“Free,” House of Cards, and Other Observations on Today’s DMCA Hearing

by Matt Schruers on March 13, 2014

As I wrote yesterday, the House Judiciary IP Subcommittee held a hearing today on the DMCA, with several of the misconceptions I predicted appearing in full force.  Live tweets from DisCo are available here.

One thing I didn’t anticipate was today’s fixation on the word “free” in search results.  It is odd that in the United States the word “free” should be so stigmatized, but several members of Congress took issue with search results that contain the word “free,” apparently with the aim that such results should be suppressed.

Of course, every use of the word “free” is not unlawful, even in relation to content.  Indeed, there is a considerable amount of free content online (including this site).  Some artists give free content away for various legitimate reasons, such as promotional samples.  “Free” is a time-honored marketing term, used liberally.  Many rights-holders now wisely advertise when they are offering free content, e.g., “get a free trial to the song here”, to better compete with pirated alternatives, or to drive other revenue streams, such as live performances, subscriptions, merchandise.  If services started blocking content online using the term “free,” this could easily penalize lawful services providing promotional content in order to crowd out infringing options.

The conversation also focused extensively on the prominence of allegedly infringing search results, even though, as I’ve pointed out before, mainstream search engines are not the primary tool in infringers’ toolbox.  One congressman contended during the hearing that one of the top “two or three” Google results for the Netflix show ‘House of Cards’ was an infringing site.  The screenshot after the jump, taken at that moment, instead shows a host of lawful options.  But even assuming that somewhere in the 730 million results for the program there are results that infringe, that doesn’t necessarily mean that anyone ever actually clicks on those results.  Far more frequently, infringers navigate directly to their preferred sites.

Another take-away from today’s hearing was that percentages matter.  Sometimes.  When concerns about DMCA abuse are raised, such as by CCIA’s Ed Black and Public Knowledge’s Sherwin Siy today, the response is generally that these cases only represent a small percentage of takedown notices.  Of course, as Automattic (WordPress)’s Paul Sieminski astutely reminded hearing attendees, even a small amount of censorship is still censorship.  But the broader point is that, if we’re going to disregard a small percentage of cases, online infringement itself represents a small percentage of cases compared to the billions of indexable web pages that are lawful.  Why should small numbers matter for infringement, but not for censorship and anti-competitive tactics?

When we’re talking about important interests, one is still one too many.  It shouldn’t matter whether the interest is free expression, competition, or creativity.  The question is how to address the tail end of the curve.  For addressing abuse, would-be censors need to face some sort of deterrent.  For addressing infringement, the solution lies beyond the DMCA, with reforms to licensing and windowing practices dating from an analog era.  We have many tools for saying “no” — what the marketplace needs is more ways to say “yes.”

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