We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of copyright law and policy, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation
Performers—and ordinary people—are understandably concerned that they may be replaced or defamed by AI-generated imitations. We’ve seen a host of state and federal bills designed to address that concern, but every one just generates new problems.
One of the most pernicious proposals is the NO FAKES Act, and Copyright Week is a good time to remember why. We’ve detailed the many problems of the bill before, but, ironically enough, one of the worst aspects is the bone it throws to critics who worry the legislation’s broad provisions and dramatic penalties will lead platforms to over-censor online expression: a safe harbor scheme modeled on the DMCA notice and takedown process.
In essence, platforms can avoid liability if they remove all instances of allegedly illegal content once they are notified that the content is unauthorized. Platforms that ignore such a notice can be on the hook just for linking to unauthorized replicas. And every single copy made, transmitted, or displayed is a separate violation, incurring a $5000 penalty – which will add up fast. The bill does offer one not very useful carveout: if a platform can prove in court that it had an objectively reasonable belief that the content was lawful, the penalties for getting it wrong are capped at $1 million.
The safe harbors offer cold comfort to platforms and the millions of people who rely on them to create, share, and access content. The DMCA notice and takedown process has offered important protections for the development of new venues for speech, helping creators finds audiences and vice versa. Without those protections, Hollywood would have had a veto right over all kinds of important speech tools and platforms, from basic internet service to social media and news sites to any other service that might be used to host or convey copyrighted content, thanks to copyright’s ruinous statutory penalties. The risks of accidentally facilitating infringement would have been just too high.
But the DMCA notice and takedown process has also been regularly abused to target lawful speech. Congress knew this was a risk, so it built in some safeguards: a counter-notice process to help users get improperly targeted content restored, and a process for deterring that abuse in the first place by allowing users to hold notice senders accountable when they misuse the process. Unfortunately, some courts have mistakenly interpreted the latter provisions to require showing that the sender subjectively knew it was lying when it claimed the content was unlawful. That standard is very hard to meet in most cases.
Proponents of a new digital replica right could have learned from that experience and created a notice process with strong provisions against abuse. Those provisions are even more necessary here, where it would be even harder for providers to know whether a notice is false. Instead, NO FAKES offers fewer safeguards than the DMCA. For example, while the DMCA puts the burden on the rightsholder to put up or shut up (i.e., file a lawsuit) if a speaker pushes back and explains why the content is lawful, NO FAKES instead puts the burden on the speaker to run to court within 14 days to defend their rights. The powerful have lawyers on retainer who can do that, but most creators, activists, and citizen journalists do not.
And the NO FAKES provisions to allow improperly targeted speakers to hold the notice abuser accountable will offer as little deterrent as the roughly parallel provisions in the DMCA. As with the DMCA, a speaker must prove that the lie was “knowing,” which can be interpreted to mean that the sender gets off scot-free as long as they subjectively believe the lie to be true, no matter how unreasonable that belief.
If proponents want to protect online expression for everyone, at a minimum they should redraft the counter-notice process to more closely model the DMCA, and clarify that abusers, like platforms, will be held to an objective knowledge standard. If they don’t, the advent of digital replicas will, ironically enough, turn out to be an excuse to strangle all kinds of new and old creativity.
