Senator Tillis Releases Massive Unconstitutional Plan To Reshape The Internet In Hollywood's Image

from the bad-ideas dept

Yesterday, Senator Thom Tillis helped ram through a gift for Hollywood: getting the felony streaming copyright bill that he’d only released a week earlier included in the must-pass omnibus funding bill despite literally no discussion or debate about the problems with the bill.

This morning, he really doubled down. As announced last month, Tillis has now released a draft of his DMCA overhaul, which appears to be exactly what he had hinted at last month — meaning he appears to have ignored the advice and suggestions of many of us who warned Tillis of the dangers of simply buying into Hollywood’s vision of copyright reform. I wonder why he would do such a thing?

Of course, it also makes you wonder why he had to hide the felony streaming bill in yesterday’s must pass omnibus. Since he was going to be working on a big copyright reform bill, why not put it in there in order to have an actual debate and discussion about it?

Anyway, Tillis notes that this current version is just a discussion draft and he’ll release the actual bill next year once the new term begins. He’s asking people for their edits. In fact, he (somewhat hilariously) asks YouTubers to send in their own redlines and, well, careful what you ask for:

Senator Tillis is inviting all interested stakeholders – large and small, individuals and companies, YouTubers, and independent creators – to submit redline edits and comments to this discussion draft by close of business on March 5th. Comments should be submitted to Intellectual_Property@tillis.senate.gov.

There is going to be plenty to discuss about this bill. It’s 53 pages long. Tillis has put out a summary document of what’s in it as well, though I’d argue some of it is misleading. There are certainly a few tiny things in here that would improve the DMCA in very minimal ways. This is so Tillis can say it’s a “compromise” bill that “upsets everyone.” But that’s garbage. Most of this bill is a huge gift to Hollywood.

For this post I’m going to focus in on the most problematic idea in the bill: the notice-and-staydown provision. We’ll discuss other problems at a later date. The notice-and-staydown provision has many, many problems. To be fair, Tillis tried to make the notice-and-staydown slightly less problematic by saying it only applies to “complete or near complete cop[ies] of a copyrighted work already identified in a notification of claimed infringement or list of unauthorized works….” It’s the complete or near complete part that he thinks makes this less bad. He’s wrong. First of all, he undermines this immediately in the next section by also saying that the notice-and-staydown applies to “any portion of a copyrighted work already identified in a notification of claimed infringement… if the service provider derives its commercial value predominantly from short-form media.” So it’s not just complete, or nearly complete works.

It’s difficult to see how a notice-and-staydown regime is even remotely Constitutional. It’s basically prior restraint, telling companies that they cannot host certain speech. That’s quintessential prior restraint — especially since other uses may not be infringing.

The basic problem is this: contrary to what Hollywood would like you to believe, content is not infringing. It’s the specific use that may be infringing. But notice-and-staydown acts as if it’s the content itself that must be infringing. But that’s not how you determine whether or not something is infringing. You have to look at how it’s used. And notice-and-staydown totally ignores that and assumes that there are no uses that are permitted. That’s wrong. And Tillis’ “complete or near complete copy” language doesn’t fix that either, because courts have said multiple times that a full copy can be fair use even when used in a commercial way.

But a notice-and-staydown provision would ignore that.

Also, for many works such as photographs, memes, etc, most fair uses will involve using the entire work. But the notice-and-staydown ignores all of this.

As we saw in the EU context, this is a recipe for censorship filters. And censorship filters have follow-on effects as well. Beyond the 1st Amendment concerns, they would basically destroy small companies that cannot afford to put in place such filters. YouTube has spent over $100 million to build ContentID and it still sucks. Yet under Tillis’ bill, everyone would need to buy or build their own contentID to avoid running afoul of the notice-and-staydown provisions. This would lock in internet giants and destroy the ability for smaller websites to host any 3rd party content at all.

Even the Copyright Office, in its terrible and one-sided review of the DMCA recommended against notice-and-staydown. So what possible reason does Tillis have for putting it in this bill?

