Let’s Fight To Protect The Democratization of Creativity

By Joshua Lamel, Executive Director of the Re:Create Coalition

At a time when the public and businesses are increasingly taking advantage of internet-enabled access to new markets, new audiences and new sources of income, the public has also grown to expect greater levels of openness, engagement and transparency made possible by the internet. Unfortunately, some proposed reforms to copyright law, pressed particularly loudly as part of the U.S. Copyright Office’s “public” roundtables on Section 512 of the Digital Millennium Copyright Act (DMCA), threaten to undermine that growth. We all need to pay close attention.

Copyright law affects almost all Americans on a daily basis, but few of us are aware of these impacts. Add in a fifty-year campaign of misinformation by many in the entertainment industry and Americans are rightfully confused. It’s time to dispel that confusion — particularly when it comes to Section 512, which lays out the legal “safe harbors” that have been essential to the emergence of the modern internet.

Section 512 creates a system of checks and balances intended to “take down” infringing content from the internet while allowing legitimate content to stay up. Section 512 limits liability for websites that comply with its procedures, thus allowing them to host user-generated and other third party content without worrying that they will be on the hook for potentially massive damages if a user posts content that infringes copyright.

Basic internet services on which we depend every day — including search engines, social networking, online marketplaces, cloud, photo, video and music hosting platforms — depend on Section 512’s safe harbor in order to offer their platforms to users. Without these safe harbors, fear of liability would lead online service providers to censor material and/or be forced to create hugely expensive monitoring and filtering systems. Those kinds of burdens would mean many new services and platforms would never get off the ground.

It is clear that Section 512 has done a good job in striking a balance between the rights of copyright holders and the rights of internet users. However, because copyright law is so often skewed towards the interests of the entertainment industry, the balance of the DMCA is frequently under attack.

That attack was highly visible last month. In four days of “public” copyright roundtables in New York and San Francisco, it sometimes seemed the meetings were less of a legitimate review and more of an open forum for the entertainment industry to attack the internet. Copyright Office questions routinely ignored or aggressively cross-examined public interest witnesses over the value of user generated content and the emergence of the new creative economy when compared to more traditional music and movies. Meanwhile, entertainment industry veterans went unchallenged by Copyright Office officials in calling more than 80,000 public comments filed with the Office regarding Section 512 a “denial of service attack” on the comment submission platform, as did references to popular, legitimate, job-creating internet platforms as “black markets.” Similarly, the methodology of studies that defended Section 512 (including such basic and accepted research norms as using samples to study a population) were attacked repeatedly, while unsupported generalizations from the entertainment industry were accepted routinely without so much as comment, nevermind analytical challenge, by the Copyright Office.

The panels also occurred without the transparency we are accustomed to and expect from events hosted by government agencies. By choosing to hold the roundtables at a courthouse, the Copyright Office effectively prevented the public from bringing electronics into the New York roundtable – this meant no tweets, no real-time fact checking and a vastly diminished potential for public debate. What’s worse, none of the roundtables were live streamed, so there was no way for many stakeholders to participate. Despite the important public interests at stake, we still wait for a promised transcript of the proceedings.

The roundtables also were “distinguished” by their use — in particular by entertainment industry representatives — to perpetuate the false notion that artists can’t make money on the internet. Economically, the internet is fueling a new creative engine generating $8 trillion in e-commerce annually based on platforms like Etsy, YouTube and WordPress. Culturally, it is changing the way we communicate, commute, date and politically mobilize to drive change.

In fact, today creativity is flourishing because of the internet. More music, more video and more text is being created by more people in more places than ever before. Furthermore, many internet platforms have individually taken on the responsibility of implementing costly and complicated innovations to enable traditional and new creators to generate new revenues. The success of songs likeFrozen’s “Let It Go,” Pharrell’s “Happy” and Silento’s “Watch Me,” is due at least in part to viral fan videos. And academic study after study demonstrates user-generated content has led to a greater diversity of types of creative works available online. Today, creators of all types have embraced the internet as both a new source of revenue and an important tool for reaching their audiences.

The tone surrounding these troublesome roundtables and ongoing biased view of copyright law is cause for concern, because it threatens the heart of the internet economy and the democratization of creativity in society. Everyone needs to pay attention, or your ability to share, post and create on the internet will likely disappear overnight. So for now, take advantage of the tools and platforms enabled by the internet to share these concerns and ensure the Copyright Office doesn’t break Section 512 and irrevocably harm the internet.

Originally posted on EnGadget.