Reform The DMCA? OK, But Only If It's Done Really, Really Carefully

The DMCA is a weird law. It's comprised of two almost completely unrelated provisions: Section 512, with its platform safe harbors, and Section 1201, which forbids circumventing technological measures. Both parts are full of problems, but to the extent that the DMCA provides platforms with liability protection via the safe harbors, it is also a critically important law. We are therefore fans of the DMCA because of this platform protection it provides, but it's like being fans of a terrible actor who had one absolutely fantastic performance in a classic movie we can't stop loving, even though the rest of his work is unwatchable dreck. In other words, we can't pretend the law is without its appeal, but we nevertheless fervently wish it were a whole lot better since we're stuck having to deal with the rest of it.

Which brings us to Senator Tillis, who has expressed interest in reforming the DMCA and already started to lay the groundwork. We dread where this reform effort might go, because we know (see the Copyright Office's 512 study) that many people are championing for the things already terrible about it to be made worse. But at the same time it would be great to fix the terrible things already there so that it could actually become an unequivocally good law that does what copyright law is supposed to do: stimulate expression and promote the spreading of knowledge.

Last month Senator Tillis put out a call for stakeholder input on the reforms he is thinking about, and earlier this week the Copia Institute submitted its response. Instead of answering his specific questions, which all seemed to presume way too much about what allegedly needs fixing in the DMCA, and not necessarily correctly, we made two larger points that need to apply to any reform measures: (1) There needs to be a clear, data-supported understanding of what needs to be fixed and why so that any implemented change actually helps, rather than hurts, creators, and (2) the statute must scrupulously comply with the First Amendment, which unfortunately it currently falls way too short of in way too many ways.

On the latter front we made several points. First, for the DMCA to be First Amendment-compliant, fair use cannot continue to be treated as an afterthought. It is not a minor technicality; it is a fundamental limit on the reach of a copyright and therefore needs to limit the power of what a copyright holder can do to advance that right. Thus, as we wrote in our submission, Section 1201 should no longer obstruct a fair use, and Section 512 should no longer enable the censoring of a fair use either. Protecting fair uses must be a central tenet of any DMCA revision in order to ensure that fair use can remain meaningful in the digital age.

There are also a number of problems that have emerged over the years in the way the Section 512 system operates that have turned it into an impermissible system of prior restraint. Platform protection is hugely critical for fostering online expression, but the irony is that this protection comes at the expense of the very expression it is supposed to foster. The basic problem is that, unlike Section 230, the platform protection the DMCA provides is conditional. But the even bigger problem is that the protection is conditioned on platforms acting against speakers and speech based only on allegations of infringement, even though those allegations may be unfounded. When a law causes speech to be sanctioned before a court has ever adjudicated it to be wrongful it is prior restraint and anathema to the First Amendment. But current judicial interpretations of the DMCA have made Section 512's critical platform protection on just this sort of thing, with dire consequences to speakers and their speech. Reform is therefore needed so that platform protection is no longer contingent on this sort of constitutional violation.

Similarly, we noted that Section 512 also undermines the First Amendment right to anonymous speech, given the operation of Section 512(g) (governing counter-notices) and Section 512(h) (establishing a special type of federal subpoena). But an even more significant constitutional defect with the DMCA overall is with Section 1201. As we've talked about before, Section 1201, and its prohibition against circumventing technical measures, chills security research and innovation and forecloses fair uses. None of these things are constitutionally permissible, and all undermine the overall goal of promoting progress.

Which brings us to our second main point. The whole point of copyright law is to promote progress. And that means encouraging expression so that the public can enjoy the fruits of it. But not every proposed change to the DMCA will lead to that result. In fact, many would do the exact opposite.

The problem is, many of the proposed changes presume that strengthening the power of a copyright hold