a practical system for regulating infringement

DMCA notice and takedown is basically an excellent system for administering a global-scale internet music infrastructure.

There are just two problems, and both can be handled as incremental improvements.

One is fraudulent takedown requests. There are no meaningful barriers to requesting that something not infringing be taken down. This allows incumbents to do a denial of service attack on anybody who actually wants their music to be up. I don’t think these are usually deliberately fraudulent, I think that they are accidents.

Easy fix: penalties that are big enough to cause rights holders to care.

The other problem is scaling up the takedown request machinery. For the moment the process is manual and rights holders can’t go fast enough to make a dent. They need to be able to spider newly posted content, to accurately diagnose whether it is infringing, and to generate a takedown request, all at internet scale and speed. This is technologically possible, I believe. (But I won’t document a system to do that here, because it would be tedious and not very interesting).

Ian Roger’s proposal

I appreciate Ian’s proposal for a global scale rights registry, but I think it is far harder than just making adjustments to DMCA notice and takedown. Ian’s strategy requires rights holders to make their catalogs available to all comers at well known prices. This sacrifices negotiating power, so they will have to be dragged to the system kicking and screaming. Notice and takedown, on the other hand, is something they’re willing to do as long as it actually works.

What’s somewhat amazing about a system based on notice and takedown is that it administers itself in a completely decentralized way. Each rights holder would have its own registry of permitted URLs. Sony Music would have sony.com in this exception list, for example. Any domain not in the exception list would get a takedown request. The exception list can be highly detailed; for example it can remember which tracks a site is permitted to host and which tracks it may not host. This is mature technology.

The system I propose here can be implemented without any leaps of imagination. The details would be pretty easy, or at least practical.

2 thoughts on “a practical system for regulating infringement

  1. I think this only solves part of the problem however, Ian’s idea (which I like) solves the demand side in maybe an elegant way. I’m not sure it reduces negotiating power – any media provider can list whatever prices and terms they want.

    1. Andy, the way it reduces negotiating power is that it doesn’t allow for price discrimination. The labels charge different prices depending on who they are negotiating with.

      As attractive as a solution for the demand side is, that’s a different goal than regulating infringement. If incremental improvements to DMCA notice and takedown are only more successful at managing infringement, that’s no flaw.

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