Copyright Holders Target Big Tech as CO Suggests DMCA Update

Digital Millennium Copyright Act Section 512, which governs online infringement, is “unbalanced” and out of sync with Congress’ original intent, the Copyright Office concluded (see 2005210029) in a years-in-the-making report Thursday. It highlighted areas where the tech and creative industries have clashed over the years, drawing mixed reviews. "While the Office is not recommending any wholesale changes to section 512, the Report points out these and other areas where Congress may wish to consider legislation to rebuild the original balance between rightsholders and online service providers,” the office said.

Senate Intellectual Property Subcommittee Chairman Thom Tillis, R-N.C., and ranking member Chris Coons, D-Del., are leading an effort to update the DMCA (see 2003100064), with a briefing scheduled Wednesday on the matter. RIAA CEO Mitch Glazier said in an interview a hearing on notice and takedown is set for June 2, and the entire process is expected to wrap up in October. Tillis and Coons indicated they would like to see all sides come together with a solution to address the issues voluntarily under current DMCA language, Glazier said. Tillis and Coons previously said they're prepared to move forward with legislation (see 2002110047). The subcommittee didn't comment.

There aren’t appropriate incentives for the tech industry to come together now and establish standard technical measures to ensure effective protection, Glazier said. He said limiting DMCA liability allowed tech companies to grow, but the intent was for the creative community to have similar growth, which hasn’t happened. The tech industry had incentives to come to the table for Music Modernization Act negotiations because of potential liability, Glazier said (see 1810110038). Now, he hoped the report and prospect of legislation will provide the incentive for the tech industry to negotiate on updating DMCA.

A "balanced copyright system" including 512 helps make it "a golden age of content," the Internet Association emailed. “The report fails to recognize that Section 512, as it currently exists, is serving the copyright ecosystem well. The law fosters a balanced, innovation-oriented copyright system that protects the interests of an array of stakeholders," said IA interim CEO Jon Berroya. The CO didn’t acknowledge the section's "impact on users, many of whom are creators themselves, or their equities in the internet ecosystem," he added. "Thanks to the prudent balance struck by Section 512, IA members have been voluntarily collaborating with other content creators to protect intellectual property."

The Computer and Communications Industry Association credited the report for recognizing “wholesale changes to the notice and takedown system are not needed.” President Matt Schruers noted that since 2015, the entertainment industry has boomed “led largely by Internet-enabled channels.” CCIA was disappointed the report said “so little” about “fraudulent use of takedown demands to suppress speech,” citing a Wall Street Journal report.

The CO “mostly ignored the issues and arguments raised by consumer groups, tech platforms, libraries and others,” said Re:Create Coalition Executive Director Joshua Lamel. The group accused the CO of suggesting only changes rights holders asked for, though it’s happy the report didn’t recommend “notice and staydown or site blocking.” The changes “being suggested are not the ‘fine-tuning’ the Copyright Office suggests, but rather changes that will have a negative impact on the online creative ecosystem,” Lamel said. He called Section 512 a “legal cornerstone” for internet and economic growth, which leveled the playing field, boosted access to information and advanced global culture. The office declined to comment on the record.

RIAA is part of a coalition supporting working through issues identified in the report. The American Association of Independent Music, Music Artists Coalition, National Music Publishers Association, Songwriters of North America and SoundExchange also issued statements distributed by RIAA. They seek action and improvements from big tech platforms, which “exploit music.”

The groups recommended three actions for big tech to address issues identified in the report. The tech industry should ensure that takedown means stay down, they said: “User-upload platforms should put an end to the ‘whack-a-mole’ era by implementing meaningful, robust processes to ensure that once infringing content is taken down, the same infringing content does not immediately reappear on the same service.” The associations recommended blocking stream-ripping services: Platforms should ensure technological protection stays ahead of illegal services with aggressive monitoring “when and how their technical protections are being breached.” They want copyright owners to monitor infringement of their work, with social media platforms providing tools to do so, establishing “automated and scalable notice and takedown systems.”

The Artist Rights Alliance challenged tech platforms to reduce the amount of piracy on their platforms. Platforms profit from illegal content by selling advertising alongside pirated material and scraping data from users, ARA said.

"The balance Congress intended when it established the section 512 safe harbor system is askew," CO concluded (see page 197). "The internet, in all its various component parts, has grown successfully and exponentially over the past two decades. However, despite the advances in legitimate content options and delivery systems, and despite the millions of takedown notices submitted on a daily basis, the scale of online copyright infringement and the lack of effectiveness of section 512 notices to address that situation remain significant problems."

The study, the last requested of the CO in a prior Congress, is "the final output of the Office on topics related to the 2013-2015 copyright review hearings held by the House Judiciary Committee," an office release said.

Copyright protection online must be “meaningful and effective,” CO said. For DMCA protections to be meaningful, copyright owners must have a “mechanism for vindication of their rights when their works are infringed,” it said: By passing the law, Congress recognized the need to build a mechanism for the “efficient and effective removal of infringing content online.”