Senate IP Subcommittee Hearing on DMCA Exposes Notice-and-Takedown Problems for Artists and Authors

The following post comes from Yumi Oda, an LLM Candidate at Scalia Law and a Research Assistant at CPIP.

By Yumi Oda

On June 2, the Senate Subcommittee on Intellectual Property held a virtual online hearing entitled Is the DMCA’s Notice-and-Takedown System Working in the 21st Century? The hearing focused on the effectiveness of the Section 512 notice-and-takedown system under the Digital Millennium Copyright Act (DMCA). In what he described as “the longest opening statement” he had ever made, Chairman Thom Tillis (R-NC) first acknowledged the pressing issues of police brutality against African American communities and the COVID-19 crisis. He also emphasized the urgency of the hearing’s agenda considering creators’ ever-increasing dependency on the internet ecosystem during the pandemic. Notably, the deep sorrow over racial injustice and pledge of solidarity was shared among and acknowledged by each panelist throughout the hearing.

The panelists included: Don Henley, Musician and Songwriter; Jonathan Berroya, Interim President and CEO of Internet Association; Douglas Preston, President of The Authors Guild; David Hansen, Associate University Librarian and Lead Copyright & Information Policy Officer of Duke University; Abigail Rives, IP Counsel of Engine; Kerry Muzzey, Independent Classical & Film Composer of Kirbyko Music LLC; Meredith Rose, Policy Counsel of Public Knowledge; and Jeff Sedlik, President of Sedlik Photography. These panelists represented content creators and users of all sizes, highlighting the different types of stakeholders who are impacted by Section 512.

Originally seen as a compromise between copyright owners and online service providers (OSPs), Section 512 limits OSPs’ liability for copyright infringement in exchange for their reasonable efforts to police online piracy, including the duty to remove pirated content promptly once notified. However, as the recent Section 512 report by U.S. Copyright Office concluded, the notice-and-takedown system “is not achieving the balance Congress originally intended.” As such, this was the third hearing of a year-long review of the DMCA, which was expected to offer more practical—and potentially more divisive—insight into the notice-and-takedown system as compared to the first two hearings that were more academic in nature.

Senator Tillis stressed the issue of scale, which was highlighted in the first hearing this past February where CPIP’s Sandra Aistars and Mark Schultz both testified. There, Professor Rebecca Tushnet of Harvard Law School argued that small and medium entities typically only receive a small number of takedown notices, and an additional mandate could drive them out of business and increase market concentration. To conclude his opening statement, Senator Tillis maintained that the current system is badly failing both content creators and users, potentially requiring an entirely new system to tackle online piracy. To this end, he noted that he and Senator Patrick Leahy (D-VT) sent a letter to the Copyright Office asking for its input on how to best design an anti-piracy takedown system.

On the first panel, Eagles member Mr. Henley and bestselling author and journalist Mr. Preston spoke on behalf of creators, asking for DMCA reform and advocating for a notice-and-staydown system. Mr. Henley described how he was compelled to testify for the sake of millions of people working in the music industry whose voices are unheard, stating: “I come here out of a sense of duty and obligation to those artists, those creators who paved the road for me and my contemporaries, and for those who will travel this road after us.” He further vowed not to be silenced by what he conceived as a targeted attack by “Big Tech,” referring to a Washington Post op-ed that was published a couple of days before the hearing.

Describing it as “a relic of a MySpace era in a TikTok world,” Mr. Henley testified that the DMCA is outdated, patently unfair for music creators, and has been abused by “Big Tech” for over 20 years. In particular, he blamed large digital platforms for turning a blind eye to online piracy in the hopes of keeping traffic and ad income, hiding behind the Section 512 safe harbor protections, paying license fees well below the market price, and failing to share the fair burden of policing (despite having such capability) at the cost of the creative community. Mr. Henley emphasized the need for equitable compensation to be awarded to creators amid the pandemic because digital platforms will be the only reliable sources of income for music creators for some time.

