How to Fix the Internet Copyright Problem – Is it Rocket
The main players representing copyright industries sat at the table with the architects of
the Digital Millennium Copyright Act of 1998 for over five years before the DMCA was
made law. During that period of discussions and hearings, copyright proponents and
technology proponents were well informed about the "...ease with which digital works
can be copied and distributed..." and at the same time, that "without clarification of their
liability, service providers may hesitate to make the necessary investment in the
expansion of the speed and capacity of the Internet." These quotations are contained
within the Senate Calendar No. 358 105th Congress 2d Session, Report 105-190 May 11,
Thus, the record shows that there was plenty of advance notice to the stakeholders that
something very big was about to go down. So what the heck happened?
Human error. The leadership at that time simply missed the opportunity to work together
to fairly monetize these new activities and now we're doomed to weave a tangled web
trying to control the natural activities on the Internet, in vain.
Technology proponents pretty much got everything they wanted out of the DMCA, and
this promoted the growth of the Internet and related technologies - I get that, and
although it appears to be one-sided, I agree it was a necessary action.
But what about copyright proponents? They screwed up. It's not rocket science. If you
and I sat in meetings for five years in which we were told that, due to this emerging new
technology, it will be very easy for people to copy and distribute our assets all over the
world, would we have said "Ok, we'll just deal with those things as they happen"? I don't
think so. What they should have done, sometime within those five years of meetings, was
to introduce plans to monetize the natural Internet activities of easy copying and sharing.
Unfortunately, judging from the outcome, that did not happen in any significant manner
to make a difference or to provide balance to the DMCA for all stakeholders. I don't think
it was even brought up for discussion.
Over the years, I've been very vocal about what should have been done, and in fact I’m
currently applying those principles to an emerging non-Internet technology - multimedia
messaging. But for the purposes of this release I'll just focus on how to fix the Internet's
intellectual property problem. Consider the following:
There is a very common activity that humans perform all over the world that is somewhat
analogous to the collective, social nature of the Internet. This common activity is also
vulnerable to a person with the best intentions unintentionally causing serious harm to
innocent third parties, so laws and measures were put in place to regulate and minimize
the negative aspects for the greater good. These laws, like most things, are a work in
progress, and require updating as "the times" - and technology - are a'changin'. But these
prevention-minded laws were impossible to enforce "before the fact or as the infraction
happens" like the Internet intellectual property problem, and likewise there were chronic
violations of both types, intentional and unintentional. So what was done about this? The
activity was monetized.
The common activity I am referring to is driving. Traffic laws are a major source of
income for jurisdictions all over the world. It's not rocket science - people screw up, they
get a ticket. Sometimes people screw up on purpose, sometimes not. Either way, it gets
monetized and that's productive! Does it entirely deter illegal activities? No, but traffic
fines undeniably motivate the vast majority of drivers to be generally more careful on the
This approach would not only have a profound effect on the Internet's intellectual
property problem, but it will also provide a new revenue stream to states, provide new
employment opportunities and potentially spawn new industries too.
Did I explain how easy this would be to deploy?
Imagine that California Governor Jerry Brown contacted Google/YouTube and asked if
they had a way to segregate their users by state. For those of you in the know about basic
technology, the segregation of end users by state is a very easy thing to do via
fundamental database management. So once Gov. Brown gets the obvious answer, he
then asks on behalf of intellectual property rights if YouTube would be willing to add to
its California users’ upload page a simple short paragraph (affidavit) that states by
checking this box (mandatory) you certify that you have the right to upload this content
etcetera etcetera and anything to the contrary is a misdemeanor punishable in California
by a minimum fine of $250 and a maximum 6 months in jail etcetera etcetera (akin to
typical language found in our traffic laws).
This would transform the current non-productive "take down" policy into a productive
vehicle for new revenue for the State, whereby, if it is found during the take down period
that it was indeed an infringing upload or false accusation of infringement, that
user/accuser would get a ticket. It's as simple as that. It's not rocket science. Will this
entirely deter infringing uploads on YouTube? Probably not. But just like traffic
violations, it will deter the vast majority of intentional violations while at least
monetizing the unintentional and/or chronic offenders’ activities. Of course these
principles would have to be legislated or otherwise legally deployed in each state desiring
to participate. Fortunately, state legislation is also faster and far less expensive than
federal legislation. (This need not preclude available civil remedies for infringement.)
Will the tech community complain? Probably at first, but they would risk being exposed
as frauds should they try to hang their hat on a "keep the Internet free" smoke screen. To
the contrary, I expect the vast majority of intelligent and enlightened tech community
members would understand this to be a fair remedy. Can't do the time? Don't do the
Did I explain where the money goes?
These tickets may be issued by the state only when there is a violation, and just like a
traffic ticket you get a court date and/or pay the fine by the deadline. If you ignore the
ticket there will probably be a warrant put out for your arrest (just like a traffic ticket). In
fact, I just got burned for a $25 fix-it ticket in Malibu, CA after I missed the appearance
date. After being told for about three weeks after the infraction that I was not yet in the
system, and that they couldn't accept my proof of "fix" and $25 fine until I was, I totally
forgot about the court date, and they stuck it to me! I got a notice in the mail saying I
owed a $1500 bail and my license would be suspended, etcetera etcetera. I immediately
made another court date, and the judge dropped the charges because I had proof of
insurance, but I still had to pay a $425 handling charge. WTF! Is there any question that
the city of Malibu is making money here? I was pissed, and I still am, but what can you
do? If I had simply kept my current proof of insurance in my truck I wouldn't have this
Now, let's follow the (hypothetical) money in the YouTube situation. John Doe got
busted uploading some infringing content or got caught downloading a YouTube video.
The State would collect any monies due and the money would be distributed as states
normally do, but since the revenue is gained via intellectual property infringement, some
of this money could go to the intellectual property community via a "State Internet
Intellectual Property Collective". This collective would be responsible for making the
proper disbursements to the rightful intellectual property owners.
Our leaders in the intellectual property community, tech community, legislatures and
elsewhere have a fiduciary duty to get these problems solved on behalf of the people. The
traffic analogy isn't perfect, but it does argue for an analogously measured egalitarian
enforcement philosophy that has worked for years on the roads in societies all over the
world. Why wouldn't it work on the Internet?
It’s time for intellectual property-based industries to understand that it is
counterproductive to try to unilaterally control Internet activities with over-reaching
measures which deny due process. Likewise, it’s time for the tech community to
understand that it is counterproductive to disrespect intellectual property laws by refusing
to acknowledge value for digital tangible mediums of expression.
It’s not rocket science – it’s called productivity.
Author – [i]Max Davis[/i] (with contributions from Perrin F. Disner)