The latest legislative bid to “reform” the much maligned 1998 Digital Millennium Copyright Act (DMCA) is making some critics use harsh language to describe it as nothing short of “wretched,” “catastrophic” and “devastating” for the internet.
That, they say, is because instead of seeking to improve the DMCA, Senator Thom Tillis' draft, if it eventually passes, is going in the opposite direction of making this now antiquated but still powerfully influential piece of legislation even worse for independent and small content creators and startups seeking to compete with Big Tech – which is once again favored, along with Hollywood and the music industry.
We obtained a copy of the draft for you here.
It appears that there is a general consensus in the US that the DMCA needs to be changed, along with a number of initiatives that appeared over the years authored by anyone from digital freedom activist organizations to lawmakers. But this is where the consensus also breaks down: while one side wants to make sure this act is no longer used to abuse copyright for other purposes and hound smaller creators and companies, the other seems hell-bent on accommodating the juggernaut that is the entertainment industry even more.
Tillis says this is for the moment merely a discussion draft that will translate into a bill next year, and in his mind, it is a compromise that will leave everybody somewhat unsatisfied but is overall a positive step forward.
However, those who keep an eye on the goings-on around DMCA reform think that the 53-page document only minimally improves copyright rules, while at the same time setting back the process of takedowns and the way tech companies react to these requests, as it weakens the fair use rule.
While content contested as infringing copyright is handled in a procedure known as “notice-and-takedown,” the draft deals with another concept – “notice-and-stay-down.” The EFF, another digital rights group, has no doubt that what this language really means is an attempt to mandate the highly controversial, both in the US and in Europe, content filtering.
And there are multiple problems with content filters, which rely on automated systems like YouTube's ContentID and, due to the crude nature of this tech unaware of context, pose a serious threat to free speech, since legal and legitimate content can all too easily get “filtered.”
Tech companies benefit by complying with “notice-and-takedown” thanks to the safe harbor from legal liability for third party content that compliance affords them; under the same scenario, users can protect themselves thanks to the fair use rule. But “notice-and-stay-down” is a different beast. As the EFF puts it, in order to keep criticism and commentary alive under the draft's filter plans, “the only route left is not fair use but (…) to edit around the filter's requirements (or refrain from speaking altogether).”
The proposal also strengthens the position of giants like Facebook and YouTube who can afford to spend tens of millions of dollars or more,needed to put content filtering in place. This means that startups and smaller players would have no hope of competing on the internet.
Another cause for concern in the proposed changes to the DMCA is changing the “repeat infringer” rule, stating that an account can be removed if it's found in violation of copyright on multiple occasions – to allowing the US Copyright Office to come up with its own, new model of dealing with such transgressions.
And the model that the Copyright Office revealed earlier in 2020 said that copyright infringers should not only lose access to their accounts on social media – but also their internet access altogether, with ISPs being tasked with cutting them (and everyone else in their household) off.
Although Senator Tillis invited “stakeholders,” YouTubers included, to discuss his draft, the EFF is resolute: there's nothing to discuss.
“The bill, if passed, would absolutely devastate the internet,” they say.
Otherwise, Tillis announced his draft bill on DMCA reform and the public debate that should help shape it on Monday, the same day two other highly criticized internet-regulating legislative efforts – the CASE Act and a felony streaming law – got “sneaked in” via the omninbus spending bill passed in the US Congress. The latter bill (“Protecting Lawful Streaming Act of 2020”), ironically dubbed in some reports as “a gift for Hollywood” – is also the work of the senator, who co-sponsored it.