The Digital Millennium Copyright Act Promotes Creativity

We started the week sharing the ways that we’re all fair users now, and as #fairuseweek nears its end, we now look to the future. ARL’s Action Plan prioritizes digital rights, which to us means working toward barrier-free access to information. Barriers to internet access can be physical or economic, such as lacking broadband at home when schools and libraries are closed. Bad public policy can be another barrier, and that’s why this year, we are focused on protecting the Digital Millennium Copyright Act (DMCA).

Last year, Senator Thom Tillis proposed changes to the DMCA that would threaten its balanced protections. He proposed collapsing the four current safe harbor categories of internet service providers (mere conduit, caching, hosting, linking) into one, and then imposing on old service providers a “notice-and-staydown” (in place of the current notice-and-takedown) regime. Libraries that provide internet access would be required to use filters to prevent users from uploading allegedly infringing content in order to ensure they remain within the safe harbor. These filters would be unable to distinguish between infringing use of copyrighted material and uses that are fair. As Electronic Frontier Foundation (EFF) associate director of policy and activism Katharine Trendacosta explains in a recent white paper, fair use decisions depend on context. Most applications of fair use do not end up in court. Those that do are determined based on the four factors codified in Section 107 of the Copyright Act; the evaluation is meant to be flexible and responsive to advances like new technology.

When the DMCA was enacted in 1998, the internet was nascent. How could Congress, or any of us, know how invaluable the internet would become? Yet according to legislative history, the Senate at the time imagined the DMCA “would make available via the Internet the movies, music, software, and literary works that are the fruit of American creative genius.” That vision is coming true; presently, creators can reach global audiences with little or no cost due to the open internet in what has been called a “digital renaissance,” an abundance of creative content with unprecedented opportunities to distribute and monetize.

Tillis’s proposed bill could potentially stifle this creativity. In drafting the DMCA, Congress protected fair use; according to a 1998 Senate report, “[t]he Committee [on the Judiciary] determined that no change to section 107 was required because section 107, as written, is technologically neutral, and therefore, the fair use doctrine is fully applicable in the digital world as in the analog world.” However, a notice-and-staydown regime applicable to all internet service providers, including libraries, inevitably would restrict fair use. The copyright clause of the Constitution grants Congress the power to promote the progress of science and useful arts. In a seminal case, Harper & Row, Publishers, Inc. v. Nation Enterprises, the Supreme Court reminded us that “the Framers intended copyright itself to be the engine of free expression.” But the proposed DMCA changes could lead to a reduction in the amount of content created and made available. In our fight to protect digital rights, ARL will continue to work with our collaborators in the Library Copyright Alliance to push back against this bill, and protect balanced copyright law.