Recalling my brush with the DMCA, and how SOPA/PIPA would be immeasurably worse

This MetaTalk post concerning some erroneous DMCA* takedown notices reminded me of an episode from my personal experience that I had almost completely forgotten. It’s a good illustration of how even the DMCA — copyright holders’ current legal blunt instrument to wield against infringers, but nowhere near as powerful as SOPA/PIPA would be — can be used in harmful ways, either maliciously or mistakenly.

A geek, not a criminal

You see, I’m a geek. In particular, I’m a video game geek. I have a huge collection of 1980s video game antiquities. Over a dozen vintage consoles, hundreds of game cartridges. I even have a box full of instruction manuals and those catalogs Atari used to pack in with each game. And for a time earlier in the 2000s, I ran a website chronicling this obsession. I had meticulously compiled a spreadsheet of all of the games in my collection, and turned that into a page on the site, where visitors could (for some unimaginable reason) learn all about the contents of the bins full of 20+ year old plastic and silicon that I kept in my basement. It was harmless (if somewhat ridiculous) fun.

But, you see, there’s this thing called emulation. People have written computer software that emulates the hardware of these old game consoles. And people have also developed ways to “dump” the ROMs (programs) of those games as files that can be run in these emulators, allowing you to play long-lost vintage console and arcade games on your computer.

The nature of the Internet makes it very easy to share these emulators and ROMs. Except, under copyright law, it’s illegal. The emulators themselves are not illegal, and as I understand it, if you own the original cartridges, dumping their ROMs is fair use. But possessing the ROMs without owning the physical game is against the law, and sharing the ROMs online definitely is.

So, the copyright holders in these old games, at least the ones like Nintendo who still have lots of money and actually care about protecting those copyrights, have teams of lawyers scouring the Internet for sites that are illegally distributing ROMs. Under DMCA, they can demand that owners/hosts of infringing sites take down the infringing content, or face legal action.

And that’s where my dumb little video game collection site comes in. I never shared a single ROM on that site (and would never be stupid enough to try). But Nintendo’s lawyers didn’t bother to figure that out. They simply saw an HTML table full of the names of old video games, some of which were Nintendo’s IP, and they contacted my web host at the time, who also happened to be my former boss.

He called me on the phone (a rare occurrence) and was noticeably agitated. He couldn’t believe I was doing something so stupid. Because I wasn’t. Once I reassured him that Nintendo’s lawyers were barking up the wrong tree, his tone changed. He’s a Ron Swanson-esque libertarian, and was ready to fight back. And that’s the last I heard of it.

You’ve probably encountered some DMCA takedowns yourself. YouTube is the most common place to find them. Have you ever clicked a YouTube link, but instead of seeing the video, you were presented with a black box with a message explaining that the video had been removed at the copyright holder’s request? That’s the DMCA at work.

Much worse

Under SOPA/PIPA, YouTube itself could be taken down**. For that one infringement. Any any sites that were linking to that one infringing YouTube video could be taken down as well.

For a couple of years (up until word started spreading about SOPA), I was running another site called “Hall of Prog: A Curated Exhibition of Progressive Rock on YouTube.” Every post on that site was a link to a YouTube video. And given that it was all copyrighted music, most of the videos were probably infringing. Indeed, over the time I ran the site, a huge percentage of the videos on it (especially ones featuring Robert Fripp) were replaced with YouTube’s generic DMCA takedown message. When it started to look like SOPA might pass late in 2011, I decided it wasn’t worth taking any chances, so I took down the entire site. Now it’s just a redirect to americancensorship.org.

I was not making money on that site. There were no ads. And I was certainly not trying to deny the artists/copyright holders (which should be the same thing, but rarely are) their right to revenue. In fact, if anything, I was giving them free advertising. Yes, people make that claim whenever they share something. But I made sure to include links to both the artist and album page on Amazon.com for every video I posted. (YouTube sure doesn’t do that.)

Copyrights (and patents) stand at odds with the free exchange of information. There’s no way around that. As a creator myself, I deeply defend the rights of people who produce creative works to benefit financially from their efforts and to decide how and where their works are distributed. But those rights also have to be balanced with the greater societal good to be gained from freedom of speech and sharing ideas. For decades, if not centuries, means of communication changed very slowly, and copyright law could adapt (or not even bother to adapt) with them. But the Internet has changed everything, and old school copyright holders (especially corporate behemoths like the movie and music industries) have scrambled frantically for the past decade and a half not to lose their foothold — no, make that their stranglehold — over copyrighted content.

I personally believe copyright, as it is currently written, doesn’t work. (That’s why I release my work under Creative Commons licensing.) It doesn’t help that Congress keeps extending the lifespan of a copyright so Disney won’t lose control over Mickey Mouse. (No, seriously‚Ķ Google it. Tomorrow***.) But I respect the law enough that I make a concerted effort to ensure that the things I do online do not infringe copyright, or are covered by fair use. I cannot, however, just sit back and let the entertainment industrial complex steamroll over my entire livelihood and way of life simply to fight (spurious claims of) piracy.

It’s not too late

The point of all of this is: we already have a law designed to allow copyright holders to take action (before resorting to legal recourse) against copyright infringers, the DMCA. And even that has already been shown to pose the risk of abuse. But the scope of damage the DMCA can inflict is at least mitigated such that it cannot significantly impede the free exchange of information and ideas so critical to making the Internet what it is — something that so many of us depend on every day. We cannot risk what SOPA/PIPA would do to our age of information. (See what I did there?)

