Artist Rights Alliance Opposes Exporting Safe Harbors in Trade Deals

WASHINGTON D.C. — The Artist Rights Alliance sent a letter today to the Chairs and Ranking Members of the House Judiciary and Energy & Commerce committees, thanking them for their aggressive review of the tech platforms’ safe harbor protections and bipartisan leadership in asking the US Trade Representative to reconsider including this language as-is in trade agreements.

The letter highlights key moments from the recent Energy & Commerce committee hearing where members and witnesses raised the alarm about the dangerous online behavior safe harbors allow and the Administration’s backroom trade deals — efforts to take the power to change these laws away from Congress. The ARA strongly opposes the Administration’s actions and urges the Chairs and Ranking Members to continue to pressure the US Trade Representative to keep these flawed protections out of trade agreements.

The letter been sent to House Judiciary Committee Chairman Jerry Nadler (D-NY) and Ranking Member Doug Collins (R-GA) and Energy & Commerce Chairman Frank Pallone (D-NJ) and Ranking Member Greg Walden (R-OR).

October 29, 2019

The Honorable Jerrold Nadler, Chairman

The Honorable Doug Collins, Ranking Member

Committee on the Judiciary, US House of Representatives

2138 Rayburn House Office Building

Washington, DC 20515

The Honorable Frank Pallone, Jr., Chairman

The Honorable Greg Walden, Ranking Member

Committee on Energy and Commerce, US House of Representatives

2125 Rayburn House Office Building

Washington, DC 20515

Dear Committee Chairs and Ranking Members:

We write as artists and songwriters trying to build meaningful careers in the digital age to thank you for re-examining the decades old “safe harbor” laws that have so profoundly shaped the internet. We also support your related effort to ensure the current safe harbors are not included in new trade agreements in order to preserve your ability to update and improve them.

Over the last two decades, the safe harbor laws have worked in some important ways, helping internet platforms grow and thrive and establishing a vital baseline of free expression and openness online. We strongly support those principles and do not believe the safe harbors should be abandoned or repealed.

But in other ways, these laws have clearly failed and must be updated and reformed to help us create a fairer, safer, and more secure internet for our times — and for the next generation.

As creators, we have been most concerned with the broken notice-and-takedown regime for copyrighted materials, which encourages monopoly tech platforms to virtually ignore mass piracy of our work and drives royalties for licensed music far below fair market value. The Judiciary Committee has studied this issue closely and we all look forward to the upcoming Copyright Office study and what will hopefully be a major opportunity for bipartisan improvements and reform.

But as human beings, we are if anything even more worried about the broader social harms and toxic online atmosphere enabled by the companion “Communications Decency Act” safe harbor.

A recent Energy and Commerce hearing explored the damage caused by this utterly misguided immunity at length:

· Ms. Castro described a brutal and heartbreaking murder enabled by an online gun sales platform that knowingly ignored the victim’s temporary restraining order against the man who killed her.

· A professor from Boston University Law School warned that the 230 safe harbor is exploited by “sites that are irresponsible in the extreme and that produce extraordinary harm” like revenge porn and deepfake websites — “sites whose entire business model is abuse.”

· A witness from UC Berkeley ran through the huge variety of harms this overbroad safe harbor allows to flourish: “a massive proliferation of child sexual abuse material, the spread and radicalization of domestic and international terrorists, the distribution of illegal and deadly drugs, the proliferation of mis- and dis-information campaigns designed to sow civil unrest, incite violence, and disrupt democratic elections, the proliferation of dangerous, hateful, and deadly conspiracy theories, the routine harassment of women and under-represented groups in the form of threats of sexual violence and revenge and non-consensual pornography, small- to large-scale fraud, and spectacular failures to protect our personal and sensitive data.”

None of this should be acceptable on the internet or anywhere else and, in our view, Americans should not have to endure this kind of everyday toxic sludge as the “cost” of going online. Thank you for exploring ways to make things better.

Like you, however, we are worried that the Administration’s abrupt decision to include language mirroring the current safe harbors in new trade agreements could stymie these important efforts.

Including the failed safe harbors in new trade deals would make it almost impossible for you to modernize or improve the law, because any changes could take us out of compliance with the agreement. And even if US law could somehow still be changed, it would leave our partners saddled with the original (discredited and unchanged!) safe harbors — making it harder for them to protect their own people and markets. For artists who perform and distribute music worldwide, that’s especially dangerous and unfair.

We appreciate the bipartisan letters you wrote to the US Trade Representative making this point and urging the Administration to keep the safe harbors out of new trade deals while Congress does its work. And we were shocked to see those letters simply ignored and the USTR refuse to even testify on this subject. Our government should make policy in the sunlight, not through secret agreements or while hiding from the people’s representatives in Congress.

This issue was raised repeatedly and on a bipartisan basis at the recent Energy and Commerce hearing:

· Representative Jan Schakowsky of Illinois, Chair of the Consumer Protection and Commerce Subcommittee, urged the Administration to keep this controversial provisions out of trade negotiations: “We are having a discussion right now, an important conversation about 230 and in the midst of that conversation because of all the new developments I think it is just inappropriate right now at this moment to insert this liability protection into trade agreements.”

· Committee Ranking Member Greg Walden also warned that peremptorily including the Section 230 safe harbor in trade deals would undermine Congress’s effort to re-evaluate the law: “The USTR does not appear to be reflecting the scrutiny the Administration itself is applying to how CDA 230 is being utilized in American society, making it even more alarming for the USTR to be exporting such policies without the involvement of this committee.”

· And Committee Chairman Pallone warned that including the safe harbor poison pills could ultimately derail the trade agreements themselves: “Including provisions in trade agreements that are controversial to both Democrats and Republicans is not the way to get support from Congress, obviously.”

In our view, safe harbor reform must occur before they are included in new trade agreements.

Thank you for bipartisan leadership on this critical issue.

Sincerely,

The Artist Rights Alliance

Artist-run, non-profit advocating for musicians, performers, & songwriters in the digital landscape. (Formerly the Content Creators Coalition or “c3”)

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