By Mike Masnick
We’ve criticized Senator Thom Tillis for his patent and copyright reform ideas that seemed to take a strong “maximalist” line in its approach. He’s also taken the Hollywood line on things like the Internet Archive that was troubling. He’s been promising a copyright reform bill for a while, and many thought it wasn’t going to matter much, since polls indicated that he was very, very likely to lose his re-election campaign in North Carolina (even after his opponent’s bizarrely chaste sex scandal made the news). However, Tillis pulled out a surprise victory, and that means that his plan to reform copyright is something worth watching.
Earlier this month, he sent around a a letter to “stakeholders” asking for thoughts on a wide variety of issues related to the DMCA — which actually suggests that he might be open to some good changes, and not just the terribly awful ones we’ve been hearing from Hollywood over the last few years. There are still many horrific ideas in the letter, but the fact that so many broad ideas are in there at least (hopefully?) suggests that Tillis’ office is willing to look at the entire DMCA structure, and not just pasting on another favor to Hollywood (which had been Congress’s traditional approach to copyright law for decades). The letter even states this upfront:
Rather, than tinker around the edges of existing provisions, I believe Congress should reform copyright law’s framework to better encourage the creation of copyrightable works and to protect users and consumers making lawful uses of copyrighted goods and software-enabled products, respectively.
The very fact that it states upfront that the law should protect users and consumers is a surprisingly good start. Many of the questions in the letter could lead to good, bad (or neutral) results depending on how the eventual bill answers the question. One good aspect is that it appears that Tillis is skeptical of DMCA 1201, which is the “anti-circumvention” or “digital locks” provision in the DMCA that says circumventing “technological measures” to lock down content is infringement, even if the circumvention is not done to infringe on anyone’s copyright. This has been a mess in practice, and has resulted in fairly widespread abuse of the law to lockdown products and effectively take away ownership rights from buyers. It’s also been hell on security researchers who risk tremendous liability for just doing their jobs.
1201 has this incredibly messy “triennial review” process by which the Copyright Office and Librarian of Congress decide to “exempt” certain applied for use-cases from 1201’s rules for the next three years. But as we’ve seen time and time again this whole process is very sketchy and can even lead to rights being taken away at a later date. Also, frankly, if your law needs a review with new exemptions every 3 years, that seems to suggest the law is the problem. Tillis’ questions seem to recognize some of the problems with 1201 and the triennial review process:
Section 1201 currently allows for temporary exemptions to be granted from the circumvention prohibition, but those exemptions do not extend to third-party assistance. This means that when the Librarian of Congress grants an exemption for circumvention of technological protection measures (TPMs) over software for a tractor to allow for repair, the tractor owner must perform the software repair themselves. The Copyright Office has recommended amending the statute to grant the Librarian authority to adopt temporary exemptions permitting third-party assistance “at the direction of” an intended user, and this may be the right way to address this problem. Do you agree with the Copyright Office? If so, how should this provision be drafted to avoid unintended consequences, and to what extent is the Unlocking Consumer Choice and Wireless Competition Act a helpful model? If not, please explain why you do not agree and provide specific recommendations as to how you think this problem should be addressed?
The Copyright Office has recommended revising some of the permanent exemptions so that they are better tailored to the types of uses sought today. In particular, the exemptions for security testing and encryption research should be revised to expand the types of activities permitted, ease the requirements to seek authorization from the owner of the relevant system or technology, and eliminate or clarify the multifactor tests for eligibility. What thoughts do you have about revising these existing permanent exemptions, and how would you recommend that be done?
Congress should adopt new permanent exemptions for noninfringing activities that have repeatedly received exemptions in recent triennial rulemakings, or where there is a particularly broad-based need, including to enable blind or visually impaired persons to utilize assistive technologies and to allow diagnosis, repair, or maintenance of a computer program, including to circumvent obsolete access controls. What other temporary exemptions should be made permanent?
