Re:Create Recap December 4, 2020

DMCA Special Edition: What Public Interest Groups, Libraries, Creator and Consumers Groups Told Senator Tillis About Changes to the DMCA

Re:Create Calls For Transparency In DMCA Submission To Sen. Tillis. Re:Create issued a statement following its submissions to Senator Thom Tillis as part of his ongoing review of the Digital Millennium Copyright Act (DMCA): “In the name of public interest, the Re:Create Coalition is openly sharing our balanced copyright recommendations for safeguarding the rights, livelihoods and interests of all Americans…Because of how copyright interacts with all of our daily lives, it’s critical that policymakers listen to everyone’s recommendations — not just Hollywood’s lobbyists. We call on all stakeholders to be transparent and open with their recommendations because we’re concerned that otherwise Congress may not hear everyone’s voice.”

CDT On DMCA’s Successful Balance Of Competing Interests. The Center for Democracy and Technology wrote that “the DMCA has been successful in balancing the competing interests of rightsholders, service providers, and users as the Internet and World Wide Web have evolved from curious adjuncts to proprietary content and services into immensely powerful tools for commerce, civic engagement, and free expression. This success could not have been achieved – and it could not be maintained – had Congress not expressly rejected imposing a duty on intermediaries to monitor and police the activity of their users.”

CTA Agrees With Copyright Office That Notice-And-Staydown Is “Neither Practical Nor Desirable.” CTA agreed with the Copyright Office that “‘notice-and-staydown’ is neither practical nor desirable. CTA has long opposed this idea, in large part because it is antithetical to fair or tolerated uses and amplifies the destructive impact of mistaken and bad-faith notices. A simple statement from the user that the use is ‘authorized by law’ (etc.) would quickly and rightly be ignored as a boiler-plate that is of little actual help to the OSP. More, ‘notice-and-staydown’ is impractical because it does not account for licenses, fair use, and the first sale doctrine. This is why CTA has long asserted to both the Copyright Office and IPEC that the burden of identifying infringement must continue to reside with the rights holder.”

Copyright Law Professors Argue Against Notice-And-Staydown Regime. In a joint submission, copyright law professors Jessica Litman, Pamela Samuelson, Rebecca Tushnet, and Jennifer Urban argued against a notice-and-staydown regime: “No, Congress should not adopt a notice-and-staydown regime so that OSPs would be obliged to ensure that infringing files could not be re-uploaded after having been taken down in response to a copyright owner notice. We agree with the Copyright Office’s conclusion in its § 512 Study that this would be a very substantial departure from the DMCA safe harbor framework that has brought so much prosperity to the U.S. digital economy.”

EFF As Voice Of Internet Users, Small Creators, And Small Tech Companies. The Electronic Frontier Foundation took a stand for small creators: “We have answered these questions with the particular needs and concerns of Internet users, small creators, and small tech companies in mind. Tech giants and large media interests are more than capable of speaking for themselves, and they will, loudly—but those few interests must not determine the future of copyright law. As the Supreme Court has noted, ‘Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other Arts.’”

Libraries Protest Flaws Of Proposed DMCA Reforms. The Library Copyright Alliance disagreed that the DMCA needs changes: “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.”

OTW Warns Of DMCA Solutions That Only Benefit Big Copyright Companies & Harm Smaller Intermediaries. “A filtering requirement for intermediaries that host user-generated content is fundamentally mistargeted. It takes a solution that has benefits for a few big copyright owners and big internet services and demands its imposition on other intermediaries—most of which don’t have a big infringement problem in the first place and many of which couldn’t continue to operate if they had to bear the costs of developing and constantly updating a filtering system,” wrote the Organization for Transformative Works, the nonprofit fan activist group behind popular fan fiction source Archive of Our Own (AO3).

Public Knowledge Cautions Notice-And-Staydown Limitations Are Numerous & Known. In the submission from Public Knowledge, Senior Counsel Meredith Rose wrote: “Notice-and-staydown is an idea so far removed from feasibility that even the Copyright Office, after years of study, declined to endorse it. After a lengthy discussion of the potential pitfalls of such a system, the Office explicitly warned Congress ‘to wait until the DSM Copyright Directive has been implemented in many of the EU member states in order to study the real-world impacts of such a requirement.’ The Copyright Office is, on this point, unequivocally right; the European Union provides a historically rare opportunity for lawmakers to study, in real time, the effects of such a system on the online ecosystem and its 447 million European users. Attempting to leapfrog this transition before it’s even returned initial results would be policy malpractice.”

Software Preservation Network Says Reforms Should Account For Public’s Loss Of Power. “The previous generation of major copyright revisions was motivated by a moral panic over digital online piracy, and by the concerns of industries that have benefited from lengthy terms of protection for works that remain popular for generations. Its excesses cry out for correction in light of the way digital markets and technologies have actually developed in the meantime,” warned the Software Preservation Network. “Specifically, reforms should account for the accretion of power to digital media companies who ‘sell’ works using a licensed access model, and the concomitant loss of power by the public generally, and by libraries, archives, and museums specifically, due to their loss of ownership rights (including their inability to reliably buy and sell digital goods on secondary markets) as well as the high degree of market discrimination and segmentation that licensed markets permit. Reform should also address the ‘20th Century black hole’ caused by copyright terms that vastly exceed the commercial life of most creative works.”

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