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

Copyright

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.

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