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                   Thursday, March 20, 2008 - 1:12PM

The DMCA: Legalizing copyright infringement

By DAN ROBINSON
Editor/Photographer
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Imagine that you owned a hardware store. One day, you start noticing items missing from the shelves. First it's just a few small tools like screwdrivers and hammers. Then some more expensive items like drills, table saws, compressors and generators start vanishing. You buy a CCTV camera one night, set it up and catch the thieves red-handed. It turns out it's a local contracting business that's been stealing your merchandise to help build multimillion-dollar commercial buildings in your town. You call the police and show them the surveillance footage, and they promptly travel to the construction sites and demand the return of the stolen tools. The police return all of the items to your store that night. No arrests are made. The contractors don't have to pay for using the tools and you are barred from filing charges. You end up not only bearing the expense of having your new merchandise now devalued as 'used', but it was up to you and your resources to catch the thieves. Furthermore, the very next night, the same contracting company returns and steals your merchandise again. And again the next night, and the night after that. The police can do nothing but demand the return of your tools each time. Why? Because the law says that tool thieves are protected under a 'safe harbor' that says as long as they immediately return them when they are caught, that they are released of all liability.

That sounds absurd, doesn't it? Thankfully no such law exists in our country when it comes to merchandise or personal property. But there is such a law that makes legal the theft of the products of photographers, artists and cameramen. The story of the hardware store above is really happening to photographers and content creators today, thanks to the Digital Millenium Copyright Act (DMCA). Photographers and cameramen have to fight a daunting battle just to keep their products from being stolen all over the world to the benefit of countless businesses. Thanks to the DMCA, it is up to the photographer to patrol for, catch and report instances of theft, and the businesses who benefit financially from the thefts are protected from repercussions. The DMCA says that a web site using a copyrighted work is free from all infringement liabilities as long as they themselves did not actually post the work, and as long as they remove the material when caught. It's like saying the contractors who knowingly use your stolen tools from the hardware store are free and clear, as long as they get someone to do the actual thefts on their behalf.

In today's online world, many web sites such as YouTube, Ebaumsworld, Liveleak, Break and countless others exploit the DMCA to commit this 'protected' copyright infringement. By allowing and encouraging third-party users to post copyrighted works, they are absolved of responsibility under the DMCA because they themselves did not post the works. All they must do under the DMCA to avoid repercussion is to take down the works when they are caught. This puts the responsibility and burden of enforcement in the hands of the photographer, who must constantly patrol for his works and send out the DMCA 'takedown' notices. The photographer not only gets nothing for the usage of his material, but gets nothing for his trouble in dealing with the thefts. In the meantime, the web sites benefit from the photographer's works through advertising revenue, up until they are caught. Many of these sites gross well over $1 million a year in ad revenue - earned solely from visitors who come to see the content they display. It's no different from the contractor in the fictional story above stealing tools to help his business make money constructing buildings.

Furthermore, photographers today are dealing with a public attitude that photographs and video footage somehow don't deserve the same status that other products and services enjoy, and are therefore 'free game' for anyone to take and use as they wish. The fact that the DMCA exists as is reflects that this attitude is likely present even among our lawmakers. Most people don't think about a photograph or video as being a legitimate business product that costs time, money and professional skill to produce. As a cameraman, I have spent close to six figures in equipment and travel expenses in the past 5 years to capture all of the works in my collection. My work isn't free for me to capture, so it isn't free to use. It's amazing how even as I fight to protect my work, I end up being portrayed as the 'bad guy' for being 'stingy' about the instances of theft I discover and report. You'd be surprised at the hate mail and even borderline death threats I get from online users (many of which are teenagers, surprisingly enough) who are appalled I'd have the audacity to get my work removed from their video/photo sharing accounts.

Most of these people would probably change their tone if they knew that while the DMCA (unfairly) protects the video/photo sharing web site, it does not protect the original submitter of the infringing work. The RIAA has been successful in bringing judgements of thousands of dollars against individuals (including even teens) for making pirated music available online. While a single photographer usually does not have the resources to undertake a legal battle on such a scale, that may be changing.

The DMCA needs to be rewritten to hold individuals and video/photo sharing sites more accountable for copyright infringement. As it is now, the burden lies unfairly with the photographers to find instances of infringement and protect their work - a substantial cost that they must bear themselves.

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