The DMCA and You; or, why Tumblr won’t get sued over Post+

 I keep seeing people saying “doesn’t Tumblr understand they’re inviting an avalanche of lawsuits” and being baffled that people think this, and then I remembered that most of you were not both alive and in fandom in 1998 and therefore probably haven’t spent hours reading through the DMCA trying to figure out exactly how it was going to screw us. (Turns out we were right, but not nearly pessimistic enough.) So gather ‘round, children, it’s time for another bout of fandom history.

You have to understand what the internet looked like in 1998. Most people didn’t have internet access at home, and for those who did, you got a whopping 54 kbps (yes, that’s kilobytes per second) (compare that to 4G wireless, which 14 Mbps, not to mention, you know, wireless) unless you wanted to shell out for ISDN, which was twice the speed and five times the cost. Only 47% of American adults “went online” at all, never mind the two to six hours per day that current internet users are estimated to spend.

And I mean, why would you? There wasn’t that much there. If you wanted to post something online, your first and best option was to pay for web hosting of your own, or mooch off a friend’s. Or you could get a Geocities site, which would be plastered with ads and limited you to such a small amount of storage that you couldn’t have more than a couple dozen low-resolution images at best, or you could post on a message board (which would be essentially mooching off of a friend’s paid web hosting, because most sites that hosted message boards were just some guy who wanted to have a place to chat with his friends that wasn’t a Yahoo! email list), where you might get permission to post three or four images at a time. Music? Rude, takes up too much bandwidth, don’t do that to people. Video? You’re hilarious. (I once left my computer on for a week while I attempted to illegally download a copy of Velvet Goldmine but I finally gave up and got it from the video store instead.)

But still, at the time that was magic, and as more and more stuff found its way online, somebody who held a copyright somewhere (read: music studios and Disney) realized they had to get out in front of things. And into this brave new world came the Digital Millennium Copyright Act, which was passed in 1998 and was already skewing the shape of the internet of the future when it came into effect in 2000.

It did a lot of dumb things but the one we’re concerned about is the “safe harbor” provision, which basically says that in the case of an online copyright infringement, there are three parties: the infringer, the copyright holder, and the internet host, and the host is not a part of the copyright dispute.

Prior to this, if Sony or Disney or whoever found an illegal copy of their intellectual property (read: an mp3 or an avi) online, they’d go after whoever owned the server it lived on. Which made sense! If you find stolen TVs in someone’s basement, you go after the guy who owns the basement, and “I didn’t know my deadbeat brother in law was stealing TVs” is something you’ll have to prove in a court of law.

But internet companies like Geocities and Yahoo! and anyone else who offered random users the chance to post things on the internet using a free account said wait a minute, this doesn’t make sense. Because the internet is not like a physical basement; we have no reason to see someone carrying stolen mp3s down the basement stairs, and the scale is such that we couldn’t see all of them if we tried (unless we banned all mp3s, which means goodbye, MySpace, and goodbye indie bands). You wouldn’t go after a landlord in New York because their tenant in New Jersey is stealing TVs, would you?

So the DMCA said fine, we understand that the internet as it currently exists, and as it is attempting to exist (remember this is still the height of the dot.com boom and people are making money hand over fist by just owning websites), can’t operate if we try to do this. So instead of letting big companies sue big companies over copyright law, we’ll let big companies sue individual humans over copyright violations. That’s much more fair.

Of course most of what resulted wasn’t lawsuits at all; it was individuals getting threatening letters from Sony and Disney promising them that they were planning to sue but if you, Joe User, will just delete the thing you posted from the internet, we’re willing to make this all go away. And people did, because fuck, who’s going to duke it out with Disney?

The DMCA is the reason tumblr exists in the first place (not to mention twitter, and facebook, and essentially the entire part of the internet that isn’t either an ad or a news website). Technically, if tumblr was responsible for copyright violations, they’re already a prime target for a lawsuit, because they’re running ads on a website where people post copyright violations on a daily basis. Adding the opportunity for you to make money off your copyright violations doesn’t make them any more liable than they already are, which is not at all.

So here’s what predict will happen with Post+ at the beginning: absolutely nothing. A few people will monetize gifsets or fanfiction or vids and no one will pay attention and no one will care. But some small creators, people who post original fiction, people who post craft patterns, people who post insightful analysis, will start using it as part of their actual revenue stream. Sooner or later someone will be making enough money that it pings someone’s radar, and sooner or later someone making money will slip up and post something that could plausibly be a copyright violation, and they won’t get sued. They’ll get a takedown notice, a threatening letter from whoever owns the thing they infringed upon (…so Disney), and they’ll pull the thing. But it’s hard to pull things from the internet, much harder than it used to be, and nearly impossible the way tumblr works. So they get another takedown notice. Or Disney’s lawyers go through their blog with a fine-toothed comb and they start getting more and more unreasonable takedown notices, but now they’re scared and fuck, who’s going to duke it out with Disney? So they take their blog down entirely, and now that person is a little bit poorer and Disney is out the cost of four or five stamps and envelopes and the time their lawyer spent fifteen years ago drafting the takedown notice template.

I guarantee you that the people who decided to implement this know that this is going to happen, and they do not care. We’ve reached the “we could make this website work if we could just get rid of fandom” stage, which never ends well for the website but they never seem to learn that. So please, please don’t try to monetize fandom content on the assumption that tumblr is going to be the one to get slapped with a lawsuit for it, that’s just not how it works. It never has been and it never will be.