Tillis Eyes Fair Use for Political Speech in DMCA Revamp

Tillis said he’s interested in fair use carve-outs for “political speech and campaign activities,” citing recent social media legitimate and illegitimate takedowns of content on DMCA violation grounds. Twitter recently removed several posts by President Donald Trump and his re-election campaign because of takedown notices, the most recent a campaign video that used Linkin Park’s “In the End,” after the band sought its removal. Tillis sought an update to treat political speech “as per se fair use and not just possible fair use.”

The existing fair use doctrine “safeguards education, criticism and research and is an important exception to copyright protection,” Coons said. “It is not a license to misappropriate entire creative works for commercial purposes.” He wants to “safeguard free speech and fair use while also combating digital privacy.”

The Software & Information Industry Association wants Congress to “proceed carefully” in amending DMCA Section 1201, said General Counsel Christopher Mohr. New fair use exemptions “should be narrowly tailored to a specific factual situation that does not create a widespread risk of infringement in the event that circumvention tools to implement that exemption were widespread.” Amendments to Section 512’s notice-and-takedown and safe harbor should be “at the margins,” he said. “Some of our members believe that a better solution to address bad actors on the margins could include stepped-up penalties for abusive counter-notices.”

National Press Photographers Association General Counsel Mickey Osterreicher believes “updated legal principles and new legislative mechanisms are needed to ensure that the DMCA remains viable.” The “rights of photographers and the needs of users must be integrated into a functioning system that incentivizes and rewards creativity and innovation on both sides of the issue while simultaneously recognizing an inherent right of creators to exercise at least some control over the use of their work,” he said.

Wikimedia Foundation Lead Public Policy Manager Sherwin Siy believes there should be “more than a comprehensive approach” that “may require a comprehensive evaluation of how courts, companies, and online communities perceive and interpret the structure and practical implementation of the Copyright Act.” Fair use doctrine “requires careful, human consideration of important values like freedom of speech, educational value, and even the sort of forms that commentary and criticism can take, including subtle shadings like humor and sarcasm,” he said. Adjusting the current balance “would require far more than adjustments to Section 512, and we would not recommend those.”

Columbia University School of Law professor Jane Ginsburg urged Congress to follow Copyright Office recommendations for a Section 1201 legislative revamp, including making permanent many existing exemptions to the ban on IP bypass technological protection measures. “The way toward legislative reform” is via expansion of permanent Section 1201 exemptions, Ginsburg said.

Durie Tungri’s Joseph Gratz wants to strengthen Section 512 safe harbor’s anti-abuse language by amending it to “expressly preserve the safe harbor in cases where the service provider has an objectively reasonable good faith belief that the notice of claimed infringement contains misrepresentations, even if the material is later found by a court to be infringing.”

Former CO General Counsel Jacqueline Charlesworth, now an Alter Kendrick lawyer, noted ASCAP and BMI offer political campaigns blanket licensing agreements “that allows the campaign to make use of their respective catalogs,” and for creators to notify the performing rights organizations “that they wish to withdraw their songs.” Such notifications are uncommon and the approach gives licensees “the benefit of a broad, blanket license for live events, as well as clarity regarding any songs that are not authorized,” she said.

Caplin & Drysdale’s Matthew Sanderson said the “principal remedy to ongoing issues” is “additional education” about IP law. “There is a general lack of awareness and knowledge about” IP “among rights holders with respect to permitted use of protected material in a political setting and among the class of political consultants who manage campaigns and create their public communications.” CO “could do more, in my opinion, to inform the public about [IP] in the context of election and issue-advocacy campaigns,” including partnering with the Federal Election Commission and Election Assistance Commission, he said.

Songwriter Rick Beato believes “content creators should be protected from frivolous demonetizations.” He suggested Congress create a fair use registry “where one could get a certification as a good actor similar to Twitter's blue checkmark.” Posted videos “can be checked against the database of” certified fair users, Beato said. “The content creator would then be whitelisted for use. YouTube already sets benchmark’s for channel monetization.”

Singer Yolanda Adams suggested candidates that “want to use music” work "with us … to find the right match.” Adams said she “almost always” gives permission for her music to be used at events, “but the operative word is permission. Legal battles and cease and desist letters will never be as effective as good old-fashioned cooperation.”