I take it all back. Icelandair is oficially fab. Yeah, the flight attendant on the first flight out was half troll and half beserker. “Sit there, do as I say, weakling customer!” But when I checked in at Glasgow for the ride back to the USA, they asked if I wanted a trip to the Blue Lagoon while in transit! Free transport and entrance. I mean, do dogs have fleas? You bet! So I found myself, mid-Atlantic, bobbing about in a nice geothermally heathed swimming pool in the sunshine. Now that’s the way to travel. Exceed the customer’s expectations.
Frustrating the customer’s expectations were Vodafone, whose allegedly free WiFi access points at the Blue Lagoon simply didn’t allow any connections. I don’t have a cell phone, calling card or Icelandic coins to call with. Just a laptop and VoIP. Money can’t buy back the chance to call your wife from Iceland and tell her you love her.
So a swimming pool from Icelandair and a slimy poo to Vodafone. Anyway, moving on to business, on the flight over I was staring out of the window and pondering…
One of the big governance problems of the Internet today is misuse of copyright legislation. Laws like the DMCA and EUCD are easily abused. Content is too easily torn down by complainants who may have either no rights over the content or attempt to undermine fair use of that content.
This is because of an asymmetry between content owners and members of the public. Content owners are often large and rich. The more famous the work, and therefore quotable and parodied, the richer the owner is likely to be. You and I, dear reader, aren’t so lucky to have a bevvy of lawyers to hand. The power of a takedown notice, and the cataclysmic effects it can have on free speech, need to be balanced by more appropriate responsibilities.
So here’s my proposal. We take a leaf out of demanation law. In the UK (IANAL, YMMV) the defendant in a libel case can offer to settle. If the plaintiff refuses to settle, and the final award of damages is less than the offer, the plaintiff is totally and utterly buggered. So there’s an incentive to settle early and often for reasonable amounts. It’s dangerous to go fishing for a large libel award.
Applying this sort of reasoning to copyright, we need some changes because the problem isn’t the same. The subject of libel is looking for large damages, whereas the initiator of a DMCA-style takedown notice is simply looking for the erasure of part of a web server’s disk drive. The public interest argument is different too. Libel law has a narrower effect on free speech (only affecting comments on individuals), whereas copyright affects a much broader set of expressive means. We need a game where the stakes are finely balanced.
Here’s what I would do. In asserting copyright abuse, the complainant would have to put their balls in the guillotine for a while. The rights to the work against which the abuse is being alleged would have to be put at risk. The complainant would have to lodge in their complaint not only the exact details of the work being infringed, but also the market value of the rights to that work.
If they win their takedown notice, end of story.
If they don’t, things get interesting. Firstly, say they were found to have valid claim to the copyright to the work, but the use was non-infringing. Then the defendant would have a choice. They could either receive as damages the cash value of the work as declared by the plaintiff. Or they could choose to purchase the right for the declared value.
If the plaintiff pitches the cash value too low, then they potentially lose a valuable revenue stream from the work. Too high, and they’re going to have to remortgage the house to pay you in hard cash.
If they don’t own the rights to the work (e.g. because it’s public domain), then you get the cash. Any future complaint they file must be for at least double that declared cash value. So you can file a spurious complaing for a dollar’s stake, but soon you’re going to find it an expensive hobby.
Lawyers paid via contingency fees would no doubt be attracted to this scheme. Initial abuses would be less likely because a community web site illegitimately attacked by a multinational corporation could simply call in their friends in the law. Without big payouts for abuse, access to the law becomes available only to the rich and powerful.
Instead of transfer of the copyright to the winning defendant, you might instead assign the revenue and lciensing rights. If the plaintiff stops selling the work to spite you, tough. Their prerogative and loss nonetheless.
A variant on the scheme would be for the defendant, and not the plaintiff, to declare a cash value for the work. The losing plaintiff would then get the choice of handing over the cash or the rights to the work. Similar logic as before applies to keeping the pricing honest.
Yet another variant would be that the work automatically becomes public domain if the takedown fails. No cash value declarations needed.
A limitation of these schemes is it isn’t easily transferable from copyright to trademark infringement. Whilst the revenue streams from Snow White and the Seven Dwarves might fund a comfortable retirement, the rights to Mickey Mouse are less fungible. The whole point of a trademark is that it associates a symbolic form with a branding entity in the public’s mind. Once outside the Disney domain, transfer of Mickey to another private owner is likely to destroy the value of the trademark and have collateral damage on other trademarks owned by Disney. Goofy and Mickey have to stick together. Copyrights are regularly traded and re-assigned, whereas trademarks are much less portable. I don’t have an answer to this one.
And in the absence of a witty recursive sign-off, that’s all from me for today folks. Time for an afternoon walk around Boston and a spot of lunch.
Posted by Martin Geddes at 04:49 PMTrackBack URL for this entry:
http://www.telepocalypse.net/cgi-sys/cgiwrap/mgeddes/MT/mt-tb.cgi/311.
Listed below are links to weblogs that reference Playing forfeits:
»
Misuse of Copyright Legislation from dwlt.thinksOutLoud
Telepocalypse has a good post about how to achieve greater balance in copyright abuse complaints In asserting copyright abuse, the complainant would have to put their balls in the guillotine for a while. The rights to the work against which...
[Read more]
»
Misuse of Copyright Legislation from dwlt.thinksOutLoud
Telepocalypse has a good post about how to achieve greater balance in copyright abuse complaints. Here's the gist of it: In asserting copyright abuse, the complainant would have to put their balls in the guillotine for a while. The rights...
[Read more]