The DMCA and Digital Music

The Digital Millennium Copyright Act was passed in 1998 to address emerging threats posed to copyrighted material by circumvention technology. But is the DMCA either protecting artists and fostering art?

According to some of the biggest names in music, the DMCA inadequately protects artists. In June 2016, more than 150 major artists told Congress that the DMCA was “written and passed in an era that is technologically out-of-date compared to the [present] era.” The letter highlights artists’ concerns that, while technology has led to an increase in music consumption, artists’ and writers’ compensation has comparatively plummeted. The letter disparages the DMCA’s “Notice and Takedown” provision, calling it useless due to service providers’ “lackluster policing of [copyright] infringement” of user-uploaded content. As the volume of copyrighted content increases, the notice and takedown process for removal becomes less and less efficient, leaving artists jaded and “unable to reap the financial rewards from their creative works.”

The financial realities of moving forward with a copyright infringement claim are oppressive. The DMCA compels copyright holders to “send takedown notices to service providers” who must then remove the material and notify the alleged infringer. The accused can then file a counter objection, giving the copyright owner fourteen days to sue. 17 U.S.C. § 512.  However, even the quickest settlements of copyright suits can cost upwards of $10,000. Thus, independent artists without the manpower to patrol websites or the money to litigate go virtually unprotected by notice and takedown.

The effect of “outdated” copyright laws on the artistic value of music is unclear. While some artists have produced revolutionary works in the face of—what they feel—is excruciatingly inadequate protection, others continue to play by the DMCA’s rules as they were enacted in 1998. Still, it’s unclear how many unknown and emerging artists have been unable to create or even play the game in the face of unaccommodating copyright laws.

Prince’s ultra-protective attitude towards his works might highlight the prohibitive and suffocating effects of the notice and takedown provision. Prince’s team has conducted perhaps the most extreme policing of service providers. His team has sent a message to cover artists, high school jam bands, and collegiate a cappella groups that any interpretation of Prince’s works are off limits. They have simultaneously sent a message to emerging artists that playing by the rules set out by the DMCA requires serious cash and manpower. Furthermore, the effectiveness of this strict policing is unclear. While the difficulty of access to Prince’s works demonstrates the potential effectiveness of the DMCA, it’s less clear that his art—or others’ art—has advanced or progressed because of compliance with the rules the DMCA has set out. One obvious effect of this rigorous notice and takedown policing was the inability of fans to mourn Prince’s passing or celebrate his life by sharing his music digitally—there was simply none left to pass around.

Meanwhile, in the wake of artist frustration, Beyoncé has found a way to transcend copyright and technological challenges to further meaningful artistic expression. She has capitalized on the digital platform by purposefully and daringly marrying audio and visual elements to create revolutionary album experiences. “Beyoncé,” released on iTunes, featured an individual music video for each track. It was iTunes’ fasting selling album in history. “Lemonade” debuted for streaming on Tidal and was accompanied by an hour-long film aired on HBO. Like “Beyoncé,” “Lemonade” debuted at number one and both have been praised as some of the boldest albums released in decades.

Still, it’s difficult to gauge whether copyright law as it stands is resulting in a net positive of productive, innovative, musical art. Setting aside the inherent subjectivity of music, the challenges of knowing the effects of copyright law on aspiring artists, live performances, and album planning are real. While reform to address the financial frustrations of artists is critical, legislatures should keep in the Copyright Clause of the Constitution in mind and seek to “promote the progress of Science and the useful Arts.”

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