Senator Tillis Releases Draft Bill to Modernize the Digital Millennium Copyright Act

By Rebecca Tapscott
December 22, 2020

The discussion draft, which is intended to bring revolutionary changes to online copyright law, is a proposed DMCA modernization reform released to solicit comments from stakeholders and other interested parties.

Thom Tillis

Senator Thom Tillis (R-NC). ThomTillis.com.

Today, Senator Thom Tillis (R-NC), the Chair of the Senate Judiciary Committee’s Subcommittee on Intellectual Property released a discussion draft of a Digital Millennium Copyright Act (DMCA) reform bill titled the “Digital Copyright Act of 2021” (the discussion draft). The discussion draft, which is intended to bring “revolutionary changes to online copyright law,” was developed based on recommendations in “six hearings of the Subcommittee on Intellectual Property focused on reforming copyright law in the digital environment, … two staff briefings, and … four extensive Copyright Office studies.” The draft DMCA modernization was released in order to solicit comments from stakeholders and other interested parties. Those familiar with Tillis’ approach to patent reform will recognize this approach as similar to his effort to achieve consensus on patent eligibility reform earlier in this Congressional term.

Senator Tillis has requested interested stakeholders, including “large and small, individuals and companies, YouTubers, and independent creators,” to submit redline edits and comments of the discussion draft to the Subcommittee by March 5, 2021. Those wishing to submit comments should send them via email to Intellectual_Property@tillis.senate.gov.

The Need for Reform

There have been many technological advancements and changing business practices since the enactment of the DMCA in 1998 and “copyright law today is ill-suited for the needs of most copyright owners and individual users.” As noted by Senator Tillis in the June Subcommittee hearing, “the grand bargain of the DMCA is no longer working and not achieving the policy goals intended.” Tillis also stated that there may be a “need to design an entirely new system” in order to achieve the goals of “encourag[ing] the creation of copyrightable works and [protecting] users and consumers who are making lawful uses of copyrighted goods and software-enabled products.”

The bill is intended to modernize U.S. copyright law by amending the key provisions of the DMCA for addressing online infringement, modernizing circumvention measures, providing a means whereby authors can be properly credited, establishing the Copyright Office as an executive branch agency of the Department of Commerce, and by creating a copyright small claims tribunal. Other goals of the bill are to “ensure that our copyright system provides both sufficient incentives for creators, important certainty and guidance for OSPs, and necessary protections for individual users and consumers.”

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Key Changes

The discussion draft includes several significant revisions to the DMCA, including:

  1. Increasing roles for various federal agencies in establishing regulations to better protect copyright owners and individual users and to increase certainty for OSPs regarding obligations under section 512, such as establishing standard technical measures that OSPs must accommodate or adopt and best practices that account for differences in size, service, and scale of infringement;
  2. Clarifying knowledge requirements for OSPs, lowering the specificity with which copyright owners must identify infringing material in certain circumstances, and replacing the notice-and-takedown system in existing law with a notice-and-staydown system for complete and near complete works;
  3. Utilizing a copyright small claims tribunal, as envisioned by the CASE Act, to resolve disputes between copyright owners and counter-notice senders, as well as for pursuing enhanced penalties under section 512(f);
  4. Creating a limitation on liability for good faith users who, following a diligent search, are unable to locate the copyright owner and decide to still use the orphan work;
  5. Establishing the Copyright Office as an executive branch agency within the Department of Commerce, led by a presidentially appointed Register of Copyrights;
  6. Modernizing the existing permanent exemptions that allow for TPM circumvention for security testing and encryption research, and adding new permanent exemptions;
  7. Streamlining the triennial rulemaking process for temporary exemptions;
  8. Expanding the possible scope of temporary exemptions by authorizing the Copyright Office to permit third-party assistance “at the direction of” an intended user and to adopt temporary exemptions for trafficking of circumvention tools when the tool would be used to facilitate an exempted circumvention;
  9. Providing the author of the copyrighted work with a right of action when someone removes or alters copyright management information on digital or analog copies with the intent to conceal an author’s attribution information.

Stakeholders Weigh In

Following the release of the discussion draft, several stakeholders have already expressed their gratitude and support to Senator Tillis for the changes proposed. Keith Kupferschmid, the CEO of the Copyright Alliance issued a statement thanking Senator Tillis and noting that the discussion draft “represents the first step in what will likely be a long road toward a workable compromise.” Several Copyright Alliance member organizations also issued comments in support of the discussion draft, including the American Association of Independent Music (A2IM), American Society for Collective Rights Licensing (ASCRL), Authors Guild, Graphic Artists Guild, National Press Photographers Association (NPPA), News Media Alliance, SAG-AFTRA, and the Software & Information Industry Association (SIIA). For example, the Author’s Guild thanked Tillis for “his leadership of the process to reform section 512 of the DMCA, and especially for his commitment to ensure that the law responds to the needs of small, individual creators whose livelihoods are being devastated by rampant online piracy” and noted that the “draft reform bill incorporates changes into the law that will help [small copyright owners and individual] creators, as well as improve the ability to have redress against dishonest takedown notices.” In addition, the SIIA commended Senator Tillis for the transparency in the development of his discussion draft and welcomed further deliberation to “the extent that the discussion draft contains provisions relating to the administration of the U.S. Copyright Office …, such as modernization of the registration and deposit requirements.” 

