According to the Free State Foundation (FSF) — a Maryland-based free market think tank — the U.S. needs tighter copyright laws that crack down on tech platforms like Google and Facebook.
The FSF recently published a study arguing that the copyright provisions in the new United States Mexico Canada Agreement (USMCA), or NAFTA 2.0, don’t adequately protect U.S. artists, musicians, filmmakers and other content creators — and it’s costing the U.S. and other countries billions of dollars every year.
“The proposed USMCA has room for improvement,” FSF states in the report.
Instead, the FSF reasons U.S., Mexico and Canada should implement laws that force tech platforms to “notice and take down” content that infringes copyright — like redistributed films, TV shows or music.
Under Section 230 of the Communications Decency Act, tech platforms that provide access to creative content — like Google and Facebook, for example, or Twitter and Tumblr — are fully immune from all liability if users upload copyrighted material to their sites.
This principle was incorporated into the new USMCA under Section 512. But the FSF says this principle is “outdated and ineffective in protecting digital music and video content from massive online infringement on today’s popular user-upload websites like YouTube.”
“A provider receives immunity if it ‘responds expeditiously to remove, or disable access to, the material that is claimed to be infringing,'” the FSF states in its report. “…Judicial interpretations of Section 512 have widened the circumstances in which online providers can claim lack of knowledge of infringing activity and thereby receive immunity. Also, court precedents make it burdensome to pursue takedowns when infringing uses of the same content take place across multiple web pages on the same website.”
Ironically, the European Union (EU) addressed these concerns in its updated Copyright Directive, which requires tech platforms to use “upload filters” and regularly scan for and take down copyrighted content, which some tech experts and industry players say sets a precedent for censorship.
Stricter copyright laws holding tech platforms liable for the content they provide access to are very unpopular in Silicon Valley. Besides lobbying heavily to get Section 230-like language incorporated into the USMCA so as to protect tech companies from copyright liabilities, Big Tech also decried the EU’s updated Copyright Directive.
But the FSF contends that U.S. intellectual property is too valuable to treat lightly.
“According to a widely cited U.S. Department of Commerce study, intellectual property-intensive industries comprised over 38 percent of the entire U.S. economy in 2014, amounting to a $6.6 trillion contribution,” the FSF report states. “The same study found that IP-intensive industries directly accounted for 27.9 million jobs and indirectly accounted for an additional 17.6 million jobs, or about 30 percent of all U.S. employment.”
The report also cited data showing that the digital piracy of films, music and software cost $213 billion globally in 2015, and by 2022, that number may nearly double.
Because most copyright infringement occurs in other countries, tightening up copyright laws in the USMCA is especially paramount.
Seth Cooper, a research fellow at the FSF and one of the study’s co-authors, told InsideSources that he doesn’t think the U.S. should completely do away with immunity for tech platforms from copyright liability.
On the contrary, he believes the tech industry needs to be reformed and incentivized to protect content creators, not exploit them.
“The principle is sound, what needs to happen is the application of the principle needs to be updated and strengthened,” he said. “We think that the notice and takedown system in the United States needs to be recalibrated for the digital age. The whole system was adopted when the commercial internet was in its nascent stage, and tech has advanced and the capabilities have advanced for spotting and identifying and taking down infringing content. There’s a lot more user upload technologies that simply didn’t exist when the [Communications Decency Act and NAFTA] was enacted.”
