If you've landed on this article, you have probably heard about what a DMCA takedown is, and you want to avoid it. In this article, I not only want to explain to you how you can do that, but also clear up common misconceptions that people have around what DMCA, or the Digital Millennium Copyright Act (1998), is. However, the latter will take more time to talk about, so for the average reader who just wants to get the essentials down, I have outlined them in the section below
DMCA: What you need to know
The Digital Millennium Copyright Act, commonly known as DMCA, is a Copyright law that the United States passed that is meant to provide copyright protection in light of the Internet and Globalization. You might be asking that if DMCA works only under the US, why can content be taken down that is hosted outside the US using this law. Valid question. The reason is that the DMCA is an implementation of the WIPO Copyright Treaty, and DMCA is also adopted by the European Committee. This means that DMCA takedowns can happen in any country that is a member of WIPO (World Intellectual Property Organization)
- Copying and Distribution of Copyrighted works or works protected by Digital Rights Management, or DRM
- Using or distributing methods of circumventing any form of Digital Rights Management
For the layperson, all you need to understand about DRM is that it is the name given to any software that restricts what you can do with the content you're accessing. For instance, you cannot download a YouTube video. YouTube has provisions against allowing people to download their videos, and websites that allow you to download YouTube videos are technically in violation of the DMCA. Another example is Netflix. It's strong DRM is what allows it to provide TV content as a streamable service, rather than a one-time purchase.
To: InfoChannel Internet(ISP)
I am the copyright owner of the article being infringed at:
This letter is official notification under the provisions of Section 512© of the Digital Millennium Copyright Act (“DMCA”) to effect removal of the above-reported infringements. I request that you immediately issue a cancellation message as specified in RFC 1036 for the specified postings and prevent the infringer, who is identified by its web address, from posting the infringing content to your servers in future. Please be advised that the law requires you, as a service provider, to “expeditiously remove or disable access to” the infringing content upon receipt of this notice. Non-compliance may result in a loss of immunity for liability under the DMCA.
I have good faith belief that use of the material in the manner complained of here is not authorized by me, the copyright holder, or the law. The information provided here is accurate to the best of my knowledge. I swear under penalty of perjury that I am the copyright holder.
Please send me, at the address noted below, a prompt response indicating the actions you have taken to resolve this matter.
The above is the standard DMCA takedown notice. When the ISP or Webmaster receives this, they have a few choices. The standard is to honor the request and take down the offending content. This is done more often than not because this helps keep the website's reputation as a safe and unmoderated space. It indicates that the website does not moderate the content, but does act on copyright infringement when it encounters it. A good example of such a site is reddit.com. Reddit barely moderates their content, but does honor DMCA requests.
The other option is to ignore this request. There are a few possible consequences to this. One is that the copyright holder can get your contact information and take legal action against you. This, however, is rarely done. The more common (but still not very common) consequence is that the copyright holder will take it to a higher authority, such as your ISP, and the ISP will very likely terminate your service.
How to avoid DMCA takedowns: Offshore Hosting
So. Now you, dear reader, are interested in finding out how you can host copyrighted content without having to worry about DMCA takedowns. If you'd like to read about the legal and moral aspects of this, please read the rest of the article. As far as doing this practically, it's not very hard. There are a number of companies that provide DMCA ignored hosting services, Flaunt7 being one of the best offshore hosting providers around . They do this by choosing carefully where their servers are located, and who the higher authority is. Moreover, by hiding as much information about the contact details as possible, it becomes virtually impossible to enforce a DMCA takedown request in such a way that forces the host to enact it. These hosts are known as offshore hosts.
That is all the basics you need to know about what DMCA is, and how you can avoid it. If you'd like to have a more in-depth understanding of International Copyright Law (IP Law) and how it's managed and enforced in relation to the Internet, read on!
Intellectual Property, IP: What it's meant to do, and what it actually does
You would have come across this term by now if you've been trying to read up about offshore hosting and/or DMCA. Intellectual Property. It's formal definition is fairly abstract. WIPO defines it as
Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.
