Re: [h2o-discuss] the DMCA in action

[John Kwasnik <jkwasnik@jps.net>]

        [2nd part of reply]

>Wouldn't this [DMCA] make a good case for the Berkman
>Center?  

        Big hmmmmmmm here ...

        Even assuming 100% unity on overall goals and vision, we can still
bicker endlessly on strategy and tactics.  For that reason, it makes sense
to me that fighting the copyright term extension is a good choice ... it's
really nice to WIN your first skirmish ... keeps the troops happy.  (Rooting
for you, Eric.)

        Attacking DMCA might be a bigger bite, and certainly a lot more to chew.

        And after saying that, let me launch into a further attack on the
DMCA.  And a particularly NASTY situation that the DMCA makes possible:

        Let's look at the web-hosting services, such as Geocities, Tripod,
Simplenet, Xoom, etc..  In music, at least, it seems that the vast majority
of sites featuring free MIDI, WAV, and MP3 files are here.  The service
provides a few megabytes of server space to its members for free.  The
members work for free putting together their personal websites.  And then
the web-hosting service makes money running ad banners on its member sites.

        The web-hosting service MUST realize that much of site music content
is not licensed (though for DMCA purposes, they will swear up and down that
they hadn't a clue).  Yet these member sites are generating hits and ad
banner exposure.  And if the Harry Fox Agency or RIAA objects, well, then
they simply shut down that particular site, and enjoy the DMCA immunity.

        So the member site operators form a class of near-perfectly
exploited labor, AND they can be scapegoated at will.  

        This is very much like a high-level crack merchant, running an army
of street-dealers.  When the heat comes down, the merchant turns in a few
flunkies to the authorities, but still enjoys complete immunity ... and on a
percentage basis, the profits are still rolling in.  (OK, the analogy DOES
break down when you point out that street crack dealers actually MAKE money.)

        [The MOST abhorrent aspect of this, for me, is that it exploits web
users' interest in the PERSONAL websites put up by ordinary folks, as
opposed to the glitzy corporate sites.  The web-hosting services' business
plans assume this as a given.]

        Now this is a very noxious practice.  But how to fight it?

        The copyright licensing agencies would be natural allies ... they're
getting screwed by this practice.  Better the pre-DMCA situation where they
could sue Geocities as deep-pockets for member site infringements.  But
(gasp!) the Harry Fox Agency as an ally?  Yuck!  Worse than Balkan politics.

        And the fact that ISPs, search engines, etc. OUGHT not be
responsible or liable for the content of the sites they host or link to ...
recollect the various censorship debates.

        Yes ... this would be ONE tough nut for a beginning squirrel.

                                 John Kwasnik