Informal Formalities

it seems that MySpace and YouTube are about to check fingerprints of media placed on their websites. This should become possible with the help of Audible Magic, a company that specializes in fingerprinting technology and maintains a database of digital works' ID information, especially music and video.

Audible Magic advertises that “each month, the system prevents thousands of works from being unknowingly reproduced by legitimate replicators.”

Let’s think for a moment about big rightholders who own copyrights in many thousands of works. They understand that the key for exercising exclusivity in the Web 2.0 reality is to be able to better identify works that are being used without authority. For this purpose they need at least two thing: Identification technology and the cooperation of service providers who would do the filtering job for them. YouTube, MySpace, and in the future perhaps also ISPs and telecommunication companies will check content they host and transmit. They will use fingerprinting, watermarking and other advanced content ID technologies. Developers admittedly still have a lot of technical problems to solve, but let’s assume they are able to provide fairly good filtering solutions soon enough. Again, the ability of service providers to track down infringers will depend on the availability of works' ID information stored on massive databases.

The point is that rightholders who are serious about protecting their copyrights on the Internet might eventually have to use services like the one offered by Audible Magic. This brings me to argue that sooner or later we will have to think more seriously about re-introducing a system of copyright formalities, possibly one that would be based on digital registration and identification process. Let me explain. About a month ago I shared some thoughts about the prohibition on formalities under international copyright law. Meanwhile, Prof. Lessig posted an excellent presentation about the problem of orphan works (supplemented with a follow up). Lessig generally suggests a registration procedure triggered after a relatively short initial period of automatic copyright protection (applicable to US works only).

Now look at what is happening. We are approaching a system of informal formalities. Assuming we have a workable and accurate identification technology available, rightholders will register works as a matter of business routine. I call this an "informal" formality for two reasons. First, because it is not imposed by the state as a prerequisite to copyright protection. Second, because it is purely a private arrangement between rightholders and online service providers. Private companies will run huge, inter-connected databases containing ID information of most works ever commercialized in digital format (or at least, recent catalogs of works produced by big media). ISPs, p2p operators and others who provide connectivity and interactive services will want to insulate themselves against infringement suits. Therefore, they will use identification technologies that compare the information running through their machinery with information stored in the copyright databases. (I don’t want to give anybody funny ideas, but if filtering technology becomes reliable enough, someone might come up with a proposal to subject ISPs, wishing to enjoy immunity under §512 of the Copyright Act, to a filtering duty. Accordingly, they would have to pass all the content running thought their pipes through a copyright ID check in order to enjoy the statutory immunity mechanism.)

There is still a big difference between the arrangement I describe and a copyright system that is based on registration, but in reality they may not be so dissimilar. Effective protection of copyright on the Internet will require an affirmative step taken by rightholders, not as a legal requirement, but as a common sense and good practice rule. Under these conditions, non-registered works will be, to some extent, “orphan.” It is not unconceivable that private registration will become so prevalent, that even in the absence of formal registration system, people will get accustomed to believing that authors of non-registered works are not interested to be engaged in exercising exclusivity and selling licenses. To be sure, under informal registration system it would still be unwise to rely on the fact that a work is not registered and assume that no one would jump if a derivative work, based on the non-registered work, becomes a commercial sensation. But in a certain social and technological climate, the assumption that neglecting to register a work significantly reduces the risk of infringement liability would receive some legitimization, perhaps under doctrines of implied license or (rebuttable) presumption of abandonment.

This posting it getting too long, so I’ll close with a question. Suppose we had to choose between a system of “formal” formalities and a system of de facto, “informal” formalities that may soon develop in online markets, what should we prefer? It is not obvious that an informal registration system, which is designed to address the concerns of big media, would be the better alternative. One reason is that such a system should probable work better for large, organized and resourceful rightholders other than small, uninformed and poor individuals. Besides, perhaps we need some sort of a public mechanism to perform a very initial check ensuring that the registration system is not misused by those who have no copyrights in the works they wish to register.

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