a Better Bubble™
A whole bunch of people wasted Tuesday talking about technical measures. What technical measures, you might ask? The ones vaguely alluded to in the DMCA. Subsection 512(i) conditions the safe harbors on platforms (more formally called "Online Service Providers," or OSPs, for the purposes of the DMCA) "accommodat[ing] and [...] not interfer[ing] with standard technical measures." The statute goes on to describe them in general terms as "technical measures [...] used by copyright owners to identify and protect copyrighted works" that meet a few other criteria, including that they don’t unduly burden OSPs.
In 1998 when the DMCA was passed no technical measures met all the criteria. And, still, today, none do either. So it should have been a very short hearing. But it wasn’t. Instead we spent all day, plus lots of time earlier filing comments, all at the instigation of Senators Tillis and Leahy, having some people point out that no technical measure currently existing can meet this statutory criteria to help police for infringement without massive, unacceptable cost to OSPs and the expression – including copyrightable expression – they facilitate, and having other people instead stamp their feet and hold their breath, pretend up is down, left is right, and the world is flat, in order to declare that some somehow do anyway and that platforms should incur any cost necessary to deploy them.
And as for which technical measures we were talking about… we never really got there. There were references to fingerprinting technologies, like ContentID, the huge, expensive, and perpetually inaccurate system Google uses to identify potentially infringing files. There were references to watermarking systems, which some (like us) noted create significant surveillance concerns as people’s consumption of expression is now especially trackable. And there were references to upload filters as well, like the EU keeps wanting to mandate. But at no point was any specific technology ever identified so we could assess the benefits and harms of even encouraging, much less mandating, its broader use. We just all sort of nodded knowingly at each other, as if we all shared some unspoken knowledge of some technology that could somehow magically work this unprecedented miracle to make all rightsholders perfectly happy while not crushing OSPs’ abilities to continue to facilitate expression, create market opportunities for creators, and connect creators to audiences. Nor outright crush lawful expression itself as so many of these systems are already doing. When, of course, no such technology currently exists, nor is likely to exist any time soon, if ever at all.
Since the Copia Institute participated in this exercise in futility, we used the opportunity to remind everyone – and the record – in our comment and testimony that the entire conversation was happening in the shadow of the Constitution. For instance, while a system of safe harbors for OSPs is not inherently in tension with the First Amendment – indeed, protecting the platforms that facilitate Internet expression is a critical statutory tool for advancing First Amendment interests online – recent interpretations of the statutory language of Section 512 have been increasingly putting this safe harbor system at odds with the constitutional proscription against making a law that would impinge free expression. Any system, be it legal or technical, that causes lawful expression to be removed, or to not be allowed to be expressed at all, deeply offends the First Amendment. Such harm cannot and should not be tolerated in any statute or policy promulgated by the Copyright Office. The regulatory priority therefore ought to be, and must be, to abate this constitutional injury that’s already been occurring and keep it from accruing further. And under no circumstances should any provision of Section 512, including and especially the technical measures provision, be amended or interpreted in a way that increases the frequency or severity of this constitutional harm that the statute has already invited.
Because it also offends the spirit if not letter of the Progress Clause animating copyright law. You cannot foster creative expression by creating a system of censorship that in any way injures the public’s ability to express themselves or to consume others’ expression. So it is critically important to recognize how any technological measure might do that, because it will only hurt the creative expression copyright law is itself supposed to foster, as well as all the public benefit it’s supposed to deliver.
stLouIST
