[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]



 
                        SECTION 512 OF TITLE 17

=======================================================================


                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON

                     COURTS, INTELLECTUAL PROPERTY,

                            AND THE INTERNET

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             MARCH 13, 2014

                               __________

                           Serial No. 113-86

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov




                  U.S. GOVERNMENT PRINTING OFFICE
87-151                    WASHINGTON : 2014
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC 
20402-0001



                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
LAMAR SMITH, Texas                       Virginia
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
SPENCER BACHUS, Alabama              SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa                       Georgia
TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas                 JUDY CHU, California
JIM JORDAN, Ohio                     TED DEUTCH, Florida
TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah                 KAREN BASS, California
TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas              HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina       DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel
                                 ------                                

    Subcommittee on Courts, Intellectual Property, and the Internet

                 HOWARD COBLE, North Carolina, Chairman

                TOM MARINO, Pennsylvania, Vice-Chairman

F. JAMES SENSENBRENNER, Jr.,         JERROLD NADLER, New York
Wisconsin                            JOHN CONYERS, Jr., Michigan
LAMAR SMITH, Texas                   JUDY CHU, California
STEVE CHABOT, Ohio                   TED DEUTCH, Florida
DARRELL E. ISSA, California          KAREN BASS, California
TED POE, Texas                       CEDRIC RICHMOND, Louisiana
JASON CHAFFETZ, Utah                 SUZAN DelBENE, Washington
BLAKE FARENTHOLD, Texas              HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina       DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia                ZOE LOFGREN, California
RON DeSANTIS, Florida                SHEILA JACKSON LEE, Texas
JASON T. SMITH, Missouri             STEVE COHEN, Tennessee
[Vacant]

                       Joe Keeley, Chief Counsel

                    Heather Sawyer, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             MARCH 13, 2014

                                                                   Page

                           OPENING STATEMENTS

The Honorable Howard Coble, a Representative in Congress from the 
  State of North Carolina, and Chairman, Subcommittee on Courts, 
  Intellectual Property, and the Internet........................     1
The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Ranking Member, Subcommittee on 
  Courts, Intellectual Property, and the Internet................     2
The Honorable Bob Goodlatte, a Representative in Congress from 
  the State of Virginia, and Chairman, Committee on the Judiciary     4
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, Ranking Member, Committee on the 
  Judiciary, and Member, Subcommittee on Courts, Intellectual 
  Property, and the Internet.....................................     5

                               WITNESSES

Sean M. O'Connor, Professor of Law and Founding Director, 
  Entrepreneurial Law Clinic, University of Washington (Seattle)
  Oral Testimony.................................................     8
  Prepared Statement.............................................    10
Annemarie Bridy, Alan G. Shepard Professor of Law, University of 
  Idaho College of Law
  Oral Testimony.................................................    15
  Prepared Statement.............................................    18
Paul F. Doda, Global Litigation Counsel, Elsevier Inc.
  Oral Testimony.................................................    31
  Prepared Statement.............................................    33
Katherine Oyama, Sr. Copyright Policy Counsel, Google Inc.
  Oral Testimony.................................................    42
  Prepared Statement.............................................    44
Maria Schneider, Grammy Award Winning Composer/Conductor/
  Producer, Member of the Board of Governors, New York Chapter of 
  the Recording Academy
  Oral Testimony.................................................    54
  Prepared Statement.............................................    56
Paul Sieminski, General Counsel, Automattic Inc.
  Oral Testimony.................................................    59
  Prepared Statement.............................................    61

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable Judy Chu, a Representative in 
  Congress from the State of California, and Member, Subcommittee 
  on Courts, Intellectual Property, and the Internet.............    78
Material submitted by the Honorable Ted Deutch, a Representative 
  in Congress from the State of Florida, and Member, Subcommittee 
  on Courts, Intellectual Property, and the Internet.............    86