Tillis claims that he’s open to hearing concerns on this bill — and I hope that’s true. There are many, many problematic aspects to the bill, and notice-and-staydown is a massively dangerous and unconstitutional idea. The fact that Tillis thought it was worth including even in the discussion draft does not bode well for how this process is going to go.

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Comments on “Senator Tillis Releases Massive Unconstitutional Plan To Reshape The Internet In Hollywood's Image”

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56 Comments
Anonymous Coward says:

Re: Typical of Congress…

I thought the plan was bully them into submission to moderate in ways that would be legal by their discretion but unconstitutional to try to pass directly. They want gatekeepers over the system again as they would be easier to control than masses.

That also has a heavy resemblance to why guilds were used in medieval times to administer taxation and other regulations (trying to police them all on their own would be prohibitively difficult but having a centralized figure to deal with in exchange for enforcing their monopoly they can control).

This comment has been deemed insightful by the community.
Stephen T. Stone (profile) says:

It’s difficult to see how a notice-and-staydown regime is even remotely Constitutional.

You would think so, but that provision of the DMCA has remained intact since its inception. And to my knowledge, not even big companies like Google, never mind individual people, have given it a proper legal challenge.

Notice-and-staydown absolutely is a government-enforced prior restraint scheme. That is a fact. The real question is whether anyone with the power to change that fact cares enough about it to change it. Given how often Hollywood comes to Capitol Hill with new demands for copyright enforcement (alongside brib—I mean, election fund contributions), I doubt any lawmaker cares. And given the technological ignorance of our lawmakers in general, I have to doubt that any of them even know about the existence of the system.

That One Guy (profile) says:

Re: Re:

Too obvious, if you try to outlaw competition like that outright then it’s likely to draw too much attention and pushback, whereas if you just keep chipping away at it by passing laws making it harder and harder to continue operations such that eventually the only platforms that even have a chance of survival are the major ones then it’s much easier to slip through as those same platforms will allow it because in the short term it’s great for them by gutting their competition.

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That One Guy (profile) says:

Technically true, the best kind of true

Tillis claims that he’s open to hearing concerns on this bill — and I hope that’s true.

I’m sure it is, but there’s a huge difference between hearing concerns and listening to them. I can hear lots of stuff but I only bother to pay attention to things that I believe are important, and at this point I have zero doubt that he’s operating the same way where he’s welcoming people to send in their comments and concerns but will only actually pay any attention to the ones that match what he’s already decided on.

Now this is not to say that people shouldn’t make clear their objections to his attempt to screw over creators, as it’s still worthwhile to create a visible record of objections so if/when he tries to claim that his bill has support from non-parasites it will be clear he’s lying through his teeth, just don’t expect him to actually care should you send in comments about how wrong he is.

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Recreation room by Boyden Mann-Cave says:

Deefeecult for YOU, EEEZY for ME.

It’s difficult to see how a notice-and-staydown regime is even remotely Constitutional.

Content creators are not required to play whack-a-mole indefinitely. Obviously it’s THE SAME content, therefore must be suppressed even if a different URL! — Or do you think URLs somehow over-ride the Right stated in body of Constitution? — Just another area that wasn’t nailed down, because honest people can’t predict how inventive and sneaky criminals are. They’re truly like RATS / addicts, with content their drug / food.

It’s basically prior restraint, telling companies that they cannot host certain speech.

It’s restraint AFTER. You seem to think that stealing content isn’t an offense EACH time.

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Recreation room by Boyden Mann-Cave says:

Re: Deefeecult for YOU, EEEZY for ME.

Content creators are not required to play whack-a-mole indefinitely.

Which I meant to go on with: And we’ve seen over 40 years since video-tapes how you pirates intend to cheat / connive / deny / dodge and NEVER pay a cent to the creators.

Your notions have been tested, Maz, since Napster, and thoroughly defeated. But like a zombie, you stagger on, growling, hungry, trying to eat the living, the creators. — BTW: I ought to look up your "doctoral", if can get it, ’cause bet that you used Napster or some similar "free" notion, and you’re clinging to it despite all court decisions against.

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Stephen T. Stone (profile) says:

Re:

It is prior restraint if people use (or abuse) the law to prevent certain kinds of speech from being published/shared. That can include, and has included, media criticism that would not otherwise exist without Fair Use.

