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Summary:

Google chairman Eric Schmidt has been taking some flak from global media and content companies for comments he made about copyright while in Britain, but he’s right, and Britain and Schmidt’s critics are wrong. Copyright is changing, whether they like it or not.

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Google chairman Eric Schmidt has been taking some flak from large media and content companies for comments he made about copyright in Britain, where the authorities have been considering a rewrite of the country’s 300-year-old copyright laws. His critics believe Schmidt and Google are bent on promoting a lawless, Wild West approach to the Internet, and say Britain needs to find its own way on copyright. But Eric Schmidt is right, and Britain and the global content companies pushing it not to adopt principles like “fair use” are wrong. Copyright is changing, whether they like it or not.

Although he made them in London, Schmidt’s comments were actually about the newly-introduced U.S. Protect IP Act, which — among other things — would give the government the ability to seize control of the global domain-name (DNS) system and pull “pirate” websites down automatically. Provisions in the act could also open Google and other search engines up to private lawsuits based on their failure to police piracy. But the Google chairman’s comments also resonated with his British audience because that country is currently in the midst of a debate over proposed revisions to its copyright laws.

Britain also has certain provisions in its Digital Economy Act — which came into effect last year — that are similar to the Protect IP Act, in that the authorities can block or remove IP addresses that are hosting pirated content. Schmidt suggested Google will do whatever it can to fight both of these laws, and warned it’s a slippery slope from blocking or seizing domains and IP addresses to shutting down dissent or unpleasant behavior in the way that totalitarian states such as China currently do.

I would be very, very careful if I were a government about arbitrarily [implementing] simple solutions to complex problems… it sets a very bad precedent because now another country will say ‘I don’t like free speech”… that country would be China.

Naturally, most of the major global content companies support these laws, and so they lashed out at Schmidt for engaging in what they called “corporate imperialism.” Movie studios and music companies and publishers of all kinds would no doubt rather that governments in Britain and the U.S. and elsewhere have the ability to take whatever action they wish against alleged infringers — and they are willing to exert whatever pressure they can to make those laws happen: A number of WikiLeaks cables demonstrated how U.S.-based media and entertainment interests helped to shape restrictive copyright legislation that was proposed in Canada (which didn’t pass because an election was called).

The Digital Economy Act isn’t the only problematic British copyright move either: after a recent review of proposed revisions to the country’s copyright laws, the man doing the review — Cardiff University professor Ian Hargreaves — rejected proposals to update British law to conform to the U.S. principle of “fair use,” which allows content to be used for certain purposes without having to pay (or even contact) the creator. That principle is what makes it possible for Google and other web companies to host images and other content without having to license it all individually (Britain and other Commonwealth countries have a more restrictive concept known as “fair dealing.”)

According to Hargreaves, upgrading British law to try to incorporate something like fair use is just too difficult — so he recommended a range of other changes such as an exemption for parody and “format shifting” uses, and a potential licensing clearinghouse of some kind to make usage easier to manage. Not surprisingly, content and media companies were hugely supportive of the report’s dismissal of fair use.

This falls into the category of “tinkering” rather than actual change, in my view. The content horse left the barn a long time ago now, and trying to retroactively close the doors via government legislation is a fool’s errand. Not only that, but as Schmidt suggested in his comments, overly restrictive laws on copyright can have unintended consequences. Just look at New Zealand, which has a new “three strikes” provision that penalizes infringers. Now libraries there are apparently considering shutting down free Internet access because they are concerned that they could be subject to fines for infringing behavior.

Fair use principles are a crucial part of the foundation of an open Internet. Without them, Google and other web services as we know them simply wouldn’t exist, because finding and licensing content from all the various owners of it, even just to display thumbnails of images in a search, would too cumbersome and expensive.

