Why Words in A Law Are Hard to Understand

When you hear a news reporter discuss a law on television you probably think of him as very smart. It is amazing that he knows what he is talking about. But when you go to read the original sections of this same law you struggle. Why the words in them are so difficult to understand? You probably tried using dictionary to get to their meanings. But even after this, the law ended up looking vague. Does this mean you are the dumb one here? No, not at all. The news reporter has helping hand. He did not analyze anything all by himself. He will never mention it. Actually, not many do because of the shallow embarrassment. It is like those royal officials from Emperor's New Clothes. Deep down inside they know they don't understand all parts of the law, but in public, they pretend to be knowledgeable about them.

Creating a law is a daunting task for a reason. It must be able to respond to a wide variety of problems without jeopardizing the rights of the citizens. It should do justice to innocent ones while punishing the criminals. It should not be forceful. It should not be an obstacle to progress. Because of all this, the law is made intentionally vague with words that in reality tend to be broad. Vagueness are mostly common under the provision called safe harbor created to not punish those who break the law in a shallow manner. Sometimes it may also be found within definitions and other clauses.

Vague words and lines of the law need official interpretation. The power to do so is given to public agencies and judges. The notion is that they are experienced enough to know where and when to apply them. At face value, this seems correct. But such vague words  have sometimes created more problems than solving anything. Digital Millennium Copyright Act is a great example of this. Critics call it lengthy, hard to understand and overly broad for a reason.

Digital Millennium Copyright Act Controversy Over Vagueness

Copyright law is designed to protect the intellectual properties by establishing that their original producers are their sole owners, making it illegal for all others to use such properties without permission or following certain requirements falling under fair use. The basics of the law are coherent, but the progressive nature of technology has required them to be upgraded. Fortunately, this is a requirement recognized by the US constitution. To be clear, the founding fathers state that Congress must encourage the advancement of technology and creativity by making sure that those who produce original work within them get their due credit at least for a specific amount of time. History shows that Copyright law was federally replaced in the United States at least three times with Copyright law of 1976 being the last with an aim to protect the creators of original work within new found creative and technology fields. The early 90’s saw a major change in digitalization. Internet was becoming widely available, signaling potential business opportunities for fields related to computer programs and artistic creations such as music and motion pictures. Unfortunately, at the same time, it was posing threat of misuse to such work because Copyright law of 1976 which was still in use did not have policies that could allow government to protect them. Interestingly, in 1997, a case of pirated software compelled President Bill Clinton to sign No Electronic Theft Act, which made it illegal to duplicate and circulate any computer software worth more than $1000 in the market. This, however, did not provide the right solution to problems mentioned earlier. It sure was leaned more towards technology, but we must keep in mind that not every computer program costs as high as $1000. Also the act left out the works produced within creative fields.

Good news is that the gaps were not truly eluded by the federal government. In 1998, Digital Millennium Copyright Act was enacted which allowed revision of both Copyright law of 1976 and No Electronic Theft Act with emphasis on the following points: libraries are to be allowed to collect digital creations and make them available for educational purpose to requested parties, called as safe harbor, no legal action must be taken against online service providers if online users share intellectual property through their services and that they may not be deemed legally punishable if they agree to block or remove an intellectual property from their service as fulfillment of the request by the original creator, and lastly, United States would abide by the anti-circumvention laws established by World Intellectual Property Organization in an effort to protect electronically available intellectual properties. At this point, the law appears to be the most diligent guardian. But it has caused a lot of turmoil. Here are three small samples that show the issue of vagueness found within DMCA.

1. Ambiguous Meaning of Service Provider
According to DMCA, service provider is anyone offering the transmission, routing, or connections for digital online communications or a provider of online services or network access. Believe it or not, these meanings left plenty of judges confused. The first one is connected to Internet Service Providers (ISPs) like Netzero, America Online, Comcast and so on. The second one is the main problem.  It does not explain whether someone who runs a site connected purely to submissions by users is a service provider. By the way, social bookmarking and networking sites like Digg, Pinterest, Facebook and Twitter fall under it. Their bread and butter rely on submissions by users. Consequently, from time to time, they become home to stolen contents.

2. What does Being Aware Mean for Service Providers?
In 2007, Viacom sued Youtube with a case that the website was allowing illegal distribution of copyright works of Viacom, but to its surprise, the court verdict ended up going in favor of Youtube with an emphasis on Safe Harbor which proved that the site officials were nothing more than service providers who did not have power to control what contents the users shared through site and since they were not sent take down notice, they were not required to remove any of those contents

Throughout the court session, Viacom provided evidence that even Youtube employees shared their television show clips with their friends and among them was Jawed Karim, the main creator of Youtube and that is why the site deserved no protection from Safe Harbor. This shows that Youtube was aware of the illegal distribution, but it still had stronger argument. Youtube stated that Viacom’s own mismanagement and constant changes in their policies made it difficult for everyone to understand what was legal and illegal and that they removed every clip mentioned by Viacom in take down notices. This is what allowed them to enjoy the favor granted by the court verdict.

The problem here is that the court did not take into consideration the evidence shown by Viacom and it happened because of the vagueness of Safe Harbor law.  To be clear, DMCA tells that in order to take full advantage of Safe harbor, online service providers just need to respond to take down notice in 72 hours, indirectly hinting that they do not need to worry about other stolen goods still sitting somewhere in their system because their original owners did not complain about them. Also the idea of sending take down notice generally means that the service provider was not aware of the infringement before.

3. Is it Educational or Commercial?
According to DMCA, it is a crime if anyone allows people to see or discuss the formula of the technology used to unlock an intellectual property like a file stored on a compact disc. Once, music industry sued some researchers over there attempt to publish  research work containing explanation on circumvent technology . It was withdrawn by the plaintiffs, but the researchers themselves again took the matter of DMCA to court and asked the judge to eliminate circumvent traffic provisions because it prohibited free speech and thus, was unconstitutional. The judge rejected the request by saying that DMCA did allow them to practice their free speech in their field because it is for educational purpose. But dabbling with circumvent is prohibited for those who wish to use it for commercial purpose, but if we think a little harder we will see that most businesses do dabble with them in the research and development department. Now is this commercial or educational? DMCA has no answer for it.