Summary: NPR’s Laura Sydell highlights a push by major artists to revamp the DMCA safe harbor, and we briefly explore whether there may be technological solutions waiting in the wings.

Our last several posts on this blog have been about the creative commons, and how non-commercial, open sharing of content — facilitated by new technologies like blockchain— can help build the public domain and, potentially, spur greater creativity and create value for artists. For instance, we recently highlighted the story of a photographer who has had impressive success driven by contributing works to the commons.

But there’s great piece today by Laura Sydell on NPR’s All Things Considered that touches on the problem of freely sharing works where the original author does NOT want the works shared without compensation. It’s important to note that there is a very big difference between an artist contributing works for the pubic good, and a third party deciding that everyone should have the content for free. That’s piracy.

I recognize that there are people who would like to see the copyright ownership/licensing regime go away entirely, but even if you agree with that notion, you have to concede that it must be replaced by some means of providing compensation to authors for sharing their work.

Personally, I favor the idea of letting creators decide for themselves what regime they want to use for any given work; the importance is to give them options. If a comedian wants to put video clips of his stand-up performances and generate revenues from advertisements, fine. If an author wants to sell books through Amazon and make a set amount per download, that’s okay too. If a musician wants to put out a lot of content under a Creative Commons open license, in order to spur attendance at her live concerts, great.

NPR’s story notes that there may well be a “ generational difference in the way artists approach the Internet to make a living” as well. It quotes a singer, Peter Hollens, who, like the photographer we’ve talked about, attributes his success to openly sharing YouTube videos of his performances; Hollens says that artists really must keep a hand “in every cookie jar possible.” Makes sense.

Revisiting the DMCA Safe Harbor

The particular focus of NPR’s story is whether the safe harbor for Internet service providers under the Digital Millennium Copyright Act (“DMCA”) should be altered. Under that safe harbor, content owners who learn of infringing content on a platform such as YouTube can send a take-down notice, and the platform must send the notice to the person who posted the allegedly infringing content. If the person who posted the content does not protest, the service provider must take the content down, but faces no liability for the publication of the content.

Many content owners believe that the law is unfair burden because it requires them to do the investigative work to locate the content and send take-down notices, given that technology exists that could let the platforms screen and identify infringing content in the first instance. Platforms say that as neutral places for users to post material, the burden is correctly assigned — but many platforms also do have programs for identifying content to make it easier for content owners to address infringement. YouTube’s Content ID is one such program, and NPR discusses the pros and cons of that system.

Notably, the Content ID system really works best only for content owners with large portfolios. Here’s how that’s described by YouTube:

YouTube only grants Content ID to copyright owners who meet specific criteria. To be approved, they must own exclusive rights to a substantial body of original material that is frequently uploaded by the YouTube user community.

So it’s still difficult for smaller content providers and individuals to police infringement.

I’m going to suggest that part of the solution here may be a technical one, but not mere filtering. If more creators begin registering their works using blockchain-based services such as those offered by companies like Monegraph or Verisart or Blockai, and the terms under which the creators are making their works available are immutably linked to the registered works, theoretically it will make it much easier for users and, yes, even platforms, to automatically identify whether (at least in the first instance) a work can be posted and used, and when it cannot.

Much detail still would need to be worked out, just as the Content ID system continues to be tweaked by YouTube to address things like fair use. But if we can move towards a rights ecosystem where there is a shared infrastructure for information about content, some of the old disputes may start to fade away.