Why the new “user generated content” copyright principles fail

Oh, they don’t fail for the companies, who are seeking to protect themselves as service providers, give copyright holders greater control over content and access to user information, and create a bigger market for content identification technology- but they fail as a matter of public policy in this strange run-around of the DMCA.


1) The copyright holder is not the arbiter of how the copyrighted work is used.

2) No technological protection measure can determine fair use. Although the guidelines suggest copyright holders “accommodate” fair use, NO AUTOMATIC PROTECTION CAN DO SO (*especially* the “block first” approach advocated by these guidelines)- and neither the copyright holder nor the service provider are necessarily in the best position to determine what is or is not a fair use.

3) The guidelines do not “encourage creativity.” They seem to be implying that requiring people create wholly original creative fosters more creativity than the creation of works based on other works… which is not necessarily true.

4) “Reasonable” only appears in actions between copyright holders and owners
, not users.

5) The guidelines fail at “protecting user privacy.” Translation: Respect the law, but give the copyright holders as much information as they can legally get.

I was somewhat hopeful that something interesting would come out of this group on the initial announcement, but the guidelines are more of the same. There were apparently no user/consumer groups involved in the preparation of these principles, and it shows.

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