Digging Copyright Infringement?

Today’s excitement at Digg regarding posting codes to override copyright protection on HD DVDs, combined with the pending Google v Viacom showdown, may be referenced for some time to come as the “starting date” of the online revolution against old notions about copyright and intellectual property.

My take on this is, as usual, unusual in that I think two things that everybody is arguing about are actually very clear:

1) Based on existing law, YouTube and DIGG have an obligation to remove offending materials, and probably are in violation themselves for posting those materials, basically ignoring the rights of the copyright holders in favor of community enthusiasm for the coming IP revolution.

2) Existing law is outmoded (perhaps more accurately it should be considered irrelevant and unenforceable, and won’t stand much longer without significant modifications.

Diggers, YouTubers, and other online enthusiasts seem to think that becuase 2 is true, 1 is not true. That’s silly. law is law, and these are violations and everybody knows it. The copyright laws are not outrageous or fundamentally unfair in their *intentions*, and thus they’ll continue to hold up in the courts until we see new laws enacted that are relevant, enforceable, and in line with new sensibilities about what constitutes fair use.

Personally, I’d like to see more experimentation with dramatic expansion of the principle of “fair use” to basically include all non-commercial uses. We see this principle in play in the open source community and even at Google, Yahoo and MSN with many of their web innovations. This openness has arguably done more to foster creativity than any proprietary projects could ever do. Examples: Linux and Firefox to name two of thousands of brilliant and innovative projects that thrive, unencumbered by most old fashioned copyright restrictions.

So, what needs to change here? The law, and thus it’s up to congress to enact new rules that make more sense. Perhaps these could be as simple as suggesting that the commercial benefits of programs and music and other creative stuff should be controlled by the creator of those programs, but that the *societal benefits* should be considered part of the obligation of any artist or creator to contribute to society at large.