Gideon’s Remix: First observation on why Veoh is bad policy

I note that the quotations from Fred von Lohman, the Mystic Knight of the EFFluviati, that appeared in the press on the Veoh case were somewhat guarded. We learn from our spectacular defeats—Grokster in Fred’s case. The industry sentiment regarding Veoh reminds me of reaction to the lower court decisions in Grokster—this simply cannot be the law. And sure enough, it turned out not to be.

For independent artists and songwriters who have read the Anthony Lewis book, Gideon’s Trumpet, the Veoh case will have a familiar ring to it. (The book tells the story of Gideon v. Wainwright, the U.S. Supreme Court case that established the right to counsel of indigent defendants in state court criminal cases and essentially created the public defender system.)

Veoh is at odds with fundamental principles of American jurisprudence and our Constitution. If the decision were to stand, copyright becomes a Constitutional right without a remedy, kind of a “Gideon’s remix” denying the Constitutional right of copyright protection to those who cannot afford to defend themselves. Gideon’s remix is not a defense against the government, this time, but against vast commercial interests who will always outspend and intimidate independent artists and songwriters and who twist the laws of the United States into what is effectively a private and free de facto compulsory license—what we call “notice and shakedown”.

And why limit the decision to the online world–why not extend the notice and shakedown concept to the physical world, too? Why not apply it to cars, or homes, or personal property generally? Why not make our offline economy into one big squat? I think we all know the answer to that one.

In light of the absurd result in both Veoh cases, I thought this post by one of the Children of the Lessig God was of interest (discussing the responsible “Take down stay down” policy adopted by MySpace):

“Under [the Myspace ‘take down stay down’ policy] copyright holders remain responsible for identifying the content themselves. MySpace will not do the initial filtering without individual notices. This might fall a bit shorter of fulfilling the content industry’s sweetest dream, but then again, a major breakthrough.”

Requiring an online service provider to “filter” is not a “dream”—it’s called getting a license. This is what legitimate companies do every day. There are entire licensing regimes built to respect the rights of authors and to facilitate licensing and payments. Pandora does it, iTunes does it, Hulu does it, Amazon does it, and Myspace does it. Why can’t Google do it?

But wait, there’s more. “Fingerprinting and other copyright filtering technologies will remain a hot topic in the near future as more market leaders are expected to be drawn into this copyright swamp. The mechanism adopted by MySpace gives rise to difficult legal questions. The blocking of subsequent attempts to upload the content is automatic and circumstances-insensitive. It does not require any further statement or declaration (under penalty of perjury or otherwise) by content owners. Yet posting the same work by one user in an infringing manner does not mean that posting the same work (or a portion thereof) by another would necessarily infringe as well. The latter could be protected under the fair use doctrine, for example, if the second attempt to post the file actually incorporates a smaller portion of the work as part of a derivative work aiming at criticizing the content owner.”

Yes, it’s possible that 4Chan and Anonymous might be prevented from criticizing the content owner by using the works controlled by the content owner in a raid (as Anonymous will tell you, “because none of us are as cruel as all of us”). But that hardly will stop critical speech, as we have seen. The incredibly antagonistic and frankly childish policies of Google on YouTube of stamping their feet and posting videos with no sound when they didn’t get their way with Warner Music Group clearly is an example of that workaround. (And also begs the question yet again—where is the board? But that is another story.)

This free speech business is a canard, of no lesser magnitude that Lessig’s “Starving Artist Canard”. The overwhelming majority of takedown notices are sent for two categories of works: Those that are taken in their entirety to profit the online service provider at the expense of the creator in the hope that the creator will take long enough to find the infringing activity that the provider can squirrel away some money during the free ride, and those that are trivial copies by users that still profit the online service provider in the aggregate and still at the expense of the creator during the free ride. Forcing a takedown in these situations has nothing whatsoever to do with free speech and everything to do with stopping a free rider.

The Veoh courts seems to believe that it was the intention of Congress in crafting the DMCA “safe harbor” that copyright owners large and small must ferret out all copies of works hosted anywhere in the vast expanse of the Internet in order to notify online service providers of their existence—even when the provider knows or should know that the copyright owner has not authorized the reproduction and distribution of a work.

It seems an entirely unreasonable burden to force independent artists, songwriters, unions, directors, writers, record companies and film studios to search the Internet 24 hours a day, 7 days a week to find infringing copies of works that have not been licensed or approved for use.

I find it difficult to believe that it was the intention of Congress that hundreds of thousands of takedown notices should be sent annually by those who can afford to do so and that those who cannot afford to do so must suffer the indignity of infringement in silence. Only to be told that “you can’t compete with free.” (Which, by the way, is one of the more illogical statements in recent memory–it’s theft you can’t compete with, not the “free” that the creator has no part in permitting.)

Notice and takedown is not intended to be a game of catch me if you can, or catch me if you can afford to. It’s not Gideon’s remix.