There are various ways that the triennial rulemaking process could be streamlined to be more efficient and so that section 1201 better accounts for user concerns. These include establishing presumptive renewal of exemptions adopted in the previous rulemaking cycle, shifting the burden to those who want to oppose an exemption from the previous rulemaking, and authorizing the Librarian, upon recommendation of the Register, to make permanent a temporary exemption that has been renewed twice without opposition and without modification. How ought section 1201 be revised to reflect the stakeholder desire for a less burdensome triennial rulemaking process and consumer interests, and what other means should be adopted to make the rulemaking process more efficient?
It’s good that Tillis recognizes the problems of the triennial review, though I wish that the office was more open to the fact that all of 1201 is outdated and not useful (and open to widespread abuse). Rather than just looking at fixing the triennial review process, it would be even nicer if Tillis was open to just dumping 1201 altogether. He noted in the opening that he’s not interested in tinkering around the edges — but many of these questions indicate that is what’s happening. A real review would question the entire premise of 1201 itself. Is it actually needed? Is it useful? Is it promoting the progress of knowledge? Or is it simply a tool for taking away user rights and harming innovation?
Most of the rest of the questions focus on the more well known parts of the DMCA, Section 512, which is the “notice-and-takedown” part of the DMCA, or the “safe harbor” part. 512 has always been problematic, and there’s a long history of it being abused for massive censorship. I still think there’s a decently strong argument that 512 itself violates the 1st Amendment, in that it uses state pressure to remove 1st Amendment protected content.
Tillis seems to recognize that 512 is outdated, but it’s a very mixed bag in how outdated it is. Some of his suggestions are very much needed, but a few suggest he’s considering making 512 even worse and even more censorial. Again, starting with the positive, the letter recognizes that 512’s classifications of service providers is weird and no longer in-step with reality. Currently it has different rules for conduits, caching services, hosting services, and location tools. But in many 512 cases, it’s not always clear which category sites fit into, and it’s not always clear how the different rules apply to different types of services. Clarification on that would certainly be useful — though, again, what that clarification looks like will matter a lot.
OSPs eligible for the safe harbor under section 512 are divided into four categories (conduits, caching services, hosting services, and web location tools) that can be both under-inclusive and over-inclusive. First, what types of OSPs should be covered to account for technological advances and business practice changes that have occurred during the past twenty-two years? Second, how should the categories be revised to better cover the types of OSPs that need—rather than just appreciate—the safe harbor’s benefit? Among the possibilities would be to either increase the number of statutory categories to more explicitly cover specific types of service providers or to reduce the number of statutory categories, possibly to only one, and delegate authority to the Copyright Office to identify, by regulation, the covered types of service providers. If Congress were to take the latter approach, would this raise concerns about such authority being delegated to a non-presidentially-appointed Register?
Of course, neither suggested approach seems likely to be that useful. Simply increasing the categories is going to lead to the same problem down the road (and could impact future innovations as companies “choose” which category to go into). And having the Copyright Office pick and choose would also be a disaster (and arguably unconstitutional). A better approach would be to go in the other direction, and stop trying to fully distinguish types of services but to focus on types of uses. Indeed, the best fix to the 512 safe harbors is actually to align it with Section 230’s immunities. That is, rather than put in place a series of specific conditions you have to meet to “earn” the protections (which has been a mess in practice), just set up an immunity that makes it clear that service providers are not liable for the actions of their users. Simplify the situation and let innovation bloom.
Another potentially good thing in the questions is that Tillis recognizes the counternotice situation for many users is not good, and is leading to non-infringing works that are being taken down remaining down because users do not wish to poke the bear. A counternotice under existing law is effectively daring the copyright holder to sue. And even if you believe strongly that your use is non-infringing, going through a federal lawsuit to prove that would bankrupt many people. That’s correct, though Tillis’ proposed solution of a “small claims” court creates many other problems that we’ve discussed in the past. There needs to be a better way, but the small claims proposals we’ve seen to date will lead to more trolling.
