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Safe harbour and web-blocking discussed in latest Congress session on US copyright reform

By | Published on Thursday 12 March 2020


Could America make copyright great again by – horror of horrors – importing ideas from Europe and elsewhere? That was the question asked earlier this week in US Congress during the second of a series of discussions about whether it is time for America to reform and amend its Digital Millennium Copyright Act.

The Senate Judiciary Subcommittee On Intellectual Property is organising various discussions that together consider whether the 1998 DMCA – the last major overall of copyright law in the US – needs reforming given all the subsequent changes and evolutions that have occurred in the digital domain since then.

With the pros and cons of copyright reforms elsewhere in the world the main topic for discussion at this week’s session, unsurprisingly last year’s European Copyright Directive was high up on the agenda. Especially the music industry supported article seventeen, which seeks to increase the copyright liabilities of user-upload platforms like YouTube.

Needless to say, the experts asked to present at the session provided a diversity of opinions, meaning senators were told that article seventeen was a smart measured approach to dealing with the copyright challenges caused by the rise of user-upload services and – also – a terrible draconian new law that will pretty much kill the internet. Well, more or less.

According to IP Watchdog, Professor Justin Hughes of Loyola Marymount University said that he thought the EU directive, including article seventeen, definitely warranted further study and consideration by Congress. In a lengthy written statement he acknowledged some of the issues with what has been proposed in Europe regarding safe harbour reform, but also presented the ways in which European law-makers had sought to deal with those issues.

In his conclusion he wrote that, while the DMCA has “held up surprisingly well despite extraordinary technological developments, completely unpredicted business models, and some occasional strange court decisions”, nevertheless, “the old paradigms of internet service providers, especially the paradigm of web ‘hosts’, do not fit particularly well with the media and social network giants that have emerged since 1998”.

However, Professor Pamela Samuelson of the University Of California Berkeley told the senators that “with the adoption of article seventeen, the EU has adopted a complex regulation that will make it very difficult, and perhaps impossible, for most user-generated content platforms to continue to operate and offer culturally diverse contents to EU residents”.

She then added: “There is a reason why US-based internet platforms are so much more successful than EU-based firms: The US legal culture is less paternalistic and more hospitable to entrepreneurship and innovation”.

Elsewhere in her written submission, she noted that article seventeen is yet to be implemented by any EU country. If Congress is going to let itself be influenced in any way by Europe’s safe harbour reform, she added, they should at least wait and see what happens when it is actually put into action.

“Because there have been no implementations”, she wrote, “it is premature to assess whether article seventeen will achieve the objectives of getting substantial revenues to EU rights holders or lessening the amount of online infringement on content sharing sites, let alone whether it would be a useful model for reconsideration of the DMCA safe harbour provisions”.

The session wasn’t just about copyright directives and the bloody safe harbour. Stan McCoy of the Motion Picture Association, also in attendance, used it as an opportunity to again big up web-blocking as a viable and effective anti-piracy measure.

Web-blocking – where ISPs are forced to block access to copyright infringing websites – has become a preferred anti-piracy tactic of the music and movie industries in those countries where such blockades are available, which includes the UK.

In the US, in the main, web-blocking is not available to rights owners. Attempts to introduce a specific web-blocking law Stateside in 2011 and 2012 caused such big protests that American politicians have been nervous of introducing any such thing ever since.

Of course web-blocking is not perfect, because it’s usually quite easy to circumvent the blockades. However, rights owners argue that it still has a positive impact. And – in those countries where web-blocking is now common – concerns that such blockades would be instigated against legitimate sites that inadvertently infringe copyright have proven to be unfounded.

“Our internal data shows us that site blocking is very effective at cutting traffic to pirate domains”, McCoy told the hearing, according to Torrentfreak. Meaning, he claimed, that web-blocks can reduce traffic “to a targeted domain by 70% on average and can be as high as 80-90% in some countries”.

The MPA didn’t specifically call for a new web-blocking law – presumably remembering what happened in 2011/12 – but, McCoy concluded: “Site blocking is effective – and that is why much of the rest of the world has embraced this approach”.