Section 512 of the Digital Millennium Copyright Act (DMCA) is a legal cornerstone for the internet’s successful and transformative power to grow the American economy, level the playing field, boost access to information and advance global culture. At a time when our entire lives have shifted to online platforms due to the COVID-19 pandemic, the DMCA is perhaps more important and relevant than ever before.
In advance of today’s Senate IP Subcommittee Hearing on the DMCA and following the release of the U.S. Copyright Office’s long-awaited report on Section 512 of the Digital Millennium Copyright Act, a broad and diverse group of copyright stakeholders have weighed in on the myriad problems of the “fine-tuning” suggestions in the report. Though the report does not call for siteblocking, mandatory content filtering or notice-and-staydown (an important win for consumers and free speech!) the other suggestions would ultimately hurt users, censor speech, and harm economic growth and recovery.
See below for a refresher on why the DMCA works:
PROMOTES INNOVATION AND CREATIVITY
Re:Create Coalition: “Thanks to the openness of the user-generated platforms on the internet enabled by Section 512 of the DMCA, there is now a growing and important class of ‘new creators’…Users are an extremely important stakeholder in this conversation…Their voices are important, and failing to listen to them would be to ignore the core mission of the Copyright Office and any government entity — to serve the public.”
CTA: “Thanks in part to Section 512, America is home to the world’s leading online companies as well as the most dynamic Internet startups. During our current COVID crisis, millions of Americans turn to these online platforms as a vital lifeline to vital health information, entertainment and business and family communication.”
New Creator Peter Hollens: “Hollens credits the safe harbor provision itself with his success. He fears that if Congress made Internet companies responsible for finding and taking down unauthorized music files, they would begin to err heavily on the side of caution and censor musicians out of fear that their music might violate the copyright laws and the company would be responsible for millions of dollars in fines. Under U.S. copyright law, violators can be fined up to $150,000 for each work infringed.”
FreedomWorks: “The internet has fostered the development of a new creative class that operates outside the traditional vertically integrated content creators that have dominated the industry. There is a vibrant new community of creators that is producing music, videos, and authoring creative works online that live in the shadow of Section 512. This group of creators operates differently from the traditional content industry and relies on the existence of the safe harbors of Section 512.”
Los Angeles Times Editorial Board: “From that perspective, the balance struck in U.S. law — where people posting content are liable if they infringe while the sites are required to take down works when notified of infringements — is the better one, even though copyright owners have legitimate complaints about how hard it is to rein in piracy. The U.S. model has allowed companies and creators to innovate without having to seek permission from copyright holders, as long as they do not infringe.”
Organization for Transformative Works: “The diversity among creators and ISPs is itself evidence that the DMCA’s safe harbors are effective. The DMCA safe harbors allow a wide variety of types and sizes of ISPs to function, and the flexibility of the notice-and-takedown system allows a wide variety of content creators to address infringement. This diversity should be reason enough to avoid filtering, whether denominated as such or as ‘stay-down.’”
New Creator Rebecca Prince: “‘[Copyright] restrictions online are already onerous enough…Notice-and-staydown would scare people away. The entire YouTube community is talking about it,’ says Prince when asked how burdensome copyright regulations that hold tech companies liable for their users’ copyright infringement could affect her YouTube career. ‘I’m already giving up quite a bit to do this, but it’s what I’m passionate about. With too many obstacles, I might not be able to justify continuing to do what I do.’”
PROTECTS CONSUMERS AND FREE SPEECH
Daphne Keller: “Platforms would have to proactively monitor users’ communications, in ways that were, until recently, almost unheard of in most intermediary liability laws. For example, platforms might have to deploy automated filters to find duplicates of unlawful material, instruct employees to search for terms associated with illegal activity and take down suspicious results, or periodically review posts in forums with a history of illegality. These are the activities that I think may cause headaches for courts and parties in ordinary intermediary liability litigation, as well as troubling consequences for competition and for platform users’ fundamental rights.” (Keller is director of the Program on Platform Regulation at Stanford’s Cyber Policy Center)
Computer & Communications Industry Association: “Because online content such as commentary and parody may require using pre-existing content in ways permitted by limitations and exceptions, ‘stay-down’ obligations are likely to lead to suppression of content making lawful use of works that were previously the subject of takedown demands…’staydown’ is not feasible in most cases, would impose costly compliance burdens on service providers, especially startups, and risks harming users due to over-breadth.”
