Friday, February 24, 2017

Music Coalition to Congress: Fix DMCA's Safe Harbor!

Written by Emmanuel Legrand — A large coalition of organizations covering all sectors of the US music community has asked Congress to act to fix the safe harbor provisions in US copyright law if tech companies did not voluntarily agree to adopt measures to help address the "failings" of safe harbors.

The call came through a filing, submitted by Kenneth Doroshow and Scott Wilkens from New York law firm Jenner & Block, on behalf of 15 organizations. The filing is part of the call for comments initiated by the US Copyright Office in its review process of Section 512 of the Digital Millennium Copyright Act (DMCA), which introduced in 1998 safe harbor provisions. These provisions have allowed internet services to avoid liability for content posted on their platforms in exchange for complying with take down notifications from rights holders. The filing also comes at a time when the chairman of the House Judiciary Committee, Bob Goodlatte, plans to overhaul parts of US copyright law.

For the music community, the DMCA's safe harbor provisions are one-sided instead of being balanced, and have led to a slow erosion of the value of music, exemplified by the small amount of royalties paid by video streaming platform YouTube to rights holders, or by the absence of licensing deals in place with FaceBook.

In the filing, the signatories claim that the DMCA safe harbor "suffer from numerous key failings that have resulted in a heavily skewed playing field where service providers can either comply with their minimal safe harbor obligations—and thereby obtain immunity from damages liability and avoid obtaining licenses from copyright owners—or use the safe harbor strategically in licensing negotiations with copyright owners to extract rates far below fair market value."

The remedy, according to the filing, is in the hands of service providers, who could "help to restore much of the balance Congress intended to strike by agreeing to adopt standard technical measures and/or voluntary measures to address the DMCA safe harbor's key failings."

However, if said technology companies were not actively seeking such balance, action from Congress would be needed. The filing concludes: "The Music Community stands ready to work with service providers and other copyright owners on the development and implementation of standard technical measures and voluntary measures. However, to the extent such measures are not forthcoming, legislative solutions will be necessary to restore the balance Congress intended."

The submitting organizations include: American Federation of Musicians; American Society of Composers, Authors and Publishers; Broadcast Music, Inc.; Content Creators Coalition; Global Music Rights; Living Legends Foundation; Music Managers Forum – United States; Nashville Songwriters Association International; National Academy of Recording Arts and Sciences; National Music Publishers’ Association; Recording Industry Association of America; Rhythm and Blues Foundation; Screen Actors Guild – American Federation of Television and Radio Artists; SESAC Holdings, Inc.; and SoundExchange.

At the same time, singer, songwriter and producer T Bone Burnett has submitted a video calling for reforms to the DMCA's notice-and-takedown process as part of the US Copyright Office’s review of Section 512. Burnett is also Advisory Board Member of the Content Creators Coalition, or c3, an artist-run non-profit advocacy group representing creators in the digital landscape.

In the video, Burnett, claimed that, for artists and creators, "instead of amplifying our voices to lead the fight for change, it [the Internet] undermines and silences us." The problem, according to Burnett comes from the DMCA provisions on safe harbors that were "supposed to balance the Internet’s openness with creators’ ability to earn a living wage from their work." But his verdict is blunt: "Those safe harbors have failed."

He subsequently urged policy-makers to fix the DMCA's safe harbor provisions and offered a way forward: "The safe harbors must be restored – so only responsible actors earn their protection, not those who actively profit from the abuse and exploitation of creators’ work. Technology must be enlisted to make the system work better, not to roadblock progress in a pointless arms race of whack a mole and digital deception. Creators must be given meaningful tools to earn a living from their art."

He concluded: “Everyone with a stake in the Internet’s success and the health of our creative democracy must work together to make this right. It’s time for Congress to close the loopholes in section 512 of the DMCA. Our culture is at stake.”

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