The success of the internet is fueled by creation, innovation and sound public policies that have enabled it to act as an economic engine worldwide.
As lawmakers evaluate the Digital Millennium Copyright Act (DMCA), the bipartisan law that serves as the cornerstone of the $8 trillion internet economy, it is critical that they consider all members of the internet ecosystem who share responsibility for its continued effectiveness in the digital age.
In 1998, Congress recognized that electronic commerce, online learning, telehealth and so many other applications were poised for takeoff. Lawmakers crafted the DMCA as a bipartisan bill that struck a careful balance among copyright owners, internet companies and users when it comes to dealing with allegations of online copyright infringement.
Its Section 512 notice and takedown provisions ensured that nascent internet innovators would not be cut off at the starting line by crippling litigation threats. This safe harbor approach allowed them to build the technology infrastructure that then enabled content creators to find new paths and revenue streams for distributing their content digitally.
Section 512 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 system has been working, and the allocation of responsibilities is appropriate. But now the entertainment industry is pushing Congress for changes to the DMCA that would threaten the internet’s future in myriad ways by substantially shifting their online content protection responsibilities to internet infrastructure providers.
Their proposals to amend the safe harbor system would 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.
The hearings convened this year by the U.S. Senate Judiciary Subcommittee on Intellectual Property to review the DMCA and Section 512 have overlooked the complexity of our internet infrastructure.
Congress is narrowly framing this debate as one with just two players — content v. “Big Tech,” without assessing the negative impacts of proposed DMCA changes on the multitudes of smaller infrastructure providers who predominantly make up the internet ecosystem, from cloud providers, to domain registries and registrars, web hosting companies, data centers and various other internet intermediaries.
Many are small businesses strongly tied not only to their local communities but also to the world’s small businesses and entrepreneurs who are driving economic growth and innovation across the globe. Small business internet infrastructure providers need the protections embodied in Section 512 of the Copyright Act to keep serving these global customers effectively and growing their markets.
Prior to the most recent Senate hearing, the U.S. Copyright Office released a long-delayed report on Section 512 that recommends only statutory fine-tuning.
Congress should weigh that advice alongside 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.
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.