Hoping once again to rewrite copyright law in its own interest, the copyright establishment—specifically music and publishing—is calling on President-elect Donald Trump to support “strong protections for intellectual property rights,” and to push search engines, hosting companies, and domain name registrars and registries to become copyright cops.
Traditional music companies opened the bidding, sending a letter to Mr. Trump that paints the familiar misleading picture of an industry as suffering under current copyright rules and desperately in need of support from the federal government. They hope that support will come in the form of a substantial rewrite of one of the cornerstones of Internet law: the safe harbors in Section 512 of the Digital Millennium Copyright Act (DMCA). Those safe harbors limit the circumstances under which Internet intermediaries can be held liable for copyright infringement by their users and have allowed the Internet to grow and flourish, enabling services like search, user-generated content platforms, and cloud computing to develop. Each of these services would be impossible in a world where intermediaries faced cripplingly high damages anytime their users ran afoul of copyright law.
Rewriting those rules is a bad idea for everyone, including musicians. The music industry has benefitted enormously from the Internet’s growth. Not only are there more opportunities for musicians to share their music with a global audience, but the industry itself is profiting handsomely. 2015 was a record-breaking year for both music and movie industry profits. Global revenue for recorded music seems to have grown to $15 billion in 2015 in reportedly the “biggest increase over the past two decades,” largely due to digital music streaming services. BMI, an agency that licenses musical compositions for radio, television, streaming services, and physical venues, reached record-breaking revenues in 2015, topping $1 billion. These gains aren’t limited to the music industry—the movie industry earned a record-breaking $11.13 billion from American box offices in 2015 and pulled in the highest annual earnings worldwide ever.
But the traditional music industry is never satisfied. It wants tougher rules on Internet platforms that, it hopes, will push users away from ad-supported sites towards paid subscription services. This strategy (incorrectly) assumes: (1) that stronger copyrights (or more enforcement) would decrease people’s consumption of free or infringing content online, despite evidence to the contrary, and (2) that the music industry derives no benefit (in access to audiences, publicity or marketing, for example) when users have a panoply of options to access and share music.
Above all, the music establishment wants to require platforms and Internet service providers to filter content that users upload—what they call “notice and staydown.” But Internet service providers are poorly placed to evaluate whether a particular upload is infringing, so any such obligations would likely encourage overzealous filtering and monitoring of user activity. There’s no technological solution that can find all instances of infringement without targeting perfectly lawful uses of copyrighted works, and Internet service providers should not be making those determinations on their own. And developing filtering systems for different types of platforms and services would be expensive, placing an enormous burden on smaller internet service providers and hindering competition. Once filtering mechanisms are in place, they would also offer repressive governments a simple mechanism to censor a range of other content that they don’t like.
While the music business has always had its inequities, laws that regulate and strangle Internet services and platforms aren’t the right answer.
Not to be outdone, the Association of American Publishers (AAP) has weighed in as well, echoing the music establishment’s concerns about Internet safe harbors and “service provider business models” that allow user-uploaded content without monitoring, filtering or blocking. But the AAP doesn’t stop there—they also take aim at libraries, schools and archives that, the AAP claims, share with service providers a “common self-interest in continued advocacy to minimize the effectiveness of copyright protection and enforcement.” Nonsense. As the American Library Association has noted, these institutions actually play multiple roles, including serving as a "small but significant market" for copyrighted works. They also rely on fair use and safe harbors to ensure that members of the public can access copyrighted works and to preserve our cultural commons. This, in turn, allows the public to build on that commons, in a continuing process of cultural and intellectual innovation.
The AAP also implies it wants even stricter enforcement against device manufacturers—presumably through laws like Section 1201 that prohibit users from getting around digital locks on copyrighted content. But locking down users’ devices, as with Digital Rights Management, is a massively unpopular strategy that impairs users’ ability to freely express themselves, interferes with access to books in accessible formats, hinders competition, and takes away users’ freedom to tinker with their own devices.
Like the music establishment, the AAP insists the growth of the Internet is hurting their bottom line. But the numbers say otherwise. The AAP itself reports that the U.S. publishing industry pulled down $27.78 billion in 2015, on par with the $27.96 billion they made in 2014 and 2013’s $27.07 billion. Academic publishers are raking in massive profits at huge margins. Yet the AAP still wants more, and it thinks it can get it by cracking down on device makers and on services that facilitate access to content.
Fortunately, the AAP’s lobbyists don’t speak for the entire industry—publishers and authors from a variety of disciplines are taking advantage of the unprecedented opportunities that Internet services and platforms present to make sure their works reach their audiences through open access publishing and other innovative strategies.
Still, it seems Big Content will never stop looking for more government support for their traditional business model, no matter what the cost to the Internet—and they are never satisfied. We urge the incoming administration to resist industry demands for more copyright regulation that, if history is any guide, will be both expensive and ineffective.