·  by Wayne Brough, Innovation Defense Foundation

Modifying the DMCA & Protecting the Internet

Originally Posted On: Protego Press

Last week, President Trump signed the Executive Order on Preventing Online Censorship, which was a direct attack on the liability protections offered by Section 230 of the Communication Decency Act. These protections launched the commercial internet and secured the United States as the world’s leader in the digital economy. While many are questioning the economic impact of revoking the liability protections of Section 230, this may be just the first of a double-barreled assault on internet freedom. The second attack comes in the form of a Senate hearing on Section 512 of the Digital Millennium Copyright Act (DMCA), which is also considering changes to liability protections on the internet.

Like Section 230, Section 512 provides a safe harbor for digital platforms when it comes to users illegally posting copyrighted materials. In general, online service providers are not liable as long as they act to remove any infringing material once identified. This “notice and takedown” approach is an attempt to balance the rights of internet users, online service providers, and copyright holders. While there have been complaints from all parties on how the system works, by and large Section 512 has created a workable framework for the digital ecosystem. Users have access to unprecedented range of digital services and media, creators have new avenues for sharing and selling their work, and rightsholders are reaching larger audiences.

But no system is perfect, especially when applied on the scale of today’s internet. With more than 4.5 billion internet users worldwide and more than 1.8 billion websites, monitoring every post is challenging, to say the least. Without Section 512, the digital ecosystem would not exist as we know it today. If online service providers were required to sift through this vast amount of activity to prevent infringing posts, the sheer magnitude of the task would limit the scope of the digital world. Under Section 512 filtering technologies have been developed to facilitate the removal of infringing materials, but the notice and takedown process has been criticized from all sides. Rightsholders claim not enough infringing materials are taken down, while users complain that legitimate and legal content is often caught up and removed in the notice and takedown process. And there are abundant examples of both problems.

So, it is not surprising that Section 512 is a target for reform. Yet two factors suggest that the reforms under consideration may upset the balance that has guided the internet’s evolution over the past two decades. First, Sen. Thom Tillis, chairman of the Senate Judiciary Intellectual Property subcommittee announced his intention to revisit the DMCA, claiming that the enforcement process has not “stood the test of time.” Sen. Tillis has held a series of hearings on the DMCA, and this week’s hearing focuses specifically on the notice and takedown process under Section 512. Second, the Copyright Office recently released its long-awaited study of Section 512.

What is concerning about both the study and the issues raised by Sen. Tillis is the fact that they both seem to focus almost exclusively on the concerns raised by rightsholders, at the expense of online service providers and users. This is seen by the particular emphasis on enhanced enforcement for copyright violations. While the Copyright Office report falls short of endorsing more draconian measures such as site blocking or notice and stay down measures, it does suggest that these options deserve additional study. Elsewhere, the report suggests Congress may want to authorize the ability for rightsholders to ban users from the internet for merely alleged infringement.

This emphasis on infringement and enforcement ignores the economic burdens this imposes on digital platforms and internet users. Many of these stricter measures would disproportionately affect smaller websites and individuals who lack the resources of larger digital platforms, making compliance costs a real issue.

One of the most important aspects of the original DMCA is the online communities of users and creators it has enabled. The internet has provided new avenues for creators develop, promote, and sell their products. Indeed, one study examining only the top nine platforms found that creators generated roughly $7 billion in earnings online (and this is a conservative estimate that looks at only a portion of internet activity). Ignoring this community of creators when evaluating changes to Section 512 can impose real economic harms that should not be overlooked by Congress or the Copyright Office.

After two decades of operation, Section 512 may be ripe for review. But in doing so, Congress must consider the law from the perspective of all parties involved, from users, to online service providers, to rightsholders. These groups were all part of the critical balance achieved in the original DMCA. As a result, a thriving new class of creators has emerged online. In the wake of the COVID-19 pandemic, the importance of the digital economy has grown substantially. If Congress fixates exclusively on politically powerful rightsholders at the expense of others, rewriting the DMCA may do more harm than good.