Let's break that down. First, what does "Creations of the mind" really mean? The definition gives examples of inventions, literary and artistic works, and designs. Seems fairly straightforward, but there's a subtlety here. "Creations of the mind" only applies to tangible and fixed things. This means that just the idea of something does not count as IP. This is why you can't patent the mathematics behind an algorithm, but you can patent the implementation of the algorithm. More commonly, we say that the idea itself isn't IP, but the artistic or literary styling of the author is.
Next comes the "Symbols, Names and Images used in commerce". These simply refer to trademarks. A company's logo and their name.
There are three main types of IP protection. Trademarks, patents and copyrights. All IP protection laws are always territorial. That means they only apply in the country they were created in. We will talk about copyrights and patents in this article, since trademarks are pretty uncontroversial, harmless and fairly straightforward.
Copyrights and Patents
The whole point of regulations around IP is to encourage people to create more scientific and artistic works to further the knowledge of humanity. This form of IP is essentially a contract between the government and people. The government says that as long as you (people) keep making new work (or build creatively upon the work that came before you), we will ensure that you can profit off of it. A common example is Books. Authors create works of literature, which contribute to the culture of humanity, and in return, the government says that for a certain number of years, only you can create copies of this work and sell it. Essentially, the author has the right to regulate copies of their work. They have a copyright.
The same idea comes with patents. Patents are issued for novel ideas that have been put into a concrete invention and/or creation, and they ensure that nobody else can use or distribute the invention without the consent of the patent owner. A really interesting example of this comes from Xerox. They have the process of creating a photocopy (also known as a Xerox) patented, so anybody using it without paying patent fees can be sued. Often these fees are payed by the company making the photocopier.
What counts as something creative or novel?
In both examples above, I mentioned that the work you're trying to copyright or patent has to have a certain level of creativity or novelty. But who decides what is "creative enough" or "novel enough" to be covered by an IP protection law?
This is not a new problem. This has been debated several times over the years. Right now, there are patent and copyright courts whose job is to judge if a work is worth protection, and then issue a patent or a copyright. Often, judges take the stance that even a little bit of creativity, just a smudge of it, suffices. The reason for this is, well, artists. <u>They're always so pissy about this stuff</u>
Artists argued that the originality and thought put into a work of art shouldn't be judged by the untrained eye, without context or knowledge of the skill required to produce it. Because of this, copyrights have been given out pretty easily. Sometimes a bit too easily, if I might say.
When do copyrights go too far?
Ever since there was copyright protection, creators have been insisting that the term limit isn't long enough. Currently, the term limit for a copyright is the life of the author plus 75 years. Some still think this isn't long enough, most think it's too long. The reasoning behind this is that the whole point of copyright law was to encourage the creation of more artwork. However, if the term is so long, then the only beneficiaries of the work end up being corporations after the death of creators. The quintessential example of this is the song "Happy Birthday to You"
It was copyrighted by the publishing company Summy Company in the US, which published the book "Good Morning to All" containing the musical notation and lyrics of the song. Even though the author of the book hadn't intended to copyright the work that they published in their book, Summy Company argued that since they were the publishers, they should have the copyright to the content that wasn't protected by IP protection law. At the time, this copyright was issued, as well as it's renewals. Later, after the Summy Company was sold a bunch of times, the copyright ended up with Warner/Chappell Music and in 2008 they ended up collecting 2 million USD.
I brought up this example to show when copyright goes wrong. It's intent was to encourage creators to create more work by offering economic incentives for making art. This system, however, ended up being used to make billions of dollars off of suing people for singing happy birthday, with not a dime gone to the author. This is complex, because it's hard to argue who exactly created the song. But it definitely was not the publisher of the songbook "Good Morning to All"
International Intellectual Property
Like I said above, IP law is territorial. Only the state can enforce it. But as globalization and the Internet came along, we needed to create an international standard for IP protection law and until then offshore hosting providers like Flaunt7 offer a great, much needed, service.
There were several treaties that were signed to fix this, but the current world authority that protects IP is the World Intellectual Property Organization, and it created the WIPO Internet Treaties. These were two treaties that set up the international standards for copyright protection. Namely, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. DMCA is a direct implementation of this in the US, but all WIPO member organizations now have to follow this standard, and each country has their own laws implementing the WIPO Internet Treaties.
