Jonathan Taplin’s op-ed (Do You Love Music? Silicon Valley Doesn’t) in the May 20 edition of The New York Times perpetuates a powerful dichotomy that has come to dominate debates surrounding copyright reform, specifically with respect to the Digital Millennium Copyright Act (DMCA): you’re either for the "creative" types, or you’re for the "technology" types. Pick a side.
For those of us who would rather not play favorites, because we love both music and technology, the choice Taplin presents is Solomonic. Fortunately, however, it also happens to be false. We can have our music and our technology, too, thanks in large part to the DMCA—a copyright law foundational to the growth of the Internet and just about everything on it.
It is true, as Taplin points out, that the Internet was a very different place when Congress enacted the DMCA in 1998. Indeed, the ink was barely dry on the DMCA when a college student in Boston who thought it would be cool to share music with his friends unleashed Napster on the world. But Napster and its successors in digital disruption haven’t made the DMCA irrelevant or ineffective any more than online copyright infringement has destroyed the music industry.
In the International Federation for the Phonographic Industry’s 2015 Digital Music Report, Sony Music Chairman Edgar Berger is quoted as saying that “the industry is performing remarkably well,” ably managing simultaneous transitions from physical to digital, download to streaming, and PC to mobile. The market for digital music remains incredibly dynamic, with consumer preferences continuing to morph as technology evolves. That dynamism is certainly challenging for the music industry from a business perspective, but it is hard to square Berger’s upbeat assessment of the industry’s adaptability with Taplin’s dire assertion that it is “choking on the dust” of tech companies.
As Congress considers changes to the DMCA, it is important to remember the twin policy objectives underlying the statute: to minimize obstacles to growth for both creative types, who would not expand online distribution of their works without assurances that they would be protected from massive piracy, and technology types, who would not expand their sites and networks without assurances that they would be protected from massive liability for copyright infringement.
In light of the DMCA’s focus on promoting growth in both creativity and technology, the statute can be understood as a mechanism for simultaneously scaling up online copyright enforcement and scaling back online copyright liability—a unified solution designed to give creators the security necessary to expand content distribution and technologists the security necessary to expand online platforms and infrastructure.
Under the DMCA, technologists building innovative online platforms have a clear and straightforward set of ground rules to follow, allowing them to conform their operations to the law and, thereby, avoid the specter of potentially crushing liability. At the same time, creators of new artistic works, through the notice-and-takedown process spelled out in the statute, have a simple and cost-effective means to curtail large numbers of infringing uses of their protected expression.
Because of the DMCA, which imposes costs and obligations on both creative types and technology types, lovers of music and lovers of new technologies have been able to enjoy the best of both worlds. Let’s not encourage Congress to make a false choice now.