                                APPENDIX
               Material Submitted for the Hearing Record

Material submitted by Maria Schneider, Grammy Award Winning 
  Composer/Conductor/Producer, Member of the Board of Governors, 
  New York Chapter of the Recording Academy......................   120
Material submitted by the Honorable Darrell E. Issa, a 
  Representative in Congress from the State of California, and 
  Member, Subcommittee on Courts, Intellectual Property, and the 
  Internet.......................................................   124
Response to Questions for the Record from Sean M. O'Connor, 
  Professor of Law and Founding Director, Entrepreneurial Law 
  Clinic, University of Washington (Seattle).....................   215
Response to Questions for the Record from Annemarie Bridy, Alan 
  G. Shepard Professor of Law, University of Idaho College of Law   222
Response to Questions for the Record from Paul F. Doda, Global 
  Litigation Counsel, Elsevier Inc...............................   233
Response to Questions for the Record from Katherine Oyama, Sr. 
  Copyright Policy Counsel, Google Inc...........................   236
Response to Questions for the Record from Maria Schneider, Grammy 
  Award Winning Composer/Conductor/Producer, Member of the Board 
  of Governors, New York Chapter of the Recording Academy........   239
Response to Questions for the Record from Paul Sieminski, General 
  Counsel, Automattic Inc........................................   241
Prepared Statement of the Library Copyright Alliance.............   242
Letter from the Directors Guild of America (DGA).................   249
Prepared Statement of Cary Sherman, Chairman and CEO, Recording 
  Industry Association of America................................   254
Prepared Statement of the Assocition of American Publishers (AAP)   260
Prepared Statement of the Computer & Communications Industry 
  Association (CCIA).............................................   271
Prepared Statement of the Future of Music Coalition..............   276


                        SECTION 512 OF TITLE 17

                              ----------                              


                        THURSDAY, MARCH 13, 2014

                        House of Representatives

            Subcommittee on Courts, Intellectual Property, 
                            and the Internet

                       Committee on the Judiciary

                            Washington, DC.

