How DMCA Became the Tech Industry’s Friend

Who would have thought that the tech industry would every come to regard the digital Millennium copyright Act as its friend?

Just a few years ago, DMCA was widely reviled in the tech world. The main objection was to provisions that prohibited “circumvention” of copy protection measures, particularly digital rights management technology. But over time DRM faded as an issue–and we discovered that DMCA had a good side.

The turning point was Google’s 2010 legal victory over Viacom, which had accused YouTube of massive copyright infringement. Google’s defense was that YouTube had complied fully with the “safe harbor” provisions of DMCA by making good faith efforts to keep infringing material off the system and responding to rights holders’ requests that infringing content be taken down. The judge agreed, and Google was off the hook. Suddenly, DMCA didn’t look so bad.

Now the industry is up in arms in fears that those safe harbors might be taken away. The object of the angst is a piece of legislation known variously as the Stop Online Privacy Act (SOPA), PROTECT IP, or E-PARASITE. The bill’s bipartisan backers, who run the ideological gamut, say it is intended only to give the government to power to shut down rogue piracy sites, many of which operate offshore.

Opponents, such as the Electronic Frontier Foundation, argue that it is very dangerous. The opponents say the standards for designating a site as “dedicated to the theft of U.S. property” are way too too low and the government would have far too much power to take actions such as banning banks from processing payments to designated sites without due process. A major objection is that an accuser could force the shutdown of a site in –dare I use the word–circumvention of the DMCA safe harbor protections.

Although I think the rhetoric of opponents is badly overheated–Representative Zoe Lofgren (D-CA) said it “would mean the end of the internet as we know it”–SOPA is a very bad piece of legislation. Although the problem it addresses is real, it doesn’t begin to justify the creation of such a blunt and dangerous weapon.

I doubt the worst fears of opponents would come to pass, with shutdowns of sites over  bits of user-posted infringing content or attacks on politically unpopular sites. But the internet and the legal system are too robust for that, and somehow things would likely go on much as before. But the potential exists, and the best the supporters of the proposed law can say is “trust us.” The Department of Homeland Security already has asserted the power to seize the domains, without court orders or advance notice,  of sites that engage in criminal copyright infringement. So far, Immigration and Customs Enforcement has used this power to shut down sites that offered pirated music or counterfeit goods. The government is moving in advance of any criminal charges–which generally are never brought because the alleged offenders are beyond the reach of U.S. courts–by invoking its power of forfeiture.

Unlike DMCA, SOPA does not appear to have a potentially good side. And at the risk of sounding like a Tea Partier, the government’s claim to “trust me” isn’t very strong these days.