Get involved! Go to americancensorship.org to learn more.

Notes

* That’s a Wikipedia link, so you’ll have to wait until after the SOPA/PIPA blackout to look at it.

** SOPA/PIPA is only supposed to apply to sites hosted outside the United States, but this would be hard to enforce, and could easily end up affecting U.S.-hosted sites as well.

*** Yes, I know Google’s “blackout” isn’t really a blackout. It was a joke.

iPad: Son of Newton

There’s some buzz going around concerning Apple’s new iPad commercial and its similarity to one Apple produced for the Newton two decades ago. Though I’m not the first to comment on this, I have a few thoughts of my own, so here goes…

First, let’s watch both commercials. I did not remember this (apparently) “classic” (in John Gruber’s words) ad for the Newton:

Now, watch Apple’s new iPad ad:

Wow. Homage indeed. I doubt very many people remember the Newton commercial, but the iPad commercial is stunningly similar. This had to be deliberate, but I’m wondering what exactly that deliberateness is supposed to mean.

Well, I’ll tell you this: watching the two ads back-to-back, I’m left feeling that a) the Newton really was way ahead of its time, and b) the Newton ad seems like one of those futuristic concept videos Apple (among other computer makers) seemed to love producing in the 1980s.

Newton was a vision of the future. iPad is the reality. That Newton actually became a shipping product says a lot about Apple’s ability to realize its vision (compared to the long line of never-to-be-made concepts that have come from Microsoft over the years, most recently… well… this). But the Newton was too far ahead of its time. Then again, it ushered in the PDA era, which ushered in the “smartphone” era, which led to the iPhone and now the iPad. So maybe Apple was really seeding (if you’ll pardon the pun) its own future with the Newton.

There are two key lines that for me define the difference between the two ads:

“Newton can receive a page and sends faxes and, soon, electronic mail.”

“(iPad is) 200,000 apps and counting. All the world’s websites in your hands.”

Granted, paging and faxing were still relevant technologies when the Newton was released, but they were already doomed, and the best Apple could say was that “soon” Newton could handle “electronic mail” (even then, using a soon-to-be-antiquated term). In contrast, the iPad hits the ground running, leveraging the existing success of the iPhone, and with forward momentum for future technologies. Newton was about what could be, but iPad is.

A useful tip if you love both YouTube and markup validation

Not valid!YouTube is worlds apart from the likes of MySpace (*shudder*) when it comes to good code, but like most massively influential sites, they don’t really seem to care that much if their code validates, and even less if the code they provide webmasters for embedding content in their own sites does.

Frankly, I usually don’t care that much about validation either. I worked in this field for too many years when no validators even existed, and I’ve always taken the pragmatic approach: make it look and work the same, more or less, in all reasonably recent versions of Internet Explorer and Netscape (with Firefox and Safari having replaced Netscape over the past few years), and be done with it.

But I still have to admit that it’s a bit embarrassing that the “Valid XHTML” link (which appears in the Meta sidebar by default in WordPress) proves just how not valid my XHTML really is. I checked it today and was shocked to find 76 errors. I was relieved, however, when I dug in and discovered that only three of those errors had been my own. I had nested a <ul> inside a <span> (which I honestly didn’t even realize was a mistake, although I understand why it’s wrong, and it was easy enough to change from <span> to the valid <div> without any visible difference), and I had omitted alt attributes from a pair of images that don’t need to be identified by page readers anyway (and would probably be better off being worked into the CSS somehow).

These were pretty minor errors, if I do say so myself. 67 of the remaining 73 errors originated in cut-and-paste code blocks I got from PayPal and LinkShare (the latter of which I deal with only very reluctantly because they provide the mechanism for Apple’s iTunes affiliate program). What a surprise that the code from these sources looks like it was written by a tech support grunt in 1996 (in other words, by me in 1996)!

These were easy enough to fix, as well. I’ll just need to remember to fix them again if I ever change the code in those ad blocks, which I’m sure I will. The final 6 errors were the result of a YouTube video embedded in one of my blog posts. Ah yes, the age-old <object> vs. <embed> conundrum. I’ve always hated <object> because it seems unnecessarily complicated, with a slew of nested <param> tags that could just as easily have been attributes of the tag itself (although I suppose the point was to allow new parameters to be added without having to add support for new attributes in the DTD); plus it reeks of Microsoft’s platform-dependent ActiveX crapfest. I especially loathe the presence of, and need to hunt down, a ridiculously long, completely arbitrary clsid string representing the file format of the embedded file. (What’s wrong with a freakin’ MIME type?)

Unfortunately, the cleaner and more straightforward <embed> has never been part of any HTML specification, so it doesn’t validate.

Now it appears that there’s a solution to embedding YouTube videos in an XHTML-compliant way. Huzzah! But that means I’ll have to go back through all of my posts that have YouTube videos in them (which is a surprisingly large number) and fix them. It should be easy enough to hit them all at once with a well-constructed SQL query; I just need to study the pattern and do it. In fact, if I’d spent the last 15 minutes studying the problem instead of just complaining about it, I’d probably be done already.

But sometimes, complaining’s just more fun.