Face the Music: How the DMCA Promotes Innovation and Fosters Creativity

The RIAA and its allies in the traditional music industry continue to ramp up their efforts to undo one of the key laws that made the modern internet possible, releasing a letter to Congress yesterday signed by dozens of musicians arguing that the Digital Millennium Copyright Act (DMCA) is somehow ruining the music industry. For those unfamiliar with the DMCA (a fairly large group, considering some of the wildly inaccurate claims made about the DMCA lately), it’s a bill that, among other things, prevents websites from facing monetary damages due to the infringements of their users, so long as those websites remove access to infringing content at the request of the copyright owner. Without the protections of the DMCA, most of the companies that have helped make the internet the world’s greatest vehicle for promoting creativity and knowledge would likely never have launched.

Passed in 1998, the DMCA was, according to the Senate report accompanying its passage,  meant to give websites “more [legal] certainty ... in order to attract the substantial investments necessary to continue the expansion and upgrading of the Internet.” Considering this history, it’s puzzling how the RIAA can claim in its recent letter that “The tech companies who benefit from the DMCA today were not the intended protectorate when it was signed into law nearly two decades ago.” It’s unclear who the RIAA thinks the DMCA was designed to protect, but it’s very clear that the RIAA’s complaints with the current legal system have nothing to do with the fundamental goals of copyright (promoting creativity) and everything to do with protecting legacy business models.

The fact is that there is more creative output now than ever before, thanks in large part to the DMCA. The many internet platforms that rely on the DMCA have enabled thousands of new musicians to reach fans without having to go through gatekeepers like big record labels or their lobbyists. Bandcamp, a music platform where musicians can sell directly to fans, has allowed artists to release more than 2.7 million records since its launch in 2007, resulting in 25,000 direct-to-fans record sales per day. And that’s just one of the tens of thousands of websites that have registered agents under the DMCA. Given the enormous creative output that the DMCA has facilitated, it’s simply wrong to suggest that the law has been a failure.

Rather than focus on how the DMCA has been unquestionably successful at “promot[ing] the Progress of Science and useful Arts” (that is, the entire reason we have copyright law in the first place), the RIAA argues that the DMCA has made it impossible for musicians “to survive from the creation of music.” Putting aside for a second that many of the signatories to the RIAA’s letter are millionaires who have had no trouble “making a living” from music in a world with the DMCA, it’s not as though the pre-DMCA world was full of well-paid musicians. It’s never been an easy or lucrative job to be a musician, but there is ample evidence to suggest that there are more independent musicians now than before the DMCA was enacted.

To be clear, the DMCA is not perfect, but it is not a creativity destroying monster as the RIAA would have you believe. Quite the contrary, its provisions strike a balance between securing legal certainty for innovative companies that promote creativity and support countless jobs, and protecting the rights of all content creators, including the tens of thousands of up-and-coming artists who use the Internet to market their work and earn an income. Dismantling the DMCA would only protect the monied interests of big recording studios at the expense of internet innovation and the incredible creativity and commerce it makes possible.