube exist. They can run a user-contribution heavy site without having giant safeguards in play on the front end. More innovation, more sharing, everyone's happy so far.

To keep the immunity, sites like YouTube simply need to respond by taking down any video when a rightsholder asks them to in a "DMCA Takedown Request." So far, sounds reasonable. You want some provision to protect rightsholders, certainly.

At least, this seemed like a good idea for the last few years, while NBC stuck to getting all the SNL skits removed, and there were only a few problems. But now folks are getting really savvy about takedown requests, and realized they can submit bogus requests or massive requests for thousands of videos pretty easily. There's no real way to vet the requests, or to just keep people from simply requesting takedowns of any videos they just don't like, claiming to be a rightsholder.

The last big scary example was when the Church of Scientology sent out DMCA takedown requests for thousands (4000) of videos made by critics of scientology.

Now, the original poster can protest the takedown notice, but here's the catch: to contest a DMCA takedown, you have to allow your personal information to be handed over to the group who requested the takedown. Many of the critical scientology videos were posted anonymously precisely because Scientology employs a rule called "Fair Game," which encourages Scientology adherents to silence their detractors by any means necessary.

Anonymity has its place in political speech as well, and it can play a vital role in protecting other controversial speech and works.

Currently, the DMCA makes sites like YouTube into a deletion friendly wiki: people who don't like certain videos can have them taken down, but it's much harder to get those videos back up. I'm glad McCain understands some of the problems with the DMCA, and I hope he soon realizes that we don't need special rules for politics, but we need to fix the system as a whole.

UPDATE: More coverage from CNet.