Mr. Preston echoed Mr. Henley’s frustration over the one-sided system. Remembering the traumatic, sickening feeling of first encountering a book piracy website that listed his whole life’s work, Mr. Preston described how the current notice-and-takedown system leaves many creators in “enraging and disheartening” situations with no solution, analogous to “being mugged every single day.” Especially, Mr. Preston explained how he came to give up on filing notices after seeing the same pirated content promptly and repeatedly resurfacing under a different URL. He noted that rampant piracy has led to a 42% decrease in full-time U.S. authors’ writing income in the last decade, making it almost impossible for anyone to make a living writing books.

In contrast, Mr. Berroya, representing internet companies, and Mr. Hansen, representing research libraries and universities, claimed that the DMCA is working just fine. Mr. Berroya contended that the DMCA works as Congress intended, and the Copyright Office’s Section 512 report was inconsistent with his professional experiences. He alleged that the notice-and-takedown system allows copyright owners (whom he believed should be responsible for policing their own works) to take down their content quickly, incentivizes users’ creation and distribution, and encourages tech companies to develop tools beyond DMCA compliance, resulting in the present “golden age of content creation.” He emphasized that the DMCA merely sets a floor, not a ceiling, leaving potential room for further cooperation between creators and digital platforms.

Similarly, Mr. Hansen argued that Section 512 generally works as designed. To facilitate distribution of educational and research content, he would favor a system where content stays online unless a clear showing of infringement is made. He requested Congress to consider the “unintentional consequences” of revising Section 512, hoping that academia would not be an “afterthought” for them.

Mr. Berroya was in the hot seat most frequently on the first panel. His position supporting the status quo directly contradicted the shared, inherent belief that the DMCA should be revised, drawing questions from Senator Tillis, Ranking Member Christopher Coons (D-DE), and Senator Richard Blumenthal (D-CT). His argument largely and repeatedly relied on the potential for old fashioned dialogue, but some Senators were evidently not convinced in light of the other witnesses’ testimonies.

On the second panel, Mr. Muzzey and Mr. Sedlik represented independent artists making a living by creating and licensing their works. While recognizing the effectiveness of YouTube’s Content ID, to which he said he was “very lucky” to have access, Mr. Muzzey described how the DMCA is like “a tiny David” facing “tech Goliaths.” Specifically, in response to each takedown notice for 110,000 infringing videos located on YouTube, he received a counternotice claiming fair use incorrectly “100% of the time,” at which point he is given 10 days to file a lawsuit or the content is reinstated. This means, for a one-person, small business owner like Mr. Muzzey, the DMCA practically offers “no remedy.”

Mr. Sedlik is another artist who has had to spend countless, unproductive hours submitting takedown notices. He explained the dilemma he constantly faces: He needs to enforce his copyrights to maintain their values, but these lost hours leave him less time to create new works. Noting that the the presence of innumerable takedown notices by no means indicates success, Mr. Sedlik proposed several possible revisions to the DMCA.

On the other side of the table was Ms. Rives in support of startups and Ms. Rose on behalf of Public Knowledge. Ms. Rives contended that Section 512 is generally working well, without which many online platforms would not have existed. Referencing points made by Professor Tushnet, she argued that revising the DMCA, even slightly, would “shift the ground underneath today’s startups.” For example, she contended that imposing a duty to monitor, such as with filtering tools, would be ineffective or too costly for most startups.

Ms. Rose shifted the discussion by listing three situations where the current notice-and-takedown system puts users’ freedom of speech at risk, namely, bad DMCA takedown notices, problematic algorithmic enforcement, and most importantly, the inappropriateness of letting a private third party remove someone’s access to broadband without due process. Siding with the status quo, she warned that “asking for greater power and fewer safeguards is akin to discarding a tank and asking for a nuke.”

At the conclusion of the hearing, Senator Tillis reiterated the need to recognize the scale of infringement, and he promised to seek a path forward that would let copyright owners flag clearly infringing content so that it stays down—but without causing an undue burden on businesses and individual users.