The plutocracy is naturally dedicated to protecting itself; more specifically, it is strongly dedicated to privatizing its profits while publicizing its costs. It does this in a variety of creative ways, as demonstrated more clearly than ever in the infamous plutocratic bailouts. However, the Digital Millenium Copyright Act is also a prime example. Only one of the many ways in which the DMCA protects the plutocracy will be examined here: the “notice and takedown” provisions.
Ostensibly designed to protect intellectual property, the DMCA provides for civil and criminal penalties for the violation of the intellectual property rights of others. However, the violation of those rights must be knowing and willful to invoke those penalties. As anyone in the legal profession will admit, proving mental state is often difficult, so the DMCA provides a procedure which, if followed, constitutes prima facie evidence that the alleged infringer of intellectual property rights did infringe knowingly and willingly. This is called “notice and takedown.”
Under section 512(c)(3) of the DMCA, the entity whose rights are being violated can send an official notice to the violator informing him of the violation and demanding that it cease; colloquially this is known as a “DMCA takedown notice.” Failure of the alleged violator to comply and remove the offending material from his server constitutes evidence that the violation of rights is knowing and willful. On the other hand, if the alleged violator immediately removes the supposedly offending content, he will not be subject to any penalties. Subscribers to the service providing the allegedly infringing material can file a counter-notice, but they are rarely in a position to do so.
This sounds innocuous enough at first, but it’s important to note that complying with takedown notices is essentially a get-out-of-jail-free card; there are no monetary penalties if there is a violation, and it’s easier to comply even if there isn’t. Failure to comply will subject the alleged violator to long, drawn-out legal proceedings, in which he must contend with often large, powerful corporate entities. Such notices thus become a devastating hammer with which large corporations are easily able to pummel their smaller competitors; and indeed, they have been used as such consistently since the DMCA’s passage in 1998.
First, DMCA notices are often used to control criticism and to limit perfectly legitimate productions. As an example of controlling criticism, consider lowes-sucks.com, which a disgruntled Lowe’s customer founded in order to object to a bad experience at the home improvement giant. This sort of thing is clearly legally permitted, so clearly that the fact can only be described as obvious; yet Lowe’s nevertheless sent a DMCA takedown notice to the site owner, trying to shut the site down. The site owner in this case was fortunate enough to find some pro bono legal assistance from the Electronic Frontiers Foundation and eventually prevailed, at least insofar as Lowe’s agreed to settle the issue out of court; but how many similar cases are lost simply because the threatened party couldn’t afford legal representation or advice, or was frightened enough by the official-looking takedown notice that he simply complied with it without question?
Doubtlessly, the latter is the goal of such notices; it’s hard to believe that anyone would send such a letter regarding such a clearly permitted use with any other intention. And note that the DMCA provides for penalties for filing false takedown notices; were any such penalties levied on Lowe’s? You will search in vain. Big companies use the DMCA in this way because the potential benefits are enormous—silencing criticism at only the cost of sending a letter—while the potential costs are minimal, since the parties these companies wrong are rarely able to afford pursuing their legal remedies. That’s why this sort of thing happens again and again; and indeed, most of these incidents remain largely unknown, as generally only those who resist the attempts publicize them.
Furthermore, companies have been known to issue DMCA notices purely to prevent their customers from learning about privacy and legal policies. Microsoft is a good example of this.
Second, DMCA notices are used to simply destroy smaller competitors. This tactic is most effective in the realm of electronics, and predates the DMCA. Indeed, many computer vendors attempted to stifle independent computer repairmen because those repairmen often must make copies of software to do their repairs safely, and therefore they were illegally copying intellectual property. Even our Congress found such claims ridiculous, but couldn’t deny that our dysfunctional copyright laws forbade it; so they had to amend the laws to permit the activity.
This is certainly a victory for common sense; however, the DMCA works for the plutocracy even when legal challenges fail. Sony, for example, manufactures the popular PlayStation series of video game consoles. They specifically designed these consoles so that they would only work with Sony-approved games; and further, that Sony-approved games would only work on Sony PlayStations. They did this, of course, in an effort to restrict competition; if they produced a popular game, no one could play it without buying a Sony PlayStation. Microsoft’s XBox and Nintendo’s several systems implement similar protections.
However, two companies, Connectix and Bleem, produced software sufficiently clever that it could trick a PlayStation game into thinking it was in a PlayStation even when it was, in fact, in some other machine. This allowed people to play their PlayStation games—which they had legitimately purchased—on their home computers without purchasing a PlayStation from Sony. This is technological innovation, enabling smaller companies to effectively compete against a giant. Sony, however, sued both companies under the DMCA, alleging that the “reverse engineering” of the protections they’d put on their games—a process by which tech-savvy engineers determine how something works by watching it and changing small aspects in order to get at the internals—violated Sony’s intellectual property rights.
Sony neglected one thing about this claim: it’s not a valid legal argument. Such reverse engineering is clearly permitted, and eventually Connectix even won the lawsuit by arguing such. Nevertheless, neither company was able to sustain the high costs of defending the DMCA suit, and both were thereby forced to pull their products off the market. Sony did the same thing regarding non-Sony software on their robotic Aibo dogs, and Blizzard has engaged in similar tactics to ensure that their customers are forced to use only their servers. Even when the DMCA doesn’t work for the plutocracy, as this demonstrates, it still works for the plutocracy.
Not to mention, of course, the typical industry capture situation, in which lawyers for the Recording Industry Association of America, famed for using the DMCA for protecting its near-monopoly, have thickly populated the Department of Justice.
This is one example of how our legislation is designed not to protect the common good, but to protect the plutocracy. As distributists, we must always remember to look at new legislation and ensure that it promotes not the good of our ruling elite, but that of the country.
Praise be to Christ the King!