Time to reopen the DMCA? RIAA goes there (sort of)

Copyright RIAA president Cary Sherman broached publicly on Monday a topic that has quietly been gaining currency in some Washington copyright salons for a while now: the DMCA is broken and the time has come to fix it.

Speaking at the Technology Policy Institute’s Aspen Forum, Sherman said “the DMCA isn’t working for content people at all,” according to a report by CNet’s Declan McCullagh. “You cannot monitor all the infringements on the Internet. It’s simply not possible. We don’t have the ability to search all the places infringing content appears, such as cyberlockers like [file-hosting firm] RapidShare.”

The complaint isn’t new. Sherman’s willingness to speak publicly about a solution is at least semi-new. From CNet:

In response to a question from CNET, Sherman said it may be necessary for the U.S. Congress to enact a new law formalizing agreements with intermediaries such as broadband providers, Web hosts, payment processors, and search engines… “We’re working on [discussions with broadband providers], and we’d like to extend that kind of relationship–not just to ISPs, but [also to] search engines, payment processors, advertisers.”

But, Sherman said, “if legislation is an appropriate way to facilitate that kind of cooperation, fine.”

The CNet reporter later added this post-script:

During dinner this evening, Cary Sherman told me that his response to my question earlier Monday was not a call for new legislation. Instead, he said, the RIAA would like to see congressional action only if necessary to formalize a voluntary deal with partners such as broadband providers. But a broader law enacted without their cooperation isn’t what the RIAA wants, Sherman said.

I’ll bet it isn’t. Yet that’s precisely copyright groups’ dilemma. They’re increasingly frustrated with the way the courts have been applying the DMCA and would love to see it “improved.” But they’re terrified — with good reason — of simply tossing to Congress and seeing what comes out of the sausage factory. Once the DMCA were reopened, everything would be on the table, and a lot more voices would want to be heard. The RIAA is damned if they don’t do something, but possibly damned far more if they do.

Sherman’s public comments suggest copyright owners are at least growing more open to taking the risk. On the video side, the case for seeking changes to the DMCA has grown stronger recently thanks to a string of courtroom setbacks for the studios on different sections of the law.

The Viacom v. YouTube case is the most high-profile instance in which a court has rebuffed studio efforts to narrow the scope of the §512 safe harbors in the DMCA. But it followed a string of similar cases in which courts have refused to assign liability to ISPs or OSPs based on a general knowledge of copyright infringement on their platforms.

On another front, the MPAA is scrambling to contain the damage from the Fifth Circuit’s recent ruling on the scope of the §1201 anti-circumvention provisions. But the MGE v. Power Maintenance case, too, fit a pattern of cases in which courts have found that circumventing access control features on copyrighted works is only illegal where some sort of actual infringement is going on, and not in cases where circumvention merely makes infringement technically possible. (See also the recent Copyright Office rulemaking on DMCA exemptions.)

All of those cases have made life immeasurably more difficult for traditional media companies. At the same time, the media companies have been unable to extend victories over Napster and Grokster into a broader base of case-law to support their vision for how digital commerce should be conducted.

One solution, of course, would be to find new ways of conducting commerce, which the companies are, in fact, and however fitfully, attempting to do. But in the meantime, the Congressional option seems to be growing less unthinkable than it was in the heady days of the Grokster case.

Further reading:

Viacom To Appeal Ruling on YouTube

Viacom v. YouTube: A Disappointing Decision, But How Important?

In Perfect 10 v. Google, Round 3 Goes to Google

Video Copyright Owners Must Police the Internet