Saturday, March 31, 2012

A License to Kill

The Digital Millennium Copyright Act

A License to Kill

The Digital Millennium Copyright Act (DMCA) was drafted to protect copyright holders by allowing them to take infringing content off the web. This act would appear to most reasonable individuals both justifiable, and under Art. 1 Sec. 8 of the US Constitution, lawful.

[The Congress shall have Power] to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”

However, it is not the wholly noble intent of the law that has gone awry. It is the reprobates who wrote the law in collusion with those who advocated the dire need for such legislation, and their lackey cohorts who implement the law like a pack of inane automatons that have gone berserk.  While Congress may have the authority to grant “exclusive Right for a limited time” by means of copyright laws, Congress is specifically forbidden to deprive a person “…of life, liberty, or property, without due process of law”, under the 5th Amendment.

The DMCA in its application is being systematically abused by rights holders like a digital sniper against competitors both real and perceived, or to have materials they find objectionable wiped from the web. One third of the notices sent to Google are false, and companies like Microsoft censor perfectly legal sites. 
Earlier this week one of TorrentFreak’s articles was censored by Google on the authority of a  mysteriously submitted automated DMCA takedown tool. Those who tagged the article claimed it was an honest mistake, but vigilante justice, kangaroo courts, and in this case poorly written legislation tends to spawn a lot of mistakes, honest or otherwise.

Google has admitted that 57% of DMCA takedown notices were targeting a competing business and 37% were not valid copyright claims. According to my calculations, that puts the number of bogus or malicious takedown notices at 94%, and that is an unacceptable number when it comes to protecting the free flow of information and ideas that is the Internet. Rights holders who inform Google and other service providers of infringements must swear under penalty of perjury that the notices are correct, but the most cursory review of the laws surrounding DMCA will yield interesting loopholes such as those found in 17 USC § 512 - Limitations on Liability Relating to Material Online which gives tacit approval to false claims under the law while shielding the perpetrators from criminal action.

Software colossus Microsoft dispatched a spurious infringement claim against the site, which is perfectly legal and offers no offense to the rights holders. In spite of a site's legitimacy, many of its pages or the entire domain can be summarily de-listed from Google's search results, directly and demonstrably harming the site's owners through lost revenues and a diminished domain name value. There is a growing body of evidence indicating that lawful site owners are being destroyed by heavy hitters like Microsoft, NBC Universal, and Warner Bros. 

Whenever one can be accused, arrested, condemned, and executed on the order of a single accuser who is immune from legal reproach you create the rule of a tyrant, the reign of a despot, or subjugation by a king. You would be right to note that there is little or no difference between those three results. Just as Congress should take notice of the disastrous results depriving honest people of life, liberty, and property without due process of law created by their Digital Millennium Copyright Act is little different than an Grand Inquisitor of the web, with the exception that the Inquisition provided for some deliberation and a modicum of judicial review before passing sentence.