In the game of Three-Card Monte, a hustler uses sleight-of-hand to draw the unsuspecting victim’s eyes to the wrong card, meanwhile keeping the actual “money card” safely tucked away, out of sight. It is ultimately a con game, and so, of course, is a natural fit for the hustlers of the Big Tech policy machine as they fight for weakened copyright protections in this year’s ongoing series of DMCA Senate hearings.
The money card in their dangerous game is full-blown commercial piracy, enabled and abetted by internet platforms – who are legally shielded from accountability, thanks to the DMCA. This card is one of the main reasons why the 22-year-old law is under review this year – to determine whether the notice and takedown system outlined in the DMCA’s Section 512 is succeeding in reducing piracy online, as originally contemplated by Congress when it passed the law in 1998.
Spoiler alert: it is not. Not by a long shot. The requirements of Section 512 help keep piracy alive and well, by placing the burden of online content enforcement on the creatives themselves. As long as internet companies like Google and Facebook make a reasonable effort to respond to each one of the hundreds of millions of takedown requests they receive every year from copyright owners, they are under no legal obligation to clean up the piracy on their platforms in any sustainable way. The result is an endless game of Whac-A-Mole for creatives that, according to the U.S. Chamber, is costing the U.S. economy a minimum of nearly $30 billion each year and between 230,000 and 560,000 jobs.
But fixing the demonstrable harms they enable is not how Google and Facebook operate, and they do not want lawmakers looking at that piracy card. And so, they, and their advocates, keep up a steady patter about Section 512 working just fine, while at the same time, they frantically flash other, shinier cards as a distraction. At one recent DMCA hearing, titled Copyright Law in Foreign Jurisdictions, one of the Big Tech policy movement’s main movers and shakers, Julia Reda, showed how they do it.
“A colleague of mine has a digital hearing aid, a cochlear implant,” Reda told Senator Chris Coons, Ranking Member of the Subcommittee on Intellectual Property. “He is able to hear because this hearing implant translates sound that is in the air… into a digital signal. In the framework of copyright, that’s a copying act, so technically he would need permission just to listen to music.”
Reda, a former EU Parliament member and devout copyright skeptic (her political affiliation while in office was literally called the Pirate Party), regularly brings up cochlear implants in public forums. She’s been using this same anecdote since as far back as 2016. Why? Because it has a strong emotional hook – she leaves the impression that copyright law could somehow harm the hard of hearing – and is therefore a perfect feint from the real problem with the DMCA: the Section 512 safe harbor that shields mighty internet companies from meaningfully addressing the piracy problems that plague their lucrative platforms.
Whether the capturing of sounds by cochlear implants technically constitutes an act protected by copyright, and whether the maker or user of the implant might have some liability, could make for an interesting law school exam question. But it is not an argument relevant to the DMCA and the issues presently before Congress. The DMCA neither expands nor contracts the scope of copyright. It merely addresses the relationship between platforms and copyright owners with respect to infringement. Defenders of the status quo, like Reda, are desperate to hide that fact, to define the parameters of the conversation to their liking, and to divert attention from the important to the obscure.
When the DMCA was passed, 22 years ago, most content companies were big and most internet platforms were small, and the relative allocation of responsibility for infringement may have made some sense. But, in 2020, in an era when internet platforms are immense profit machines, and individual creatives experience a global piracy tsunami with each new work, lawmakers need to reject distractions pedaled by people like Reda and keep their eyes on the money card – massive copyright infringement.
From cochlear implants to baby monitors, tractors, and refrigerators, Reda and her fellow travelers will constantly seek to divert attention away from the serious conversation of how well or poorly Section 512 is achieving the objectives established by Congress in 1998. In particular, they love to bring up a different provision of the DMCA which they are not so fond of – Section 1201, which contains a prohibition on circumvention of technical protection measures.
Where the pro-tech/anti-copyright movement loves Section 512 (because they can hide behind its “safe harbor” shield), they hate Section 1201 – because it actually places constraints on how technology can be employed. Its “circumvention prohibition” gives digital media copyright owners the power to deny users the means of tinkering with technology that serves to protect their copyright. The Big Tech advocates like to refer to the “right to repair” items that operate using copyrighted software and argue that Section 1201 interferes with that right. They condemn what they deem to be the draconian impositions of Section 1201 for denying people the basic right to “fix” a product they own.
Only one problem with that argument – Congress already thought about it and provided for a waiver process. Members of the public can petition for an exemption to the 1201 circumvention prohibition for non-infringing uses such as “unlocking” a cell phone to connect it to a different wireless network or adapting an e-book to work with assistive technology for the visually impaired. These waiver petitions get filed all the time, and numerous waivers have been granted when they are truly about the right to repair, and not about the right to modify a product to illegal ends (e.g., to break content protection so that piracy is easier).
Bottom line, a user can tinker with copyright-protective technology, and the Library of Congress will consider and grant well-reasoned waivers. But if there is a higher cause to be protected by restricting that right, the Library of Congress may so find.
So get ready to hear a lot about how copyright harms innovation by getting in the way of new technologies and the right to repair or tinker. But always remember that these are trick cards. They are a distraction from what is really at stake in the review of Section 512 – a provision which does not change the contours of copyright protection at all, but that benefits big internet platforms by letting them hide behind the broken notice-and-takedown system that permits widespread piracy online.
We must remember, and continually remind Members of Congress, that there is an existing and workable mechanism to address and solve any issues raised by Section 1201 – but those issues have no relevance to the problem created by Section 512.
As the DMCA hearings progress throughout the rest of 2020, we have to help Congress keep its eyes on the money card. We must not let the skilled hustlers of the Big Tech policy machine distract Congress from focusing on equitable changes to Section 512 that could have an enormous impact on millions of creative livelihoods.