The questions also recognize problems in automated takedowns, and potential privacy issues with notice-and-counternotice situations (in which abusive individuals file bogus notices in order to try to dox someone by receiving their counternotice, including contact info). Again, it’s good to recognize these problems, even if the suggested solutions leave much to be desired.
It is clear from the record established across my hearings that one major shortcoming of section 512 is that users who have had their content removed may decide to not file a counter-notice because they fear subjecting themselves to federal litigation if the copyright owner objects to the putback. At the same time, the requirement that a copyright owner pursue federal litigation to keep a user from having content put back up following a counter-notice is a heavy burden. Congress might consider improving dispute resolution by directing disputes between notice and counter-notice filers to a small claims court rather than federal court. What is the best way to accomplish this? Would the copyright small claims court as envisioned by the CASE Act be the proper forum? If not, how should such a tribunal be designed? Related, what should be the time period for putbacks? There is broad agreement that the current 10-14 day window works poorly for both copyright owners and users. How would you amend this?
More generally, the notice- and counter-notice sending process have many shortcomings. These could be improved by clarifying when automation is appropriate and that OSPs cannot erect requirements beyond those in section 512(c)(3); by authorizing the Copyright Office to develop standardized web forms for notices and counter-notices and to set regulations for the communications that OSPs must deliver to a user when their content is taken down or had access disabled (including offering information about the fair use doctrine as codified in section 107 and as illustrated in the Copyright Office’s Fair Use Index); and by increasing privacy protections for notice and counter-notice senders by masking certain personally identifiable information, including address and phone number. How could this best be done? Please provide specific provisions for accomplishing these
Tillis also seems to recognize that one of the big problems of copyright law has long been the fact that it was designed in an era when the only real infringement and copying was done for commercial reasons, and that we’ve moved to an era when we all have super powerful copying machines in front of us (and in our pockets) all the time — and that every single person with a computing device likely incidentally infringes thousands of times per day, based on a strict reading of the law. There’s also the fact that copyright law treats a website run by a single user the same as a giant company like Google or Facebook. Tillis’ suggested approach to dealing with this is to classify service providers by different markets or sizes:
The record established in my DMCA reform hearings indicated that an overarching principle of any reform should be making digital copyright less one-size-fits-all. The law needs to account for the fact that small copyright owners and small online services providers (OSPs) may have more in common with each other than they do with big copyright owners and big OSPs, respectively. Accordingly, I think we should consider whether copyright law should be revised to account for such differences among stakeholders. In particular, could copyright law borrow from employment law, or other relevant fields, to establish different thresholds for copyright owners and OSPs of different size, market share, or other relevant metric? If so, what is the best way to accomplish this? Is there a particular area of law, or existing section of the U.S. Code, that provides crucial guidance? As with all questions where it is relevant, please include in your response specific recommended legislative
Similar to the other questions mentioned, he’s actually looking at the right issue, but approaching it with the wrong solution. This approach is almost certain to lead to weird incentives, potential regulatory capture to design specific rules, and a significant amount of gaming, as companies employ copyright lawyers to figure out how to stretch and twist around the rules’ definitions to comply with the law as a technicality, but not in spirit. We’ve seen enough of that, and it leads to wacky scenarios like Aereo, in which a technically insane setup is put in place in the belief that it has to be built that way to comply with copyright law (even if the Supreme Court then stepped in with its weird “looks like a duck” precedent that made a mess of things).
Again, rather than trying to just craft a bunch of specific rules that will be gamed, shouldn’t the focus be on setting an appropriate rules that actually makes sense across the board?
Where the Tillis questions get much more problematic is the suggestion that we should import some very dangerous, censorial and likely unconstitutional ideas like “notice-and-staydown” and full site blocking.
