Free Expression, Open Internet
CDT Responds to Senator Tillis’ DMCA Reform Questions
Section 512 of the DMCA allows online service providers to create the platforms and services that users rely on to access information and creative content, communicate with one another, and create and share their own original works. The flexibility of section 512 has fostered continued evolution and refinement in the mechanisms used to address online infringement without sacrificing the values of free expression and innovation that Congress sought to protect in enacting the DMCA.
No constituency is entirely content with every aspect of the DMCA’s safe harbors or notice and takedown process. Lawful content has been removed from online services due to mistaken or abusive notices, infringing content has reappeared notwithstanding the issuance of complete and valid takedown notices, and service providers have been subject to significant liability risk despite efforts at good-faith compliance with the DMCA’s requirements. However, the DMCA has been successful in balancing the competing interests of rightsholders, service providers, and users as the Internet and World Wide Web have evolved from curious adjuncts to proprietary content and services into immensely powerful tools for commerce, civic engagement, and free expression. This success could not have been achieved – and it could not be maintained – had Congress not expressly rejected imposing a duty on intermediaries to monitor and police the activity of their users.
As the Internet has grown, so has the number of takedown requests. While the increase in notices and takedowns heightens the burden for both rightsholders and service providers to combat infringement, it also reflects the degree to which section 512 has succeeded in accomplishing Congress’ goals of promoting economic growth, innovation, and creativity on the Internet. The Internet today is a much larger “network of networks” than it was in 1998. The increased volume of infringing activity deserves continued attention, but is more than offset by the Internet’s expanding potential as a powerful tool for distributing and accessing creative works, allowing creators and rightsholders unprecedented opportunities to share and monetize their works while giving consumers increasingly diverse choices of how, when, and what content they access. In short, section 512 has helped to grow the economic and cultural “pie” for both creators and consumers of electronically distributed creative works.
There is no reason why the growth of these mutual benefits should not continue. However, the continued insistence by some that online providers should undertake a duty to monitor for infringing material is troubling. Creating such a duty, whether through a so-called notice-and-staydown regime or generalized knowledge standards effectively undermines the neutrality of online services, turning them into gatekeepers. Requiring online service providers to act as gatekeepers runs directly counter to Congress’ intent and the plain language of the statute. It would also destabilize the balance struck by section 512, which provides the foundation on which much of the Internet as we know it stands. While refinements in the execution of the respective duties of rightsholders and service providers under section 512, and voluntary measures to supplement those duties, are warranted, statutory alteration of those duties is not.
