In the Internet Age, Copyright Law Does Much More Than Antitrust to Form Competition

We participate Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups embrace different elements of copyright law and policy, addressing what is at stake and what we need to do to ensure that copyright promotes creativity and innovation.

There have been notable, and long-awaited, antitrust actions targeting Big Tech, launched by users, entrepreneurs, and governments. Both in the United States and abroad, policymakers are working to renew our antitrust laws to make them more effective in promoting user choice.

These are positive developments, but this renewed focus on antitrust risks losing sight of another powerful legal lever: copyright. Because there is copyrighted software in every digital device and online service we use, and because the Internet is essentially a giant machine for copying digital data, copyright law is a major force shaping technology and how we use it. This gives copyright law a huge role to play in enabling or preventing competition.

The Digital Millennium Copyright Act (DMCA) is an example. It contains two main sections that have been contested since they came into force in 2000. The “anti-avoidance” provisions (sections 1201). and following. of the Copyright Act) barrier to circumvention of access controls and technical protection measures. The “safe harbor” provisions (section 512) protect service providers who comply with certain conditions of monetary damage for the infringing activities of their users and other third parties in the network.

Congress apparently passed Section 1201 to discourage alleged violators from defeating DRM and other access controls and copying restrictions on creative works. In practice, little is being done to prevent infringement – after all, large-scale infringement is already calling for massive legal action. Instead, Section 1201 was used to block competition and innovation in everything from print cartridges. al garage door openers, video game console accessories, and computer maintenance services. It is used to threaten hobbyists who wanted to improve their devices and games. And the problem only gets worse when software appears in more and more places, from phones to cars to refrigerators to farm equipment. If this software is locked behind DRM, interoperating with it so that you can offer additional services may require avoidance. As a result, manufacturers get complete control of their products, long after they are purchased, and may even close secondary markets (as Lexmark did for printer ink, and Microsoft tried to do for Xbox memory cards.)

On the other hand, the “safe harbors” of Section 512 are essential to internet innovation, as they protect telecom providers from monetary liability based on infringing activities by their users. To receive these protections, service providers must comply with the requirements set forth in Section 512, including “notice and removal” procedures that give copyright holders a quick and easy way to disable access to allegedly infringing content. Without these protections, the risk of possible copyright liability would hinder many online intermediariesfrom platforms to small community websites to newspapers and ISPs – from hosting and delivering user-generated content. Without the DMCA, a lot of great technology wouldn’t exist today – but it’s just as true that if we took it away now, new competitors would never show up to challenge today’s giants. Instead, the big tech companies would make lucrative deals with major entertainment companies and other big copyright holders, and everyone else who hosted or aired third-party content would simply have to shoulder the risk of massive and unpredictable financial penalties – a risk that would discourage. investment.

There is a final legal wrinkle: filter mandates. The DMCA-deprecating download process has not satisfied many rights, so large platforms, especially Google, have also adopted filtering mechanisms and other automated processes to remove content automatically, or prevent it from being uploaded in the first place. In the EU, these mechanisms are becoming mandatory, thanks to a new copyright law that stipulates DMCA-like secure ports to prevent users from uploading infringing content. Its proponents have insisted that filters are not required, but in practice this is the only way service providers will be able to comply. That has created a problem in the EU – like the Attorney General of the EU Court of Justice last acknowledged year, automated blocking inevitably undermines the human right to free speech.

But filter mandates create yet another problem: they are expensive. Google is famous spent more than $ 100 million about developing its Content ID service – a cost that few others could bear. If the price of hosting or streaming content builds and maintains a copyright filter, investors will find better ways to spend their money, and the current tech giants will remain comfortably fixed.

If we want to create space for New Tech to challenge Big Tech, antitrust law may not be the only solution. We need balanced copyright policies in the United States and around the world. That is why we have fought to end the EU mandate and continue to fight to deal with the inevitable damage of implementation. That is why we are working hard to stop the current push to demand filters in the United States as well. We also need the courts to do their part. To that end, EFF just this month asked a federal appellate court block compliance with the copyright rules in Section 1201 that violate the First Amendment and criminalize technology talk. We have also recorded amicus briefs in many cases where companies use copyright to remove competition. And we will continue to fight, in courts, parliaments, agenciesand the public sphere, to ensure that copyright serves innovation rather than thwart it.

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