The Digital Copyright Act: We Told Senator Tillis Not To Do This, But He Did It Anyway. So We Told Him Again.

from the deaf-ear dept

Back in December, the Copia Institute submitted comments to Senator Tillis, who wanted feedback on making changes to the DMCA. It was a tricky needle to thread, because there's a lot about the DMCA that could be improved and really needs to be improved to be constitutional. At the same time, having protection for platforms is crucial for there to be platforms, and we did not want to encourage anything that might lead to the weakening of the safe harbors, which are already flimsy enough. So our advice was two-fold: address the First Amendment problems already present with the DMCA, and check what assumptions were driving the reform effort in order to make sure that any changes actually made things better and not worse.

None of that happened, however. The draft legislation he proposed earlier this year, called the Digital Copyright Act, or DCA, is so troubling we haven't even had a chance to fully explain how. But at least he invited public comments on it, so last week we submitted some.

In short, we repeated our original two points: (1) as Mike wrote when it was originally unveiled the DCA, with its "notice and staydown" regime, has an even bigger First Amendment problem than the DMCA already does, and (2) the proposed DCA legislation is predicated on several faulty assumptions.

One such assumption is that the DCA appears to regard Internet service providers as little more than parasitic enterprises that must only be barely tolerated, rather than the intrinsically valuable services that have given artists greater opportunities for monetization and developing audience reach. Indeed, it was the recognition of their value that prompted Congress to try to protect them with the safe harbor system in the first place, whereas the DCA would all but slam the door on them, crushing them with additional burdens and even weaker liability protections. Sure, the proposed legislation offers to throw them a few bones around the edges, but in major substance it does little more than put them and the expression they facilitate in jeopardy.

And for little reason, because another significant misapprehension underpinning the DCA is that it helps creators at all. The DCA strengthens the power of certain copyright holders, certainly, but it doesn't follow that it necessarily helps creators themselves, who are often not the actual copyright holders. In fact, in certain art forms, like music, it is frequently the case they are not, and we know this from all the termination litigation where creators are having to go to great effort to try to recover the copyrights in their own works—and are not always succeeding.

As we pointed out:

Over the years we have evolved a system where creators can get—and in certain art forms like music often have gotten—locked out of being able to exploit their own works for decades. In fact, thanks to term extensions, they may be locked out for longer than they ever would have expected. As a result of getting locked out of their works, not only can they not economically exploit these works directly but they cannot even manage their overall relationship with their market: their fans. Even when it would be in their interests to give their fans a freer hand to interact with their works online, they cannot make that decision when the conglomerates and billionaires who own those rights are the ones sending takedown notices targeting their fans' postings, or, worse, their entire accounts. The DCA only further entrenches the power that these strangers can have over creators, their works, and their audiences and yet somehow presumes it will incentivize further creativity from the very people the system makes powerless.

In sum, the DCA is a mistake that Congress should not further pursue. It does nothing to help creators profit from their work, or help us do anything that will help get us more. It just gives certain people more power to say no to innovation and expression, which is exactly the opposite of what copyright law is for.

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Filed Under: 1st amendment, copyright, dmca, free speech, notice and takedown, safe harbors, thom tillis


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  • identicon
    Baron von Robber, 8 Mar 2021 @ 12:12pm

    Quick edit: "We Told Senator Tillis Not To This, But He Did It Anyway. So We Told Him Again."..Not To >Do< This,..

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Mar 2021 @ 12:14pm

    and like everything that a politician asks opinion on from the public and others, not only are those things ignored as far as being taken into account are concerned, they are actually used so the proposer knows exactly what to put in to please the industries the changes are being made for to please and the intentional harm that can then be done to the public!! why the fuck do you stupid fuckers keep voting theses assholes into office? do you like being screwed into the ground? do you like being industry, especially entertainment industry, lapdogs and whipping boys? boot them out! put someone else in the job on the condition that they start doing what they're supposed to to protect the people not continuously getting them killed, thrown into jail, thrown on to the street! do the right thing!!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Mar 2021 @ 12:53pm

      Re:

      why ... do you ... keep voting theses ... into office?

      Most of the voters make up their minds based on one or maybe two issues, just exactly like you do.

      The only difference between them and you is ... they look at different issues.

      I am a regular contributor to collaborative websites, so this issue is very important to me. But I suspect that is not true of 99% of the population.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 9 Mar 2021 @ 4:17am

        Re: Re:

        Need to stop with the cult of personality politics and move on to something that is not complete bullshit. These liars say all sorts of things people like to hear but that is just hot air and they have no intentions of doing any of that. It's just smoke up yer ass for your vote, after which you are just dirt.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Mar 2021 @ 1:23pm

      Re:

      He's a Republican senator from North Carolina. They didn't elect him because of his views on copyright.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Mar 2021 @ 1:02pm

    That the DCA helps "certain copyright holders" rather than creators is not a mistake, it's by design. Because the "certain copyright holders" are the ones paying for it.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Barbra McHugh-Ribbs, 8 Mar 2021 @ 1:38pm

    HOW did this horror happen in a free country?

    when the conglomerates and billionaires who own those rights are the ones sending takedown notices targeting their fans' postings, or, worse, their entire accounts.

    Oh, right. Of their own free will, "creators" took money up-front and signed away their rights in a contract. This lawyer makes it sound like they're Palestinians, though, without rights in their own country.

    reply to this | link to this | view in chronology ]

  • icon
    Jojo (profile), 8 Mar 2021 @ 2:47pm

    I hate sounding like a pessimist and a contrarian

    I do admire that you’re trying to take a diplomatic approach to Tillis’ bill, but honestly, I think that if Tillis were to ignore it the first time, he’ll probably ignore it the second time. He’s a puppet of the Copyright Mafia, so what they ask, Tillis does. I’m not saying the diplomatic approach is doomed on arrival, but I think now is the time to be more obstructionistic against America’s version of Article 13.

    reply to this | link to this | view in chronology ]

  • icon
    Anon E. Mous (profile), 8 Mar 2021 @ 3:16pm

    Very Noble of those who sent in a submission to tell those not to screw with it, however this was futile from the outset because Tillis and Co had decided the outcome with copyright holders and pro copyright entities in Hollywood as to where this legislation was going and how it would be framed.

    The asking of others for their submissions is just window dressing to make a feeble attempt like they listened to the concerns of those against these changes when the outcome was pre-decided long ago.

    Politicians love to put on a show but 9 times out of 10 the outcome of these committees seeking comments is just a dog and pony show so they can say they gave everyone a fair shake before they decided to pass the draft, when in reality the lobbyists and groups pushing for the changes long ago decided where, how and what the legislation will look like everyone else's concerns be damned

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Mar 2021 @ 6:31pm

      Re:

      Politicians love to put on a show but 9 times out of 10 the outcome of these committees seeking comments is just a dog and pony show so they can say they gave everyone a fair shake before they decided to pass the draft, when in reality the lobbyists and groups pushing for the changes long ago decided where, how and what the legislation will look like everyone else's concerns be damned

      Corpocracy.

      Only ways out are hard hit nationwide economic depression or violent conflict. Have fun UCSoA.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 9 Mar 2021 @ 4:26am

        Re: Re:

        "Only ways out are hard hit nationwide economic depression or violent conflict."

        Is this based upon anything or is it conjecture?

        One must admit to a problem before one can fix said problem.
        Also, when one does not want to fix a problem, they not acknowledge its existence.

        reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 8 Mar 2021 @ 6:49pm

    " the Copia Institute submitted comments to Senator Tillis, who wanted feedback"

    No, he didn't.

    reply to this | link to this | view in chronology ]


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