from the notice-this,-but-don't-take-it-down dept
Somehow I missed this (and I’m surprised it didn’t get much attention) but last month was the 25th anniversary of the Digital Millennium Copyright Act (DMCA) being signed into law. I only spotted it because The Register just had an article looking back at 25 years of the DMCA.
Given how central to various internet debates the DMCA was for the first decade of the 2000s, it’s kind of amazing how little attention it has received over the past few years, as more and more attention has shifted away from the DMCA and towards other aspects of internet policy, from Section 230 of the CDA to new attempts to regulate the internet like KOSA or the Earn It Act.
But, the DMCA is still a really important law, and its history is important as well. While many people know that the DMCA was passed to get the US in compliance with the 1996 World Intellectual Property Act, the reality is more nefarious and problematic. Bruce Lehman, the Assistant Secretary of Commerce and USPTO boss under President Bill Clinton, effectively created the concept of the DMCA in the early 90s, and was unable to get Congress to pass it.
As he (somewhat gleefully) admitted at a conference 10 years ago (on the 15th anniversary), he deliberately then went to Geneva to engineer the WIPO Copyright Treaty to force the US Congress to endorse his DMCA concept. This sort of policy laundering through international treaties has become important, especially on the copyright front, even as it raises serious questions about sovereignty.
In the early 2000s, the internet freedom crowd universally hated the idea of the DMCA and called for it to be revoked. However, as time has gone by, it’s become clear that while the DMCA is mostly problematic, there are a few elements that have been helpful to the internet (hint: they’re the parts that the legacy copyright industry is still trying desperately to change).
512 is the part that probably is most well known and gets talked about most often. It’s the part with the “safe harbors” that say that if you host user generated content and have a registered DMCA agent with the Copyright Office, if a copyright holder finds an infringing work on your platform, they can send a takedown notice to get it taken down, and if you then take it down (the uploader can counternotice), then you can’t be held liable for the alleged infringement.
This setup has a few pros, but many cons. On the plus side, it made it safe for websites to allow people to post all kinds of content without (much) fear of a copyright lawsuit. To some extent, it helped make it possible for social media and other user-generated content sites to exist. On the minus side, though, it basically became a tool for mass censorship. Because it was basically the only law around that was structured in a way that put tremendous pressure on websites to remove content upon merely a notice, the DMCA takedown process has been regularly abused to remove (or attempt to remove) all kinds of non-infringing content.
I still think that the DMCA’s notice-and-takedown provisions create a huge 1st Amendment problem, in that they put tremendous government pressure on websites to remove content based entirely on the say-so of whoever wants the content removed, and not based on an official adjudication by a court as to whether or not something is actually infringing. In practice that has meant a ton of overblocking.
For what it’s worth, the boundaries of 512’s safe harbors were also somewhat unclear, which has resulted in a bunch of litigation about just how much it actually protects, including the famous case filed by Viacom against YouTube, which YouTube eventually won (though, hilariously, at one point Viacom was forced to admit that about 100 of the videos it was suing over, it had uploaded itself). That case helped to establish that the 512 safe harbors really did protect sites like YouTube.
Of course, in the years since, the copyright industry has continued to sue, and they continue to act like the DMCA actually requires universal licensing, even though it literally does not.
It still seems that it would have been much clearer, smarter, better, and more in-line with the 1st Amendment, if we didn’t have a separate DMCA safe harbor (which requires sites to meet certain conditions, and abide by takedown demands to retain the safe harbor), and just included copyright law under Section 230 of the Communications Decency Act. Section 230 currently exempts intellectual property law, which is why the copyright claims fall under the DMCA safe harbors, rather than 230’s broad immunity. But if copyright claims were covered by 230, it would be much clearer that websites are protected.
So, to a large extent, 512 has been problematic, in that it has enabled the vast suppression of protected speech, and has also resulted in a ton of lawsuits over its boundaries. But, for the most part, the lawsuits have been decided in ways that protect the internet and speech. And, getting rid of 512 would probably make things much worse (unless Section 230 was changed to cover copyright, which seems unlikely to happen). On top of that, most proposed changes to 512 would inevitably make it much, much worse.
Then there’s Section 1201. That’s the anti-circumvention part of the DMCA, and seems to be almost entirely evil. This is the DRM part of the law, that basically said doing anything related to getting around “technical protection measures,” was itself copyright infringement, even if the reason you were getting around the “TPM” had nothing whatsoever to do with copyright infringement.
This has resulted in all sorts of nonsense, and serves no real purpose other than to enable companies to abuse the law to enable lock-in and remove consumer rights. The weak triennial review process, by which the Librarian of Congress agrees to exempts certain technologies from 1201 has gotten better over time, but has not fixed the fundamental problems of 1201, which is inherently a law that says you can’t modify products you actually own.
I still think that on the whole, the DMCA has been mostly negative, but the safe harbors have at least served to make at least parts of the internet good, enabling many of the online services we all enjoy today to exist (even if the lawsuits killed a few companies along the way). I also think that any attempt to open it up today would almost certainly result in something way, way, way worse.
However, I do wish that as more and more lawmakers (not just in the US, but around the world), keep moving towards DMCA-like approaches to other kinds of content, that they would actually take a look at just how disastrous the notice-and-takedown provisions of the DMCA have been for protected speech, and how widely abused they are to take down valuable, protected speech.