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Online Copyright Proposal’s Reception Shows Difficult Road Ahead

Dec. 23, 2020, 10:55 AM

Reactions to proposed reform to boost online copyright enforcement Tuesday demonstrated a stark divide and validated expectations of a long fight—particularly from tech and consumer groups.

Sen. Thom Tillis (R-N.C.) held hearings throughout 2020 meant to inform the draft bill released Tuesday that he’s called “once in a generation legislation.” After he released his “discussion draft” to update the Digital Millennium Copyright Act, consumer and tech groups blasted the proposal.

Dozens of varied content groups welcomed it as a great first step.

Consumer and tech groups say the proposal focuses on fighting infringement for content creators while failing to address concerns from their perspective. They cited constitutional concerns and a fundamental disruption of free speech on the internet.

The strong reaction shows big gaps remain even after months of hearings, raising questions about whether all sides can agree on how to enforce copyrights across the vast span of user-generated content.

“Today’s proposal to undo and replace the DMCA would fundamentally end online creativity as we know it,” said Joshua Lamel, executive director of the Re:Create Coalition, a group of technology and library associations.

But American Association of Publishers CEO Maria A. Pallante said reform is needed to address “broad and unwarranted immunity to bad faith actors” that often profit from piracy.

Familiar Foes

The looming fight echoes past copyright policy battles, featuring groups espousing competing interests: the ability to enforce valid copyrights, and a free internet that doesn’t disrupt legal speech.

Tillis has touted the importance of getting input from all stakeholders during negotiations to edit the original proposal. The sides have come together for landmark legislation recently with the 2018 Music Modernization Act.

But DMCA reform appears to be a much heavier lift. The Music Modernization Act addressed a status quo that both rightsholders losing revenue and streamers like Spotify—facing a barrage of expensive lawsuits—found untenable.

Content groups have expressed much more interest in sweeping DMCA change than opponents.

Protecting Creators

The proposal would move the Copyright Office to the executive branch, create a new path for DMCA takedowns of alleged copyright infringing material. The takedowns under the proposed bill could include a new small claims court. The bill also expands online service providers and platforms’ responsibilities for fighting infringement in different ways.

Dozens of content and creator groups praised the proposed revamp of the Digital Millennium Copyright Act to better protect copyrights from rampant online infringement, generally deeming it a good starting point without airing particular concerns.

A music industry letter, which called it “an important, proposal” developed through a “thoughtful deliberative process,” was signed by 22 groups. The groups represented record labels, publishers, artists, and songwriters. Movie, news, and author groups also backed the effort.

Different groups praised specific elements. The Motion Picture Association singled out increasing platform responsibility to be more proactive in fighting infringement. The Recording Academy was “particularly gratified” by a “notice-and-staydown” provision to permanently remove near-entire copies of works like songs if not licensed by the rightsowner.

Free Speech Pushback

There were provisions designed to help parties get motivated more by free speech than infringement concerns.

The bill included new ways to redress bad-faith takedown notices. It would require less personal information to file a counternotice contesting a takedown, and it would loosen the law barring circumvention of anti-infringement mechanisms in some cases.

Some groups still saw the offering as fundamentally imbalanced.

Public interest group Public Knowledge called the proposed notice-and-staydown system unconstitutional. The proposed system would inherently rely on mandatory content filtering technology, it said in a statement. Platforms would have to use automated algorithms to enforce complex copyright law, ultimately catching fair use and legal free speech in the dragnet, it said.

“User protections in this text are MIA. Counter-notice mechanisms are optional, the ‘put back’ provisions remain unenforceable, and penalties for bad-faith takedowns are almost unobtainable,” Rose said in the statement.

Rose also said allowing executive agencies to define safe harbor boundaries would politicize determination of what platforms deserve a safe harbor from liability for user infringement.

The Electronic Frontier Foundation said Tillis’ vision “will crush huge swaths of online expression and innovation.” EFF and Lamel also said it would hurt competition by creating an untenable legal regime designed for giant platforms and content producers. The Computer and Communications Industry Association, which represents most of the largest tech and web giants, also expressed concern.

To contact the reporter on this story: Kyle Jahner in Washington at kjahner@bloomberglaw.com

To contact the editors responsible for this story: Renee Schoof at rschoof@bloombergindustry.com; Kibkabe Araya at karaya@bloomberglaw.com