In the long run, Don Henley doesn't want to police his copyrights

Posted on Tuesday, August 31st 2010 at 5:52 p.m.

One of the provisions of the Digital Millenium Copyright Act (DMCA) is that content carriers (such as YouTube, Facebook, or ISP’s) are not required to verify distribution rights on media before allowing their users to post content, but to take down material when a rights-holder issues a DMCA takedown notice (known as “Safe Harbor”).  This enables YouTube for example, to allow its users to immediately upload video without the need for human review, as the labor involved in such an activity would be astronomical.

In an interview with Rolling Stone , Eagles drummer/vocalist Don Henley complains that the DMCA’s Safe Harbor provision creates an onerous burden on rights-holders.  He would rather Congress amend the DMCA to make ISP’s liable for carrying infringing content.

Without this change, copyright owners are left with the unjustifiable and oppressive burden of constant policing of the online companies’ sites, which has little real effect on the continual problem of infringement of property, and serves mostly to embitter fans and the users of these sites. The recording industry was bullied by online retailers into removing protective measures, such as DRM, from their sound recordings or else facing the prospect of these retailers refusing to distribute their catalogs. Yet, so far, digital royalties on music have failed to live up to the hype; in fact, removing such protective measures has increased the theft of music and other intellectual property.

In an analysis of Henley’s comments , Ars Technica breaks down how Henley’s comments correspond with statements of other major rights-enforcers such as the RIAA and the MPAA.  Most telling is Henley’s comment about embittering fans.  Basically Henley doesn’t want to be seen as the bad guy in copyright enforcement - he wants the onus to be on ISP’s to do this work.  The RIAA tried fruitlessly to sue individual infringers (something we wrote about before ), and certainly corporations like YouTube make much more attractive lawsuit targets than teens in their parents’ basement.

The conclusion of rights-holders that the DMCA is broken and needs to get “fixed” by removal of Safe Harbor is probably the reason why the entertainment industry has spent over $5M in lobbying for the 2010 election cycle.  We will see when the next Congress sits what the return on that investment is for copyright holders.

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