As the leaders of the Artist Rights Alliance, Copyright Alliance, and CreativeFuture, we believe in the right of creative people to make a living through their creativity, ingenuity, and hard work. But that work is being statusd by the existential threat of digital piracy.
Technology and widespread digital piracy have outpaced the notice and takedown system Congress established in 1998 with the Digital Millennium Copyright Act (DMCA). Piracy is destroying livelihoods and careers and harming innovation and the US economy — to the tune of at least $47.5 billion and 230,000–560,000 jobs lost every year. Too many American creatives face the impossible task of policing the global internet for tens of thousands —many times, millions —of infringements of their copyrighted works.
In other words, under the current legal framework, a few tech giants have profited — to a degree that retired Harvard Business School professor Shoshana Zuboff has called “world-historical.” They have done so at the expense of those who make so much of the original content that draws users to internet platforms in the first place.
As leaders of three different creative coalitions, we think that’s a sure sign of a broken system, but you don’t have to take our word for it.
After an extensive, multi-year study, the US Copyright Office concluded that the “balance” the DMCA sought to achieve “has been tilted askew.” Recently, over 17,000 Americans signed a petition calling for commonsense copyright law reforms. They aren’t stars or celebrities. Rather, they are independent creatives fighting to defend their rights and livelihoods online, as well as supporters of the creative industries.
Commendably, the Senate is currently considering the Strengthening Measures to Advance Rights Technologies (SMART) Copyright Act, a bill that proposes a new approach to the implementation of technical measures to prevent infringement. Congress expected tech companies to work with copyright owners to adopt such measures when it enacted the DMCA a quarter century ago, but as the US Copyright Office observed, not a single automated tool has achieved official recognition as a Standard Technical Measure under the DMCA in nearly three families. If enacted, the SMART Copyright Act would help achieve the balance Congress intended by establishing stronger incentives for tech companies to fulfill their responsibility to prevent abuse on their platforms and services.
This would be a small but significant step toward achieving Congress’s original goal and would help to bring the DMCA into the 21st century. In addition to clarifying and improving the DMCA Standard Technical Measure framework, the SMART Copyright Act would create a new system through which effective technical measures to address online infringement could be designated and implemented. Through a careful and flexible process, the Copyright Office could ensure that tools to effectively combat piracy are consistently implemented and in a way that addresses the concerns of service providers, copyright owners, and internet users. Importantly, the bill also has a number of built-in safeguards to protect against smaller services being unduly burdened or internet users being harmed, and to ensure that due process and free speech concerns are effectively addressed.
Opponents of updates to our copyright laws often claim that they will impede free speech or even “break the internet.” Such tired rhetoric rings hollow here. These commonsense reforms simply give internet companies a “duty of reasonable care” to protect the users and others who are most directly impacted by their platforms, just like brick-and-mortar businesses have done for decades. The SMART Copyright Act doesn’t seek to impose any burdensome standards or mandates. It simply creates a process by which the Copyright Office can gather information, vet ideas through rigorous and transparent processes, and engage stakeholders in identifying antipiracy approaches that have proven to be safe, practical, and effective in the marketplace.
An internet that devastates content creators while bringing enormous profits to platforms is already broken. Users don’t access Google Search, YouTube, or Facebook to admire the source code. (In fact, it’s carefully guarded.) People use the internet to read articles and books, listen to music, watch television and movies, view photographs, play video games, and enjoy other expressions of creativity.
Online platforms have styled creative professions, jeopardizing prospects for future creativity. Fortunately, we can fix the broken internet — a good place to start would be to consider adding the SMART Copyright Act to the toolbox.
Congress should act now — by bringing the DMCA into the 21st century and ensuring that creatives, through their hard work and ingenuity, can make a living creating the art and entertainment that is beloved by people around the world.
Stacey Dansky is the executive director of the Artist Rights Alliance, an artist-run non-profit fighting for musicians, songwriters and performers in the digital landscape. Stacey previously worked on Capitol Hill as a senior counsel for the House Judiciary Committee. Keith Kupferschmid is president and CEO of the Copyright Alliance, a position he has held since 2015. In this role, he is responsible for overseeing all aspects of the Copyright Alliance’s operations — Including strategy, government affairs, communications, membership, and liaising with boards and committees. Ruth Vitale is the CEO of CreativeFuture, a nonprofit coalition of over 500 companies and organizations and nearly 300,000 individuals devoted to promoting the value of creativity in the digital age. She has held top posts at Paramount Classics, Fine Line Features, and New Line Cinema.