THE DMCA IS RIPE FOR CHANGE

The Digital Millennium Copyright Act (DMCA), was drafted almost two decades ago, and it desperately needs some commonsense amendments so it can catch up to the drastic changes in technology we've seen since 1998.  When our lawmakers were drafting the DMCA, Google didn't even exist.  There is no way Congress, or any of us, could have imagined the profound changes to the music industry from streaming and from international piracy.   One of the most important provisions of the DMCA is a "safe harbor" for companies like AOL (think 1998), who were just providing the "pipes" for the internet, and had nothing to do with what went through the pipes.   Congress thought those sorts of companies that just provided access to the internet (ISPs or Internet Service Providers), should be protected from liability for illegal things that traveled through the pipes.  But now, also enjoying this same safe harbor, are the OSPs (Online Service Providers), many of which are doing much more than just providing the pipes.  OSPs, like YouTube, who enjoy this safe harbor, are actively influencing their users' behavior toward infringement and profiting to the tune of billions.  And that's the problem; they are abusing the original intent of the safe harbor.  The safe harbor that the DMCA grants to ISPs and OSPs is a privilege – and accordingly, we think any company wanting that privilege should have to take these measures to protect the Constitutional rights of our citizens who create for a living:

  1. We are asking for mandatory checkpoints at the point of upload (drafted by the U.S. Copyright Office), asking users who upload content, a series of questions about authorization, and requiring a signed perjury statement from them before they upload content.  Rights-holders face this exact scrutiny when we do a takedown, so it's only logical, fair, and simply obvious, that the same scrutiny should exist to prevent infringement in the first place.
  2. All ISPs and OSPs should be required to use the latest fingerprint technology for blocking uploads.  Audible Magic's fingerprinting technology service is available now at a very reasonable cost to ISPs and OSPs, and is presently used by some companies and many universities.  YouTube has its own similar Content ID technology for blocking uploads, but only gives that blocking right to a very small group of selected rights-holders.  According to language already in the DMCA, all internet companies that allow public uploading of content, must ensure that "standard technical measures" “are available to any person on reasonable and nondiscriminatory terms” to identify and protect their copyrighted work.  In other words, YouTube is not allowed to discriminate as to who gets access to tools that have become “standard” in protecting copyright.  If YouTube does discriminate, it is supposed to lose its safe harbor.  We need this "standard technical measure" be enforced.  There's no change in law needed here, only proper enforcement.
  3. For any works not protected through Content ID or Audible Magic, or works that somehow slip past blocking mechanisms, should only have to be taken down once.  Takedown should mean staydown.  The same fingerprinting technology for blocking uploads could be used for keeping infringing work down.  No rights-holder should have to play Whack-A-Mole on the same site over and over.
  4. Stop the public display (YouTube) of copyright-holders identity who exercise their Constitutional right to take their infringed work down.  If the identity of the uploader isn't displayed, neither should the person doing the takedown.  The DMCA should not allow this unbalanced and intimidating practice.
  5. Sites like Google that steer users to pirate sites should be required to block all traffic to sites that any court has found engages in piracy.  Sites like Google should also be required to stop showing in 'search results' sites that are known to be pirate sites.  Right now, search engines like Google, facilitate piracy and pirates by serving as a free-of-charge, worldwide marketing firm, driving users who might not even be looking for a free download, right to criminal sites.  

Surely our lawmakers didn’t intend the 1998 law to make a loophole so big, it would destroy copyright, create a literal “free-for-all,” and would enable one company, Google, to be so big, it is bigger than the GDP of 100 different nations, including Sweden and Switzerland.  You can bet, companies like Google and YouTube are fighting like crazy to keep this out-of-date law exactly as is, going to extreme measures, propping up organizations like the Electronic Frontier Foundation (EFF) and Fight for the Future (FFTF) to try to make the public believe that powerful copyright law somehow impedes freedom of speech, or fair use.  And they’ve even succeeded in tricking a lot of the political “left” into believing this myth.  It’s our job to open people’s eyes. 

We must collectively fight to have this law brought up to date.  The creative arts are hemorrhaging red ink and cannot withstand a law that directly contradicts our Constitutional right to protect our intellectual property.  

If you want to did into all the details, you can read Section 512 of Title 17 (the DMCA safe harbor provisions) for yourself. 

In early 2016, the United States Copyright Office started a public study to evaluate the impact and effectiveness of these safe harbor provisions contained in Section 512 of title 17.  They invited the public to make comments, and held two roundtables (in New York and Berkeley) to hash out the issues.  We will be posting links to those transcripts as soon as they are available so that you can read the arguments and perspectives of both sides.  This is a heated debate that we hope you'll follow.

The creative community is very united in wanting common sense measures added to the DMCA.  You can take an important first step now by signing the Takedown–Staydown Petition.

This colorful, and 'on point' article in Rollingstone by Kurt Sutter fires back effectively at every argument Google's publicity machine is using to try and convince the world that the DMCA is fine as is.

977 MusicAnswers signatories signed The Council of Music Creators’ submission to the DMCA study, and we invite you to read it. Council of Music Creators – First Round Comments to the U.S. Copyright Office

Maria Schneider has asked that we make her submission available to you as well.  Maria Schneider – First Round comments to the U.S. Copyright Office 

If you wish to search and read a variety of submissions, go here.  You may search everyone from Google to the Recording Academy, to find a variety of opinions on the matter. 

Related Articles: 

YouTube, “Pushers” of Piracy – by Maria Schneider

How to Send a Takedown Notice to Google in 46 (or more) Easy Steps! – Stephen Carlisle