Electronic Frontier Foundation On New ‘Disastrous’ Copyright Proposal

Several controversial copyright bills were snuck into the recent spending package. Now the EFF looks at the latest “disastrous” copyright legislation under Congressional consideration.

By Katharine Trendacosta of the Electronic Frontier Foundation

Just yesterday we saw two wretched copyright bills-the CASE Act and a felony streaming bill — slipped into law via a must-pass spending bill. But it seems some people in Congress were just getting started. Today, Senator Thom Tillis launched a “discussion draft” of the so-called Digital Copyright Act. But there’s nothing to discuss: the bill, if passed, would absolutely devastate the Internet.

We’ll have a more in-depth analysis of this draft bill later, but we want to be clear about our opposition from the start: this bill is bad for Internet users, creators, and start-ups. The ones with the most to gain? Big Tech and Big Content.

This draft bill contains so many hoops and new regulations that the only Internet companies that will be able to keep up and keep on the “right” side of the law will be the Big Tech companies, who already have the resources and, frankly, the money to do so. It also creates a pile of new ways to punish users and creators in the service of Hollywood and the big record labels. Unless we stop this proposal, DMCA reform will crush huge swaths of online expression and innovation, not to mention the competition we need to develop alternatives to the largest platforms.

Some especially important things to note:

Filters, Filters Everywhere, Nor Any Drop to Drink

In several places in this bill—the requirements for “notice-and-staydown,” a duty for providers to monitor uploads, and development of “standard technical measures”—there are hidden filter requirements. The words “filter” or “copyright bots” may not appear in the text, but make no mistake: these new requirements will essentially mandate filters.

Filters not only do not work, they actively cause harm to legal expression. They operate on a black-and-white system of whether part of one thing matches part of another thing, not taking into account the context. So criticism, commentary, education—all of it goes out the window when a filter is in place. The only route left is not fair use but, as our whitepaper demonstrated, to edit around the filter’s requirements (or refrain from speaking altogether).

Once again, major studios, labels, and media companies will be entrenched as gatekeepers for art and expression. This is not the Internet we want or need. It’s a return to the days of Big Content domination, at the expense of small, independent creators.

“Repeat” Infringer Policies That Cut Off Internet Access

Under the Digital Millennium Copyright Act (DMCA), service providers get immunity from copyright liability if their users commit infringement if they meet certain requirements. One of those is to have a “repeat infringer policy,” which can terminate the account of someone who has committed multiple acts of copyright infringement. The details are left to the provider.

This draft changes that. It gives power to the Copyright Office, in consultation with the National Telecommunications and Information Administration, to develop a model repeat infringer policy to act as the minimum requirement for the policies of service providers.

That’s incredibly concerning. Earlier this year, the Copyright Office gave us a preview of what it thinks a reasonable repeat infringer policy looks like in its report on section 512 of the DMCA. And the Copyright Office concluded that not enough people are being punished by these policies and that a single, unsubstantiated claim of infringement should be enough to not only terminate a YouTube account but to terminate Internet access. Basically, according to the Copyright Office, your ISP—likely the only one in your area, if you’re among the majority of Americans who only have one choice for high-speed Internet—should terminate an entire household’s Internet based on copyright infringement.

Internet access is vital for participating in today’s world. An office that thinks it should be easier to cut off that access makes sense should not be in charge of determining a model repeat infringer policy.

And Speaking of the Copyright Office…

This draft gives the Copyright Office a whole suite of new regulatory powers over the Internet, basically making it the Internet Cops. Given the power and influence of U.S. based platforms, this means that the governing law of the Internet will be based not on human rights norms but on copyright restrictions.

An office that sees its constituency as copyright holders and not Internet users or the public interest should not be in charge of the Internet.

Whatever good things are in this draft—and there are a few modest improvements proposed—are vastly outweighed by how catastrophically bad the rest of it is. Do not worry too much, though; as ever, EFF will be fighting for the Internet every step of the way, just as we did during the SOPA/PIPA fight with the help of countless Internet users and a broad coalition committed to the free and open Internet. This proposal is far worse than SOPA/PIPA, so our coalition will have to be stronger and more united than ever before. But we can meet that challenge. We—the Internet—must stop this terrible legislation in its tracks.

This work is licensed under a Creative Commons License.