The Recording Industry Association of America (RIAA) is at it again. In a joint open letter to Congress, it is leading a push by the music industry to rewrite Internet copyright law in ways similar to its advocacy of the infamous Stop Online Piracy Act (SOPA) of 2012. SOPA failed miserably in Congress. It was abandoned after more than 15 million Americans objected to the bill’s attempt to restrict Internet freedom as 115,000 websites staged a massive blackout online. Few policymakers are likely to follow the trade association again into certain political defeat.
The music industry’s renewed assault on Internet freedom would relitigate the SOPA debate and threaten free speech and innovation online. To understand the impact of these proposals, it helps to understand the current legal regime called the Digital Millennium Copyright Act of 1998 (DMCA), which has made possible countless innovations online from eBay to Instagram.
The Internet empowers millions of Americans to share images, songs, and video clips on platforms like Facebook, reddit, YouTube, and Twitter. Much of that content is original (think baby photos and holiday taco bowl endorsements), most is lawfully shared (news clips and cat videos). But some content may infringe copyright. The question for Congress was who to hold accountable for the infringement, the person who uploaded the infringing content or the company running the platform? And who should have the legal burden of searching for infringement?
Congress could have decided that online platforms were responsible for all infringement, as a newspaper would be if it published a letter-to-the-editor that included an infringement. It could have held platforms blameless just as phone companies are unlikely to be punished for a copyrighted song played during a large conference call. With the DMCA, Congress took a middle path and decided that the platform would not be liable for infringement so long as it followed a “notice-and-takedown” regime.