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.

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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.

Here’s how that works. Copyright holders send a notice specifying the content believed to be an infringement. The platforms take down the content and pass on the notice to the user who had initially shared that content. The user could file a legal counter-notice giving their real name and agreeing to be sued. Copyright holders could have content taken down without filing a full lawsuit. Tech companies could host user generated content without being liable for every wrong act by billions of users. Users could use Tumblr, Pinterest, and millions of other websites that rely on those exemptions.

SOPA attempted to undermine the clarity and fairness of the notice-and-takedown regime by burdening companies with the responsibility for taking down the platform itself rather than just the infringing content. It injected considerable uncertainty into the law that would require years of expensive litigation to sort out. The public unsurprisingly opposed the assault on an open Internet and it died unmourned in Congress.

Now the music industry and RIAA are mounting another attack by attempting to upend notice-and-takedown, requiring tech companies to implement filters for copyrighted material. It’s insisting that platforms find and take down any content flagged once by a single copyright owner (“notice and staydown”).

The idea entails magical thinking. No technology can find all infringement considering the wide variety of copyrighted works, the diversity of internet platforms, and the vast amount of content that’s shared online every moment of every day. How would software evaluate every handcrafted puppet on Etsy for copyright infringement? Or every image on every critic’s WordPress blog?

Imposing impossible burdens on companies would harm the smallest organizations the most. Startups, nonprofits, and political organizers don’t have the resources to build or even license these technologies. Forcing sites such as eBay, Wikipedia, or Amazon to create and implement filters would be costly and divert resources from innovation while not eliminating infringement.

The music industry often complains about YouTube, but YouTube spent $60 million to build a Content ID system to determine whether two pieces of shared content are identical. It has come closest to instituting something like “notice and staydown” by removing files across the site in response to a notice. And yet, even YouTube’s efforts haven’t satisfied the RIAA. It’s doubtful other companies’ can.

In light of this threat, the tech community and the general public are united and ready to fight. Competitors like Google, Microsoft, and Amazon have told the Copyright Office they oppose any attempt to rewrite current law. Smaller startups, including Automattic (which runs WordPress.com),Kickstarter, Medium, and Engine Advocacy, have also joined the fray. The Copyright Office recently invited public comment, generating more than 80,000 comments from Americans across the country.

Despite its efforts to downplay the public opinion and its influence with the Copyright Office, the music industry won’t be able to persuade Congress to throw out a copyright regime that the public overwhelmingly supports for something that will strangle online innovation and personal creativity. The sequel to SOPA is as bad as the original, and it’s doomed from the start.


Marvin Ammori is an open Internet advocate who serves on the Boards of Directors of Fight for the Future and Engine Advocacy, and advises technology companies including Google and Automattic. His views, however, should not be attributed to anyone of them.