Sen. Thom Tillis Proposes ‘Notice and Stay Down’ Rewrite of Online Copyright Law
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Sen. Thom Tillis on Tuesday unveiled an overhaul of the Digital Millennium Copyright Act, which is intended to make it easier to stamp out pirated content online.
The bill seeks to revamp the current “notice and takedown” system — whereby copyright owners submit infringement notices to online service providers — with a “notice and stay down” provision. Copyright owners — including the major studios and record labels — have long complained that the same pirated material reappears online over and over again, and that they often must file thousands of takedown notices.
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Tillis’ draft legislation would require service providers to make sure that such material stays removed and does not reappear. The bill would also give the Copyright Office the power to determine whether providers were doing enough to combat piracy, with the threat of revoking “safe harbor” immunity from liability.
The proposal was met with appreciation from the Copyright Alliance, an umbrella group that represents the film and TV industry, the music industry, studios, sports leagues, entertainment unions, photographers, and other copyright holders.
“This draft represents the first step in what will likely be a long road toward a workable compromise and, again, we are grateful to Chairman Tillis for starting us down this path,” the group said in a statement.
The Motion Picture Association also commended Tillis and called his proposal a “first effort to find harmony” on the issue. Ruth Vitale, CEO of CreativeFuture, said the proposal should “trigger a serious and long-overdue dialogue” on the failings of the DMCA.
But organizations that promote free expression online blasted the proposal. Public Knowledge, a group representing internet users, called the “notice and stay down” provision both unconstitutional and unworkable, saying it would subject all online expression to algorithmic filtering.
“The current draft text would significantly curtail online speech, subjecting every upload to mandatory content filtering while effectively eliminating fair use on the internet,” the group said in a statement.
Re:Create, a coalition of groups including Public Knowledge and the Electronic Frontier Foundation, said the bill would “fundamentally end online creativity as we know it.”
“Simultaneously this proposal would result in massive legal uncertainties for small businesses, startups and new creators; hurt competition and consumer choice for the next generation of platforms like TikTok and Parler; and lead to significant overblocking of everyday content on the platforms that Americans use every day to work, communicate and have fun,” said Joshua Lamel, the group’s executive director.
Tillis, the Republican chairman of the Senate Judiciary Subcommittee on Intellectual Property, has been holding hearings on the issue for a year. Tillis was narrowly reelected in November, with considerable financial support from political action committees representing the entertainment industry.
The draft bill is not likely to become law any time soon, but the release of the legislation is likely to kick off the most contentious battle between the tech industry and the entertainment industry since the fight over the Stop Online Piracy Act nine years ago.
Tillis asked for comments on the draft measure to be submitted by March 5. At a hearing last week, he said it would likely take until the end of his second term — that is, another six years — before the measure passes into law.
Tillis recently authored the Protecting Lawful Streaming Act, which makes it a felony to run a pirate streaming service. The bill was included in the omnibus appropriations bill passed by Congress on Monday.
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