The government designed the DMCA takedown process so that people filing takedown notices didn’t have to care about Fair Use. Now that more people know what Fair Use is, they’re seeing the DMCA takedown process (and modern copyright in general) for what it is: a load of bullshit.

YouTubers like Red Letter Media, CinemaSins, CinemaWins, MovieBob, Hbomberguy, Stop Skeletons From Fighting, Lindsay Ellis, and a host of others who criticize media of all kinds — from movies to books to games — could not exist without Fair Use. You can debate the value of what they offer to the world all you want; you can’t present any reasonable argument for why they shouldn’t have the right to offer their criticism with proper context (i.e., alongside excerpts of the work they’re criticising) that doesn’t sound like the kind of ass-kissing corporatism you love to decry.

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Rocky says:

Re: Troll hate content creators

So what about the content creators that get DMCA’d for content they own? In your twisted world they don’t matter apparently.

You keep harping about how content creators are doomed by piracy, while you at the same time support government censorship of content creators perpetrated by big corporations (even though you say corporations doesn’t really have any rights).

Well, I doubt you have the mental capacity to present a cogent and well-reasoned argument – you haven’t managed to do it the last 10 years of shit-posting here.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Deefeecult for YOU, EEEZY for ME.

Tell how some can review a film, discuss what make a song great etc. without quoting bits or said film or song. Content filters routinely block such snippets, which means that they block fair use. How can someone discuss Trumps policies without quoting what he said; and bring this up as he is the sort of person who would abuse a law like this to stifle any criticism.

Anonymous Coward says:

Lets take a video clip from a movie, this law seems to ignore the context determines is it legal or not,
is it fair use, is it parody, educational or part of a review of a film or tv show .
we already see with youtube and dmca it usually ignores whether a video
is fair use or not, if it gets a claim from 1 or more ip holders.
and the same clip or audio can be used in an ad or tv show or a film.
Most small websites or startups will not be able to build a filter with every
film,tv show, or song listed in it.
we will never see the next new service like twitch come into being .

no one thought in the 90s people would pay to watch people paly video games .
hollywood does not want to deal with a 1000 startups ,
it would like to reduce the no of websites that c an even stream
small audio and video clips

Anonymous Coward says:

Re: Re:

this law seems to ignore the context determines is it legal or not,
is it fair use, is it parody, educational or part of a review of a film or tv show .
we already see with youtube and dmca it usually ignores whether a video
is fair use or not, if it gets a claim from 1 or more ip holders.

I was just reading the EFF’s analysis of the ContentID system the other day, and came across this nice summary of the problem:

…courts have interpreted Section 512(f) to effectively require subjective knowledge that the takedown is improper. In Lenz v Universal, the Ninth Circuit correctly held that the DMCA requires a rightsholder to consider whether the uses she targets in a DMCA notice are actually lawful under the fair use doctrine. However, the appeals court also held that a rightsholder’s determination on that question passes muster as long as she subjectively believes it to be true.

This leads to a virtually incoherent result: a rightsholder must consider fair use, but has no incentive to actually learn what such a consideration should entail. After all, if she doesn’t know what the fair use factors are, she can’t be held liable for not applying them thoughtfully.

Qualified Immunity for rightsholders when it comes to considering fair use, basically.

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Anonymous Coward says:

Re: Re: Where's the flip side?

Wait until they start to claim that the piracy on YouTube means that it is the primary source of YouTube’s income. The legacy Industry will not go on the actual percentage of infringing material on a site, but rather on their grossly over inflated valuation of their content, and will claim that one infringing video bring more income to YouTube than 10,000 non infringing videos.

That One Guy (profile) says:

Re: Where's the flip side?

Oh the penalties for abuse(or use as intended depending on who you are) of copyright law are extensively listed in an arcane tome that’s alternatively held by the leprechauns of mars and Venusian unicorns depending on various astrological signs and who last called dibs, however sadly they’ve been hogging that tome since the dawn of time and therefore judges have no choice but to act as though there are no penalties whatsoever despite them being listed very clearly in the book.

