The Senate Judiciary Intellectual Property Subcommittee led by North Carolina’s Thom Tillis has announced a series of hearings exploring the 22-year old Digital Millennium Copyright Act, which codifies the legal framework for protecting copyrighted works like music, books, and movies online.
The severe shortcomings of the DMCA’s notice-and-takedown regime – which requires rights holders to engage in an endless game of “Whack-a-Mole” in a futile effort to protect their works – became evident soon after its enactment into law in 1998. Indeed, online piracy remains a persistent growing problem. According to one report, approximately 26.6 billion views of movies and 126.7 billion views of TV episodes produced in the U.S. are pirated each year.
So why has nothing changed? In part, dominant online platforms like Google have successfully championed a false and ultimately destructive narrative that copyright chills free speech and innovation. Indeed, the last time I wrote about the DMCA it was in response to an anti-copyright voice who had claimed, “excessive and over-broad intellectual property protection measures would strangle the freedom and innovation essential to growth of the Internet.” Google and its allies have deployed that scare tactic over and over again – suggesting that protecting IP rights is incompatible with the Brave New Digital World they are creating.
Of course, it’s not true. Copyright – like all intellectual property rights –promotes free speech and innovation. And according to one study, in 2017 the core copyright industries contributed $1.3 trillion to U.S. GDP and account for 5.7 million jobs.
Big Tech’s preferred narratives appear increasingly empty when considered against the backdrop of repeated headlines and scandals demonstrating the mounting problems with an internet that lacks accountability. Unbound by the values, laws, and norms we expect offline, censorship and confusion reign online, and privacy is a forgotten relic. Consumers aren’t liberated; they’re exhausted and overwhelmed. Silicon Valley’s gushing rhetoric seems to be that the internet would be all benefit and upside if everyone just waived the white flag and surrendered their rights as easily as they surrender their personal information.
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That’s why the Senate review of the DMCA is such a valuable and important opportunity – a chance to hit reset on the idea that freedom from responsibility is a necessary condition for “internet freedom.” Because as the American Conservative Union and sixteen other groups observed in an April 2018 letter to Congress:
“Fundamentally, many of the internet’s problems result from a lack of accountability. It’s an incredible tool, facilitating many socially and economically beneficial uses, but there is a widening gulf between the standards of conduct we expect offline and the behavior we witness online. In the offline world, businesses are expected to take reasonable steps to prevent their services from being used to facilitate harmful activity. The same is not true online, where platforms are increasingly at the center of wrongdoing, but remain unaccountable for the abuse they enable.”
And failing to protect intellectual property, especially as part of the broader lack of accountability that permeates the digital platform ecosystem, is deeply harmful over time.
The DMCA was supposed to provide some measure of security to creators that they too would be able to participate in the digital economy on fair terms. Instead, rapid technological advancement quickly outpaced the DMCA’s meager protections, which were then watered down further by the courts. As a result, the law has fallen far short of Congress’ vision, and online intermediaries have enjoyed expansive immunity for piracy on their networks in return for satisfying paltry obligations.
Strong Congressional oversight has a real chance to right this ship – to restore the original understanding of the DMCA and remind online intermediaries of the responsibilities they bear.
And with the heavy artillery of new legislation always in the background behind this oversight, the tech companies would be wise to take the hint and start putting their houses in order before impatient legislators do it for them.
The old narrative that protecting intellectual property online hinders innovation has proved false. Hopefully, Big Tech can keep up with times and get to work with the rest of us to build a new understanding that makes the internet work better for everyone.
Schneider is the executive director of the American Conservative Union.
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