Stakeholders at Odds Despite Congressional Momentum for DMCA Update

Momentum is building in both chambers for a Digital Millennium Copyright Act update as stakeholders remain at odds if a new DMCA is necessary or beneficial. Experts offered varying predictions in interviews about proposals to the Senate IP Subcommittee and House Judiciary Committee (see 2009300068).

Voluntary agreements with the tech industry to address piracy are preferable, but that industry hasn’t been willing to negotiate in the past five years "despite our pleas," said Copyright Alliance CEO Keith Kupferschmid: Online service providers “like the present situation, where they have no risk of liability.” The unwillingness to negotiate is “what’s going to push Congress to legislation,” he added.

“The law is working overall well for startups,” said Engine IP Counsel Abby Rives. Engine has concerns about potential legislative changes like filtering requirements, notice-and-stay-down provisions and amendments to the knowledge standard. There are many ways platforms have gone beyond what DMCA Section 512 -- the focal point of legislative discussions -- requires to qualify for safe harbors, she said. Filtering technology from YouTube, Facebook and Amazon are a few examples, she said: “We’re really concerned about any changes within the law that would effectively require everybody on down to the one-woman company operating out of her living room to go above and beyond what’s currently in the law.”

Multibillion-dollar tech companies are hiding behind DMCA safe harbors while piracy is rampant, said music industry attorney Chris Castle: “An artist has an exponentially greater likelihood of recovering a stolen car than they do stopping their life’s work being stolen online.”

The Electronic Frontier Foundation opposes legislation, given concerns the DMCA might be gutted and replaced with something far worse, said Senior Staff Attorney Mitch Stoltz. He cautioned against following the example of EU’s copyright directive, which he said has essentially resulted in a filtering mandate. House and Senate hearings have leaned toward a filtering mandate, he said: There’s also been a narrow focus on Section 512 when Section 1201 is in greater need of an update (see 2009160074).

The DMCA is no longer working for creative rights holders, said Kupferschmid. He supports legislation expected from Rep. Martha Roby, R-Ala., that would make it a felony to stream pirated material. Now, pirating music, movies, books and other media and making it available for download is a felony. The same activity is a misdemeanor if the media is streamed. “There’s no policy reason that it wasn’t included” in the DMCA, Kupferschmid said of the pre-streaming era.

EFF is opposed to Roby’s legislation because there’s no evidence of a market failure, said Stoltz: Streaming revenues have never been higher. “There’s not a market problem that needs solving,” he said. There was a previous attempt to include a version of Roby’s measure in the Stop Online Piracy Act, a comprehensive copyright bill that failed in 2011-12. Offices for Roby and Senate IP Subcommittee Chairman Thom Tillis, R-N.C., didn’t comment Monday.

PLUS Coalition CEO Jeff Sedlik agreed with Kupferschmid that the preference should be for active cooperation on solutions consistent with the intent of the DMCA. He spoke against the push for a single standard technical measure (STM) for all industries and media, which he said is unrealistic: It’s impossible to come up with one solution for material related to books, music, photographs, TV and film.

Although there has been no cooperation for developing a single solution, there has been some progress in individual sectors, said Sedlik: His Picture Licensing Universal System group helped negotiate STMs for visual works at the suggestion of the Copyright Office. The STM has been broadly adopted and is found in Adobe software, for example, he said. Google also adopted one of the coalition’s metadata fields to be able to identify Google images. “There’s an example of the largest [online service provider] on earth adopting" an STM, he said. “It took them 12 years to do it, but they did it.”