The WSJ editorial page is not something I ordinarily frequent, but they recently wrote an editorial on the DMCA. Aside from a reflexive and simplistic “intellectual property is good so don’t bother me with nuance or details” attitude, this paragraph struck me:
Google claims “a legal safe harbor” from copyright infringement under the 1998 Digital Millennium Copyright Act, which allows Internet firms to provide a thumbnail of copyrighted material. The firm also asserts a right to reproduce and distribute intellectual property without permission as long as it promptly stops the trespass if the copyright owner objects. That’s like saying you have the legal right to hop over your neighbors’ fence and swim in their pool — unless they complain.
WSJ 2006/12/1 (it’s the editorial page so the person who actually penned this embarrassment doesn’t have to sign his or her name)
I realize that editorial pages don’t require fact-checking, but getting the law this wrong is embarrassing. Readers of this blog probably are very familiar with the DMCA, but a couple of quick pointers:
- The DMCA doesn’t “allow Internet firms to provide a thumbnail of copyrighted material.” I believe the hopelessly inept WSJ editor was probably thinking about the Kelly v. Arriba 9th Cir. decision, supported recently by the 2d Cir. decision in Dorling-Kindersley. Both of those interpreted fair use (17 USC 107) to include offering thumbnails for a different purpose.
- “… without permission as long as it promptly stops the trespass if the copyright owner objects.” Presumably here they’re talking about the DMCA notice-and-takedown provisions, 17 USC 512. Of course, these provisions don’t apply to original infringement — reproduction and distribution — but to the responsibility of ISPs and other intermediaries when their networks are used for reproduction and distribution. That is, at best, secondary infringement (contributing to or vicariously responsible for someone else’s infringement), and it’s really not at all clear that ISPs would be liable for it even in the absence of the safe harbor provisions. Which aren’t “claimed” by Google et al but ”given” to them by Congress.
Since they can’t be bothered to do even the barest minimum of fact checking, and don’t understand what they’re talking about, it’s hard to actually take them seriously. Are they this bad all the time?
Gigi Sohn of Public Knowledge probably very wisely didn’t bother correcting their extremely shoddy fact-checking but responded to the overall tenor of their arguments; the WSJ published their letter – and because the WSJ puts their content behind passwords, the full-text of the letter is available at PK’s blog by Alex Curtis.
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