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RIAA says latest Senate hearing on copyright safe harbour confirmed the system is “broken”

By | Published on Friday 5 June 2020


The Recording Industry Association Of America has said that the latest Congressional discussion on all things safe harbour confirmed that that element of the US Digital Millennium Copyright Act is definitely “broken” and that, therefore, “time has come for change”.

The subcommittee on intellectual property of the US Senate has been staging a number of discussions this year reviewing the 1998 Digital Millennium Copyright Act, and to what extent it successfully tackled the copyright challenges posed by the digital revolution.

Unsurprisingly, much attention has fallen on the so called safe harbour in the DMCA. That’s the bit of the act that reduces the liabilities of internet platforms whose users infringe copyright. Said platforms cannot be held responsible for that infringement providing they have systems in place to deal with prolific repeat infringers and via which copyright owners can have infringing content removed, aka a notice and takedown system.

The music industry has various gripes with the safe harbour, of course. Principally that too many safe harbour dwelling companies have shoddy systems for dealing with repeat infringers and enabling copyright owners to get content removed.

And also that too wide a range of internet companies claim safe harbour protection, including user-upload platforms that utilise user-uploaded content to become streaming services without first negotiating fair deals with the copyright owners whose content is routinely uploaded.

Since the last subcommittee debate on the DMCA, the US Copyright Office has published its long-time-coming report on the safe harbour, based on a consultation that began back in 2016. It’s conclusion was that the balance the DMCA strived to achieve with the safe harbour – between the interests of copyright owners and technology companies – had “tilted askew” and that, therefore, Congress should probably now fine-tune the principle.

Speaking at the latest IP subcommittee discussion on Tuesday, the committee’s Chairman Thom Tillis said he thought more radical reforms were probably required than those suggested in the Copyright Office report. “I don’t think fixing the current framework is enough”, he mused. “We may be at a point where we need to design an entirely new system to combat online piracy”.

The session’s headline-grabbing contributor this time around was Eagles frontman Don Henley, who said current safe harbour rules were “a relic of a MySpace era in a TikTok world”. Which is a good line, although technically they’re a relic of the Geocities era.

“I have worked hard to establish my career and reputation and I have enjoyed success”, he told the committee. “But for me, this is a matter of principle. I am speaking out for the songwriters and recording artists who are struggling to make a living, particularly now when our industry has been decimated by the pandemic. We need equitable compensation for the rights guaranteed to authors under the constitution”.

Asked if the current safe harbour provisions and accompanying takedown systems were working, Henley stated: “When a simple online search for a song returns an endless list of sites that never asked the copyright owner for permission, never received a licence and never passed on a penny to the artist for use of their music – the system is not working”.

“When the marketplace has matured”, he went on, “and digital platforms continue to use [safe harbour] as a negotiating leverage to pay licence fees which are well below market – the system is not working. When the burden of policing copyright infringements on global platforms lies with the artists instead of the massive technology companies who own and operate the platforms – the system is not working”.

“At the dawn of the internet age”, he added, “the DMCA was supposed to provide digital platforms with safe harbour from liability in exchange for cooperation in protecting creators’ works. It was meant to provide a proper balance and symbiotic relationship that benefitted all participants and strengthened the legitimate online marketplace. Two decades later, the balance is decidedly off”.

He later concluded: “I applaud and I thank this subcommittee for shining a light on the damage caused by the unfulfilled promise of a meaningful and effective notice and takedown system. Creators need recourse for the unlicensed, illicit use of their valuable works online. The DMCA is not providing that to them”.

Each of the subcommittee hearings so far have heard viewpoints from both sides of the debate. This time the strongest defence of the safe harbour came from the trade organisation whose members rely on it, the Internet Association. Its chief Jonathan Berroya argued that the DMCA is working very much as Congress intended and had enabled a “golden age of content creation”.

He also argued that many tech companies had developed tools beyond the DMCA’s requirements, and that because of the complexities in identifying whether any one piece of content infringes copyright, copyright owners are best equipped to monitor and respond to infringement online.

According to IP Watchdog he added: “The digital ecosystem is thriving thanks to this law. It gives platforms the legal certainty necessary to host user-generated content, and users can enjoy and create a wealth of legal content”.

With the US Copyright Office report supporting some reform – and Tillis indicating that he reckons more radical changes are necessary than that report proposed – the music industry’s lobbyists are hoping that an opportunity might be on the horizon to secure an overhaul of safe harbour in the US, similar or possibly more significant than that currently underway in Europe.

With that in mind, RIAA boss Mitch Glazier said in response to this week’s committee hearing: “[This week’s] hearing confirmed without question that the DMCA is broken and the time has come for change. The system must have incentives for creators and tech platforms to collaborate to provide effective online protection for the creative works that drive innovation, our culture and economy. We stand ready to work with the creative community and tech platforms to restore the balance Congress intended”.