I mentioned that Bruce Lehman, architect of the US DMCA, was on search engine. The tease text at their site made it sound like Lehman was copping in some way to the DMCA being a failure. This is understandable since the discussion was about the forthcoming Canadian DMCA specifically about criticizing it.
Unfortunately, after listening to Lehman’s brief comments, it isn’t as nice a piece of the commentary as the tease makes out. While he admits the law did not meet certain of its objectives, he still considers it a success. When the show’s host, Jesse Brown, pushed him about the objectives he felt the law had not met, Lehman’s comments turning a bit chilling.
Basically, he apparently feels that the DMCA should have stipulated that ISPs actively filter for infringement. I guess this is not too surprising given all of the bills that have attempted to do so since. However, neither Congress nor the courts have successfully sustained any such laws.
Thinking about it further, I realize there is a latent ambiguity exposed by Lehman’s thinking here. In traditional media, there is a publisher and/or distributor that can be held liable in the case infringing material is produced. These stake holders exclusively produce and/or distribute this content. They are involved in editing or reviewing it, retain legal advisers for any number of purposes, including plagiarism. They are already actively involved in the very process of putting works out.
What is their counterpart with digital media published online? There are digital publishers and distributors, sure, and obviously the same standards can apply. But it is clear that Lehman and others who want active filtering believe ISPs are directly comparable. The problem is that they are not, no matter where you stand on issues of common carriage or network neutrality. ISPs are not actively involved in producing or distributing content. We pay them to be entirely passive, to simply provision for the shuffling of bits.
On what basis can they be expected to act as editor and legal adviser when their role in online distribution is so different? In the cases of file sharers or other, new individually driven infringements, even assuming complicity is overreaching. Put this way, the extra burden of filtering is clear. And automation doesn’t help, as it strains the analogy further and only highlights the ignorance of those who propose such a policing role for service providers.
I am not espousing anarchy, rather that new problems demand new solutions, not straining old, inappropriate solutions beyond their breaking point. Of course, this never really has been about solving real problems, it has always been about stifling innovation and propping up business models in the midst of being made obsolete.