Tillis, Coons Aim for Draft Bill for Updating DMCA in 2020

The goal is to produce a draft bill this year to update the Digital Millennium Copyright Act, said Senate Intellectual Property Subcommittee Chairman Thom Tillis, R-N.C., Tuesday. “I have low expectations we can get it done in this Congress. But I think we can get a generally accepted baseline and continue to work with the House to move it on a bicameral basis,” he told us before Tuesday’s hearing on DMCA. “It hasn’t been touched since Chumbawamba was topping the charts” in 1998.

Expect some 10 hearings on the impact of DMCA, its trajectory and potential changes, ranking member Chris Coons, D-Del., told reporters. The tech industry’s protections under Section 230 of the Communications Decency Act will “certainly be part of the discussion.” It "would be very premature to draw any conclusions about whether they’re up for reconsideration,” he added. Some actions should be taken to reduce harmful consequences of piracy while maintaining core protections to make sure the U.S. remains the world’s content creation leader, Coons said.

The DMCA has been a success for 22 years, said Sen. Patrick Leahy, D-Vt., an original co-author. Congress needs to ensure any adjustments are balanced and protect innovation and copyright, he said.

This law has stood the test of time, but a second look is warranted, testified U.S. Court of Federal Claims Senior Judge Edward Damich, who helped craft the original law with former Sen. Orrin Hatch, R-Utah. He cited two major issues to examine: service provider liability and technical protection measures for copyright owners.

The DMCA, with its marriage of technical protection measures and safe harbors, is fair, effective and working as Congress intended, testified intellectual property attorney Jonathan Band. Congress made this decision understanding where things were headed and courts have applied consistently what Congress intended, he said.

The review will find the provisions have been remarkably successful, testified Mitchell Silberberg partner Steve Metalitz. There's more access to more formats at more price points than ever due to technological protection measures, he said: It’s a real marketplace, not a “thieves’ bazaar.”

The legal regime achieved legislative history that has helped courts read this law with an eye for preserving innovation and respecting reasonable expectations of consumers, testified Constantine Cannon's Robert Schwartz.

“Almost every single thing about the internet has changes in the last 22 years, and the law simply hasn’t kept pace,” Tillis said in his opening remarks. Shepherding a draft bill to passage will be a top priority this Congress and a second term, if re-elected, he said.

If Congress starts fiddling with the DMCA, more individuals will come out of the woodwork to discuss how changes to Section 1201 could create more problems than it solves, said Band. The section “makes it unlawful to circumvent technological measures used to prevent unauthorized access to copyrighted works.” Keep any changes to Section 1202 general, rather than specific, technical tweaks, which mightn't have the same shelf life, Metalitz said.

The notice and takedown regime can be improved, said George Mason University Law School professor Sandra Aistars. She called it “challenging” and questioned the effectiveness of enforcement.

Congress should be careful about altering Section 512, testified Harvard Law School professor Rebecca Tushnet. It established liability limitations for online service providers. If Congress changes that section to target large platforms like Facebook and Google, she said, it will worsen market concentration.