Statement on Hearing: “Is the DMCA’s Notice-and-Takedown System Working in the 21st Century?”
On June 2, 2020, the Senate Judiciary Committee, Subcommittee on the Intellectual Property held the hearing: “Is the DMCA’s Notice-and-Takedown System Working in the 21st Century?”
The Internet Infrastructure Coalition submitted the following Statement for the Record.
Statement for the Record by the Internet Infrastructure Coalition
Senate Judiciary Committee, Subcommittee on Intellectual Property Hearing:
“Is the DMCA’s Notice-and-Takedown System Working in the 21st Century?”
June 2, 2020
The Internet Infrastructure Coalition (i2Coalition) appreciates the opportunity to submit a statement for the record following the above-referenced hearing about Section 512 of the Digital Millennium Copyright Act (DMCA) by the Senate Judiciary Subcommittee on Intellectual Property on June 2, 2020. Founded in 2012 by a diverse group of Internet infrastructure companies, the i2Coalition is a global organization that supports and represents the companies that build and maintain the infrastructure of the Internet. Our members include cloud providers, data centers, web hosting companies, domain registries and registrars, and other foundational Internet enterprises.
The Importance of Section 512 to the Internet Infrastructure Industry
Section 512 of the DMCA is a bedrock provision of U.S. law governing the Internet, and one of the handful of measures that catalyzed its rapid evolution and the multitudes of uses we rely on which have improved our lives, increased productivity, and opened massive opportunities for creativity and technological innovation which continue today. In 1998, Congress recognized that electronic commerce, online learning, telehealth and so many other applications were poised for takeoff if Congress could strike the proper balance in the statute to support economic and social expansion while properly protecting IP rights online.
As the House Commerce Committee report on the legislation stated:
H.R. 2281 is one of the most important pieces of legislation affecting electronic commerce that the 105th Congress will consider. It establishes a wide range of rules that will govern not only copyright owners in the marketplace for electronic commerce, but also consumers, manufacturers, distributors, libraries, educators, and on-line service providers. H.R. 2281, in other words, is about much more than intellectual property. It defines whether consumers and businesses may engage in certain conduct, or use certain devices, in the course of transacting electronic commerce. Indeed, many of these rules may determine the extent to which electronic commerce realizes its potential.1
Congress’ success in making that vision a reality resulted directly from its wise decision to include the Section 512 notice and takedown system in the legislation. Section 512 ensured that nascent Internet innovators would not be cut off at the starting line by crippling litigation threats. This allowed them to build the technology infrastructure that then allowed content creators to find new paths and revenue streams for distributing their content digitally. With Section 512, Congress carefully balanced the interests of users, technology companies, and content creators by imposing the notice and takedown framework.
Section 512 of the DMCA encourages cooperation among stakeholders for the protection of digital copyrighted works, by placing a balanced set of responsibilities on service providers and copyright owners. For the most part, this cooperation has been working, and the allocation of responsibilities is appropriate. As Engine testified at the hearing, “[r]ightsholders are in the best position to identify potential infringement in the first instance, since they know what their copyrighted works are, can identify potential infringement they want resolved, and have the facts most pertinent to fair use and licensing.” 2
Disruption to Section 512 Would Move Internet Policy Backwards
The current calls by IP companies and their interest group allies to rewrite or scrap Section 512 threaten the Internet’s future continued vitality and diversity in myriad ways. The IP sector is asking Congress to substantially shift their online content protection responsibilities to Internet infrastructure providers, with some even suggesting that infrastructure providers should be burdened with investing in and deploying technologies to protect their works online in an automatic or easily systematized way that bypasses established legal due process. These so-called “reforms” will set America back economically, technologically, and socially. Weakening or removing fair legal procedures will chill free speech, place the interests of those who allege IP claims ahead of those who may have legitimate disputes with the claimants, and impose significant new costs on companies lacking sufficient resources to resolve these disputes.