Section 512 places the burden on copyright owners to identify infringing materials and affirmatively ask the OSP to remove the material or disable access to it. This burden appears to strike the correct balance, but the burden that the notice-and-takedown system itself places on copyright owners is too heavy; the system is also woefully inefficient for both copyright owners and service providers. I believe U.S. copyright law should move towards some type of a notice-and-staydown system—in other words, once a copyright owner notifies a service provider that a use of a copyrighted work is infringing, the service provider must, without further prompting, remove subsequent infringing uses absent a statement from the user (whether the copyright owner or not) that they believe the use is licensed or otherwise authorized by law (e.g., fair use). What are your thoughts on such a system, and how could it best be implemented?
The injunctions available under section 512(j) have been narrowly interpreted by courts and thus little-used by copyright owners. Is it worthwhile for Congress to consider revising this provision to make injunctions more readily available for website-blocking in special circumstances (with an eye toward article 8(3) of the Information Society Directive)? Such injunctions could be issued by a special tribunal and appealed to federal district court, or, out of concern for user protections, the law could require that injunction orders come from the district court alone. If warranted, what would be the best way to enact limited website-blocking via such injunctions? Again, please provide suggested legislative text. If you do not think the law should be amended to expand the availability of injunctions, please be specific about any ways you think section 512(j) could be improved.
Yikes on both of these. Notice-and-staydown is a horrifically bad idea. We’re already dealing with a situation in which the notice-and-takedown process is regularly and consistently filed for non-infringing reasons, with an effort to suppress or silence speech. Notice-and-staydown would make that problem much worse.
Furthermore, notice-and-staydown ignores the fact that it’s not the content that is infringing, but the use. That is, the very same content may be infringing in some use cases, but not in others. The very same content could be fair use in certain contexts, but not in others. Notice-and-staydown ignores that.
Site blocking has massive 1st Amendment implications as well. Taking down an entire site because of some infringing material would violate the general principle as set by the Supreme Court that any regulation impacting speech must be narrowly tailored to only impact speech that is not protected by the 1st Amendment. Full site blocking does not do that.
There are other big reform ideas that seem to be missing entirely. A full (non-tinkering on the edges) reform bill should look at issues like false takedowns, copyright terms, digital 1st sale rights, and statutory damages. But those don’t appear to be mentioned. There is one question that touches on the fact that a ton of takedown notices are bogus, but only loosely:
At the same time that Congress should revise section 512 to ensure that infringing material stays down once identified, it should also discourage the over-sending of notices as a counter-balance to the more significant action that an OSP must take after receiving a notice. This could be done, for example, by heightening the requirements for accuracy in notice sending, possibly with stricter requirements and heavier penalties. As noted above, the standard may be more lenient for small entities and individuals. How might the requirements be heightened in a meaningful way while not unduly burdening copyright owners trying to protect their work against infringement?
It seems odd that they don’t even name the totally toothless 512(f) in this section, even though other questions focus on specific parts of the law. The idea that stronger penalties for false notices would “unduly burden copyright holders” is kind of laughable when you look at the current “balance” in copyright law, in which purely incidental infringement of a single thing could bankrupt most Americans.
In the end, while there are a bunch of bad ideas presented in the questions, I’m still somewhat pleasantly surprised that many of the questions raised indicate an awareness of the actual problems in current copyright law. That’s better than we’ve seen in the past. That said, most of the proposed “solutions” will not help and may make things worse.
That is why it’s important for people to weigh in with thoughtful ideas on how to actually fix copyright law. That said, there’s an insanely short time frame for this. The letter asks for any comments to be sent in by December 1st (next week!) and says that Tillis intends to release a draft bill by December 18th. That seems like an astoundingly short time frame (1) for people to organize and submit their ideas and (2) for Tillis’ staff to incorporate them into legislative text.
There’s still a very strong chance that the bill that Tillis proposes will be a dangerous disaster towards free speech and innovation online. Certainly, some of the questions strongly hint at that. However, the very fact that the questions also indicate at least some legitimate recognition of the problems of today’s copyright law is nice to see. Hopefully, Tillis and his staff recognize that the answers to these problems is not to make copyright law even more draconian, but to recognize that there are better solutions.