    The Subcommittee met, pursuant to call, at 9:31 a.m., in 
room 2141, Rayburn Office Building, the Honorable Howard Coble, 
(Chairman of the Subcommittee) presiding.
    Present: Representatives Coble, Goodlatte, Marino, Smith of 
Texas, Chabot, Issa, Poe, Chaffetz, Farenthold, Collins, 
DeSantis, Smith of Missouri, Nadler, Conyers, Chu, Deutch, 
Richmond, DelBene, Jeffries, Cicilline, Lofgren, and Jackson 
Lee.
    Staff Present: (Majority) Joe Keeley, Chief Counsel; Olivia 
Lee, Clerk; (Minority) Heather Sawyer, Minority Counsel; Jason 
Everett, Counsel; and Stephanie Moore, Counsel.
    Mr. Coble. The Subcommittee on Courts, Intellectual 
Property, and the Internet will come to order.
    Without objection, the Chair is authorized to declare 
recesses of the Subcommittee at any time.
    We welcome all of our witnesses today. Thank you all for 
appearing before the Subcommittee for this important part of 
our copyright system, the notice and takedown provisions of 
Section 512.
    Online piracy continues to grow to scale, harming the 
ability of individual artists and companies to add to our 
Nation's economy. The notice and takedown provisions of Section 
512 are designed to help copyright owners protect their works 
from online infringement while enabling good-faith ISPs to 
avoid potential liability for the actions of their users.
    A review of the written testimony shows disagreement about 
the proper role and action of an ISP in independently 
identifying and responding to infringing content. While no one 
seems to be suggesting that the ISPs routinely seek out 
infringing files, it does seem unreasonable that once an ISP 
has received thousands of notices for the same content from the 
same copyright owner, it then acts at least somewhat 
differently than it would after receiving the first notice.
    A growing flood of notices is not necessarily a sign of 
success either, except perhaps by pirates who deprive the 
copyright owners of any income for the work that they have 
produced.
    In other legislation recently passed by the House, this 
Subcommittee has targeted those who have abused the patent 
system from their own ends. It appears that some are also 
abusing the notice and takedown system in order to remove 
speech from the Internet they don't like or the website of a 
business with whom they compete. Actions such as these leaves a 
negative impact upon the copyright system as a whole, and it 
needs to be stopped, in my opinion.
    I appreciate all your willingness to appear before our 
Subcommittee today, and I will now recognize--well, first of 
all, let me officially welcome the gentleman from New York, Mr. 
Nadler. Jerry has fulfilled the vacancy created when 
Congressman Watt resigned.
    It is good to have you as Ranking Member, Jerry, and I 
recognize you for your opening statement.
    Mr. Nadler. Well, thank you, Mr. Chairman.
    This is my first hearing as the new Ranking Member of this 
Subcommittee. I am honored to succeed our former colleague, Mel 
Watt, who is now serving as Director of the Federal Housing 
Finance Agency, and I look forward to working closely with you, 
Mr. Chairman, with the full Committee Chairman, Mr. Goodlatte, 
with Ranking Member Conyers and all of my colleagues as we 
continue the Subcommittee's important work.
    Today's hearing is part of our comprehensive review of the 
Nation's copyright laws to explore how our copyright system is 
faring in the digital age. Section 512 of the Digital 
Millennium Copyright Act is a critical piece of this puzzle.
    Section 512 limits the liability of online service 
providers for copyright infringement by their users. Enacted in 
1998 when YouTube, Facebook, Google Search, Bing, and many 
other platforms and applications that we enjoy today were still 
on the horizon, Section 512 sought to balance the concerns and 
interests of rights owners and online service providers by 
creating a collaborative framework for addressing online 
infringement.
    The mechanism established by Section 512 was intended to 
provide meaningful protection to rights holders who, 
understandably concerned with the increasing ease and speed 
with which copyright works could be disseminated to thousands 
of users, would otherwise have been reluctant to make their 
creative works available over the Internet.
    At the same time, Section 512 was also intended to address 
service providers' concerns that misconduct by users might 
subject them to liability. To find shelter in Section 512, 
providers cannot know about infringing material or activity, 
cannot receive financial benefit from such infringement, and 
must implement procedures that allow them to ``expeditiously'' 
take down infringing content when they know about it or are 
notified by the need to do so by rights holders.
    Although Section 512 does not condition protection on a 
provider affirmatively monitoring infringement, except to the 
extent consistent with standard technical measures, providers 
must, among other things, remove material when there is actual 
knowledge of infringement or when infringing activity is 
apparent--in other words, when the provider has red-flagged 
knowledge of infringement.
    More than 15 years have passed since the DMCA's enactment, 
and new technologies have fundamentally changed the Internet, 
bringing many new benefits but also new problems that were not 
foreseen in 1998. Among other things, it is now possible for 
users to share vast amounts of high-quality content with 
thousands of others, and largely on their own terms. As a 
result of this and other innovations, online infringement has 
skyrocketed.
    Last year, for example, Google received notices requesting 
removal of approximately 230 million items. This volume is 
staggering, even for large companies sending or receiving these 
notices. For smaller artists, musicians and businesses, it is a 