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Châu says:

This time have e mail address

Now I can send this person list for REAL reform:

Throw away that bill and do this instead:
• Reduce copyright length become 14 years maximum from time register work. No influence if person or company. No copyright for life. Prevent lazy people and company and short enough allow fans of work live long enough for create and expand work they admire.
• If never publish work, after 14 years create work, is automatic public domain
• Require renew every 2 years (one month window). Fail renew is automatic public domain. Fee start at 100$ then increase 3x each time after (100$, 300$, 900$, etc). This solve orphan work problem.
• EVERYTHING create from ANY government in EVERY country is automatic public domain (all government document, law, website, logo, flag, money design, etc). Use government logo have different law control how people this.
• EVERYTHING create by artificial intelligence is automatic public domain
• EVERYTHING create by not human is automatic public domain (monkey and other animals photograph stuff)
• EVERYTHING create by tax money in EVERY country is automatic public domain (everything PBS, BBC, etc)
• EVERYTHING create by crowd fund is automatic public domain
• Too many bad lawsuit about one work is automatic public domain, judge can revoke copyright monopoly
• photographer ALWAYS share copyright with people they photo, photographer can’t use contract law avoid this. People can always have right use their image any way they want
• Require registration if want copyright, opt-in (like Copyright Act Of 1909).
• Require copyright notice (like Copyright Act Of 1909).
• Require copyright registration number and year in copyright notice. This help find copyright controller
• Must register work before publish work if want copyright (opt in) (like Copyright Act Of 1909).
• Foreigner must register in US (and pay fee) if want copyright in US
• If creator destroy their work (example BBC and Doctor Who) is automatic public domain
• Copyright infringement is less than steal real copy, fine is less than steal physical version. Example: fine for download 1 song less than steal object have 1/10 price of CD ≈ 1$
• All digital lock and DRM is illegal. This cause problem save culture in future
• Government can revoke ANY copyright for public interest and national security
• Any collection of public domain work is still public domain
• No copyright for list or basic work, must show minimum level creativity and expression
• No criminal copyright law, all is civil law
• EULA can’t control what people do outside copyright law
• No moral right, this is against freedom and First Amendment of US constitution.
• Can’t use copyright law for stop people fix things, function with other equipment, etc.

PaulT (profile) says:

Re: Re: This time have e mail address

"Not a big fan of everything in there like automatic public domain even if you don’t publish"

It is problematic, but I suppose the idea here would be that if copyright is granted automatically when a work is created, published or not, then expiry of that copyright should be automatic as well.

I’m personally a fan of the idea that copyright exists for a limited length of time then the author has the option to renew the copyright if they desire (subject to certain restrictions, such as it has to be the original copyright owner, who is still alive at the time of renewal, and not some nebulous corporate entity)

"those in a picture having equal ownership rights as the photographer"

This is another one of those things that’s problematic, as there’s many good cases to be made on both sides. On the one hand, every photographer knows that a lot of people don’t value their work and complain that they have to pay him for copies of their wedding photos, etc., while that’s what he depends on to make a living. On the other hand, there’s a lot of people whose image has been used in ways they would not approve of, and have had no say in the way they have been used to profit others. It’s another tricky subject that requires some real discussion.

fiat.currency says:

Re: This time have e mail address

There are many documents that would be fraught with difficulty if they could be produced indiscriminately, e.g. banknotes, land title deed, credit or ID cards…

How do you reconcile this with e.g. Government dot-point item?

EVERYTHING create from ANY government in EVERY
country is automatic public domain (all government document,
law, website, logo, flag, money design, etc). Use government
logo have different law control how people this.

TheDumberHalf says:

Re: This time have e mail address

I love the idea of paying a yearly fee to keep copyright. First 15 years is free. Every year after that must be paid at x^year. So if x = $2.10, On year:
16 it would cost 143,057
20 it would cost 2.8 million
25 it would cost 113.6 million
30 it would cost 4.6 billion
35 it would cost 189.5 billion
40 it would cost 17.7 trillion!

How much is that IP worth to you? Think of the tax revenue.generated by greed!

Anonymous Coward says:

His Felpny Streaming Bill might not happen, becuase there are other things Trump wants in t he Covid relief bill where he might veto it.

