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Will the CDA and DMCA Be Amended or Appealed in 2023?

by | Apr 18, 2023 | News

As the responsibilities of tech giants have soared in the past decade, two foundational Acts of the internet have come under political scrutiny: Section 230 of the Communications Decency Act (CDA) and the Digital Millennium Copyright Act (DMCA). Recently, the Supreme Court tackled cases that challenged each statute. You may be wondering: Do I need to be on the look out for CDA and DMCA updates any time soon?

Short answer: No, not very soon. But keep your finger on the pulse, as changes could affect all internet users, not just Big Tech.

The CDA and DMCA

Both of these acts were passed in the ‘90s, when the internet was first starting to bloom. Regulators sought to alleviate some quick pitfalls that cropped up: 

  1. people’s love of posting “indecent” or “obscene” materials within easy reach of minors and 
  2. using copyrighted material without permission.

CDA & Section 230

The evolution of the CDA defining “indecent” could consume this article and your patience. Relevant here is Section 230, which states:

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

This serves to offset the assumption that, because internet communication platforms have the appearance of publications, those platforms are liable for the content on their walls, forums, channels, boards, subreddits, feeds, playlists, chat logs, comment sections, etc. Without this provision, every online platform would be treated as having published the content submitted by its users as though it had been printed in a book and distributed. 

In reality, that type of policing user content would be akin to monitoring a community bulletin board so you don’t get sued by somebody offended by the Girl Scouts sign someone posted. Lawmakers saw the impossibility of keeping track of all conversations on a platform, so they crafted Section 230 to release platforms from that liability.

This was well before the ubiquity of Facebook, Instagram, and Twitter. In light of recent politically fraught years, critics have asserted that social media tech companies should bear more liability because their influence and the impact of user submitted content reaches so far. 

This forms the crux of Section 230 challenges that have been rising – S.299 “The Safe Tech Act,” H.R. 7808 “Stop the Censorship Act of 2020,” and S.2972, to repeal Section 230 altogether. 

DMCA, the Takedown Notice You Know and Love

The DMCA was passed in 1998. In a similar function to the CDA, it absolves internet service providers of intellectual property liability if so long as they tell infringers to take down infringing content once discovered. It helps internet platforms circumvent the impossible task of policing virtually infinite user submitted materials on their servers, while still requiring the platforms to have a protocol in place to address infringing content.

A recent challenge to the DMCA’s protections came in Sony Music Entertainment v. Cox Communications, in which Sony was actually awarded $1 billion in infringement damages due to  Cox’s negligence of and failure to meet certain of the DMCA obligations.

How These Statutes Interact

Advocates say that the CDA and DMCA work together to maintain the free expression of the internet. The ACLU even shared its support of Section 230 when it came under Supreme Court scrutiny in two cases early this year.

The reasoning? When the community bulletin board owner fears getting sued, they stifle expression for their own safety – which might look like limiting the number of push pins or stymying signage through censorship.

If the internet is to be our marketplace of ideas in physical form, there cannot be unnecessary barriers that restrict the free flow and exchange of information.  The impact goes beyond free speech and access issues, and can have unanticipated consequences for intellectual property. Categories of intellectual property have risen and fallen at the whims of user submitted content. Older properties have been revived through “meme” culture along with numerous avenues for a property to get exposure where none existed before. These have only been possible through the CDA and DMCA protections provided to platforms which allows them to maintain the free flow of information. 

And Their Effect on Businesses

Most notably, low liability keeps much of the internet we’ve come to interact with free or cheap. We may take for granted that we can use digital communication to share, promote, sell, or protect our intellectual property assets (in the case of infringement scans) without prohibitive costs. A Facebook business page is free, but it is easy to imagine that no longer being the case if Facebook has to obtain “user submitted content” insurance similar to a healthcare provider’s medical malpractice insurance! Those kinds of costs and liability considerations would require many if not most online platform providers to start charging users just to keep the servers humming. 

Without the CDA protections, the community bulletin board either turns into a pay-to-post board or gets taken down entirely.  Neither can be said to be the marketplace of ideas.

The DMCA  gives platform providers a clear and uniform path to deal with online copyright infringement and avoid litigation. The CDA works in conjunction as an extra-soft landing for internet service providers seeking further insulation from lawsuits. If the CDA and DMCA are shaken, hosting user submitted content  online will become much dicier – and if infringement lawsuits  become a question of when, not if, it is hard to see any way a platform provider takes on those costs without passing them to consumers or taking the whole platform down.

These are the reasons why these two measures and the shifting political landscape are important. But to avoid being labeled an alarmist, let’s jump back to the beginning for a moment: even if big change happens, it’s not coming anytime soon and it certainly won’t happen under the radar. 


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