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Copyright could be the next way for Congress to take on Big Tech

The first of 2020’s big copyright hearings started with a nod to Chumbawamba. Senator Thom Tillis (R-NC) had looked up which band topped the charts in 1998, the year Congress passed the Digital Millennium Copyright Act — one of the most influential and controversial laws governing the internet. Then, Tillis paused soberly. “I don’t know if we’re talking a lot about Chumbawamba” these days, he said. And the DMCA itself? “Almost every single thing about the internet has changed over the past 22 years, and the law simply hasn’t kept pace.”

By the end of the year, Tillis — who chairs the Senate’s intellectual property subcommittee — plans to draft changes to the DMCA. He and co-chair Sen. Chris Coons (D-DE) kicked off the process this week with an introductory hearing, speaking to eight legal experts and former congressional staffers. The hearing helped set the stage to re-fight some long-running battles over the balance between protecting copyrighted content and keeping the internet open — but at a time where internet companies are already facing a large-scale backlash.

The 1998 DMCA attempted to outline how copyright should work on the then-nascent internet, where you could almost freely and infinitely copy a piece of media. But it’s been widely criticized by people with very different stances on intellectual property. Supporters of tougher anti-piracy rules, for instance, argue that its “safe harbor” rules don’t motivate websites to keep pirated content offline. Conversely, internet freedom advocates say its takedown system provides a de facto censorship system for the web. And the DMCA’s reach touches far-flung issues like farm equipment repair, which makes it unavoidable even for industries with no piracy problems. This week’s hearing focused on two pieces of the law: Section 512, which spells out platforms’ liability for pirated content, and Section 1201, which limits cracking digital copy protection.

Participants, like University of Akron School of Law professor Mark Schultz, were critical of Section 512 — which protects online service providers (including websites) from liability if users post pirated content, as long as the provider takes down infringing files after being notified of their existence. “Copyright owners are not worried about a particular user uploading a particular infringing file. The problem is the non-stop, widespread copying and uploading of creative works by many users,” complained Schultz. He pushed for a “notice and stay down” system that would make sites responsible for keeping a file offline completely once they were notified that it was posted — an idea that’s been periodically floated over the past several years.

At times, the discussion mirrored a much bigger recent debate over Section 230, the embattled law protecting companies from getting sued over what users post. Some participants dinged internet service providers or companies like Google for allegedly tolerating copyright infringement — characterizing safe harbor rules as a handout for big tech companies. They praised bills like the controversial CASE Act, which would create a small claims court for copyright holders.

Others, however, complained that going heedlessly after big sites would make life harder for small ones, which don’t have the resources for sophisticated anti-piracy tech. “Most service providers don’t need and can’t get expensive filtering technology” that they’d need to implement a “stay-down” system, said Harvard Law School professor Rebecca Tushnet. “If Congress changes the DMCA to target Google and Facebook, or because of rogue overseas sites that already aren’t complying with the DMCA to begin with, it will ensure that only Facebook, Google and pirate sites survive.”

There were fainter hints of another urgent debate brewing: a reevaluation of Section 1201, one of the most sweeping DMCA provisions. Section 1201 ostensibly bans would-be pirates from breaking software copy protection. But it can effectively cover almost any system locking down a computing device, including products like cellphones and tractor parts. The US Copyright Office grants narrow exemptions for these categories, but they must be renewed every three years — a perennial headache for researchers who want to test security vulnerabilities, visually impaired people who want to read books, and many others. “Section 1201 is broken,” Tushnet put it bluntly.

Proposed copyright overhauls have set the internet on fire in the past. In 2012, sites like Google and Reddit went dark to protest the SOPA anti-piracy bill. But by 2020, many sites are busy battling complaints about harassment, child abuse, political radicalization, and other issues. So this year’s hearings will be taking place in a landscape where “internet freedom” isn’t as compelling a rallying cry as it once seemed, and copyright could join everything from sex work to social media bias as a potential reason to place heavier restrictions on the web. But it also offers an opportunity to rewrite some truly broken rules — as long as they’re rewritten to benefit users, not just punish platforms.

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