IP as a tool for censorship
Ideally, IP protection sounds like a good thing. I mean, if someone makes something, they have the right to control it's distribution. That's the whole point of it, to encourage creators to make more work by providing them with the sole ownership of their work and the ability to make money off of it
In reality however, there are structural and functional flaws in the system that end up limiting the creative expression of society, rather than encouraging it. Take the example of Walt Disney. The Disney empire is built on works that were, at the time, in the public domain. Walt Disney made newer and fancier versions of the stories at the time and then used IP law to profit off of them. Now that's totally fine. That is what the copyright system is meant to do, but where the censor comes into play is when Walt Disney advocated for the extension of the copyright term length to be pushed to the author's life + 75 years
This goes against the original intention for the copyright. This actively limits other creator's ability to use the work that came before them and create new art out of it. Walt Disney made sure that no one else could do what he did, i.e, take the stories of old and create new versions of them.
This is, however, an example from before the Internet. Managing IP digitally opens up a whole new can of worms. Namely, Digital Rights Management
Digital Rights Management: IP meets Code
When you digitally purchase media, like a movie CD or an album, then the distributor cannot control how many copies you make. The author of the work would loose money if you were to pirate the work and share it for free. So, distributors took it upon themselves to become the enforcers of copyrights. They introduced specialized software whose whole job was to restrict what you could and couldn't do with your stuff.
Let's talk about TiVo
For those of you who aren't aware of what TiVo is, it's a little box you hook up to your TV which allows you to record shows. Seems fine so far, but let's see how it really works. It is running GNU/Linux, an operating system that is distributed under the GNU GPLv3 license. That license works to make sure that anybody redistributing copies of this software is guaranteed the right to
- Study the source code and change it to do what you wish
- Make and distribute copies, when you wish
- Distribute modified versions, when you wish
So, you should be able to take out the running source code on the TiVo, modify and recompile it, and run it again. However, TiVo does not allow you to do this. They have their system locked down, so that only their software can work on it.
This is the more harmless example, but it was one of the more earlier examples of DRM restricting the rights that the user ought to have. You can find more examples here, but that's beside the point.
We said something at the start of this section
The distributors took it upon themselves to become the enforcers of copyrights
There is something deeply troubling about this. The problem of piracy is not one that can be solved using software. It existed before the Internet, and it's not something that is the Internet's fault. This is, at it's heart, a legal issue
It is not the job of the distributor to enforce the copyright, nor do they have the right to do so. You might have questions like
"But the author would not want me to pirate their work. If the distributor can stop it, then why shouldn't they. Because otherwise, I could just make as many copies I want and share them for free. That would hurt the author"
And that is a valid concern. But you should also consider that when the distributor assumes that you could copy and redistribute the work illegally (piracy), doesn't mean that you will. Here, the distributor has assumed that you will be guilty of copyright infringement and preemptively taken away freedom that you ought to have. You have been assumed to be guilty until proven innocent, when it should be the other way around
You might be asking then, what the solution is. There are suggested alternatives to DRM, but like I said before, this isn't a problem that software should solve. It's essentially on the authorities to enforce copyrights.
With the current IP protection system, the main beneficiaries of copyrights aren't the authors, artists, or creatives that created the work. It's the CEOs earning billions by selling you products that accuse you of being in breach of IP law before you've even purchased the product. It's large corporations earning from stifling public creativity and artistic expression
Striking the balance between piracy and freedom of expression
In this last section, I want to speak directly to you, dear reader. I've been putting all the blame on government passing laws that allow corporates to infringe on your rights, but we have to also acknowledge that we too have to consider if our actions are hurting the creator. It's a complex world, and it's never as simple as either saying that IP law is all bad and it only works to censor people, or that IP law is what we need and anyone who says otherwise is a pirate stealing from poor creators. There's a nuance that we're missing here. Rather than making blanket statements about IP law, we need to look at what we're doing and ask ourselves, "Is this going to hurt the artist?"
With that, I want you to also have the freedom to make that choice for yourselves. I want you to have the freedom to choose your morality for yourself, and have the right to a platform without unfair censorship. I won't comment about what I think counts as piracy and what counts as fair use, even when not legally classified as fair use. That is for you to decide for yourself