North Carolina Republican Senator Thom Tillis, who has been a leader in the effort to reform the Digital Millenium Copyright Act, recently sent an open letter to stakeholders addressing the efforts he and his team have made. The letter from the senator, who fought off a strong challenge from Democratic candidate Cal Cunningham in last week’s election, is posted in full below.
More than two decades after its passing, the DMCA has been a much-contested issue in most matters involving digital music and copyright, as creators often call for more favorable royalties, while platforms often cite the act as rationale for lower rates. The issues involved and the changes in digital platforms over the past two decades are deeply complex, in his call for input, the senator stresses: “I have found that the universe governed by copyright law has changed dramatically and that laws that may have worked well at the end of the previous millennium are not working as well today.”
The letter follows in full below.
DMCA Reform Bill
Questions from Senator Tillis for Stakeholders
I believe American copyright law needs to be modernized to be more responsive to current technologies, copyright markets, and business practices. To this end, I have conducted an extensive study this year of the state of copyright law and particularly how well the Digital Millennium Copyright Act (DMCA) functions more than two decades after enactment. I have found that the universe governed by copyright law has changed dramatically and that laws that may have worked well at the end of the previous millennium are not working as well today.
Rather, than tinker around the edges of existing provisions, I believe Congress should reform copyright law’s framework to better encourage the creation of copyrightable works and to protect users and consumers making lawful uses of copyrighted goods and software-enabled products, respectively. I believe the key provisions of copyright law ripe for reform are sections 512, 1201, and 1202—all of which were added to title 17 by the DMCA. Additionally, other aspects of title 17 could be revised to better tailor copyright law for the digital age.
To this end, I am seeking public input from all interested stakeholders on a number of issues. For each of the questions below, please provide explicit recommendations for solutions, including draft legislative text, to achieve the goals identified in each question. So that recommendations can be incorporated into my draft legislative text that will be released on December 18, please email responses to my Judiciary staff–Chief Counsel Brad Watts <[email protected]> and Counsel-Detailee Brad Greenberg <[email protected]>—by no later than December 1, 2020.
- The record established in my DMCA reform hearings indicated that an overarching principle of any reform should be making digital copyright less one-size-fits-all. The law needs to account for the fact that small copyright owners and small online services providers (OSPs) may have more in common with each other than they do with big copyright owners and big OSPs, respectively. Accordingly, I think we should consider whether copyright law should be revised to account for such differences among stakeholders. In particular, could copyright law borrow from employment law, or other relevant fields, to establish different thresholds for copyright owners and OSPs of different size, market share, or other relevant metric? If so, what is the best way to accomplish this? Is there a particular area of law, or existing section of the U.S. Code, that provides crucial guidance? As with all questions where it is relevant, please include in your response specific recommended legislative
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