As reported by ars technica, Fox is using federal copyright law and the DMCA process to bully author Cory Doctorow. His novel Homeland has the same title as the Fox television series, but otherwise has nothing to do with it. Having the same title is not a copyright violation as titles are too short to receive copyright protection:
See also Doctorow’s post Fox sends fraudulent takedown notices for my novel Homeland, and the discussion of this topic on the latest episode of This Week in Law around the 40-45 minute or so mark.
Fox probably did this automatically without reviewing the claim closely, but this just goes to show how federal IP law turns companies into legal bullies who can harm individuals without liability: Doctorow probably has little redress for any damage caused by the DMCA takedown here, since the statute doesn’t provide one. Fox can just say “oops” and move on. (Though I suppose it is possible Doctorow-as-author may, in the end, benefit from the increased exposure and attention.)
Some people say examples like this just show that the DMCA should be “tweaked” or copyright “reformed.” But given that the pro-copyright movie and music pressure groups despise the DMCA safe harbor that somehow snuck past their radar when it was inserted in 1998, it would be positively scary if Congress were to consider amendments to it, since, if anything, the DMCA safe harbor (which has permitted companies like YouTube to flourish)1 would be scaled back or eliminated. So: almost nothing positive can be done. We are stuck with an ossified copyright system and its DMCA take down system that permits censorship and legal bullying.
(If we are to have any “improvement” to copyright, it would be: radically reduce the term; get rid of statutory damages and criminal penalties; make the losing copyright plaintiff pay.) 2
Copyright is an abomination and should, of course, be completely abolished. It’s frustrating to have fellow libertarians and civil libertarians who say they are all in favor of patent and copyright “reform” (which never comes—or always comes as a copyright term extension or addition of a DMCA, always making it worse), while saying they are against abolition of copyright because they don’t want to throw the baby out with the bathwater. I saw we do want to throw the baby out with the bathwater, if it’s Rosemary’s Baby.
Case in point is the author of this very ars technica piece, Tim Lee, who poses as a copyright reformer but is not opposed to copyright.3 And the same is true even of the victim in this case: Doctorow. See, e.g., copyright abolitionist Nina Paley‘s post Paley & Doctorow argue over Non-Commercial licenses, where Doctorow makes it clear is not in favor of abolishing the state’s power to grant copyright (which he calls “exclusive rights”). As he writes:
I support regulating the entertainment industry’s supply chain. Copyright as presently or traditionally construed might be a suboptimal rule-set for that industry (I think it’s historically tilted to the favor of capital against the interests of labor), but that’s not to say that there shouldn’t or can’t be a set of rules that govern that industry to ensure fair dealing and to redress inherent power and negotiation differences.
… lots of policy questions are hard to get right; that shouldn’t disqualify them from consideration for regulation (other rules that are hard to get right include finance, building codes, zoning laws, child protection, etc — I’m OK with the state having a go at them, though, because I’ve seen that in the absence of rules, many of the outcomes are very bad indeed).4
Copyright permits bullying, distorts culture, leads to literal censorship of books and movies, imposes hideous costs on artists like documentary filmmakers, and is being used by the state to slowly strangle internet freedom in a web of anti-piracy polices and laws. There is not a single good thing about copyright law; it is rotten to the core and totally incompatible with private property rights, freedom, and the free market.5
Pro-freedom, pro-technology copyright reformers should come out with guns blaring against the injustice of copyright itself. It’s time to end it, not mend it.