The negotiation and passage of the U.S.’s Digital Millennium Copyright Act (DMCA) was a remarkable achievement of its time. But that time was the 90’s, and the network-enabled world Congress was verging into (and attempting to build a privately-managed regulatory framework for) was not fully glimpsed by the legislative drafters or the many stakeholders who provided pages upon pages of comments in a very public process. In particular, the rise of gargantuan, market-shaping tech platforms — each with a market reach to billions of constant users — was not anticipated. What Congress passed, and the President signed (Oct. 1998), afforded the startup platforms that followed a largely unconstrained field in which to grow, and grow they did.
Even tech futurists at that time were mostly anticipating something more like (old, pre-2012) Yahoo than YouTube. YouTube alone handles millions [tens of millions?] of DMCA takedown notices – and counternotices – every year. Its corporate owner Alphabet (essentially, Google and the businesses that it has spawned and continues to own, including DeepMind and Waymo) responded to that pressing concern with what the economists call a “private-ordering” scheme, the ContentID system and its algorithmic approach – which are, as we used to say, “hands off” or even “lights out” operations. And they are available only on YouTube (i.e., not more generally off that proprietary platform), and they don’t always work very well.
Thus, in the context of a DMCA that is showing its age and creaking at the seams, the November 10 open letter/questionnaire from Senator Tillis (R-NC) to stakeholders, entitled “DMCA Reform Bill” and intended to return to first principles and evaluate DMCA for the 2020s, makes a good deal of sense. In 2019 and 2020, Tillis, in his capacity as chair of the Senate IP subcommittee, held a series of hearings focused on known problems with several DMCA provisions and has stated his intent to put forward a legislative fix for which there may be bipartisan support — and controversy. As Tillis says in the introductory section of his letter/questionnaire, “Congress should reform copyright law’s framework to better encourage the creation of copyrightable works and to protect users and consumers making lawful uses of copyrighted goods and software-enabled products, respectively. I believe the key provisions of copyright law ripe for reform are sections 512, 1201, and 1202—all of which were added to title 17 by the DMCA.”
With that as background, and as copyright wonks ourselves, let’s take a look at some of the 15 separate issues the Senator asks about, towards being more aware and well-informed before his draft legislative text, which is certain to include some proposals for significant revisions to the DCMA, is released in late December:
- Section 512 — OSP Safe Harbors. This section lays out a framework for the exemption of liability — from copyright infringement actions — for Online Service Providers (OSPs, in the jargon of the DMCA; “internet service providers and platforms” to you and me) “[Given] that small copyright owners and small online services providers (OSPs) may have more in common with each other than they do with big copyright owners and big OSPs,” Senator Tillis asks, “… could copyright law borrow from employment law, or other relevant fields, to establish different thresholds for copyright owners and OSPs of different size, market share, or other relevant metric? If so, what is the best way to accomplish this?” This is a “rules of the road” section and one that is critically important to the providers, who have no wish to be exposed to any additional liability for infringement stemming from the uploading activities of their users.
- Section 512 – Notice/Counternotice & Takedown. YouTube’s ContentID, which we referred to above, is a notable implementation of the notice & takedown mechanism. Although the system is widely used — for example, most responsible web site owners have identified their required-for-coverage DMCA agent — many complaints have been raised about its overall accuracy and general effectiveness. Senator Tillis asks, “[Should] U.S. copyright law move towards some type of a notice-and-staydown system — in other words, once a copyright owner notifies a service provider that a use of a copyrighted work is infringing, the service provider must, without further prompting, remove subsequent infringing uses absent a statement from the user (whether the copyright owner or not) that they believe the use is licensed or otherwise authorized by law (e.g., fair use)?” This “staydown” revision is highly desirable to many content producers, who complain about the so-called “endless whack-a-mole” problem of constantly having to claim and reclaim their same, widely-uploaded material. Could that burden be mitigated somehow?
- Section 1201. Technological measures, such as DRM locks, activation keys and the like, are part and parcel of the world of digital copyright, and their operation is covered in this section. “Circumventing” (literally, “getting around”) these locks and keys can be a violation of this section — unless exempted by statute or as the result of a triennial rulemaking process administered by the Copyright Office. One common example of “circumvention” for which an exemption has been sought in the past is “jailbreaking” one’s own personal smartphone device. Having conducted the rulemaking process seven times now and internalized all that regulatory experience, the Copyright Office (among others) has recently asked if some time and effort could be gained (and frustrations minimized) by changing the text of the law here. Senator Tillis specifically asks, (in effect) would there be any downside to making permanent some of the constantly re-granted exceptions?
- Section 1202 This less-well known section of the DMCA addresses Copyright Management Information (CMI, another jargon phrase; most of us just refer to this as metadata). Consider a professionally taken photograph, and all the underlying information embedded within it. Section 1202 defines the components of that metadata which are needed to qualify for Section 1201 protection, and how stripping it away may amount to a DMCA violation. Sen. Tillis asks whether Congress should “adopt the Copyright Office’s recommendation to enact a new section 1202A to provide the author of a copyrighted work — rather than just the copyright owner — with a right of action when someone removes or alters rights management information with the intent to conceal an author’s attribution information?”
There are sure to be a large volume of responses to the Senator’s wide-ranging and essentially open-ended questions, and a mid-December release of draft legislation makes for a tight deadline. I’m looking forward to reading the responses and also to seeing the DMCA-revising bill being put into the Congressional hopper (i.e., in queue for future work, not in the sense of ‘down the tubes’, as it were). Twenty years of experience later, it does seem like the time might be ripe for an update.
[Senate Subcommitte on IP] “The Digital Millennium Copyright Act at 22: What is it, why was it enacted, and where are we now”
[US Copyright Office] “The Digital Millennium Copyright Act” Provides extensive resources explaining each of the sections discussed above.