Sen. Tillis to Release DMCA Discussion Draft Friday With Eye on Big Tech

Senate Intellectual Property Subcommittee Chairman Thom Tillis, R-N.C., will release a discussion draft Friday for updating the Digital Millennium Copyright Act (see 2010050061), he said at a hearing Tuesday. It will have “revolutionary” concepts for preventing online piracy and protecting individual users, he said.

Some Big Tech platforms “aren’t serious” about piracy, Tillis said: Maybe it’s not a priority, or maybe companies are profiting from piracy. He expressed disappointment that Twitter, which got heavy criticism, declined to participate at the hearing, which included witnesses from Facebook and YouTube.

The music industry has sent millions of copyright notices to Twitter, but unlike Facebook and YouTube, Twitter has done “nothing” to prevent piracy on a “viral system,” testified RIAA CEO Mitch Glazier. He said the industry asked for search tools for creators to help identify illegal content, and the platform suggested a charge of about $100,000 a year for such a tool. Twitter didn’t comment.

Tillis’ office will introduce the discussion draft alone. Members have expressed interest, but it’s meant to “get the dialogue started,” Tillis told us. He said he wouldn’t be surprised if it takes almost the entirety of next Congress to reach consensus. He said he might expect to hear more from Twitter, given the attention the platform received at the hearing. “They’ll say they’re smaller, but they’re still big,” said Tillis. “I understand the challenges that they have, but we’ve got to make progress.”

Sen. Mazie Hirono, D-Hawaii, said she heard from musicians that Twitter isn’t a willing partner and asked if there’s a solution. Platforms are able to hide behind DMCA safe harbors, and the only way to get them to the table is to threaten changes to the law, said Glazier.

If you can’t get a company representative to engage at the subcommittee level, it’s a question of what it would take to get the company to come to the table, Copyright Alliance CEO Keith Kupferschmid said of Twitter. Friday’s discussion draft will be a beginning, said Tillis, noting it could take his entire second term to get a bipartisan, bicameral law passed. He welcomed engagement from the tech industry.

Glazier suggested that establishing standard technical measures (STMs) and voluntary measures for removing illegal content could be useful. Re:Create Executive Director Joshua Lamel warned against allowing government to get involved in a standard-setting process. Facebook Global Intellectual Property and Trade Policy Head Probir Mehta argued for flexibility allowing the platform to establish its own measures for takedowns.

Ranking member Chris Coons, D-Del., asked about copyright owner access for Facebook’s rights manager tool and whether there’s a cost to users. It’s free to all stakeholders, but there’s an application process, said Mehta. Coons asked if Facebook would be open to allowing the tool to be used on other platforms, and Mehta said it's willing to explore the idea with any willing partners. The rights manager tool isn’t easily accessible, argued CreativeFuture CEO Ruth Vitale, citing anecdotal evidence of multiple denials for a single applicant for using the tool.

Coons asked if the Copyright Office should oversee standardization measures. CO expertise could be helpful, but overseeing such a process would go beyond the expertise of that office, said Lamel, noting the standards would go beyond copyright law.

Taking down illegal content is like searching for a needle in an ever-growing haystack, said AdRev President Noah Becker. He called for the democratization of access to STMs.