Creativity & Innovation
Creators: Stand Up Against New, Draconian Copyright Rules
It’s very easy these days to claim that something is bad for Big Tech and therefore good for everyone else. In the case of copyright, the claim is that requiring tech companies to do more to fight copyright infringement will help artists and force tech to be accountable. But all of us who spend time online know that this is wrong. We know that, when it comes to copyright, it is not Big Tech on one side, creators on the other.
Copyright filters, like YouTube’s Content ID, cause creators to lose money, creative freedom, and audiences. Copyright takedowns can be abused for harassment, extortion, or censorship. What creators need is not more copyright enforcement by Big Tech. While many of us who go online understand that, Congress often does not. That is why we need you to stand up and say the draft Digital Copyright Act would be a disaster for online creativity.
We, the undersigned, are Internet creators. We make and share all sorts of work online: music, videos, livestreams, criticism, educational materials—everything you can imagine and some you cannot. For some of us, the Internet has allowed us to be independent artists in a way the traditional media landscape, with its homogenous gatekeepers, never would have.
We are writing to voice our concerns over the draft legislation released in December 2020, the “Digital Copyright Act.”
This bill would cause us, and the creative ecosystem, a lot of harm. As it is, we are constantly fighting copyright enforcement mechanisms to get our legal expression online. And we fight constantly to keep it online. And we fight to keep the money our work generates from going into the pockets of big corporations. This bill will make all those battles losing ones.
This draft mandates that if a takedown notice goes uncontested, the platform should have to filter and block any future uploads of the same allegedly infringing content. This would require the services we depend on—YouTube, Twitch, Facebook, etc.—to monitor our uploads and prevent us from sharing anything that resembled something that was taken down.
That would be disastrous. For example, if a classical musician wanted to upload a video of themselves playing a piece in the public domain, but a takedown notice for a different person playing the same piece had been submitted and not challenged, the new musician would be blocked from sharing their video. Because two people on the same instruments playing the same music can sound eerily similar.
This would apply to anyone doing commentary, remixing and transforming art, sharing memes, and so on. It would hurt people livestreaming, since they may not have control over what is in the background of their videos—as in a recent case where it appeared that a police department was using music to prevent video documentation from being shared online.
We often hear from members of Congress that they support small business owners and artists. We cannot have a robust creative culture if a censorship regime is built into the services small and independent creators rely on.
The last year has made being able to share art online even more critical to its survival. If the Digital Copyright Act had been law last year, we would have been crippled in our ability to make and share our work. We urge you to put this bill aside and not bring up similar ideas in the future.
In 2020, the Senate subcommittee on intellectual property held a series of hearings on the effectiveness of the Digital Millennium Copyright Act (DMCA). And while many groups, including EFF, presented evidence that copyright enforcement hurts online expression, the draft bill released in December largely disregards those concerns.
The draft bill is called the Digital Copyright Act (DCA). It does a number of things, but for creators the biggest danger is its call for filters.
While the DCA does not mention “filters” by name, it has many places where the intent is clear. One is that the current system—which does not require filters, just that a specific upload be removed after a valid notice is received—be replaced with what proponents insist on calling “notice-and-staydown.” That means that once a notice has been sent, the service has a continuing responsibility to make sure nothing like the video taken down goes up. Filters are theonly realistic way to do that.
The bill also calls for the development of best practices and “standard technical measures” to fight infringement. Best practices could mean anything, including filters, and in order to get the protections of the DCA, services would have to adhere to them. The definition of “standard technical measures” involves a requirement that all services allow such things to function on their services. So if a filter is deemed a standard technical measure by the Copyright Office, all online services must be able to run it in order to claim protection.
That will cement not only the power of a few music labels, movie studios, and other media gatekeepers, but the power of the few tech companies that can afford such measures.
When filters are used, we’ve seen musicians’ livefeeds shut down for playing music in the public domain, companies accidentally claiming infringement by themselves and having their videos removed, and too-many-to-count creators forced to re-edit their videos just to get them online. This bill would make that all worse.
Senator Thom Tillis, the author of the draft, is accepting comments on it until March 5th. He has claimed that it reflects the digital world we now live in, compared to the one of the DMCA. He is wrong. The digital world we live in means that Internet users, creators, and copyright holders overlap. It means that Hollywood does not represent the best interests of all, or even most, creators.
We want to show Tillis, and the rest of Congress, that being on the side of creators does not mean more draconian copyright enforcement. That there is a whole group of creators—and copyright holders—who have experienced harm under filters and strongly oppose adding more.
By signing this letter, you are calling on Congress to recognize the value of Internet creators and the harm filters cause. You are saying that you want a future where we can all make and share things, not one where creative expression is in the hands of a few labels, studios, or tech companies.
