What Is the Intention of Justice? Notice and Stay Down Is the Government's Responsibility

ARTHUR

Let's get back to justice...what is justice? What is the intention of justice? The intention of justice is to see that the guilty people are proven guilty and that the innocent are freed. Simple isn't it? Only it's not that simple.

From ...And Justice for All, written by Valerie Curtin and Barry Levinson.

There is a new term in our lexicon: Notice and stay down. What does it mean?

It is a way of encapsulating a distortion of the law that large multinational corporations are using to their immense profit by middleman-ing the theft of other people's property in the weaponized Internet.

In the late 1990s, the large ISPs had a legitimate concern. If they are providing ways for the many to connect with each other over the Internet by means of a technology that also enabled them anonymously to send digitized property by means of that technology-such as a file (or link to a file) that contained a copy of a sound recording, movie or an image-they need to be protected from responsibility for things like copyright infringement.

The ISPs needed a zone in which they could operate, a zone that came to be called the "safe harbor." The deal essentially was that if you didn't know or have a reason to know there was bad behavior going on with your users, or knowledge waiving like a red flag, then the government would provide a little latitude to reasonable people acting reasonably, assuming you otherwise qualified as an online service provider.

This safe harbor idea was a great privilege conferred upon online service providers and balanced the democratizing nature of the Internet with the need to enforce the law against bad actors.

Artists' rights to protect themselves were not extinguished by this new safe harbor. If a copyright owner thought there was infringement going on that didn't qualify for the safe harbor, then the intention was that individual artists shouldn't have to file a lawsuit, they could just send a simple notice to the service provider. If it turned out that there was a bona fide dispute over the particular use of the work, then the parties could go to court and hash it out if necessary. The notice part of "notice and takedown" was perceived as an inexpensive remedy that would be available to artists who did not want to take on a lawsuit as well as ISPs with litigation budgets.

Sounds very civilized, don't it? Sounds like something that could be considered to be just. But notice and takedown has become notice and shakedown.

The one thing that nobody thought was that it was the intention of Congress that there would be ad networks, multinational corporations and international piracy rings whose business model is in large part built on exploiting a loophole in that safe harbor. What once was a reasonable exception is now tainted as a massive loophole that the government has done little to nothing to correct.

Professor Sean O'Connor of the Entrepreneurial Law Clinic at the University of Washington gave succinct and compelling testimony to the House Judiciary Committee on this subject which is recommended reading.

Google alone is on track to receive over 350 million takedown notices this year--just for its search product. The "safe harbor" is no longer a loophole, it has graduated to a full blown design defect as indiscriminately harmful as any exploding gas tank.

So now when artists ask that some common sense be applied to this grotesque distortion of the law-supposedly passed in part for the benefit of artists-some would tell artists that it's not up to government to tell them what the law means. As incredible as that sounds.

Isn't it obvious having to send a notice for the same work on the same service thousands of times, if not hundreds of thousands of times an absurd burden? In other words--is the government actually defending whack a mole with a straight face? Did the government actually intend that 350,000,000 take down notices in a year are normal?

Did the government really intend that playing by the rules simply distorts the rules even further?

Whack a mole is not automatic-it requires human intervention. Someone has to decide to repost the infringing file even while knowing the file is very likely an infringement. Whack a mole actually defies the entire purpose of the safe harbor-whack a mole is not a little latitude for reasonable people acting reasonably.

Whack a mole is a design defect.

Let's get back to justice. Not only are artists required to tell lawmakers what their law means, the U.S. Government has utterly failed artists with the fundamental justification for the Sovereign common to our jurisprudence and political theory. It failed artists in the basic tenet of the social contract theories embedded in our Constitution.

The government has failed to protect artists, failed to enforce the laws, essentially overseeing and giving legitimacy to one of the largest income transfers of all time. All based on an extreme interpretation of the government's laws, and obviously not one that can be solved by the notice and takedown system as advertised. Direct challenges to these interpretations involve costly and protracted litigation--with the inescapable whack a mole continuing all the while.

Confronted with this situation when one of the biggest beneficiaries of the loophole is a major lobbying influence like Google, it would not be unreasonable to think that the whole thing smacks of crony capitalism. While some ISPs have at least tried to address the issue through the Copyright Alert System, the Googles of this world are noticeably absent.

Unlike Socrates who suggested that citizens could vote with their feet, we cannot escape the Internet and the whack a mole the government permits. It can't be said that we should just move to another country as Plato writes in the Crito.

So I would beg pardon here-I do not feel that it should be necessary for artists to tell the Congress what would be acceptable in the way of parameters for "notice and stay down", at least not initially. I think artists have the undisputed right to ask-actually to demand-of the Congress, what was their intention?

The safe harbor is the government's law. They wrote it. They voted for it. They represented voters when they did so. They presumably have some idea what it is supposed to mean. Many who voted for it are still in the Congress. Isn't the place to start a coming clean about what Congress intended? Why should artists have to tell the Congress what the Congress's intention was?

If it was the intention of the Congress (and President Clinton who signed the law) that the current state of whack a mole was the plan all along, then let them say that--and perhaps more importantly, point to where they told the electorate that was their intention at the time the DMCA was passed in the Congress and signed into law.

Google is on track to receive over 350 million take down notices this year alone. If this was the Congressional intention, then let them say that. If their intention was there should be no upper limit on the number of takedown notices any one company could receive in a year, then let them say that. And explain themselves.

And let's be clear-Google does not appear to view these hundreds of millions of notices as a design defect, although that would be a perfectly reasonable conclusion. One has to believe that if a company the size of Google viewed 100s of millions of notices as a problem, they could fix that problem. They haven't. In fact the number of notices grows exponentially every year. Perhaps they view 100s of millions of notices as a feature set.

What is the intention of justice? That the guilty are proven guilty. But if lawmakers won't tell us what it means to be guilty much less prosecute the politically connected wrongdoers, then what justice is that?

Notice and staydown is a reasonable reaction to whack a mole, and one that is entirely consistent with the original intent of the DMCA notice and takedown regime. You would think that the government would be leading the charge.