As DMCA Review Gets Real, Anti-Copyright Rhetoric Gets More Surreal

Among the reasons I defend copyright is that I firmly believe it is inadvertently one of the most profound expressions of democratic principles in the American Constitution. When the Framers essentially transposed English copyright into Article I of the Constitution, they could not possibly have imagined the full value—cultural, economic, and political—of vesting authors, with both the moral and pecuniary rights that would be embodied in copyright law. But as much as I will eagerly advocate those rights, I will not betray broader principles to achieve that goal. If the current precariousness of the Republic should remind us of one lesson above all, it is that, in America, means remain vastly more important than ends.

Sadly, too many Americans across the political spectrum have broken faith with that principle, including those who would weaken, or even destroy copyright. For instance, Techdirt founder Mike Masnick appears to be a Democrat (based on his tweets and other writings), and is certainly not a Trumpian. Nevertheless, the site he edits published a post on November 18 by Daniel Takash that begins as follows:

I’m certainly not the first person (especially on Techdirt) to point out that if conservatives are really concerned about online censorship, they should be putting copyright law under the microscope, rather than, or at least in addition to, Section 230.

This is what happens when someone cares more about a specific agenda than they do about the broader, moral implications of how they advocate that agenda. Here, Techdirt is so determined to blast copyright law that it publishes a post in which Takash gives credence to the false narrative that social platforms have been censoring conservative views. As I have argued in several posts, this accusation only has merit if one’s definition of “conservative” is an ideology of lies and wild conspiracy allegations that undermine the rule of law, basic decency, and public safety. That is a stigma the GOP is going to have to resolve as the Trump effect (we can only hope) begins to wane, but at the moment, it is a dangerous narrative that should not be given air in the service of any policy goal. Period.

Noting that the discussion about Section 230 emanating from the White House, and oozing into congressional hearings, can best be described as incoherent and futile, Takash is effectively asking that the same kind of inarticulate vitriol be slung at copyright law in the name of “conservatism.” His post alludes generally to “Trump’s troubles” with the use of copyrighted works in campaign videos and rallies, as if to imply first, that rightsholders have no interest in how their works are used; and second, that the use of works in political statements is not a complex issue. Instead, Takash simply invites “conservatives” to adopt the view that copyrights are tantamount to censorship.

Maintaining sound copyright laws has enjoyed bipartisan support throughout the history of the country, and many of its strongest advocates have been Republicans. One of my favorite colleagues with whom I regularly discuss copyright is a lifelong Republican, and the fact that we approach policy from different ideologies only adds to the richness of the conversation. That’s the way Congress used to work (at least more than it does now), and in the tiny, obscure world of copyright law, it still works that way—a bipartisan conversation in which nearly every Member agrees with the premise that American creators are essential and that copyright law is a constitutional principle that has capably stood the test of time.

Section 230 should be reviewed soberly and rationally—not because it shields platform “censorship,” but because it shields criminal conduct that destroys, or nearly destroys, people’s lives. But that has nothing to do with copyright law, which is being reviewed appropriately and apolitically. In contrast to the Section 230 noise that has lately rumbled on Capitol Hill, the review of the Digital Millennium Copyright Act (DMCA), led by Chairman Tillis of the Senate Judiciary Committee has been orderly, rational, and not in any way subsumed by the political circus that has distorted a wide range of other policy matters.

Last week, Chariman Tillis published an open letter asking stakeholders to provide input for potential revision to the DMCA. Comments are due on December 1, and after review of that input, the committee is expected to present draft legislation on December 18. The Tillis letter poses fifteen questions spanning many topics for consideration. These points summarize the findings by the committee after its yearlong process hosting hearings and conducting internal review into whether the DMCA has fulfilled its purposes as Congress intended 22 years ago. The topics in the letter also echo the Copyright Office report on Section 512 of the DMCA, which recommends the law should be updated.

As most readers know, copyright owners, especially small and independent owners, have told both House and Senate Judiciary Committees that DMCA Section 512 does not come anywhere close to working as intended. The statute, which provides conditional immunity for online service providers that unintentionally host copyright infringing material, has been a complete failure for the independent creator, and extraordinarily burdensome for the institutional copyright owner.

The day-to-day reality of implementing Section 512 betrays Congress’s expressly stated anticipation that OSPs and rightsholders would collaborate to keep infringement down to a manageable scale. Instead, the immunity provided by the statute has functioned as a disincentive for OSPs to mitigate infringement, thereby allowing some of the biggest companies in the world to profit from infringement at a scale worth billions of dollars over the past two decades.

Because Section 512 shares a core principle with Section 230 (i.e. the premise that the OSP should not be liable for the conduct of its users), the two statutes are often conflated in the blogosphere, and occasionally confused by the press, which might carelessly refer to 230 and copyright in the same sentence. But because the two provisions grant different types of legal immunity to some of the most powerful companies on Earth, another attribute they share is that Big Tech will spare no expense defending the status quo of both laws. And in that endeavor, they can be counted upon to exploit all the confusion they can muster. This is the simplest explanation for Takash’s illogical (and frankly immoral) appeal to “conservatives” to embrace a copyright is censorship ideology.

As legislative proposals become available, I will follow up with commentary on the nuts-and-bolts in that process. But as a preliminary observation, it is hard to imagine that at least some revision to 512 will not be proposed, and creators should be prepared for Silicon Valley’s network of anti-copyright proxies to launch a well-funded assault to defend the territory it has so effectively usurped.

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