To protect free speech, protect the Digital Millennium Copyright Act
Allegations of online bias and political censorship simmered throughout the last presidential election, culminating with the de-platforming of a sitting president. While this has led to an animated debate over Section 230, the law governing online content moderation, another law governing online content is quietly moving forward in Congress with little public attention.
That law, Section 512 of the Digital Millennium Copyright Act, addresses questions of copyright and fair use. And recent changes to the law proposed by Sen. Thom Tillis, a North Carolina Republican, may prove just as harmful to consumers as some of the proposed reforms to Section 230. In fact, most concrete cases of removing content posted by former President Donald Trump and other conservative groups have been due to copyright complaints under Section 512, not Section 230.
To understand the impact of Section 512, consider the memes and parody videos posted by Trump, which included copyrighted material, such as songs by Nickelback and Eddy Grant and a photograph from a New York Times reporter. In response, the creators behind those songs and photo sent Twitter notice of a copyright violation. Under Section 512, platforms such as Twitter or Facebook are obligated to take down content that allegedly violates a copyright once they receive a notice from the copyright holder. While the user can dispute the takedown on grounds such as fair use under copyright law, Twitter’s initial takedown is legally required once the platform receives notice of a violation from a rights holder.
But it is hard to believe that in the case of the president’s tweets, the creators (or their managers) were concerned about copyright infringement. More realistically, they just did not want to be associated with Trump, which is why their music, videos, and photos were removed. It was an act of censorship by the left-leaning entertainment industry. A simple examination of social media will find other posts where Grant’s music is playing in the background of a video or Damon Winter’s photos are posted. Yet no takedown notices have been sent.
As the new Congress gets down to business, Hollywood, the recording industry, and other legacy members of the content industry are lobbying Congress to strengthen their power over online content by making the removal permanent. In the coming Senate review of the DMCA, the entertainment industry is pushing proposals to change the law from “notice and takedown” to “notice and stay down.” The current balanced system allows rights holders to claim copyright and force a platform to take down content unless the poster challenges the request using common copyright defenses, such as fair use.
Under notice and stay down, a mere allegation of infringement will suffice for permanent censorship, and websites will be forced to take on the new responsibility of ensuring the content is not reposted. While onerous in itself, this raises real issues of privacy and free speech as platforms begin to monitor user activity to ensure content stays down. It’s not hard to imagine how “notice and stay down” could be weaponized as a censorship machine in future elections and on key issues.
But notice and stay down goes far beyond the restrictions on political ads. Internet users across the board will face new restrictions, from posting memes to making videos where music is playing in the background. Hollywood’s stay-down proposal would remove the alleged infringing content forever. Not just for political candidates with whom Hollywood doesn’t agree, but also for ordinary people expressing their views. Movie and recording studios would decide which posts can stay up, and which posts must be removed, without ever being able to appear again.
And implementation raises reals concerns for internet users. Facing potential liability, platforms would need far greater oversight of user-generated content, from emails to postings on social media. With more than a billion websites, a billion Facebook users, and a billion YouTube users, patrolling the internet to enforce stay-down rulings is a daunting, if not impossible, task. Larger platforms have resorted to algorithms to eliminate potentially infringing materials, but smaller creators and those hosting websites will find it challenging to comply with notice and stay-down requirements.
Hollywood and the entertainment industry want to write the internet’s rules based on their views of the world and an outdated business model that ignores the rise of independent creators across the country. If the DMCA is further changed in its favor, the content industry would be given even greater powers over the internet at the expense of internet users and independent content creators. As the Senate considers changes to the DMCA, it must remember that the internet was created for all users, not just Hollywood’s gatekeepers.