practical and financial nightmare.
    Maria Schneider, a Grammy Award-winning musician and one of 
my constituents, who is here to testify today, has been unable 
to stop online infringement of her works. The resulting loss of 
income, combined with the cost of monitoring the Internet and 
sending takedown notices, threatens her ability to continue 
creating her award-winning music.
    As we will hear today, when infringing activity is 
identified and the notice is sent, users simply too often re-
post the material that has been taken down using a different 
URL. As in the arcade game Whack-a-Mole, the copyright holder 
succeeds in having the material taken down, only to have it pop 
back up almost immediately, requiring an endless stream of 
notifications relating to the same content.
    To deal with this problem, Section 512(c)(3) allows the 
sending of a representative list of copyrighted works and 
information ``reasonably sufficient provided to locate 
infringing material.'' I am interested in hearing from our 
witnesses whether these statutory guidelines have proven 
sufficient and how best to address this key problem.
    Some providers have also expressed concern about potential 
misuse of the notice process to take down non-infringing 
content. Such claims appear to be a small portion of the 
millions of infringement notices that are sent. For example, 
Google reports that it removed 97 percent of the search results 
specified in takedown requests between July and December 2011. 
Nonetheless, Congress sought to minimize the abuse by 
penalizing anyone who knowingly misrepresents that material is 
infringing, and Section 512(g) provides users with the 
opportunity to challenge the removal of content by filing a 
counter-notification. But are these protections proving 
sufficient?
    These are examples of some of the challenges that have 
arisen under Section 512. I am also interested in hearing how 
courts have interpreted the statute and whether key 
stakeholders have come together to develop standard technical 
measures for identifying and protecting copyrighted works, as 
is required in Section 512(i).
    As we undertake this review, however, we should also keep 
in mind that along with its challenges, there have been many 
Section 512 successes as well. The notice and takedown system 
has resulted in the quick removal of infringing content on 
countless occasions. Some stakeholders have come together to 
develop best practices and have entered into voluntary 
agreements to help identify and address online infringement in 
a timely and effective manner, and Internet innovation has 
continued to thrive, allowing and inspiring greater 
collaboration and commerce.
    Artists and musicians from superstars to startups now use 
various Internet technologies to make, market, and sell their 
creative works. Our goal now, just as it was in 1998, is to 
preserve incentives for service providers and copyright holders 
to work together to address online infringement in a manner 
that provides real protection for creators as the Internet 
continues to grow and thrive.
    Our witnesses today provide a diversity of perspectives and 
a wide range of experience with Section 512, and I look forward 
to hearing from them. With that, I yield back the balance of my 
time.
    Mr. Coble. I thank the gentleman.
    The Chair now recognizes the distinguished gentleman from 
Virginia, the Chairman of the full Committee, Mr. Goodlatte, 
for his opening statement.
    Mr. Goodlatte. Well, thank you, Mr. Chairman. It is a 
pleasure to be here, a pleasure to welcome this great panel of 
witnesses, and it is also a pleasure to welcome the gentleman 
from New York, Mr. Nadler, as the new Ranking Member on what I 
think is a great Subcommittee that I have had the opportunity 
to Chair in the past, and I look forward to our work together 
on issues related to intellectual property and our courts and 
the Internet.
    Enacted in 1998 at a time when bulletin boards were still a 
popular destination for many Americans, Section 512 was 
designed to achieve two important policy goals that were 
crucial to the success of the Internet: first, enabling good-
faith online service providers to operate without risk of 
liability for the actions of their users; and second, enabling 
copyright owners to quickly remove infringing online content 
without flooding the courts with litigation.
    These two goals have mostly been met with the rapid growth 
of the online economy. However, like all legislation related to 
technology, issues have arisen that were not anticipated during 
the drafting and enactment of Section 512. These issues have 
posed challenges that have led some to call for updates to 512. 
As the Committee undertakes its review of copyright law, the 
time is right to consider these issues and proposed solutions 
to them.
    Our witnesses today will mention issues of interest to 
them, and I am interested in delving into three issues in 
particular. The first is referred to as the whack-a-mole game 
by copyright owners. By most accounts, good-faith service 
providers have acted expeditiously in responding to Section 512 
notices by removing or disabling links to infringing content.
    However, copyright owners are increasingly facing a 
scenario that simply wasn't anticipated during the enactment of 
512, the need of copyright owners to send a voluminous amount 
of notices seeking removal of infringing content, followed by 
the almost immediate reappearance of the same infringing 
content. In an interesting twist, different groups point to the 
same statistics showing the mammoth amount of notices being 
sent today as proof of either the system working as designed or 
the system not working as designed.
    A second issue that has been raised is the quality of the 
