On Dec. 31, the Copyright Office announced its intent to evaluate the safe harbor provisions of the DMCA, which -- to an extent -- protects internet service providers from third parties who illegally share content online.
“While Congress understood that it would be essential to address online infringement as the internet continued to grow, it may have been difficult to anticipate the online world as we now know it, where each day users upload hundreds of millions of photos, videos and other items, and service providers receive over a million notices of alleged infringement,” says the announcement from the Copyright Office. “Among other issues, the Office will consider the costs and burdens of the notice-and-takedown process on large- and small-scale copyright owners, online service providers and the general public.”
The DMCA was signed into law by President Bill Clinton in 1998 with a goal of updating copyright laws for the digital age, but it's now disturbingly out of date, according to a petition from dozens of artists and songwriters that was filed Thursday.
"It has allowed major tech companies to grow and generate huge profits by creating ease of use for consumers to carry almost every recorded song in history in their pocket via a smartphone, while songwriters’ and artists’ earnings continue to diminish," states the petition. "Music consumption has skyrocketed, but the monies generated by individual writers and artists for that consumption has plummeted. The growth and support of technology companies should not be at the expense of artists and songwriters."
The petition claims the safe harbor and notice and takedown provisions of the DMCA create a shield for tech companies and allow infringers to repost material after it has been removed.
"This outdated law forces us to stand by helplessly as billions of dollars in advertising is sold around illegal copies of our work," states the petition, which says the DMCA "thwarts the success" of digital services that pay musicians by allowing free, illegal copies of their works to be readily available.
It's not just individuals who are demanding change. The RIAA says 18 major music organizations submitted a 97-page joint brief "explaining the myriad flaws in the DMCA -- a law passed during the dial-up era -- and calling for reforms."
According to the brief, those flaws include a broken “notice-and-takedown” system, toothless repeat infringer policies and incentives for services to embrace willful blindness instead of preventing known and widespread infringement.
The music industry worked with Congress to draft and pass the DMCA and at the time felt it was a balanced compromise that addressed the concerns of copyright holders and service providers, but now these more than dozen organizations feel the law is a "dysfunctional relic" and it's up to Congress, not the courts, to fix it.
“Almost 20 years later, the reality on the ground bears little resemblance to the expectations of the Music Community when the DMCA was passed,” states the brief. “The DMCA has now become a dysfunctional relic, not suited to the realities of the 21st Century.”
Those on the tech side of the issue don't feel the same way.
The Internet Association, a group that represents leading tech companies like Facebook, Google and Netflix, commented on the issue Tuesday and said the DMCA is working effectively as intended.
"The Digital Millennium Copyright Act creates safe harbors for Internet platforms by ensuring they will not be liable for what their users do, so long as the platforms act responsibly," says the post. "These smart laws allow people to post content that they have created on platforms -- such as videos, reviews, pictures, and text. In essence, this is what makes the Internet great."
This story first appeared in the Hollywood Reporter.