DMCA Reform: Without it, “there will be no economic justice for working musicians. All the rest is hype.”
By Neil Turkewitz
As the Senate Judiciary Subcommittee on Intellectual Property undertakes its review of the DMCA’s provisions related to the responsibilities of internet platforms, it is essential to recall the observations made by Chairman Tillis a few months ago:
“In the DMCA, Congress offered a revolutionary solution to these problems — granting immunity to new, emerging platforms in exchange for reasonable enforcement efforts, including quickly taking down copyrighted materials they learned about and dealing with repeat offenders. This trade-off was designed to ensure everyone had a shared stake in both the growth of the internet and the health of America’s creative economy. And, for a time, it worked.
But now, two decades later, the mechanisms enacted to achieve that goal simply haven’t stood the test of time…
Our goal will be to re-forge the consensus that originally powered the DMCA and craft new legislation to modernize the DMCA for today’s internet. As always, that means doing all we can to create good incentives and empower market forces to solve problems without government intervention wherever possible.
The original DMCA sought to ensure that tech companies and creators would have a shared stake in each other’s success for the ultimate benefit of consumers, artists, and the American economy overall. An updated and modernized DMCA must strive to do the same.”
Re-forging the original consensus perfectly captures the appropriate goalposts of this exercise. The original DMCA compromises were intended to facilitate the operation of internet platforms while ensuring they took reasonable action to address infringement taking place through their proprietary services, including the development and use of technological tools to prevent and respond to infringement, as well as the employment of responsible business practices to root out infringement. Alas, due to a variety of factors, including court decisions that essentially eliminated red-flag knowledge and which narrowed the application of information subpoenas; as well as problems in the DMCA itself — e.g. the lack of incentives on the part of intermediaries to develop standardized technical measures which could be employed across the internet ecosystem and deter infringement rather than merely respond to it, the promise of the DMCA has not been realized. The time for reform and to capture the potential of the internet to drive cultural production is upon us.
It is a matter of the first importance that we stay true to these original principles. With the effective elimination of red flag knowledge as a predicate for liability, we are left with a broken notice and takedown system that is both generally inadequate (even when it works as designed), and easily gamed through false counter-notices, requiring copyright owners to litigate merely to achieve removal of specific infringing files or links. While capturing the potential of the internet to drive economic performance and to promote cultural production has a variety of moving parts, in this piece I take a quick look at three important components that Congress should undertake in order to restore the balance sought to be established under the original conception of the DMCA:
1-requiring platforms to employ measures to prevent the re-uploading of already notified infringing materials (i.e. notice & staydown);
2-creating incentives for the development and use of standard technical measures as contemplated in Section 512(i); and
3-consideration of how to address abuse of the notification system.
The failed promise of the DMCA is perhaps best exemplified by the related failures of the notice & takedown system, and by the failure of the DMCA to incentivize the development and deployment of technical standards — expressly contemplated in Section 512(i), to introduce an effective technological response to issues arising in conjunction with the evolution of technology. It is imperative to note that the accommodation of “standard technical measures” referred to in Section 512(i) is an active standard, not merely lack of interference. The DMCA dealt with interference/circumvention in a separate section of the law — Section 1201. That section, unlike Section 512(i), placed no affirmative obligation on service providers to engage in proactive efforts to address infringement. Section 512(i) on the other hand, was aimed at achieving active service provider engagement in the development of a more robust response to infringement than could be achieved through mere reliance on notice and takedown in conjunction with prohibitions against circumvention of technical measures. Sadly — but as predicted by many copyright owners at the time, the measures contemplated by Section 512(i) have not been developed and implemented. Quite simply, Congress expected the deployment of technological tools to play a major role in addressing online infringement. More to the point, that set of expectations was a foundation of the balance sought to be established via the construction and parameters of the Section 512 safe harbors. With this core part of the foundation removed, the DMCA has understandably failed to achieve the desired balance. Creating incentives for the development of standard technical measures as originally contemplated must be a priority if we are to re-forge the original consensus.
As regards the issue of notifications, I have previously written documenting the experience of an independent composer seeking to use notice and takedown to create space for licensing, and the role of fraudulent counter-notices in limiting the effectiveness of even this minimal and flawed process. I encourage interested parties to read this first-hand narrative, and to follow the writing of indie filmmaker, Ellen Seidler, who documents the realities associated with notice and takedown. For present purposes, I only note that the establishment of a small claims adjudicative process could be quite useful in addressing competing claims without the costs of litigation (for either plaintiff or defendant). I thus encourage the Senate to move quickly in joining the House in approving the CASE Act, and raise one other issue for consideration. Congress should consider adding a provision to Section 512 under which any platform claiming protection under the safe harbor, as well as any alleged infringer filing a counter-notification, shall be deemed to have consented to the jurisdiction of a CASE tribunal. This idea was floated in the 2017 comments of the International Center for Law & Economics (ICLE) to the House Judiciary Committee, and I strongly recommend it:
“We believe that it would be worth giving considered thought to creating incentives in certain cases to encourage the use of such a system — e.g., by providing that any party claiming a safe harbor under Section 512 will be deemed to have consented to adjudication through small claims.”
I will address other elements of DMCA reform over the coming months, and look forward to the Senate Judiciary Committee’s careful examination as outlined by Chairman Tillis. For the time being, I will just close with an observation by famed guitarist and artists rights advocate, Marc Ribot:
“Until the “Safe Harbors” are limited for corporations which fail to use the available technology to stop mass infringement on their premises, there will be no economic justice for working musicians. All the rest is hype.”
Let’s not undertake a journey of hype and obfuscation. Meaningful freedom and chaos are incompatible. We can drive innovation and creativity simultaneously, provided we stay grounded in practice and not just theory, and re-forge the consensus armed with the knowledge that more than twenty years of experience has provided.
