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Famed Eagles singer says that without fixing the current Safe Harbor provision of the Digital Millennium Copyright Act (DMCA) copyright holders are “left with the unjustifiable and oppressive burden of constant policing” practically every site on the Internet, and complains that digital music retailers “bullied” the record industry into getting rid of DRM.Don Henley, the famed Eagles singer best known for the lead vocals on hits like “Desperado”, “Witchy Woman”, and “Hotel California,” is apparently upset with the current state of copyright law in this country and thinks it’s high time Congress did something about it.His first complaint is that the US Copyright Office, in his opinion, “clearly has not been a strong enough advocate for copyright owners, particularly when you look at its most recent decisions.”I’m not sure what he means by “most” recent, but the most recent decision it made this year was when it legalized DVD encryption circumvention for educational purposes, phone jailbreaking to run legally acquired programs or to run on a different network, circumvention of video game encryption for security flaw testing, cracking computer programs protected by dongles when they malfunction or become obsolete, and the ability to bypass ebook controls that prevent them from being read aloud.Surely he can’t believe these are bad things, or does he?Henley thinks the poor decisions it makes are because of the fact that the Copyright Office is part of the Library of Congress, and therefore subject to an “inherent conflict of interest” being that the former is responsible for regulating or restricting access, and the mission of the latter is that of a library which is to “provide free access to the public.”“Perhaps the time has come to separate these institutions so that they are not at cross-purposes,” he tells Rolling Stone. “After all, the Patent and Trademark Office is part of the Department of Commerce and, since U.S. music, film and other creative copyrights comprise one of our country’s most lucrative sectors, here and abroad, moving the Copyright Office under Commerce Department’s umbrella might be the most effective way of enforcing the law.”But, it’s unclear why he thinks it’s not enforcing the law. Everywhere you turn copyright holders seem to be a pretty good job of seeking redress for infringement in the courtroom, some to the extreme. Is he asking that it become more proactive and police the Internet for them?What Henley really seems to think is that the music industry needs more policeman on the Internet, that each site should be held liable for illegally hosting copyrighted material even if they’re not the ones responsible for making it available in the first place, or are unaware that it’s even there without prior notification. He wants sites to police themselves at the risk of costly fines.That’s right, he wants to gut the Safe Harbor provision of the Digital Millennium Copyright Act (DMCA) to accomplish that goal.“Congress should amend the Digital Millennium Copyright Act (DMCA), eliminating or dramatically limiting the Safe Harbor provisions so that ISPs [Internet service providers] and websites such as YouTube, MySpace and Facebook have legal liability for hosting infringing content,” he continues. “Just as distributors and retailers have equal liability under the law for distributing and/or selling bootleg or infringing music, films, software, and other intellectual property, so should online companies bear similar liability at law.”Never mind the distinction that ISPs and websites aren’t consciously distributing copyrighted material illegally for commercial gain. They remove it when notified and in some cases, like that of YouTube, actively filter the site of copyrighted material. That’s hardly the case of vendors peddling bootleg DVDs. The intent of the Safe Harbor provision is to make sure that online service providers (OSPs) can’t be held liable for everything any user does without its knowledge, for without it the result would be a very different Internet than the one we know.Henley complains that copyright holders have had the “unjustifiable and oppressive burden of constant policing” OSPs with little to show for it other than “embittering” music fans and making users of sites like YouTube angry. He’s right there, but even if the sites did police themselves music fans and site users would still be smart enough to know who’s really to blame. YouTube isn’t taking down Prince videos because it wants to – it’s being TOLD TO!Probably the craziest thing Henley says in the interview is that the music industry was “bullied by online retailers into removing protective measures, such as DRM, from their sound recordings or else facing the prospect of these retailers refusing to distribute their catalogs.” If by online retailers he means Apple, then he’d be wise to thank them instead for having managed to do what it couldn’t – create a viable digital music store that passed the 10 billion-sold mark this past February.Aside from this, there’s the pesky fact that DRM was an absolute nightmare for music fans, and was easily circumventable anyways. Apple iTunes purchases could only be played on up to five PCs and wouldn’t play on rival portable music devices like Microsoft’s Zune, and vice versa. Each retailer had their own “top to bottom” DRM systems for selling, playing and protecting music. Without a universal system in place it was always doomed to failure. It was a nightmare as many of you I’m sure recall, and is why Steve Jobs “bullied” the music industry in calling for an end to DRM.If he’s so concerned with DRM then how about locking up CDs as well? It seems odd to be concerned with digital music DRM while selling tens of billions of unprotected CDs. The simple answer is that DRM has never worked to halt music piracy and never will.The death of DRM has not, as Henley adds, “increased the theft of music and other intellectual property,” but rather, in my opinion, increased legal consumption because it makes it easier to purchase and consume content in ways of your own choosing. People don’t want to be locked into a top down system where the media player they buy then determines where, when, and how they can consume content. If you buy a digital song or movie is it so unreasonable to want to play it where and when you want?At least he doesn’t think the Internet has “destroyed rock” like Stevie Nicks does.
