Senators Seek DMCA Update That IA Deems Unnecessary

DMCA “is working” as intended and shouldn’t be altered, IA interim CEO Jon Berroya testified. Content creators said the law's notice and takedown regime is broken. They contend it unfairly requires artists monitor the entire internet.

IA’s argument is belied by accounts from artists required to scour platforms for infringements, which becomes a full-time effort, Sen. Richard Blumenthal, D-Conn., told Berroya. The lawmaker echoed musician Don Henley and Authors Guild President Douglas Preston. Witnesses testified remotely.

The current system is “failing badly,” Tillis said: Fixing the framework, including Section 512, isn’t enough, and it might be necessary to create a new system that captures a modern balance, he added.

Coons asked why the tech industry and artists haven’t come together with solutions. He asked for suggestions how DMCA can be improved. There needs to be a notice-and-stay-down process, Henley and Preston told Coons. Section 512 was never intended to be a get out of jail free card, Henley said.

The overwhelming majority of online content is legal, and some copyright claims are made in bad faith, which means decisions aren’t always straightforward, IA's Berroya said. The system incentivizes collaboration between the two sides, which allows solutions that better keep pace with technology than amending laws could, he continued. The act “is working as it’s intended to and preserves a critical balance between all stakeholders,” he said.

Tillis said illegal streaming has become far easier because of technology, asking Berroya why Congress shouldn’t take this into account when weighing an update. DMCA sets a floor, the basic standards of what it takes for the industry to enjoy safe harbors, Berroya said. It doesn’t limit companies from doing more, which is done through ongoing conversations with creators, he said.

Old-fashioned collaboration is tailored to a process that isn’t appropriate for the present technology, Blumenthal said. The tech industry has broad immunity, which is in need of revision, he argued. He asked if witnesses thought DMCA needs to be changed. Berroya was the only one of the four-person panel, which included Henley, Preston and Hansen, to back the status quo.

Tillis noted the Copyright Office recently reported the “grand bargain” (see 2005210057) is no longer working or achieving the intended policy goals. Piracy has become easier, faster and more common, he said: Pirated material appears on the same websites, sometimes minutes later, despite takedowns.

Section 512 works relatively well for academic authors, Duke University Associate University Librarian David Hansen testified: “We do not believe its overall balance is askew,” though it could be improved. There's some lack of clarity about rights on notice and takedown, he said, but changing 512 could hurt research and teaching.

Piracy has exploded in the past 12 years, Preston noted, saying he gets dozens of piracy notices daily. It’s a never-ending game of whack a mole, which he gave up on. In the past decade, full-time authors have experienced a 42 percent drop in writing income due to rampant piracy, he said.

Changing DMCA would “shift the ground for startups,” devaluing safe harbors and potentially making litigation far more costly, testified Engine IP Counsel Abby Rives. YouTube’s content identification has been an amazing technology for locating illegal music, testified composer Kerry Muzzey, saying he has identified tens of thousands of stolen pieces of his music. But the only remedy is to file lawsuits, which isn’t feasible for an independent artist, he said, calling this law broken.