Giving governments and the courts the ability to block or remove websites, shut down domains and fiddle with the global DNS system at will may make legislators and media lobby groups feel like they are controlling the problem, but they aren’t. As Fred Wilson of Union Square Ventures put it in a blog post: “Trying to recreate a world that has come and gone is not going to work.” Content will continue to flow wherever it wants, and will route around those blocks just as it has since the web was invented. Meanwhile, governments will have serious new powers to engage in whatever kinds of repressive acts they wish — all in the name of protecting a few prominent content companies.

Post and thumbnail photos courtesy of Flickr users Mike Seyfang and bloomsberries

  1. How dare Schmidt for trying to keep the constitution from being transformed from just a “goddamned piece of paper” (as a recent president called it) to a piece of used toilet paper. Fortunately, there are the content owners who will be there to ensure that piece of paper gets used and abused to protect their personal income streams.

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  2. gregorylent Friday, May 20, 2011

    from the point of view of collective consciousness, both copyright and intellectual property rights seem laughable.

    i expect they will become so, as the race evolves.

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  3. Let’s wait and see until you write a book, and then discover no one is paying for it. I suppose you’ll say you wrote it for the glory?

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  4. Re the UK Hargreaves report. I was at the “Silicon Roundabout” meetup for this and I contributed comments. I think it’s a reasonable effort and UK IP laws will be much improved *if it’s implemented*.

    But that is the problem. Previous reviews of IP law have been pretty much ignored. If the recommendations had included “Fair Use”, there would have been zero chance of it being implemented, because this simple concept only has meaning in the context of a huge amount of US Case Law, and codifying that into UK Law would be too big a change to bite off.

    Let’s hope that government implements enough of the simple procedures, like a low cost “small claims” legal track and a standard way of selling rights.

    Meanwhile, complaints about the lack of “Fair Use” are understandable, but that change will have to wait for another day.

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  5. It’s worth noting that Hargreaves’ argument that Fair Use is too difficult to implement in the UK is down to the complexities of European Union law – it would conflict with Britain’s obligation to follow rules set across Europe. That doesn’t mean Fair Use couldn’t become an EU-wide principle, but that was beyond the scope of his report.

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    1. Thanks for pointing that out, Martin.

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  6. Re the UK Hargreaves report. I was at the “Silicon Roundabout” meetup for this and I contributed comments. I think it’s a reasonable effort and UK IP laws will be much improved *if it’s implemented*.

    That is the problem. Previous reviews of IP law have been pretty much ignored. If the recommendations had included “Fair Use”, there would have been zero chance of that recommendation being implemented, because this simple concept only has meaning in the context of a huge amount of US Case Law, and codifying that into UK Law was apparantly be too big a change to bite off.

    Let’s hope that government implements enough of the simpler suggestions, like a low cost “small claims” legal track and a standard way of selling rights.

    Meanwhile, complaints about the lack of “Fair Use” are understandable, but that change will have to wait for another day.

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  7. Ian Kemmish Monday, May 23, 2011

    “Without them, Google and other web services as we know them simply wouldn’t exist, because finding and licensing content from all the various owners of it, even just to display thumbnails of images in a search, would too cumbersome and expensive.”

    Yes, I can see how having a tag on your web page granting permission to index it would be a lot more expensive and complicated than Google’s current system of having a tag on your web page withholding permission….

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  8. Meh. More pro-piracy dogma from Ars GigaOm. “Protecting creative content will destroy the world, but also won’t do anything at all!”

    At least have the decency to take the Google Apps ads off the page if you’re going to suck up to your patron.

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  9. Reading the comments here it’s sad to see that people just don’t get it. The issue here isn’t to allow the proliferation of piracy but rather to keep things free/open. Should blatant copyright infringement be taken down and (possibly) prosecuted? Most certainly. But what happens when the government decides that your systematic breakdown of the current administration is “hate speech” and a violation of copyright and your site gets taken down? This is the problem. Not that this could for sure happen, but that such laws could allow it to happen. It’s been proven that if you give anyone an inch they’ll take a mile and if it’s government, they’ll take two (or three, or 6, or 20), so why on earth would ANYONE be for a set of laws that gives the government the ability to take down domains at will? It’s a bad idea, plain and simple.

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