Rather than eliminating the notice and takedown system which has fostered the Internet’s explosive growth, efforts would be better spent on eliminating abuses of it. Examples of bad actors misusing the system and seeking erroneous, political, and anticompetitive takedowns are legion.3
Disruption to Section 512 Would Harm America’s Internet Economy and Competitiveness
America’s Internet is not merely made up of the major broadband ISPs or just a handful of large social media platforms. As noted by several witnesses at the June 2 hearing, the proponents of Section 512 “reform” frequently overlook the complexity of the Internet ecosystem and erroneously frame this debate as one with just two players–content v. “Big Tech,” leaving out multitudes of smaller infrastructure providers, as well as the entire segment of Internet users. In fact, in terms of infrastructure, the Internet ecosystem is predominantly made up of cloud providers, domain registries and registrars, web hosting companies, data centers, and numerous various other Internet intermediaries, many of whom are small businesses with strong ties to their local communities. The Internet’s resilience during the ongoing global pandemic has proven the importance of maintaining policies that keep all of the moving parts of the Internet—the network of networks—economically sound and technologically strong. Disruption to the Section 512 notice and takedown system would harm these enterprises and their customers by introducing new business uncertainties, encouraging wasteful litigation and other costs, and disincenting investment in innovation that our economy continuously requires to keep the Internet vibrant, safe, and secure, and to maintain America’s global competitiveness.
Disruption to Section 512 Would Stifle Innovation
Section 512 and the Internet infrastructure industry support the ability of content and technology entrepreneurs to offer new innovative business models. In their early days, companies like YouTube and Twitter could grow because they were not shut down in their infancy due to lawsuits filed by powerful and entrenched IP owners. Because of Section 512, these innovators—and so many others—had the chance to evolve and work with creators to make progressive efforts to combat piracy. They changed the status quo, and built platforms driving new value and revenue.
Critics of Section 512 would eschew traditional due process and push for “guilty until proven innocent” frameworks that would not provide the targets of actions the ability to legally defend their businesses. Such a dramatic policy shift would stifle the innovation and job creation that our economy needs to thrive, especially during this challenging time.
The US Copyright Office’s Section 512 Report Does Not Advocate Major Changes
The Copyright Office Section 512 Report released on May 21, 2020 reviews the effectiveness of the notice and takedown regime established in Section 512 of the DMCA in 1998 and codified at 17 U.S.C. § 512. In the Report, the Copyright Office said it is not recommending any wholesale changes to section 512, but instead identifies certain areas where Congress may wish to fine-tune section 512’s current operation in order to better balance the rights and responsibilities of online service providers [OSPs] and rightsholders in the creative industries. Congress clearly desired that the DMCA balance competing stakeholder interests, but the Report effectively claims that courts have been interpreting the statute too favorably for OSPs.
For example, the Report’s proposed changes in knowledge requirements seem to conflict with clear directives in the DMCA that service providers do not have a duty to monitor for infringement. Changes suggested in the Report also could make it infinitely more difficult for OSPs to provide services that help give voice to the diversity of users in our society due to fear of legal repercussions from an IP industry intent on litigation. With more responsibility placed on OSPs, accusations of infringement would more often be addressed by termination of users’ access whether users infringed or not. This result would be unjust and even tragic, especially in light of the pandemic as well as our country’s national conversation about inclusion and tolerance.
In short, five years have passed since the Copyright Office began drafting the Section 512 Report, and it recommends only statutory “fine-tuning.” Congress should weigh that advice in tandem with its responsibility to ensure that policies protect the Internet’s continued resilience and buttress the crucial role it is playing right now–helping America and the world get through an unprecedented public health crisis, and supporting free expression, diversity, and all of the other values vital to America’s democracy.
If Section 512 is weakened or disrupted, America’s society and economy will experience a far less vibrant Internet, leading to the significant loss of high-wage, high-tech jobs in our industry and other business sectors that are directly or indirectly supported by our industry. Section 512 of the DMCA is crucial to maintaining a diverse and prosperous Internet ecosystem which supports free speech, inclusiveness, and the economic livelihoods of countless Americans.
The i2Coalition again thanks Chairman Tillis, Ranking Member Coons, and the Subcommittee on Intellectual Property for the opportunity to submit this statement for the record.
- H.Rpt. 105-551 Pt. 2, Digital Millennium Copyright Act of 1998 at 22, https://www.congress.gov/105/crpt/hrpt551/CRPT-105hrpt551-pt2.pdf
- Testimony of Abigail A. Rives, Intellectual Property Counsel, Engine Advocacy and Research Foundation, Senate Committee on the Judiciary, Subcommittee on Intellectual Property, June 2, 2020, at 2.
- See, e.g., “Google Hides News, Tricked by Fake Claims,” https://www.wsj.com/articles/google-dmca-copyright-claims-takedown-online-reputation-11589557001