Senate IP Subcommittee Plans to Release DMCA Draft Text in December

At a June 2 hearing, Tillis said the DMCA, particularly Section 512, is failing badly, and Congress might need to replace it with a new framework. Ranking member Chris Coons, D-Del., said he’s gathering feedback in exploring the potential for an update. Tillis and Sen. Patrick Leahy, D-Vt., wrote a May 29 letter to the Copyright Office asking how it would design a modern anti-piracy framework starting from scratch. The CO didn’t comment.

The Senate IP Subcommittee posed central questions for the three upcoming hearings. The July 28 hearing will contemplate limitations and exceptions like fair use. The Sept. 16 hearing is on whether “reforms to Section 1201” (see 1802020067) are needed and warranted. The Oct. 6 hearing will be about whether private agreements and existing technology can provide solutions to online piracy.

The June 2 hearing showed there’s not a lot of consensus between rights holders and Big Tech, a tech lobbyist told us. Tillis made clear he’s ready for an overhaul, but Internet Association interim CEO Jon Berroya says the tech industry doesn’t want the DMCA altered. It remains unclear what the draft bill will look like, but the tech industry wouldn’t support the overhaul Tillis envisions, the lobbyist said. Coons suggested bigger platforms could do a better job proactively policing copyright infringement, while sharing concerns about the impact any DMCA changes could have on smaller platforms.

Overcoming the gap between the two perspectives, which Tillis and IA offered, will be difficult if not impossible to achieve by December, Engine IP Counsel Abby Rives said. Engine agrees the DMCA is working well overall, though maybe for reasons different from IA's, said Rives, who testified June 2. Most Engine members don’t see a large volume of infringing content, she said. Increased liability and costs would mean a lot of downside and not a lot of upside for companies, particularly startups, she said in an interview.

IA’s testimony suggested Big Tech is open to voluntary solutions outside the legislative discussion, Artist Rights Alliance Executive Director Ted Kalo told us: Though it's clear IA is discouraging Congress from legislating, platforms can take voluntary measures, like offering rights holders better tools for identifying infringing content. The simple answer is for the companies to license the music and content on their platforms and take more responsibility for illegal content, Kalo said.

Passing a bill that would replace the DMCA, or Section 512, seems unlikely, said DLA Piper's Jim Halpert. Copyright issues don't usually result in one side getting everything it wants, and the ability for senators to block legislation will complicate the process, he said. Rarely does Congress remove a set of laws that has been in place for more than 20 years, he said, though it’s possible Congress will strike a balance over time. Given other Senate priorities, a DMCA update likely isn’t at the top of the list, he continued, noting Tillis is up for re-election this year.

Rights holders and the tech industry are much further apart than negotiators who compromised on the Music Modernization Act, said Re:Create Coalition Executive Director Joshua Lamel. He expressed frustration that the DMCA has been portrayed as a two-sided issue. Internet users and digital content creators on platforms like Instagram, TikTok or Etsy haven’t been properly represented in the debate, he said. Digital content creators, who don’t share the same interests of traditional copyright holders like musicians, have been ignored, Lamel argued. Of the eight witnesses at the June 2 hearing, one represented users, he said: Public Knowledge Policy Counsel Meredith Rose.