As Chair of the Senate IP Subcommittee in the 116th Congress, Senator Thom Tillis has held 140 stakeholder meetings and 17 Senate hearings on IP topics, and he plans to introduce draft legislative text on reforms to the Digital Millennium Copyright Act on December 18.
The Senate Judiciary Committee’s Subcommittee on Intellectual Property Chair, Senator Thom Tillis (R-NC), who was re-elected to a second term this November with about 49% of the vote, last week released the Subcommittee’s 116th Congressional Report. According to the report, Tillis held over 90 stakeholder meetings in 2019 and over 50 meetings in 2020, when discussions had to be moved to a virtual format due to the COVID-19 pandemic. Tillis has also held 17 Senate hearings since January 2019 on topics ranging from USPTO oversight to reform of the Digital Millennium Copyright Act (DMCA) and led or co-sponsored 11 intellectual property (IP)-related bills.
Move Over, Patent Perfectionists
In an interview with IPWatchdog this past May, Tillis explained that his efforts to reform Section 101 patent eligibility law “stalled because stakeholders refused to compromise. They let the great and perfect get in the way of the good.” Tillis added that stakeholders must find consensus amongst themselves before the Subcommittee would spend more time on the issue. As a result, the Subcommittee’s focus for 2020 has been on reforming U.S. copyright law, with five hearings already held and a final meeting scheduled for December 15.
The last hearing will focus on the role of voluntary agreements and technological measures in addressing copyright policy online; Tillis recently published a letter to Twitter CEO Jack Dorsey expressing disappointment that Dorsey declined his invitation for a Twitter representative to attend the hearing. The letter indicated that Tillis’ and Dorsey’s staff had been working together for months to identify an appropriate witness, but Dorsey ultimately refused to commit to sending anyone. In the letter, Tillis told Dorsey that it’s critical for the Subcommittee to hear from key online platforms like Twitter for this final hearing of the year, and that Facebook’s Mark Zuckerberg had pledged to send someone. “The only reasonable conclusion one can draw from your actions is that Twitter simply does not take copyright piracy seriously,” added Tillis. In lieu of attending, Tillis demanded that Dorsey submit answers to a series of 12 questions indicated in the letter by December 4 or he would have to “work with the full [Judiciary] committee Chair and Ranking Member to find another way to compel your testimony.” The questions addressed accusations against Twitter about the platform’s slow response to copyright infringement claims and refusal to negotiate licenses and agreements with music publishers, as well as issues surrounding the company’s approach to content moderation and censorship.
Safeguarding American Pandemic IP
Throughout the pandemic, Tillis has also been focused on foreign government attempts to steal U.S. intellectual property, particularly with respect to critical COVID-19 vaccine research. In October, Tillis and Senator Marsha Blackburn (R-TN) introduced the Defend COVID Research from Hackers Act with the goal of authorizing the President to “take swift action and add sanctions to countries trying to disrupt or hack COVID-19 research.”
This bill is the Senate companion to legislation introduced in the House of Representatives in July by House Minority Leader Kevin McCarthy (R-CA).
In May, Senators Tillis, Richard Blumenthal (D-CT), John Cornyn (R-TX) and Ben Sasse (R-NE) sent a letter to Federal Bureau of Investigation (FBI) Director Christopher Wray and Cybersecurity and former Infrastructure Security Agency (CISA) Director Christopher Krebs regarding a notice issued by their agencies alerting American companies and research institutions about attempted attacks by hackers affiliated with the Chinese government.
Draft DMCA Text Expected Soon
With respect to the Subcommittee’s work on the DMCA, Tillis has said he intends to release a draft of legislative text to reform the law on December 18, 2020. In November, he issued a series of questions for interested stakeholders related to modernizing the Digital Millennium Copyright Act (DMCA), especially Sections 512, 1201 and 1202, each of which Tillis said were “ripe for reform.” Some notable responses were received by Re:Create—whose members include organizations like the Electronic Frontier Foundation (EFF), Public Knowledge and the Computer & Communications Industry Association (CCIA)—and the Artist Rights Alliance (ARA), an artist run nonprofit fighting for a healthy creative economy and fair treatment for all creators in the digital world. Responses were due December 1, and Tillis noted that recommendations will be incorporated into a draft legislative text that will be released on December 18, 2020.
