Earlier this week techdirt's Mike Masnick reported on successful efforts by the U.K.-based Federation Against Copyright Theft (FACT) to shut down UKNova, a torrent tracker.
According to Masnick, UKNova was said to be both diligent and responsive in taking down links to copyrighted material. Despite this cooperation, FACT claimed that "ALL links or access to content provided by UKNova are infringing, unless [UKNova] can prove that you have obtained explicit permission from the copyright holder for that content".
In the past week, there has been some strong debate about the role of patents in either protecting or undermining product innovation. In the wake of Apple's successful suit against Samsung, industry observers like Mathew Ingram and Jeff Jarvis have openly questioned the way that patents are used today. The common (and debated) refrain: "Customers lose."
Copyright reform seems even more remote. There aren't direct parallels, as the UKNova action took place in a country where fair use is not as strongly supported as it has been in the United States. But the rise of multilateral international agreements tends to favor the interests of companies that hold copyrights for music, movies and textual content.
If a distributor of physical books sold copies of an infringing work, the copyright owner would not try to shut down the distributor. Moreover, no physical distributor would accept or comply with a demand to prove that all of the products it sold had been vetted for copyright claims.
The "safe harbor" provisions that are part of the Digital Millenium Copyright Act (DMCA) were included to protect digital content distributors who could show that they had made reasonable efforts to address claims of copyright infringement. Requiring a digital distributor to prove that it has obtained "explicit permission" to distribute all works has one intent: killing the distributor.
Although book publishing is (generally) a more genteel business, a short review of the way that music, movie and television businesses have reacted to services like Netflix, iTunes and YouTube gives a sense of how open copyright owners can be when it comes to business model innovation.
Shutting down distribution may ultimately harm the interests of the copyright owner. When it comes to copyright infringement, we don't know the substitution rate – how often a download translates into a lost sale. There's limited data that suggests that some instances of infringment can help improve discovery and paid sales. That's one of the risks in shooting first and asking questions later.
