PROPOSAL TO REWRITE DMCA GETS COOL RESPONSE
Provocative notion of rewriting 4-year-old Digital Millennium Copyright Act (DMCA) was raised last Thurs. by 2 members of key House subcommittee, but discussions with industry officials at that hearing and since then don’t suggest rousing chorus in favor of such effort. House Internet Caucus Co-Chmn. Goodlatte (R-Va.) and Rep. Lofgren (D-Cal.) floated idea of DMCA rewrite at hearing on P2P before House Judiciary, Courts, Internet & Intellectual Property Subcommittee (CED Sept 30 p1). Hypothetical was posed to RIAA Chmn. Hilary Rosen, who had said DMCA’s language created enough ambiguity that her organization found itself in court with Verizon Internet Services. Rosen didn’t openly endorse rewrite but did say RIAA had been hampered because DMCA was “technology-specific.”
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
“I don’t think it is,” countered Verizon Assoc. Gen. Counsel Sarah Deutsch to our affiliate newsletter Washington Internet Daily. Deutsch said she wouldn’t favor reopening DMCA: “We spent 4 long years negotiating that law. I believe it created the right balance. To reopen it again would be a many-year process.” Rosen, echoed by Goodlatte, contended that DMCA had hampered content industry’s ability to take down copyrighted content because DMCA framers anticipated content would be held on ISP servers rather than on user hard drives. In addition, DMCA authors were focused on Web sites, Rosen told subcommittee, as P2P networks weren’t yet on anyone’s radar. “We had a great relationship with ISPs after the DMCA passed,” Rosen said, but then “all files were always hosted on an ISP server. No one had room on their hard drives… Now that file’s not sitting on a server but it’s still providing the exact same access. Verizon is saying it’s all different now, the file’s technically in the P2P network on an individual computer, but everything else is the same.”
Deutsch responded that DMCA had specific carve-outs, one for hosting, caching and links and another for conduit activities. Content providers could choose to sue P2P file sharers, she said, rather than bombarding ISPs with takedown letters generated by Web bots that didn’t always identify copyrighted material accurately. Rosen told subcommittee that RIAA never sent out letter after receiving bot data without having human review it. “That’s RIAA’s claim,” Deutsch said, “but their members seem to do otherwise.”
“As technology has changed,” Lofgren said, “it has complicated and made dysfunctional some of what we in good faith worked to do” on DMCA. She said “we may need to revisit it in the future.” Goodlatte said DMCA was designed to “quickly take the ISP out of the middle of the process,” something that wasn’t occurring. Deutsch, while not advocating DMCA rewrite, did note that takedown letters had required Verizon to hire additional staff just to review and process requests. “We're being inundated” by mechanical process, she said.
Public Knowledge Pres. Gigi Sohn made clear that she wasn’t open to any action that would lead to expansion of copyright protections. Her new organization was created to protect public domain works. Sohn told us that when DMCA was negotiated that users of content weren’t actively involved in debate but that wouldn’t be the case in rewrite. Deutsch agreed, saying: “The users were basically given short shrift in many sections of the DMCA.” If RIAA and others pushed to update DMCA, she said, it would be “a very risky move for everyone.” Left substantially unaddressed in DMCA is any sort of delineation of fair use guidelines. “There’s a huge outcry from the user community” for fair use, Deutsch said, and there probably would be push for language that would state definitively consumers’ right to time- shift or space-shift or perform other personal tasks with content they had purchased.
Rosen took issue with Verizon’s claim of “legal technicalities” in refusing to submit to subpoena issued by RIAA under Sec. 512(h) of DMCA. She referred to case by saying RIAA was “in a dispute right now with an ISP named Verizon, just a small little company, actually one company bigger than our entire industry.” That case, RIAA v. Verizon Internet Services, will be heard Oct. 4 in U.S. Dist. Court, D.C.