When the Digital Millennium Copyright Act (DMCA) was introduced in 1998, file-sharing was a fringe activity, and online streaming a futuristic idea.
The developments over the past two decades have transformed the way people consume media, both legally and illegally.
Calls for DMCA Reform
Despite these drastic changes, the DMCA still dictates how many online services respond to copyright-infringing content. While most service providers are relatively happy with it, copyright holders demand change.
These discussions have been ongoing for a few years now. The US Copyright Office has heard many stakeholders and recently summarized its recommendations in an advisory report, which suggests several ‘tweaks’ to the current law.
In addition to this effort, U.S. Senator Thom Tillis launched a separate DMCA review process through the Senate Judiciary Subcommittee on Intellectual Property. In several hearings, it heard input from key players including copyright holders, legal experts, service providers, and digital rights groups.
Senator Tillis Questions Stakeholders
As the review process nears its conclusion, Senator Tillis also asked various parties to submit written submissions. These are not posted publicly, as far as we know, but Re:Create published its response and those of several members, including digital rights groups EFF and Public Knowledge.
These submissions provide a clear counterweight to the ‘stricter’ rules and enhanced enforcement options the major copyright holder groups have called for. This includes website blocking and a proposed notice-and-staydown regime.
The site-blocking push came as a surprise as it’s been a no-go topic in the US after the SOPA and PIPA bills were rejected in 2012. Technically speaking, site-blocking injunctions are already possible under the DMCA. However, so-called ‘no fault’ injunctions, issued against ISPs, are not.
Site Blocking Questions
Senator Tillis questions whether the DMCA should be updated to make these site-blocking injunctions more accessible for copyright holders. And if so, if these should be issued by federal courts or a special tribunal.
EFF answered this question negatively, warning against overblocking, which will ultimately chill free speech.
“Injunctions to restrain the forums and conduits of speech are treated with extreme skepticism in the U.S. free speech tradition,” the digitals right group writes, adding that “website blocking is a blunt instrument that inevitably risks over-blocking of lawful and non-infringing speech.”
Site blocking will require technological and organizational censorship systems, much like the ones Chinese companies are required to use. The risk is that once these are in place, more and more content will be censored.
“Once created, the use of these systems is unlikely to be confined to copyright enforcement, nor to U.S. court orders. They risk being used to censor all manner of speech that violates foreign laws or offends powerful interests,” EFF adds.
EFF also references the SOPA and PIPA bills, which is a common theme in the answers from all opponents including Public Knowledge.
The non-profit organization points out that technology experts warned that site blocking interferes with the domain name system, which carries security and privacy risks. In addition, civil libertarians cautioned that it can be abused to increase censorship.
“SOPA/PIPA was roundly condemned by people from different political backgrounds for a reason, and accomplishing the same objective of site-blocking through injunctions against third parties is subject to the same critiques,” Public Knowledge writes.
These potential threats are not worth the risk, especially because site blocking isn’t effective, the group adds. Targeted sites can simply move to new domains as their servers remain online.
“It is ineffective because it is trivially easy for sites dedicated to infringement to simply switch to alternate domains. It’s misdirected because ISP- and DNS-level blocking fails to actually take sites offline,” Public Knowledge writes.
This sentiment is shared by Re:Create, which stresses that if such a far-reaching measure is ever handed down, it should be done by a jury.
“Website blocking is not only a technological nightmare to implement (if it can even be implemented), but widely unpopular. Copyright infringement does not rise to the level of relief that should be ordered without a trial by jury under the 7th Amendment protections of the Constitution for copyright infringement,” Re:Create notes.
The three groups are clearly against the site blocking proposal and they have similar thoughts on the notice-and-staydown proposal as well.
Senator Tillis asked whether it’s a good idea to ease the burden on copyright holders by requiring service providers to ensure that infringing content stays offline. This is similar to the EU proposal, which opened the door to automated filtering of uploaded content.
This ‘staydown’ requirement would end the current takedown whack-a-mole where copyright holders have to ask services over and over again to remove the same files. However, the three groups warn that this is a horrible idea.
One obvious problem, according to Re:Create, is that automated systems don’t know whether a person has the right to post something. Similarly, it can’t see whether an upload is a fair use.
“Notice-and-staydown by its very nature would presume copyrighted material is automatically infringed, without considering cases where the use of this content is permissible,” Re:Create writes.
The group adds that there are already enough problems with the current takedown system, where fair use or legal content is incorrectly taken down. A staydown requirement would only make this problem worse.
“A notice-and-staydown regime would further impair legal uses and reshape copyright policy and law as it has been understood for centuries – chilling expression and creativity. This is because there is no way to design such a system without filtering technology.”
Copyright Office Rejected Staydown Proposal
Public Knowledge shares this concern and points out that even the Copyright Office advised against implementing such a scheme in its recent recommendations. Instead, the Office advised Congress to evaluate how this will work in the EU.
“Notice-and-staydown is an idea so far removed from feasibility that even the Copyright Office, after years of study, declined to endorse it,” Public Knowledge notes.
“[T]he 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.”
The EFF also opposes a staydown requirement. The group highlights that the current system was carefully drafted to balance the interests of copyright holders on the one hand, while preserving free expression and innovation.
Requiring online services to police their users and filter content will lead to overblocking, it warns.
“Conditioning liability limitations on a service provider’s ability to actively police potential infringement would likely lead to over-blocking and/or aggressive filtering of user-generated content. That would make the Internet a much less hospitable place for free speech and innovation,” EFF warns.
The full answers from all three groups, as well as several others, are available on Re:Create’s website. The group encourages all stakeholders to make their responses public, but thus far we haven’t seen any from the major copyright holder groups.
We did spot a copy of the answers from the Artists Rights Alliance which, as expected, supports broad DMCA reform. Ideally, it would like to limit the current safe harbor system and require infringing content to stay offline once it’s reported.
“At a minimum, where an artist does identify unlicensed uses of their music on these new platforms, they should not be further burdened with mapping unfamiliar networks and finding every other instance of such unlicensed use,” ARA writes.
These responses show that Senator Tillis and his colleagues will have a really hard time coming up with a proposal that will keep both sides happy. But after several years of DMCA reviews, that doesn’t really come as a surprise.