Senator Tillis Releases Massive Unconstitutional Plan To Reshape The Internet In Hollywood's Image

from the bad-ideas dept

Yesterday, Senator Thom Tillis helped ram through a gift for Hollywood: getting the felony streaming copyright bill that he'd only released a week earlier included in the must-pass omnibus funding bill despite literally no discussion or debate about the problems with the bill.

This morning, he really doubled down. As announced last month, Tillis has now released a draft of his DMCA overhaul, which appears to be exactly what he had hinted at last month -- meaning he appears to have ignored the advice and suggestions of many of us who warned Tillis of the dangers of simply buying into Hollywood's vision of copyright reform. I wonder why he would do such a thing?

Of course, it also makes you wonder why he had to hide the felony streaming bill in yesterday's must pass omnibus. Since he was going to be working on a big copyright reform bill, why not put it in there in order to have an actual debate and discussion about it?

Anyway, Tillis notes that this current version is just a discussion draft and he'll release the actual bill next year once the new term begins. He's asking people for their edits. In fact, he (somewhat hilariously) asks YouTubers to send in their own redlines and, well, careful what you ask for:

Senator Tillis is inviting all interested stakeholders - large and small, individuals and companies, YouTubers, and independent creators - to submit redline edits and comments to this discussion draft by close of business on March 5th. Comments should be submitted to Intellectual_Property@tillis.senate.gov.

There is going to be plenty to discuss about this bill. It's 53 pages long. Tillis has put out a summary document of what's in it as well, though I'd argue some of it is misleading. There are certainly a few tiny things in here that would improve the DMCA in very minimal ways. This is so Tillis can say it's a "compromise" bill that "upsets everyone." But that's garbage. Most of this bill is a huge gift to Hollywood.

For this post I'm going to focus in on the most problematic idea in the bill: the notice-and-staydown provision. We'll discuss other problems at a later date. The notice-and-staydown provision has many, many problems. To be fair, Tillis tried to make the notice-and-staydown slightly less problematic by saying it only applies to "complete or near complete cop[ies] of a copyrighted work already identified in a notification of claimed infringement or list of unauthorized works...." It's the complete or near complete part that he thinks makes this less bad. He's wrong. First of all, he undermines this immediately in the next section by also saying that the notice-and-staydown applies to "any portion of a copyrighted work already identified in a notification of claimed infringement... if the service provider derives its commercial value predominantly from short-form media." So it's not just complete, or nearly complete works.

It's difficult to see how a notice-and-staydown regime is even remotely Constitutional. It's basically prior restraint, telling companies that they cannot host certain speech. That's quintessential prior restraint -- especially since other uses may not be infringing.

The basic problem is this: contrary to what Hollywood would like you to believe, content is not infringing. It's the specific use that may be infringing. But notice-and-staydown acts as if it's the content itself that must be infringing. But that's not how you determine whether or not something is infringing. You have to look at how it's used. And notice-and-staydown totally ignores that and assumes that there are no uses that are permitted. That's wrong. And Tillis' "complete or near complete copy" language doesn't fix that either, because courts have said multiple times that a full copy can be fair use even when used in a commercial way.

But a notice-and-staydown provision would ignore that.

Also, for many works such as photographs, memes, etc, most fair uses will involve using the entire work. But the notice-and-staydown ignores all of this.

As we saw in the EU context, this is a recipe for censorship filters. And censorship filters have follow-on effects as well. Beyond the 1st Amendment concerns, they would basically destroy small companies that cannot afford to put in place such filters. YouTube has spent over $100 million to build ContentID and it still sucks. Yet under Tillis' bill, everyone would need to buy or build their own contentID to avoid running afoul of the notice-and-staydown provisions. This would lock in internet giants and destroy the ability for smaller websites to host any 3rd party content at all.

Even the Copyright Office, in its terrible and one-sided review of the DMCA recommended against notice-and-staydown. So what possible reason does Tillis have for putting it in this bill?

Tillis claims that he's open to hearing concerns on this bill -- and I hope that's true. There are many, many problematic aspects to the bill, and notice-and-staydown is a massively dangerous and unconstitutional idea. The fact that Tillis thought it was worth including even in the discussion draft does not bode well for how this process is going to go.

Filed Under: 1st amendment, censorship filters, copyright, copyright reform, dmca, dmca 512, fair use, filters, notice-and-staydown, prior restraint, thom tillis