Feb 13 2020

National Journal

As Silicon Valley struggles to fend off an escalating effort to strip away its main legal shield, it’s suddenly staring down a new threat to yet another treasured liability protection.

Well, it’s not exactly a new threat—in fact, it’s far older than the congressional push to reform or repeal Section 230 of the Communications Decency Act, which shields tech companies against lawsuits over user-created content. But as lawmakers of all stripes declare their opposition to Section 230, the tech industry’s separate safeguard against copyright lawsuits is also increasingly at risk.

“The two issues are very much connected,” said Rebecca Tushnet, a First Amendment expert at Harvard Law School. “They’re both under pressure, and opponents of both tend to lump a bunch of bad things together.”

Tushnet was on Capitol Hill Tuesday to testify at a hearing convened by Sen. Thom Tillis, chairman of the Senate Judiciary Intellectual Property Subcommittee. Tillis used the hearing to kick off a broad review of the Digital Millennium Copyright Act, a 1998 law immunizing tech platforms against legal liability for pirated movies and music, as well as other infringing content posted by their users.

“Almost every single thing about the internet has changed in the last 22 years, and the law simply hasn’t kept pace with the technology,” Tillis said. “The original DMCA was simply not designed for the kind of global data and advertising platforms that we’ve seen develop over time.”

Tillis, a North Carolina Republican who is up for reelection in November, said he plans to hold as many as 10 hearings on the DMCA and release a draft bill by the end of this year. He called the legislation “a top priority for me for the remainder of this Congress and, if I’m elected, for my second term.” Top Democrats on the subcommittee, including Sens. Patrick Leahy and Chris Coons, praised Tillis for the effort.

Tillis wouldn’t commit to any specific changes on Tuesday. But his suggestion that the compromise between copyright owners and online platforms has “broken down” in the wake of Silicon Valley’s massive growth echoes arguments recently deployed against Section 230.

“We nurtured these infant industries 22, 25 years ago,” said Mark Schultz, director for the Center of Intellectual Property Law and Technology at the University of Akron Law School. “They’re not babies anymore. They’re the biggest, richest, most powerful companies in the world.

“They no longer need these protections,” Schultz said. “And in fact, it’s harmful to grant them these protections. It gives them too much power, too little responsibility.”

Despite some claims to the contrary, Section 230 doesn’t immunize tech platforms from lawsuits brought for hosting infringing content. If Disney wants to sue YouTube for the presence of full-length Marvel movies on its platform, there’s nothing in Section 230 to stop it.

Big tech’s shield against copyright liability first emerged in 1998, two years after Section 230’s passage, when fierce lobbying from a fragile tech industry secured a “safe harbor” for platforms facing a flood of intellectual-property lawsuits. In return for broad legal immunity, tech platforms promised to engage in good-faith anti-piracy efforts and honor takedown notices from the music and film industries.

That “safe harbor” provision—also known as Section 512—came under threat in 2011 and 2012, when federal anti-piracy legislation known as SOPA/PIPA came close to passing. But a sustained pressure campaign led by Google and other large tech platforms killed those bills, setting back the music and film lobby’s crusade for greater accountability in the tech industry by nearly a decade.

But in the wake of SESTA/FOSTA—a 2018 law that chipped away at the tech industry’s legal shield for content related to sex trafficking—and with powerful lawmakers and presidential candidates calling for the reform or repeal of Section 230, many experts believe the DMCA’s “safe harbor” provision is also on the chopping block.

“The DMCA discussion and the [Section] 230 discussion are related; there’s no question about that,” said Jonathan Band, an intellectual-property lawyer who represented Yahoo and other tech platforms during the original DMCA negotiations. “And the political terrain has changed.”

The entertainment industries are already seeking to bend Washington’s focus on Section 230 toward their own ends on copyright.

Last week, The New York Times reported that a broad business coalition, including Disney and the Motion Picture Association of America, is lobbying lawmakers in favor of Section 230 reform due to copyright concerns. But why would the music or film industry focus on Section 230, when it’s Section 512 of the DMCA that prevents the aggressive online enforcement of copyright?

According to Tushnet, it’s about messaging: By drumming up opposition against one of big tech’s key legal shields, rival industries hope that momentum will bleed into a new fight targeting the tech industry’s protections against copyright liability.

“They think, quite possibly correctly, that if all the bad stuff is lumped together they will have an easier time on [Section] 512,” Tushnet said.

Steve Metalitz, a lawyer at Mitchell Silberberg & Knupp who represented copyright holders during the DMCA’s drafting, said it’s only natural that Section 230 and Section 512 be lumped together.

“It’s one spectrum of issues that we’ve kind of artificially divided up with these two laws,” Metalitz said.

And should the effort to reform—if not outright revoke—both of big tech’s legal shields gain additional steam, experts on all sides of the debate will likely rehash the same arguments deployed in the battle over Section 230.

“Any changes you contemplate making to [Section] 512 or [Section] 230 will entrench Google and Facebook,” said Tushnet, who said she believes only the major tech platforms will have the resources to withstand new liability requirements.

“I understand why some people think they’re good pressure points,” she said. “But they’re actually ways to ensure that Facebook and Google stay dominant forever.”