We participate in Copyright week, A series of actions and discussions that support the basic principles that should guide copyright policy. Every day of the week, different groups are addressing different elements of copyright law and policy, addressing what is at stake and what we need to do to make sure that copyright fosters creativity and innovation.
There has been a noticeable and long overdue wave of antitrust measures targeting the big tech companies, launched by users, businessmen and governments alike. And in the United States and abroad, policymakers are working to renew our antitrust laws so that they can be more effective in promoting user choice.
These are positive developments, but this renewed focus on antitrust risks overlooking another powerful legal lever: copyright. Because there is copyrighted software in every digital device and online service we use, and because the Internet is essentially a giant machine for copying digital data, copyright law is the main force that shapes technology and how it is used. This gives copyright law an enormous role in enabling or hindering competition.
The Digital Millennium Copyright Act (DMCA) is an example. It contains two main sections that have been controversial since they came into force in 2000. “Anti-Circumvention” provisions (sections 1201) and what comes next. of copyright law) circumvent access controls and technical protection measures. The Safe Harbor provisions (section 512) protect service providers who meet certain conditions from monetary damages for the infringing activities of their users and other third parties on the network.
Congress ostensibly passed Section 1201 to discourage would-be violators from defeating DRM and other access controls and copying restrictions on creative work. In practice, little has been done to deter the breach – after all, a large-scale breach already calls for huge legal penalties. Instead, Section 1201 was used to prevent competition and innovate in everything from printer cartridges to garage door openers, video game console accessories, and computer maintenance services. It has been used to threaten hobbyists who want to improve the working of their devices and games. And the problem is getting worse as software appears in more and more places, from phones to cars to refrigerators to farm equipment. If this software is locked behind a DRM, dealing with it so you can provide additional services may require circumvention. As a result, manufacturers have complete control over their products, long after they’ve been purchased, and can even close secondary markets (as Lexmark did for printer ink, and Microsoft tried to do this for Xbox memory cards.)
On the other hand, the “secure ports” of Section 512 are essential for Internet innovation, as they protect service providers from financial liability based on users’ infringing activities. To receive these protection services, protection service providers must comply with the terms set forth in Section 512, including “notice and takedown” procedures that give copyright holders a quick and easy way to disable access to allegedly infringing content. Without these protections, the risks of potential copyright liability will prevent many online brokers–From platforms to small community sites to newspapers and ISPs – from hosting and transferring user-generated content. Without the DMCA, much of the big tech wouldn’t exist today – but it’s also true that if we take it too far now, no new competitors will ever emerge to challenge today’s giants. Instead, the biggest tech companies will make lucrative deals with major entertainment companies and other big copyright holders, and anyone else who hosts or transmits third-party content will have to take the risk of massive and unexpected financial penalties — a risk that could deter investment.
There is one last legal wrinkle: the nomination of mandates. The DMCA content removal process has not satisfied many rights holders, so large platforms, notably Google, have also adopted filters and other automated processes to automatically remove content, or prevent it from being uploaded in the first place. In the European Union, these mechanisms are made mandatory, thanks to a new copyright law that requires DMCA-like safe ports to prevent users from downloading infringing content. Its proponents insisted that filters are not required, but in practice this is the only way providers will be able to comply. This has created a problem in the EU – as the European Court of Justice’s chief prosecutor admitted last year, automated bans necessarily conflict with the human right to freedom of expression.
But filtering authorizations create another problem: they are expensive. Google is known to have spent more than $100 million developing Content ID – a cost that few others can afford. If the price of hosting or moving content is to build and maintain a copyright candidate, investors will find better ways to spend their money, and the current tech giants will remain comfortably entrenched.
If we want to make space for New Tech to challenge Big Tech, then antitrust law cannot be the only solution. We also need balanced copyright policies, in the United States and around the world. That’s why we’ve fought to stop EU authorization and keep fighting to address the inevitable harms of enforcement, and why we’re working so hard to stop the current push for authorization filters in the US as well. We also need the courts to play their part. To that end, just this month the EFF asked the Federal Court of Appeals to block enforcement of Section 1201 copyright rules that infringe the First Amendment and criminalize talk about technology. We have also provided friendly summaries in many cases where companies use copyright to prevent competition. And we will continue to struggle, in the courts, legislatures, agencies, and the public sphere, to make sure that copyright serves innovation rather than frustrates it.