Electronic Frontier Foundation: “In the interest of clarity, so-called ‘notice-and-stay-down’ proposals should be identified for what they are: proposals to require service providers otherwise in compliance with the DMCA to proactively filter the Internet on the basis of allegations of copyright infringement…A filtering mandate would not be the minor change to existing law that the anodyne phrase ‘notice-and-stay-down’ suggests, but would rather dismantle the careful balance reflected in the DMCA.”
SUPPORTS ECONOMIC GROWTH
CTA: “The content industry has thrived under the DMCA. Global movie box office revenue reached a record 14.5 billion dollars last year. Content is even growing users during the pandemic: CTA’s recent market research study “COVID-19 Impact Study: Use of Technology at Home” found that 48% of consumers are streaming online video more often, and 26% are using video streaming services for the first time. More, driven by internet streaming, the music industry saw its fourth consecutive year of double-digit growth with 2019 revenues up thirteen percent.”
Innovation Defense Foundation: “ . . .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.”
Engine: “The DMCA has been beneficial for startups and large players alike, and any potential changes to § 512 should be evaluated particularly closely in terms of their potential impact on current and future startups…As there is no feasible way for an OSP to entirely prevent future uploads of previously noticed works, a notice-and-staydown regime would likely spell the end of websites that allow users to create and share content. The drag that this would have on OSPs, users, content creators, and the broader economy would be devastating.”
Internet Association: “The law fosters a balanced, innovation-oriented copyright system that protects the interests of an array of stakeholders, by providing rights holders, creators, internet companies, technology industries, and consumers helpful tools to protect their rights in an online environment…IA member companies are content creators and host third party content. Thanks to the prudent balance struck by Section 512, IA members have been voluntarily collaborating with other content creators to protect intellectual property for many years and have every incentive to continue doing so.”
Association of Research Libraries and American Library Association: “[T]he grand bargain of the DMCA was the marriage of the WIPO implementation and the safe harbor bills. As noted above, according to the content providers, title I has ‘enabled an enormous variety of flexible, legitimate digital business models to emerge and thrive.’ And according to the Internet industry, title II has ‘allowed the Internet to become what it is today—a worldwide democratizing platform for communication, creativity, and commerce.’…Given the tradeoffs that Congress made in assembling the DMCA, the Office should not assess the impact of any title in isolation.”
SUPPORTS BALANCE OF CURRENT LAW
Pamela Samuelson: “According to the Office, the basic framework of the DMCA safe harbors should remain intact. However, anyone who reads this report carefully will realize that the Office has done as much as it can to erode the limits built into § 512 and place ever more responsibility on OSPs (and risks of terminated accounts for users accused, rightly or wrongly, of infringement). While not recommending specific legislative changes, the Study often suggests that Congress “clarify” certain DMCA provisions that the copyright industries don’t like.” (Samuelson is Co-Director of the Berkeley Center for Law & Technology Co-Director).
Institute for Intellectual Property & Social Justice: “IIPSJ believes that the adoption of any ‘notice and stay-down’ mechanism would thoroughly destabilize the fundamental OSP limited liability framework and cripple the Internet as a mechanism for public free expression and creative exchange.”
Public Knowledge: “Section 512 represents a complex effort at balancing important interests–providing an expedited enforcement mechanism for rightsholders in the online environment, while encouraging the growth of online services by limiting exposure to secondary liability. It also is aimed at fulfilling what the Supreme Court has repeatedly stated is the ultimate goal of the Copyright Act: ‘serv[ing] the public good.’ Section 512 serves the public good by ensuring the public will have a diverse array of online platforms for accessing, and sharing expression.”
R Street Institute and Center for Democracy & Technology: “Policymakers should be wary of tampering with the delicate balance of the current regime, which could jeopardize the rights of both copyright holders and users while also undermining the foundations of the digital economy…Absent these protections, online services and access providers would feel compelled to strictly monitor or restrict their customers’ activity for fear of litigation, likely leading to the suppression of significant amounts of protected speech.”
NYU Law Professor Chris Sprigman And Stanford Law Professor Mark Lemley: “The genius of the DMCA is that it lets technology startups comply with the law without hiring a platoon of copyright lawyers. It also enables entertainment companies to turn piracy into legitimate revenue…A good political compromise leaves all sides slightly disappointed. The DMCA is just such a compromise. Technology companies remove pirated content by their users. Entertainment companies must proactively identify that pirated content. It’s not a perfect system, but it works — and because of it, the Internet works too.”
Financial Times Editorial Board: “Any cultural endeavour involves trade-offs between the creator and those who distribute their material. Artists may feel that they are being inadequately compensated for their efforts. But if so, they should deal with the problem directly, if necessary by withdrawing their content from the distributors with whom they are in dispute. Society should not be obliged to change the law.”