September 26, 2022

Another reason for reforming the DMCA

I’ll be signing off my guest-blog stint at Freedom to Tinker now. (Thanks for your hospitality, Prof. Felten.)

Before I go, I wanted to point you to a chapter excerpt from “Darknet” I just posted here It tells the story of how the vice president of Intel Corp. violated the Digital Millennium Copyright Act (DMCA) without realizing it — by making a home movie of his son playing Pop Warner football and incorporating snippets of a Hollywood DVD.

As the VP, Donald S. Whiteside, told a Congressional delegation:

“This is precisely the kind of exciting consumer creativity that should be enabled. I don’t claim to have all the answers. Should I have to go clear rights to use ten seconds from Rudy in my son’s video, or does it fall under fair use? Should I have to pay pennies for every second of a snippet? I don’t know. But I do know that we have to figure out a way for consumers to do something creative without breaking the law.

“To me, this episode was a great way to frame the question: Should copyright law permit this or not? Should the DMCA criminalize this sort of thing? Or should the creative community, high-tech community, and lawmakers get together to try to stimulate this kind of innovative behavior?”

Well put.

— J.D. Lasica

Grokster fever

From Monday’s New York Times: The Court of Online Opinion Has Its Say on File Sharing. This is the third piece in the Times this weekend about the Supreme Court’s soon-coming Grokster decision. The article quotes Prof. Felten briefly:

Mr. Snyder’s instructor at Princeton, Prof. Edward W. Felten, a frequently read blogger, was less enthusiastic. At his Web log,, Professor Felton predicted that the court would leave the whole issue muddy.

“The Supreme Court’s Grokster decision won’t provide us with a broad, clear rule for evaluating future innovations, so the ball will be back in Congress’s court.”

It’s certainly hard to read the High Court’s tea leaves, but I’d be very surprised if the entertainment industries won a clear-cut victory here (although one should never underestimate the technological cluelessness of the justices).

In the end, a remand to the lower courts – or a muddy decision of cross-current opinions – wouldn’t be so bad, would it? I argue in “Darknet” that while we’re likely to see setbacks at the federal and state level in the next five to 10 years – Congress will surely become a battleground once this ruling comes down – the contours of our digital future will really be decided by society. And that will take a very long time, as today’s young people begin interacting with media in very different (and less deferential) ways than their parents did.

Time is on our side. So, I’m rooting for the law to stay out of the way.

How to license graffiti

A member of this morning raised an interesting question that has both legal and ethical dimensions: How should photos of graffiti be licensed, if at all?

Among the points he raises is that under U.S. law (as well as other jurisdictions), you can’t profit from an illegal activity like graffiti, so the graffiti artist can’t pursue a claim of infringement, and yet copyright apparently still attaches to the creative work, although that’s less clear if the work is the product of several individuals over time.

At any rate, it’s an interesting question (especially for IP law students), and we’ll like see a good number of such works of Remix Culture (in the form of photos and videos) displayed on sites like Ourmedia or Google Video in the months ahead. I suggested that a Creative Commons attribution share-alike noncommercial license was the most appropriate license when capturing an image of such graffiti art. Thoughts?