A coalition of 15 music organizations representing creators and companies has submitted comments to the U.S. Copyright Office about the safe harbors in the Digital Millennium Copyright Act (DMCA) and why they’re not working for the music business. Among them are the Recording Industry Association of America (RIAA), the National Music Publishers’ Association (NMPA), and various collection societies and creators organizations.
What’s in the filing isn’t a surprise: For years, labels, publishers and creators have made the case that the 1998 law—which limits the liability of companies like YouTube—prevents the online market from properly valuing music. And when the Copyright Office originally announced the study in 2015, it seemed unlikely that it would result in any action. Now, however, as House Judiciary Committee Chairman Bob Goodlatte (R-Va.) prepares to move ahead with a long-awaited copyright process, under a Trump Administration perceived to be friendlier to rightsholders, it could become more important.
The substance of the filing is fairly similar to what various music business organizations have said before: By setting up a system where rightsholders need to ask websites to remove content uploaded by users, the DMCA erodes the value of music. The number of organizations that filed comments together is unusual, however, especially since they represent parts of the music business that are sometimes in conflict with one another – labels, publishers, managers, creators organizations, and even unions.
The DMCA safe harbor gives Internet service providers and sites that allow users to upload content a way to avoid liability for copyright infringement in most cases, as long as they respond promptly to takedown requests. But most of those in the music business believe that this puts an unfair burden on rightsholders. It can be so expensive to monitor for unauthorized content that it’s often easier to sign license deals – even ones for less than market rates. Label executives say that this dynamic is why YouTube pays less for music than Spotify.
Internet companies have said that the DMCA’s safe harbors provide important legal protection for any company that hosts user-generated content. YouTube has said that its content identification software does a good job of identifying unauthorized content – and that most rightsholders then choose to monetize rather than remove it.
At the root of the issue is a disagreement about exactly what the DMCA was intended to do. Congress certainly intended to reassure Internet service providers that they could invest in broadband infrastructure without worrying about potential copyright liability. But what about a company like YouTube, that was hard to envision in 1998? So far, in cases like Viacom’s copyright infringement lawsuit against YouTube, courts have generally opted for an expansive reading of the DMCA. But BMG’s recent case against the Internet service provider Cox Communications, resulted in a decision that interpreted the law more narrowly.
So far, lobbyists for both media and technology companies have generally been reluctant to push Congress to update the DMCA, for fear a new law would be worse. It’s hard to know whether that will change as the copyright reform process moves ahead, although the power of technology companies could make it unlikely.