1990s Copyright Debate Can Inform Much of Current Process, Stakeholders Say
Stakeholders in the current debate over a possible revamp of U.S. copyright policies can draw encouragement and lessons from the process of creating and passing the 1998 Digital Millennium Copyright Act (DMCA), said stakeholders in the DMCA process and the current copyright debate Thursday during an American University Washington College of Law (WCL) event. “There's nothing new under the sun” in legislative efforts to revamp portions of the Copyright Act or other current copyright rulemakings, said Jonathan Band of the law firm policybandwidth. “All of the issues and debates that we had” in the 1990s “are still ongoing. They sometimes take on a different coloration, but they're basically the same essential issues.” Current copyright policy focuses include the House Judiciary Committee's ongoing Copyright Act review, the Copyright Office's triennial DMCA Section 1201 exemptions rulemaking and the Department of Justice's ongoing review of consent decrees against the American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music Inc. (BMI).
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The runup to passage of DMCA included the start of what's now become a long-standing partnership on copyright issues among the tech sector, public interest groups and library associations, Computer & Communications Industry Association President Ed Black said. That partnership coalesced in the 1995 formation of the Digital Future Coalition (DFC), a now-defunct copyright advocacy coalition that led to the subsequent formation of groups like Public Knowledge, Black said. The DFC initially formed in response to a 1995 White House IP legislative white paper and later played a significant role in influencing the DMCA, Association of Research Libraries Associate Executive Director Prue Adler said. The DFC drew support from at least 42 industry and public interest groups at its peak, including current groups like the American Library Association, CCIA and the Electronic Frontier Foundation.
Current copyright debates benefit from the DFC's formation because it essentially created an alliance between industry and consumer groups that resulted in both camps becoming “much more powerful by working together,” Band said. “Before that, they didn't work together that much.” Many of those same groups “are still working on the same issues” because of the “high degree of trust” created via DFC's work on DMCA, he said. Public interest groups benefit from collaborating with industry because it's “clear that in the halls of Congress the industry side always gets more respect” in its lobbying efforts, Band said. Meanwhile, courts tend to be more heavily influenced by amicus briefs from public interest groups than by those from industry, he said. The DFC's lobbying on DMCA “saved the Internet,” WCL professor Brandon Butler said. “It could have been one big shopping mall.” The DFC's work also paved the way for later opposition to the Protect IP Act and Stop Online Piracy Act, Butler said.
The DMCA process itself taught stakeholders essential “axioms” that remain true today, Constantine Cannon IP lawyer Seth Greenstein said. Copyright owners are always going to oppose new technologies that involve the dissemination of copyrighted works, and that opposition is eventually going to result in the passage of legislation that seeks to address specific technologies, Greenstein said. Any copyright law that Congress adopts is likely to in some way become obsolete “almost as soon” as it's enacted if it isn't flexible enough to deal with subsequent technological innovations, he said. The DMCA process is also an essential tool for teaching law students about the lawmaking process and coalition building, Butler said.