February 11, 2020 at 5:00 am ET
As the Senate Judiciary Committee opens a wide-ranging review of the Digital Millennium Copyright Act I helped shape back in the 1990s, I urge the creative and technology communities to work together to restore the promise of that landmark bill.
Back in those early days of the internet, “irrational exuberance” was everywhere, and tech idealists were convinced their powerful new networks would be an uncomplicated force for positive change.
Congress shared enthusiasm for the nascent medium, but history and experience had taught us to take those promises with a hefty grain of salt. Every new technology has costs as well as benefits, requiring tradeoffs and cooperation to work – and the internet was no different.
One of our core concerns was the threat posed by unchecked piracy to the creative arts and journalism. Illegal copyright infringement long predated the internet, but the vulnerability the creative community faced was naturally more constrained in an analogue world. Members of Congress recognized in the 1990s that while digital technology would present enormous opportunities for artistic expression, it could also enable piracy on a global, frictionless scale.
We enacted the DMCA to manage those risks and provide incentives and assurances to the creative industries that they too could experiment, innovate, and benefit from the digital revolution. The law set ground rules for copyrighted information on the internet. For instance, it prohibits the circumvention of “digital locks” (or Technical Protection Measures as they’re called in the statute), which is largely working as we intended.
It also established rules by which internet service providers could avoid liability for hosting infringing content on their platforms. We created a conditional safe harbor that would grant online service providers immunity only when they worked with rightsholders to remove infringing content from their networks. We knew that the existing legal system would never be able to adjudicate copyright claims quickly enough in the digital age, so we enumerated several baseline requirements in the statute – each with an eye towards providing meaningful, comprehensive remedies for copyright holders that would in turn mitigate the threat of litigation for online service providers.
So, 22 years later, how did we do?
There is no question that the digital marketplace for creative works has flourished – particularly in recent years. American consumers today are blessed with instant and affordable access to an online streaming cornucopia that has reshaped how we find and engage with music, video, books, and more. But the illegal marketplace the DMCA was supposed to address has exploded right alongside it.
Put another way, I fear that the online market for creative works has emerged in spite of – not because of – the DMCA.
The notice and takedown system has grown into a Frankenstein’s monster, unimaginably costly for creators and simultaneously not nearly effective enough at helping them control where and how their work is used.
What’s more, the courts have whittled down the list of requirements online service providers must meet to qualify for immunity from liability. What’s left is a basic “notice and takedown” system based only on individualized links, allowing online intermediaries to claim broad immunity even when they have not worked to clean up their own house as Congress originally envisioned.
And as much as new forms and business models of media and journalism and creativity are emerging, they do so on the ashes of what has been lost: newsrooms shuttered around the nation; independent artists, songwriters, and filmmakers struggling (more than before) to cobble together viable careers; and dominant online platforms claiming a disproportionate share of the value of creative works.
I believe the solutions to these problems can be found in a return to the core understanding of the DMCA’s intended purpose. A revitalized DMCA regime is possible – one that breathes stronger life into the platforms’ affirmative obligation to find and take down unlicensed creative works and to stop and permanently shut down massive for-profit piracy operations and serial commercial infringers.
These changes can be made right now, without the grind and uncertainty of legislation, in the spirit of innovation and cooperative problem solving that first gave the DMCA – and the internet – so much promise.
Initially, it was the creative industries that were slow to adapt, reluctant to change and give their fans easy, affordable online access to music, movies, books, and more. But under pressure from Congress and consumers, they embraced online distribution, fundamentally reorganizing their businesses around streaming and anytime/anywhere access. That decision boosted the entire digital economy, ushered in a vast array of new services and opportunities, and contributed mightily to their bottom lines as well.
Now is the time for the technology companies to do the same: to put their innovative genius behind new solutions and address the shortcomings in today’s online ecosystem that so many have observed.
Online intermediaries and creative industries are not opponents or even competitors. At this point, they are business partners, and both have plenty to gain from getting this right.
Former Rep. Lamar Smith (R-Texas) served as the chairman of the House Judiciary Committee and its subcommittee on intellectual property.
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