What will the next felony streaming bill look like, if Trump vetoes the aid bil?

Tillis got the bill right when he specifically limited it to only those to distribute content and for some kind of financial gain. He is smart enough not to crminalise nearly the entire US population, unlike the bill the ended up in SOPA

If the Felony Streaming Bill goes down because Trump does not like another part of the bill, what will the bill look like in the next Congress

Scary times could lie ahead.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Ya know, the biggest problem with the DMCA is actually that there’s no downside to filing a bogus notice. Theoretically you can be charged with perjury, but it’s not gonna happen. So how about these reforms:

  1. Every notice must include a certification from a named human being who has personally reviewed the entirety of the alleged infringing material whose takedown is requested. Filing a false certification is a 10-year felony, separate from perjury or whatever.

  2. Every notice must include statutorily defined details of the specific ways in which the "noticed" material infringes copyright, including identifying with specificity the particular parts of the "noticed" material which are alleged to infringe, and the specific elements of the original work which are alleged to be infringed against.

  3. For each notice filed against material which is noninfringing, the entity filing the notice and the certifying person are each liable for $250,000 in damages to each of the notice recipient and the person or persons posting the material.

    This is strict liability; intent and diligence do not matter, only the question of whether your notice attempted to take down something that was not in fact infringing. Entities may not indemnify their certifiers against personal liability for such damages.

  4. Three strikes rule:

    1. Any entity that has filed a total of three or more DMCA notices against noninfringing material, on any combination of platforms, is, from the date of the filing of the third such notice and for 10 years after the date of the last such notice, a "disqualified entity".

    2. Any person who has created or been principally responsible for filing three such notices, on behalf of any combination of entities including in that person’s own personal capacity, is forever thereafter a "disqualified person".

    3. Any notice filed by or on behalf of a disqualified entity, or which is created or filed with the material participation of or under the supervision of a disqualified person, is a "disqualified notice".

    4. The following apply to all disqualified notices, regardless of whether those notices would otherwise be valid:

      1. A disqualified notice may be ignored by any recipient, as though no DMCA notice had been filed.

      2. Any entity which files, attempts to file, or permits to be filed on its behalf, any disqualified notice, is liable for $250,000 damages to each of the recipient and the affected poster. This does not apply if the notice has been filed in spite of the entity’s due diligence to prevent the filing of such notices, such due diligence to include making continuing positive and specific inquiries to determine whether it is a disqualified entity and whether any person participating in the filing of its notices is a disqualified person.

      3. Any person who, knowing or having reason to know that he or she is a disqualified person, participates directly in the filing or attempted filing of any DMCA notice on behalf of any entity including in his or her personal capacity, is personally liable for $250,000 damages to each of the recipient and the affected poster. No entity may indemnify any employee or agent acting on its behalf from such personal liability.

      4. Any person who files a disqualified notice, or aids in doing so, knowing or having specific reason to know that the notice is a disqualified notice, commits a 10 year felony.
Anonymous Coward says:

Re: Re:

Those are reasonable and sensible suggestions that would undeniably add long-overdue balance to the DMCA and the Felony Streaming Bill.

Which is why none of the people who want this new bill would agree to it. When the last IP bill was suggested, they balked at having to explicitly state their claim under penalty of perjury.

I’d bet our local pro-copyright people would object, because why should they agree to a fair playing field?

That One Guy (profile) says:

Re: Re:

I agree with the idea of punishing those that file bogus DMCA claims but the penalties discussed might be a little overboard, as while that’d certainly get the attention of a large company a single penalty should not be enough to flat out bankrupt a lone creator who botched or was a little DMCA happy, something that a quarter-million fine most certainly would.

An an alternative I’d suggest something that I brought up recently, making the penalties for filing bogus DMCA claims equivalent to those that accused infringers pay, so it would currently top out at $150,000, an amount which might not be much to a large company however paired with your ‘sending a disqualified notice is a felony’ idea and one I’ve floated before being that after a certain amount of bogus DMCA claims the work in question is irrevocably placed into the public domain would probably ‘encourage’ even them to be careful in what they claim.

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