net.wars: Doin' the DMCA rag

by Wendy M Grossman | posted on 06 December 2002

The lawyer giveth, and the lawyer taketh away ...

Wendy M Grossman

It's easy to forget in all the fuss about the Digital Millennium Copyright Act (and its currently "resting" witch cousin , the very similar UK regulations in support of the European Copyright Directive) that it's not technology, it's law. As such, it ought to have been obvious that the people to rescue us from it might be the lawyers, as CodePope pointed out earlier this week. Kind of like the fact that you can point a gun in any direction, including back at the people who pointed it at you.

Exhibit A of this principle happened yesterday, when Wal-Mart backed down in its suit against FatWallet. The story in brief, in case you missed it: FatWallet is a consumer-oriented site that posts news of price reductions. Last week, Wal-Mart obtained a subpoena under the DMCA claiming its sale prices were protected by copyright law. FatWallet filed a counterclaim, demanding that Wal-Mart be required to pay damages for knowing false assertion of copyright - section 512(f) of the DMCA. Damages!

Of course this spat has nothing to do with copyright. What it has to do with is the fact that the day after Thanksgiving - in 2002, November 29 - is the biggest shopping day of the year, and that discount stores generally don't want their prospective sale prices leaking out because they're afraid people will stop buying to wait for the sales. Had Wal-Mart pursued is case and succeeded, how many other forums designed to allow consumers better access to pricing information would have gone down? What about DVD Price Search, My Simon, and the shopping engine on Yahoo!? (Don't go there any more: animated ads with SOUND. The perfume inserts of the Web.)

What began exercising me today, though, inspired by the FatWallet lawyers' move, was the question of how much we pay every day in royalties for music we didn't want to hear. There's a clause in the DMCA that prohibits us from circumventing technological copyright protection or removing or altering copyright management information. So, given that John Cage has already copyrighted four minutes of silence, why can't we play a copyright notice to the people about to put us on hold - and then sue them under the DMCA if they ignore it and play us CRAP while they keep us waiting? Couldn't we argue that ignoring a copyright notice is the same as circumventing one? Could we use the DMCA to free modern life of a whole bunch of its ills?

For example: let's nip SMS (and soon MMS) advertising in the bud, and claim copyright on the exact configuration of the data on our phones. Then we could go after the mobile network operators and their "partners" for the junk they interrupt us with. Then, I think next I'd like to copyright the mental images I have of public places such as Victoria station, my email software inbox, my browser windows, and the excellent Pink Panther graffiti that used to be sprayed on the side of my house. This would let me claim copyright infringements against, respectively, McDonald's (they have ads on all the stair risers, ferchrissake), all those junk emailers, Web advertisers, and a bunch of kids whose identities I guess I'll never know.

One of the reasons I thought of this, is another CodePope discovery: a law firm is seeking class action plaintiffs to join a suit against Bonzi Software. Bonzi is the promulgator of all those stupid Web ads with the fake error messages designed to make you panic and click on them, a case of Fake User Interface. You see the stuff lawyers think of? Could we maybe copyright our expectations of how computers will work and then go after software developers when they pull us in the wrong direction? This could become an important idea at some point, if software developers start having to do weirder and weirder things in order to avoid infringing each other's software patents.

But quite apart from copyright fantasies, what about the cost to us of unwanted music? If the Performing Rights Society's marketing research is correct, we spend more in pubs and bars and so on when there is canned music playing, for which the PRS charges the pub a minimum of £55.93 (another one of those fool-the-consumer prices) a year. OK, it's not much, but it all adds up. A company with 16 "units" of employees (at 25 per unit) playing them music four hours a day 250 days a year is billed £692.59. Do the employees even get to pick the noise they're stuck with? According to Wired, AOL/Time-Warner is beginning to use the time customers spend on hold as an opportunity for product placement, playing them new material from performers such as LeAnn Rimes, with voiceovers urging customers buy the album. They're going to give it to us for free, isn't that wonderful of them? I figure the company wins either way: if you can't stand the music you hang up, and they don't have to cancel your account.

Anyone got an over-the-phone MP3 recorder? I bet they won't think to play a copyright notice first.

Wendy M. Grossman’s Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, follow on Twitter or send email to netwars(at) skeptic.demon.co.uk (but please turn off HTML).