In his letter to stakeholders, Tillis noted that he “believe[s] American copyright law needs to be modernized to be more responsive to current technologies, copyright markets, and business practices.” He expressed his viewpoint that copyright law should be reformed to better encourage the creation of copyrightable works and to protect those who make lawful uses of copyrighted works and software-enabled products. Tillis posed fifteen questions focused on potential reform to section 512 and section 1201, added to title 17 of the U.S. Code by the Digital Millennium Copyright Act (“DMCA”). He also acknowledged that other aspects of title 17 could be revised to better tailor copyright law to the digital age. For example, the questions included “could copyright law borrow from employment law, or other relevant fields, to establish different thresholds for copyright owners and OSPs of different size, market share, or other relevant metric?”; “[w]hat are your thoughts on [a notice-and-staydown] system, and how could it best be implemented?”; “[i]f warranted, what would be the best way to enact limited website-blocking via such injunctions?”; and, how could Congress accomplish a goal of “improving dispute resolution by directing disputes between notice and counter-notice filers to a small claims court rather than federal court[?]”.
Re:Create issued a statement and provided detailed responses to each of Tillis’ questions. As to Tillis’ question about whether copyright law should be revised to account for [size] differences among stakeholders, such as by borrowing from other areas of law, Re:Create responded by noting that “[a]s currently drafted, the framework of the DMCA provides both the flexibility and certainty necessary for service providers, creators, and users of all sizes…[and] [c]hanges to the law that would create different requirements based on new and arbitrary size definitions would cause harm to the entire ecosystem potentially stifling both innovation and creativity.” Further, with respect to Tillis’ questions regarding a notice-and-staydown system, Re:Create noted that it is “strongly opposed to any notice-and-staydown system and agree[s] with the Copyright Office, which specifically objected to the viability of a notice-and-staydown regime in their recent study of Section 512.”
EFF and Public Knowledge
Re:Create also encouraged its members to submit responses and comments, noting that they were “call[ing] on all stakeholders to be transparent and open with their recommendations because [they are] concerned that otherwise Congress may not hear everyone’s voice.” Members including Electronic Frontier Foundation (EFF) and Public Knowledge submitted. EFF’s response reiterated that it would strongly oppose any legislation related to implementation of a notice-and-staydown system, while Public Knowledge, said that they support “the need to create obligations tailored to accommodate differences of scale, [but] it is difficult to design a status that does not produce undesirable secondary effects.” Public Knowledge recommended that a rigorous study would be necessary to allow lawmakers to understand how the “metrics actually relate to the vague notion of ‘big versus small.’”
Artist Rights Alliance
The ARA released a letter asserting that the collaborative balance that Congress intended to strike in the DMCA has been “utterly destroyed by unchecked and unaccountable global platforms shielded from ordinary rules of liability by catastrophically overbroad readings of the Section 512 safe harbor.” The ARA expressed its strong viewpoint that the correct approach is to make it clear that the “Section 512 safe harbor is only available to genuinely passive services that carry and host information – and not to today’s modern platform behemoths that curate content, shape the online environment through algorithms and recommendation engines, and earn billions from targeted ad revenue and exploitation of their users’ choices, tastes, and data.”
The Alliance also advocated for a “notice and staydown” system, asserting that “[c]ompanies that build digital services and unleash them into the world have a basic responsibility to know their own product, pay attention to how it is used, and take basic, effective steps when they are warned of problems.” They further expressed that individual creators do not have the means to police large-scale global networks in a systematic way and when artists do find unlicensed copies of their work online, they should only have to report it one time and then have assurance that the network carrying it will address the problem.
In addition, the ARA said that, under the current regime, where artists have the sole responsibility to monitor platforms for unlicensed uses of their work, “it is vital that high-volume access to network information, seamless and cost-free [application programming interface (API)] connections and simple bulk reporting mechanisms be provided.” The ARA noted that it is necessary for large corporate creative organizations to have access to tools “equal to the size and scale of the platforms they are burdened with monitoring,” but also asserted that “monitoring and reporting tools must also scale down and be available in a usable, efficient form for individual artists and creators, much as affordable content moderation systems are already available to small and medium sized internet companies and app developers.”
Tillis’s report concluded by noting his diligent efforts “to ensure agency oversight, conduct hearings, listen to stakeholder input, and take action by proposing legislation,” and promised to continue his bipartisan work as Chairman in the 117th Congress.
IP Bills Tillis Introduced or Co-Sponsored in 2020:
Bill Number: S. 3574
Introduced: Senator Thom Tillis (R-NC)
Bill Number: S. 3952
Introduced: Senator Chris Van Hollen (D-MD)- co-sponsored
Bill Number: S. 3997
Introduced by: Rob Portman (R-OH) – co-sponsored
Bill Number: S. 4345
Introduced by: Senator Ted Cruz (R-TX) – co-sponsored
Bill Number: S. 4793
Introduced by: Senator Thom Tillis (R-NC)