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Creators and Tech Companies: Let’s Fix The DMCA Together (Guest Column)

Whether it’s two-part harmony or a 100-member orchestra, some of the greatest music happens when people come together.

Policymaking works the same way.  Last year, music and tech came together to support the Music Modernization Act (MMA) – a powerful new law that guarantees fair pay for legacy artists on digital radio, boosts royalties for songwriters, and updates the music publishing system for the digital age.  Creators and tech companies haven’t always been “all for one, and one for all,” but we realized we needed to link arms to get results.

Now there’s a new opportunity to build on that success.  The U.S. Copyright Office will soon release its much-anticipated study on the Digital Millennium Copyright Act’s “safe harbor” provisions – rules put in place over 20 years ago to deal with the problem of online piracy.  The report will raise tough issues – and creators and tech will have to decide: do we retreat to our industry corners or join forces once again and try to get something meaningful done?  To me, the choice is as obvious as it was for Jake and Elwood: we should be getting the MMA band back together.

There’s no question the DMCA hasn’t kept up with the times.  It was intended to foster cooperation between internet platforms (at the time this meant bulletin boards and services like AOL) and the creative industry to prevent piracy of creative works in exchange for legal immunity.  But piracy remains a major issue and has evolved into new forms.

In a twisted way, the DMCA was interpreted in a way that discouraged cooperation between creators and tech platforms by removing incentives to do so.  But in the wake of rising fears over tech platforms’ impact on speech, politics, safety and culture, global pressure on platforms to act responsibly to create a healthier online environment has never been more intense.  Absent real voluntary change, the pressure on government to more powerfully regulate Internet companies is only going to increase.

To me, the idea that creators and tech would somehow be at odds in this space has never made much sense.  The public’s thirst for creative works is a major driver of revenue and success for internet companies.  Today, seven out of ten of the biggest accounts on Twitter and nine out of the top ten videos on YouTube are music creators.  A smartphone without music or video might as well have a rotary dial.

Likewise, we need tech – streaming now accounts for 75% of recorded music revenues in the U.S.  And social media has played an indispensable role in strengthening the bond between artists and their fans.

There are now plenty of incentives for all of us to work together to sustain and grow the entire ecosystem going forward.  Now is the time for us to come together to fix the DMCA – and it doesn’t have to require legislation.

The DMCA already allows creators and tech providers to negotiate industry standards to protect creative works, but that mechanism has been mostly dormant since the law’s passage.  If we reach consensus, it can be immediately implemented under existing law.  That’s invaluable in a world where technology changes faster than the law can keep up.

Our success at solving problems together is the best way to give Congress the security of knowing we’ve arrived at well-considered, long-term solutions.  And no doubt policymakers will play a vital role in encouraging and expecting all of us to find a way forward. If we don’t, a change in the law that will lag behind technology and lead to litigation is inevitable.

Fixing the DMCA for the modern age will require leadership from both the creative and tech communities – who each have much to gain from action and much to lose if we sit back or spiral into conflict.

To their credit, the Internet Association has been open to discussing solutions.  So let’s do it.  Consider this an invitation.  In a summer where “Harmony Hall” is topping the charts and the Avengers are assembling one last time, what are we waiting for?

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