7. How Do You Protect Artists?

(Originally published in The Guardian as “Online censorship hurts us all,” Tuesday, Oct 2, 2007)

Artists have lots of problems. We get plagiarized, ripped off by publishers, savaged by critics, counterfeited -- and we even get our works copied by “pirates” who give our stuff away for free online.

But no matter how bad these problems get, they're a distant second to the gravest, most terrifying problem an artist can face: censorship.

It's one thing to be denied your credit or compensation, but it's another thing entirely to have your work suppressed, burned or banned. You'd never know it, however, judging from the state of the law surrounding the creation and use of internet publishing tools.

Since 1995, every single legislative initiative on this subject in the UK's parliament, the European parliament and the US Congress has focused on making it easier to suppress “illegitimate” material online. From libel to copyright infringement, from child porn to anti-terror laws, our legislators have approached the internet with a single-minded focus on seeing to it that bad material is expeditiously removed.

And that's the rub. I'm certainly no fan of child porn or hate speech, but every time a law is passed that reduces the burden of proof on those who would remove material from the internet, artists' fortunes everywhere are endangered.

Take the US's 1998 Digital Millennium Copyright Act, which has equivalents in every European state that has implemented the 2001 European Union Copyright Directive. The DMCA allows anyone to have any document on the internet removed, simply by contacting its publisher and asserting that the work infringes his copyright.

The potential for abuse is obvious, and the abuse has been widespread: from the Church of Scientology to companies that don't like what reporters write about them, DMCA takedown notices have fast become the favorite weapon in the cowardly bully's arsenal.

But takedown notices are just the start. While they can help silence critics and suppress timely information, they're not actually very effective at stopping widespread copyright infringement. Viacom sent over 100,000 takedown notices to YouTube last February, but seconds after it was all removed, new users uploaded it again.

Even these takedown notices were sloppily constructed: they included videos of friends eating at barbecue restaurants and videos of independent bands performing their own work. As a Recording Industry Association of America spokesman quipped, “When you go trawling with a net, you catch a few dolphins.”

Viacom and others want hosting companies and online service providers to preemptively evaluate all the material that their users put online, holding it to ensure that it doesn't infringe copyright before they release it.

This notion is impractical in the extreme, for at least two reasons. First, an exhaustive list of copyrighted works would be unimaginably huge, as every single creative work is copyrighted from the instant that it is created and “fixed in a tangible medium”.

Second, even if such a list did exist, it would be trivial to defeat, simply by introducing small changes to the infringing copies, as spammers do with the text of their messages in order to evade spam filters.

In fact, the spam wars have some important lessons to teach us here. Like copyrighted works, spams are infinitely varied and more are being created every second. Any company that could identify spam messages -- including permutations and variations on existing spams -- could write its own ticket to untold billions.

Some of the smartest, most dedicated engineers on the planet devote every waking hour to figuring out how to spot spam before it gets delivered. If your inbox is anything like mine, you'll agree that the war is far from won.

If the YouTubes of the world are going to prevent infringement, they're going to have to accomplish this by hand-inspecting every one of the tens of billions of blog posts, videos, text-files, music files and software uploads made to every single server on the internet.

And not just cursory inspections, either -- these inspections will have to be undertaken by skilled, trained specialists (who'd better be talented linguists, too -- how many English speakers can spot an infringement in Urdu?).

Such experts don't come cheap, which means that you can anticipate a terrible denuding of the fertile jungle of internet hosting companies that are primary means by which tens of millions of creative people share the fruits of their labor with their fans and colleagues.

It would be a great Sovietisation of the world's digital printing presses, a contraction of a glorious anarchy of expression into a regimented world of expensive and narrow venues for art.

It would be a death knell for the kind of focused, non-commercial material whose authors couldn't fit the bill for a “managed” service's legion of lawyers, who would be replaced by more of the same -- the kind of lowest common denominator rubbish that fills the cable channels today.

And the worst of it is, we're marching toward this “solution” in the name of protecting artists. Gee, thanks.

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