Getting back to basics on the Digital Millennium Copyright Act

Almost everything has changed about the internet in the past 20 years. We’ve gone from kilobytes to gigabytes, from desktop to mobile, and from bulletin boards to streaming and social media. If you tried to sell an app today announcing every time a person gets email, you’d get laughed off Shark Tank.

But one thing hasn’t changed at all – the basic ground rules established by Congress in the 1998 Digital Millennium Copyright Act. And the wear and tear is showing.

In those early days of the internet, Congress wisely recognized that the ability of anyone with a computer and a telephone line to post anything they wanted online would raise a bunch of new and difficult questions. What would happen to newspapers or magazines if anyone could just copy and post their articles on a GeoCities page? Who was responsible if someone bootlegged “Saving Private Ryan” (that year’s top grossing movie) and put up copies for the world to download? Yet at the same time, how could fledgling internet companies survive if they could be held liable for everything their users did and said online?

In the DMCA, Congress offered a revolutionary solution to these problems – granting immunity to new, emerging platforms in exchange for reasonable enforcement efforts, including quickly taking down copyrighted materials they learned about and dealing with repeat offenders. This trade-off was designed to ensure everyone had a shared stake in both the growth of the internet and the health of America’s creative economy. And, for a time, it worked.

But now, two decades later, the mechanisms enacted to achieve that goal simply haven’t stood the test of time. Technology has changed faster than anyone could have ever imagined, and the existing DMCA simply isn’t able to address these new developments. The original DMCA was simply not designed for the kind of global data and advertising platforms that we have seen develop over time. It’s no surprise the old DMCA tradeoff has broken down in this environment – it simply wasn’t on anyone’s radar back in 1998.

The U.S. Copyright Office is in the midst of its own study of these issues, and I look forward to reading their work. However, I understand that Congress, and only Congress, can really fix this problem and truly modernize the DMCA. That’s why I intend to launch a major new initiative in the Senate Judiciary Subcommittee on Intellectual Property to explore ways we can better promote the creative economy in the 21st century. I intend to hold a series of hearings next year to evaluate both the policy baseline created by the DMCA and the current practices and operations of both platforms and creators in response.

Our goal will be to re-forge the consensus that originally powered the DMCA and craft new legislation to modernize the DMCA for today’s internet. As always, that means doing all we can to create good incentives and empower market forces to solve problems without government intervention wherever possible.

The original DMCA sought to ensure that tech companies and creators would have a shared stake in each other’s success for the ultimate benefit of consumers, artists, and the American economy overall. An updated and modernized DMCA must strive to do the same.

Thom Tillis chairs the Senate Judiciary Subcommittee on Intellectual Property.