Further, a joint statement released by 22 music community organizations noted that it “is long past time to restore the balance that was originally intended by Congress in which rightsholders and Internet platforms work together to promote fairness and efficiency in the digital distribution of copyrighted works” and the discussion draft has started an “important discussion about how best to provide incentives for success.” In agreeing with the conclusions in the U.S. Copyright Office’s report, the statement noted that with respect to “the safe harbor provisions contained in the DMCA (including the inefficacy of the notice-and-takedown system), ‘Congress’ original intended balance has been tilted askew.” The organizations represented by the joint statement noted that they are looking “forward to working with Chairman Tillis and his colleagues from both parties across both houses of Congress, and … partners across the creative ecosystem, to find workable, effective solutions to the serious and ongoing problem of online infringement.”

 

The Author

Rebecca Tapscott

Rebecca Tapscott is an intellectual property attorney who has joined IPWatchdog as our Staff Writer. She received her Bachelor of Science degree in chemistry from the University of Central Florida and received her Juris Doctorate in 2002 from the George Mason School of Law in Arlington, VA.

Prior to joining IPWatchdog, Rebecca has worked as a senior associate attorney for the Bilicki Law Firm and Diederiks & Whitelaw, PLC. Her practice has involved intellectual property litigation, the preparation and prosecution of patent applications in the chemical, mechanical arts, and electrical arts, strategic alliance and development agreements, and trademark prosecution and opposition matters. In addition, she is admitted to the Virginia State Bar and is a registered patent attorney with the United States Patent and Trademark Office. She is also a member of the American Bar Association and the American Intellectual Property Law Association.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 9 Comments comments.

  1. Pro Say December 22, 2020 11:34 pm

    Thom and friends: Congratulations.

    Now for what America needs most in IP:

    The restoration of patent eligibility to all areas of innovation . . . without any new innovation-crippling restrictions.

    All areas.

    No new restrictions.

    Please.

  2. B December 23, 2020 2:34 pm

    Till is needs to Draft that s101 bill first

  3. Gene Quinn December 23, 2020 5:15 pm

    B-

    I’m afraid that 101 is still no go. There needs to be consensus. Maybe that changes after the next Congress starts, hard to predict. We will keep everyone posted, but for now I don’t believe there is any movement on the front lines. There continues to be attempts deep behind the scenes, so the issue still isn’t dead and legislatures are (or were) willing to pick it up again. We shall see. Maybe if big tech is focused on Section 230 and antitrust liabilities… who knows.

  4. Anon December 23, 2020 6:33 pm

    Respectfully Mr. Quinn, there need NOT be “consensus.” That’s a trap of dragging the large wooden horse within the city gates.

    What IS needed is unadulterated common sense and a clear view of those ‘seeking consensus’ exposed for attempting to BLOCK meaningful eligibility reform.

  5. B December 23, 2020 10:13 pm

    @ Gene “I’m afraid that 101 is still no go. There needs to be consensus”

    I haven’t met a single congress critter that doesn’t think the SCOTUS overstepped and the CAFC went braindead. I’ve talked to both Coons and Tillis on the matter, and a bunch of their underlings. This is one of those non-political things they can agree on w/o wetting their respective beds

  6. B December 23, 2020 10:48 pm

    @ Gene “Maybe if big tech is focused on Section 230 and antitrust liabilities… who knows.”

    Big Pharma is split on Mayo depending on their respective business model, but Big Tech has a total thing for Alice Corp., and Big Tech owns Biden Corp.

    Ergo, I don’t hold much hope on Alice or s230. While antitrust is a special rabid watchdog, let’s see if the new administration puts the DOJ Antitrust division on a leash.

    @ Anon “Respectfully Mr. Quinn, there need NOT be “consensus.””

    Have you seen an overwhelming amount of integrity in our congress lately? Further, the “Establishment” – Left and Right – are back in power as the populists have been shown the door or demoted to field slaves. They’ll do what is in the interest of the American people only so long as it doesn’t interfere with Big Tech contributions, eating bugs, etc.

    Enjoy your $600

  7. Anon December 24, 2020 9:30 am

    B,

    Sadly, I hear you.

  8. Greg DeLassus December 28, 2020 12:25 pm

    “ Maybe if big tech is focused on Section 230 and antitrust liabilities… who knows.”

    I admire the optimism implicit in this closing line, but the hope expressed here seems misplaced to me. The composition of the Court has not much changed since Alice, and will not for some time yet. The composition of the Senate has not changed much since the failure of the Tillis/Coons bill, and likely will not for some time yet.

    In other words, none of the prerequisite change necessary for a shift in 101 law has happened, and will not happen any time soon. Realistically, we torpedoed our last, best hope for a fix when the Tillis/Coons hearings torched the last bill. The present 101 mess is going to persist for another decade at least.

  9. Anon December 29, 2020 8:28 am

    Realistically, we torpedoed our last, best hope for a fix when the Tillis/Coons hearings torched the last bill

    This was the desired effect by a certain “we” that Mr. DeLassus has steadfastly refused to acknowledge.

    Instead, he seems intent on maintaining the illusion that “compromise” (wheeling that large wooden horse into the city and within the protective city gates) was not only a viable option, but a desired path.

    The better post mortem here would be to emphasize just who this “we” is, and show that the financial interests of NOT protecting innovation is the actual driver of scuttling the effort to fix the broken scoreboard.