Consumer Law

Recent reading: Chilling Effects and the DMCA

By Rebecca Tushnet

Seltzer, who created and runs Chilling Effects, knows a lot about DMCA takedowns. This is a particularly powerful insight from the paper:

The DMCA does not force ISPs to avail themselves of its harbor, but shapes their risk assessment so that almost all do, even in cases where objectively, no harbor appears necessary.

That use, moreover, is not even-handed. It distorts the speech environment by disproportionately removing challenged speech. On balance, this set of incentives produces a blander, but no less copyright infringing, information space. The pirates, interested in sharing popular mass-media, will always be able to exploit darknet economies, their many mice assuring that some will be a few hops ahead of the cat. The posters of non-mass content, by contrast, will be stymied, tripped up by administrative costs and barred from reposting by repeat infringers provisions. This means that copies of Dark Knight will spread more easily than transformative commentary on it, Saturday Night Live skits more easily than parodies (or political advertisements) that build upon them. The consequence is a vicious circle, whereby the continued presence of infringing materials spurs demand for harsher enforcement, which further increases the costs of hosting challenged material, yet fails to stop the infringement.

Full post as published by 43(B)log on April 28, 2010 (boomark / email).