Fresh on the heels of President Donald Trump’s inauguration, one of the largest pro-copyright lobbies in the United States is asking the newly elected president to increase the powers held by copyright holders.
In a recent letter addressed directly to Trump, the Copyright Alliance— speaking on behalf of high profile members such as the MPAA and RIAA—suggests the President create new digital borders on the internet. The concept is not dissimilar in spirit to the controversial and highly symbolic wall Trump has promised to build between the United States and Mexico or the restrictions he’s imposed on refugees and Muslims entering the country.
Appealing to Trump “as an author and holder of numerous copyrighted works”, the Alliance, which seeks to influence US copyright law, looks to establish common values with the president and position itself as the natural advocate for their shared concerns.
Copyright law touches just about everything on the internet. And while experts note that copyright law was originally intended to ensure creators could make a living, in the modern era, its purpose has largely shifted to maximizing profits for media conglomerates. And the Copyright Alliance letter makes clear their desire to see that shift continue.
To start, the letter reminds the president that “a strong copyright system that rewards creativity and discourages piracy is essential to a healthy and vibrant economy,” and warns that piracy or weak copyright rules “may result in fewer jobs in the copyright industries” and threaten the livelihood of creators.
But the argument that more restrictive copyright rules are necessary to protect the industry and artists does not stand up to scrutiny.
First, in the era of popular services like Netflix and Spotify, it ignores that music industry revenues in 2015 saw “the biggest increases in the past two decades,” while the film industry has reported record-breaking earnings—all while piracy is at an all-time low.
Second, it ignores the significant promotional benefits creators receive from hosting their work on free, ad-based platforms, and the ample evidence that more restrictive copyright law does not mean less piracy.
And third, claiming stronger rules will “reward creativity” is highly dubious in a world where copyright is used to silence critics, prevent sports fans from filming a match, take down a video of a child dancing to Prince, or otherwise censor speech online.
One of the most dangerous ideas being pushed by the Alliance’s members are controversial “notice-and-staydown” rules. Generally considered the Holy Grail for copyright maximalists, these rules would ensure online material “stays down” after it’s flagged for removal. For example, if YouTube is asked to remove a video due to an alleged copyright violation, these rules would prevent the video from reappearing elsewhere with a new URL.
Currently, under the Digital Millennium Copyright Act, if content you have already posted is flagged for violating copyright and taken down by the online platform, you are notified and can contest the takedown.
However, as the Electronic Frontier Foundation (EFF) writes, under the proposed notice-and-staydown rules, “the platform should also have to filter and block any future uploads of the same allegedly infringing content.” This means automated programs would be required to actively spy for copyrighted material so they can block content before it’s posted—without the opportunity for fair assessment.
The EFF warns such policies amount to a “filter everything” approach that could limit free speech online. This shifts the balance in favor of copyright holders, and, in effect, makes copyright the only place in law where “innocent until proven guilty” does not apply.
Worryingly for internet users, the letter’s appearance suggests discussions about controversial new powers for media conglomerates may soon be on their way; President Trump is pushing ahead with plans to renegotiate the North American Free Trade Agreement (NAFTA), which contains an intellectual property chapter ripe for seizure by an army of lobbyists.
With the US pulling out of the much-maligned Trans Pacific Partnership (TPP), it seems NAFTA renegotiation would be the obvious place for Trump to push through the changes the Copyright Alliance seeks.
Michael Geist, a Canadian professor of law, argues a renegotiated NAFTA could change the face of copyright policy in participating countries, and would create opportunity to reinsert the TPP’s controversial intellectual property provisions, including the introduction of internet takedown rules and copyright term extensions.
While Trump’s position remains unclear, it is easy to see how industry calls for more restrictive copyright could amount to building digital walls online. These rules would make it harder for everyday internet users to share content online, and burden popular ad-supported platforms with additional expenses and liabilities.
Given the benefits and popularity of online platforms that rely on the flexibility of current copyright rules, these proposed rules actually hamper creativity, rather than promote it. Increased fortification of copyright amounts to nothing more than “rent-seeking” by powerful companies that are less interested in supporting creative communities than in maximizing their profit margins.
Indeed, the rules they are asking for would be just another case of industry-driven legislation run wild, all at the expense of everyday internet users and innovation online.
Now that it’s clear where the copyright lobby is headed, it’s never been more important for internet users and tech platforms to stand together and ensure their voices are heard. Changes to copyright impact us all and govern how we express ourselves, share, and collaborate online.
With the Copyright Alliance’s letter, Big Media has taken a shot across the bow of the free and open internet. Now it’s time to take a stand.