notices and the impact upon other important legal doctrines 
such as fair use and the First Amendment. While there is little 
disagreement over the need to expeditiously remove clearly 
infringing content, how Section 512 intersects with these other 
legal doctrines is subject to court cases still underway.
    Finally, some have begun to engage in behavior that abuses 
the rationale for Section 512 by sending outright fraudulent 
notices with little risk for penalties being imposed upon them 
for their actions. Although the number of such cases appears to 
be low percentage-wise, this Committee should consider ways to 
reduce such blatant abuse.
    Section 512 was the product of balancing a number of 
interests to resolve various issues to improve the copyright 
system for all. As the Committee conducts its review of our 
copyright system, we should keep this consensus model in mind 
while examining challenges and potential solutions.
    I appreciate the willingness of the witnesses to testify 
this morning and look forward to hearing from them.
    Mr. Coble. I thank the Chairman.
    The Chair now recognizes the gentleman from Michigan, the 
Ranking Member of the full Committee, for his opening 
statement.
    Mr. Conyers. Thank you, Mr. Chairman.
    I welcome the witnesses as well and congratulate Jerry 
Nadler for his long continuing interest in copyright law and 
suggest that the hearings today provide an important 
opportunity for us to examine online service provider liability 
and the effectiveness of Section 512 of Title 17 of the Code.
    Section 512 creates a mechanism that immunizes certain 
service providers from liability as long as they don't derive 
financial benefit from infringing activity and take down 
infringing material that they know about or are notified about 
by rights holders through a notice and takedown process. That 
process allows copyright owners, without having to go to court, 
to request that certain types of service providers remove 
infringing material.
    So as we examine Section 512 today, there are several 
factors to be kept in mind. To begin with, although much has 
happened since 512 was enacted in 1998, part of the Digital 
Millennium Copyright Act, especially with respect to the 
Internet and the online landscape, many of the same concerns 
that led to the enactment of this law still remain.
    Fifteen years ago, the Internet was in an early stage of 
development and extremely different from the way it is today. 
For example, there were very few blogs and search engines, and 
social media services such as Facebook and Twitter simply 
didn't exist. Even then, however, copyright owners were 
legitimately worried that Internet users could spread near-
perfect copies of copyrighted works instantly around the world 
without first securing permission to use the works.
    At the same time, Internet service providers worried that 
they would be held liable for actions of their users even if 
the service providers themselves were not directly infringing.
    In the 15 years since Section 512's enactment, advances in 
technology and the globalization of the Internet have presented 
numerous challenges for those seeking to apply Section 512 to 
the new and evolving digital distribution systems. So it is 
important today that we assess how the law has kept up with the 
technology. I am concerned that some courts interpreting 
Section 512 have done so in a way that may be more restrictive 
than we intended when the statute was enacted. The law as 
interpreted by some of these courts imposes significant burdens 
on copyright owners to monitor the Internet and specifically 
identify sometimes millions of infringing files. At the same 
time, courts have narrowly interpreted the circumstances under 
which providers will be deemed to have sufficient red-flag 
knowledge of infringement to trigger the duty to take material 
down.
    In addition, Section 512 has also generated a large amount 
of litigation, particularly with respect to issues presented by 
new technologies such as cyber lockers and peer-to-peer file 
sharing. These advances in particular have facilitated 
copyright infringement in a manner that we in Congress did not 
fully envision when we enacted the Section 512 safe harbors in 
1998. And as a result, the statute has proven largely, frankly, 
ineffective in combatting the massive amounts of infringement 
that occurs using these technologies.
    We must continue to work to decrease the amount of 
infringing content on the Internet. There continues to be an 
increase in the number of sites that provide access to 
infringing copies of movies, television shows, music, and other 
content. Further, we must consider how we can improve the 
process for identifying and handling repeat infringers.
    When takedowns occur, copies of the same works often are 
put up immediately elsewhere, resulting in the whack-a-mole 
scenario that forces rights holders into a never-ending cycle 
of takedown requests. While some content owners use automatic 
systems to locate huge quantities of online infringement, this 
generally produces a large number of notices that may include 
repeat requests concerning the same infringing file.
    We should also consider whether search engines can somehow 
prioritize results that don't contain infringed material. In 
today's environment, search engines have initiated practices to 
demote or alter search results in other contexts, for example, 
where users attempt to manipulate their rank or to address 
allegations that search results that prioritize a service 
provider's own products over those of its rivals is anti-
competitive. Today, however, there has been a resistance to do 
so for copyright holders. We here should explore whether these 
practices are suitable in this context as well.
    So finally, I want to encourage all stakeholders to 
