Copyright Stakeholders Object to Proposed Digital Copyright Act

WASHINGTON — Last week, Re:Create, its members, consumer groups, and other copyright stakeholders submitted requested comments to Senator Thom Tillis on his proposed Digital Copyright Act of 2021, which was first released in December 2020. Below are excerpts of their submissions which are unified in their strong, clear objections to the flawed proposal which would warp the DMCA.

Creates a “Copyright Surveillance State”

Re:Create: “Rather than make some tweaks to the DMCA to improve a generally well-functioning system that has allowed creativity, expression, and innovation to thrive on the internet, it completely destroys the core framework of the DMCA and replaces it with a system that will chill online creativity, take choices away from consumers and harm the internet ecosystem…In the end, this will create a copyright surveillance state at every layer of the internet, one that fundamentally violates the privacy of many Americans. Imagine if the phone company was required to inspect every phone call. That is what the DCA does for internet communications.”

Center For Democracy And Technology: “Not only would it upend the way Section 512 works, it would significantly harm people’s rights to privacy and free expression in the pursuit of an impossible goal: eliminating online infringement…Finally, the concept of notice-and-staydown imposes on service providers an obligation to proactively monitor all communications passing through their networks or posted to their sites. For all providers, this forces them into a defensive posture in which every transmission carries potentially devastating liability. For infrastructure providers, this would force them to proactively inspect the content of every transmission, undermining the privacy of their users.”

Limits Access to Knowledge

Library Copyright Alliance:Without the section 512 safe harbors, libraries and commercial entities could not permit individuals and small entities to access the Internet and upload their content without burdensome review. Accordingly, the proposed amendments to section 512 not only are not needed, they run contrary to the constitutional objective of the copyright system: promoting the progress of science and useful arts. If Congress enacted these amendments, far less content would be created and made available to the public.”

Internet Archive: “By conditioning participation as an online service provider on access to expensive resources (such as content filtering), notice and staydown may eliminate many smaller and alternative platforms for expression online. This would have deleterious effects not only on the Internet Archive—whose status as an OSP is at the heart of much of its operations—but also on other libraries and non-profits…In an age marked by allegations of censorship and misinformation online, where it is often observed that ‘the truth is paywalled but the lies are free,’ it is more important than ever that a diversity of platforms and voices be allowed to flourish online.”

Mandatory Content Filtering Doesn’t Work

Electronic Frontier Foundation: “We urge the drafters to set this proposal aside completely… it will crush competition and innovation. Even small services may have thousands of users, and offer multiple services. A duty to monitor will be time-consuming and expensive. For nonprofits or small services, it will mean they cannot afford to host user-generated content at all, from Wikipedia to the comments section of a recipe blog. If this had been the rule for the past two decades, we wouldn’t have most of the services that exist today, not least because no one would choose to invest in them.”

Hurts Competition & Takes Away Consumer Choice

Engine: “Among other things, the discussion draft would exacerbate existing imbalance in copyright law and force service providers that encounter user-generated content—including startups and platforms that rarely experience alleged infringement—to screen every user post for potential infringement. And the discussion draft would make it easier for purported content owners to sue or threaten to sue emerging platforms for millions of dollars over a few user posts. This would disproportionately impact startups, which lack the resources to review or filter every user post—let alone evaluate each post for infringement—and cannot absorb the costs and risks of increased litigation.”

Niskanen Center: “In addition to harming those who produce content on larger platforms, the DCA would also have significant detrimental effects on the e-commerce industry. Copyright infringement online and its enforcement are not limited to text, video, audio, and similar ideal objects. Physical products can also potentially infringe on copyright, and the DCA would require e-commerce websites to police their websites for products which may infringe on copyright. This can have serious anticompetitive effects similar to those imposed by the injunctive relief provided by the International Trade Commission in the context of alleged patent infringement.”

Hurts Creators

Authors Alliance: “Authors and other creators who rely on online platforms to share non-infringing works with their audiences would be harmed if OSPs were required to remove subsequent uses of a copyrighted work following an initial notice. Such a requirement would harm authors relying on fair use, a license, or another lawful reason for sharing a work on the platform. Even if an initial notice is accurate and targets infringing content, because infringement is a fact-sensitive determination, it cannot be assumed that any subsequent use of the same material is also infringing. Moreover, inaccurate takedown notices already have deleterious effects on authors sharing non-infringing works under the notice-and-takedown regime, and notice-and-staydown would amplify these harms.”

Chilling Effect on Free Speech

R Street Institute: “That is why R Street opposes any shift to a “notice-and-stay-down” standard as proposed in the DCA. Requiring OSPs to establish filtering mechanisms to ensure infringing posts remain down is not just a reform of Section 512; rather it is an entirely new approach to content moderation that will impose huge costs on users, content creators, website developers and service providers. The sheer magnitude of this task would limit the scope of the digital world while raising real concerns about privacy and chilling effects on free speech. At the same time, it would impose significant costs on smaller OSPs and put them at a disadvantage relative to larger OSPs who have the resources to implement filtering programs.”

Copia Institute: “In sum, the DCA is a mistake that Congress should not further pursue. It does nothing to help creators profit from their work, or help us do anything that will help get us more. It just gives certain people more power to say no to innovation and expression, which is exactly the opposite of what copyright law is for.”