continue to develop voluntary initiatives to fulfill the DMCA's 
goals to limit copyright infringement. Copyright owners, online 
service providers and users are in the best position to assess 
practices with respect to online copyright material, and to 
that end, the 2013 Copyright Alert System provides a useful 
model.
    This system is an agreement between major media 
corporations and large Internet service providers to monitor 
peer-to-peer networks for copyright infringement and to target 
subscribers who may be infringing copyright materials. We are 
listening carefully for other suggestions that may come from 
you that may be helpful in this area and look forward to your 
testimony, and I join in congratulating our witness, the 
Grammy-winning composer, Maria Schneider.
    I yield back my time and apologize for taking more than 
should have been allotted me.
    Mr. Coble. I thank the gentleman from Michigan.
    Without objection, opening statements from other Members 
will be made a part of the record.
    Prior to introducing our distinguished panel of witnesses, 
I would like to swear them in, so I would ask you all to rise, 
please, and I will administer the oath to you.
    [Witnesses sworn.]
    Mr. Coble. Let the record show all witnesses responded in 
the affirmative.
    Professor O'Connor, I believe, Ms. DelBene, is your 
constituent, so I think you would like to introduce him to the 
Committee.
    Ms. DelBene. Thank you, Mr. Chairman. It is my pleasure to 
welcome a fellow Huskie to our hearing today. Sean O'Connor is 
Professor of Law and Founding Director of the Entrepreneurial 
Law Clinic at the University of Washington School of Law in 
Seattle, just outside of my district. His research focuses on 
how legal structures and strategies facilitate innovation, and 
his teaching and law practice specialize in transactions and 
the role of the general counsel in startup companies.
    Professor O'Connor received his law degree from Stanford 
Law School, a Master's degree in Philosophy from Arizona State 
University, and a Bachelor's degree in History from the 
University of Massachusetts.
    Prior to law school, he was a professional musician and a 
songwriter for 12 years, and I understand that he still 
performs now and then at IP conferences around the country in a 
rock band called Denovo. So we can hear about that more later, 
too, possibly.
    Thank you very much for being here today.
    And, Mr. Chair, I yield back.
    Mr. Coble. I thank the lady.
    Professor O'Connor, do you also do bluegrass? I am a 
bluegrass advocate. [Laughter.]
    Mr. O'Connor. I try to be very careful with that.
    Mr. Coble. Good to have you.
    Mr. Conyers. What about jazz? [Laughter.]
    Mr. Coble. Good to have a fellow Huskie with us.
    When you mention Huskie, Ms. DelBene, my mind synonymously 
thinks of Norm Dicks, and we miss Norm. He was here for a long, 
long time. I hope he is doing well.
    Ms. DelBene. Yes, he will always be remembered as a Huskie.
    Mr. Coble. Pardon?
    Ms. DelBene. I said he will always be remembered as a 
Huskie.
    Mr. Coble. Oh, yes. Thank you.
    I will be introducing the remaining panel.
    Our second witness is Annemarie Bridy, Professor of Law at 
the University of Idaho College of Law. Professor Bridy teaches 
courses at the college's Intellectual Property and Technology 
Law Program. Professor Bridy received her J.D. from Temple 
University School of Law and her Ph.D. and M.A. from the 
University of California-Irvine, and B.A. from Boston 
University.
    Professor, good to have you with us.
    Our third witness is Mr. Paul Doda, Global Litigation 
Counsel at Elsevier, Inc. In his position, Mr. Doda is 
responsible for legislation and copyright enforcement. Mr. Doda 
received his J.D. from the Philadelphia University School of 
Law and his B.A. from Montclair State College.
    Professor, good to have you with us.
    If I appear to be reluctant as I am introducing you, I am 
having difficulty with my spectacles. I have to get them 
changed, but bear with me as I stumble along today.
    Our fourth witness is Ms. Katherine Oyama, Senior Copyright 
Policy Counsel of Google, where she focuses on copyright, 
creativity and policy. From 2009 to 2011, she served as 
Associate Counsel and Deputy Counsel to Vice President Biden. 
Ms. Oyama is a graduate of Smith College and the University of 
California Berkeley School of Law.
    Professor, good to have you with us, as well.
    Ms. Schneider, good to see you again. I visited with you 
briefly yesterday.
    Our fifth witness is Ms. Maria Schneider, an American 
composer and big-band leader.
    No such luck it would be bluegrass, Ms. Schneider. I am not 
going to let this die. [Laughter.]
    Mr. Coble. She is also a Grammy Award-winning composer and 
member of the Recording Academy's New York chapter. Ms. 
Schneider received her Master's in Music from the Eastman 
School of Music and studied music theory and composition at the 
University of Minnesota.
    Ms. Schneider, good to have you with us.
    Our sixth and final witness is Mr. Paul Sieminski, General 
Counsel for Automattic, Inc., best known as the company behind 
World Press. Mr. Sieminski received his J.D. from the 
University of Virginia School of Law and his B.S. from 
Georgetown University.
    Professor, good to have you with us.
    Folks, you will notice there are two timers on your desk. 
They go from green to amber to red. When the amber light 
appears, that indicates that you have a minute to go. So if you 
can wrap up your testimony in about 5 minutes, we would be 
appreciative to you. I will keep a sharp lookout on that. You 
won't be keel-hauled if you violate the agreement, but try to 
stay within that timeframe if you can.
    Let's start with the gentleman, the Huskie from the 
University of Washington.
    Mr. O'Connor, good to have you with us.

 TESTIMONY OF SEAN M. O'CONNOR, PROFESSOR OF LAW AND FOUNDING 
DIRECTOR, ENTREPRENEURIAL LAW CLINIC, UNIVERSITY OF WASHINGTON 
                           (SEATTLE)

    Mr. O'Connor. Thank you, Chairman Goodlatte, Chairman 
Coble, Ranking Members Nadler and Conyers, Members of the 
Subcommittee. Thank you for having me in here today to speak 
about Section 512. I have already been introduced, so I will 
dispense with some of my remarks except to just make clear, of 
course, that I am speaking on my own behalf and not on behalf 
of any of the organizations or clients that I represent.
    I sit at the intersection of artists, copyright owners and 
technology entrepreneurs, and this is where Section 512 has 
really come to a peak of interest. For example, I have two 
clients I have represented over the years, Rhizome.org, which 
is a non-profit set up to foster digital arts around the world, 
and Kolidr.com, which is a social media platform that allows 
people to put together multi-media collages to express 
themselves using various content that they can put together.
    The interesting thing about both of these companies is that 
they were started by artists who respect copyrights and want to 
help and make sure that those are respected among their fellow 
artists, but who also want to make content widely available. So 
they are sitting at the intersection, as I am.
    So I would like to make one point, which is that we are 
often trying to divide the tech world from the content world, 
and at least where I am, working with smaller artists and 
startups, there is often quite a lot of overlap there.
    Section 512 was an excellent solution to problems in the 
1990's, and there was much mention already in the introductions 
of the problems today about what was being addressed at that 
point. But over time, it has had some unintended consequences, 
and I think it has accidentally helped to foster a culture of 
copyright contempt, oddly enough, even though that was not its 
intent.
    Why? Well, because what I see, working with clients and the 
kind of advice that they are given when they are doing a 
website startup, is that they should not be monitoring for 
content for potential infringement. Why? Well, there is no 
upside for them. They can. Section 512 allows them to. But 
there is no upside. They get the safe harbor regardless of 
whether they monitor and check.
    On the flip side, there are a lot of downsides for taking a 
look and trying to monitor. Why? Well, as was mentioned about 
the red flags, if they start looking at any of their content 
that their users are posting, then they may have actual 
knowledge of an infringing post, or they will have awareness. 
If they have either of those, they have to proactively take 
down the content even though there has not been a takedown 
notice submitted. So why should they look? That is not the 
intention of the law but, again, this is the unintended 
consequence.
    I believe there is a lack of monitoring that has led to the 
situation we have now where, as was mentioned, there are 
takedown notices now filed on millions of posts every month. 
That is clearly unsustainable.
    What I wanted to focus on is not trying to take care of the 
entire problem but taking care of what I call the relentless 
repostings of clearly infringing works. So these are not the 
potential transformative use cases. These are not remixes, 
mashups and things like that. These are situations where it is 
just the book, the movie, the song in its entirety put up with 
no pretense of there being a transformative use. That, I think, 
is a large chunk of the postings that we could try to reduce.
    Since we don't enforce right now and people are told not to 
look, that has emboldened, I think, the bad actors. They know 
that they can just repost this stuff and that the websites, 
even the ones that want to do the right thing, are encouraged 
to not look.
    So what we would like to do is get the volume down. We 
won't eradicate it entirely. There will still be a fairly high 
volume of takedown notices. But if we can take care, again, of 
what has been described as the whack-a-mole problem for the 
infringing works that are not even attempting to be 
transformative, I think we can help out our startups and our 
artists.
    Let's step back for a moment and talk about 512 and how it 
came about. It was summarized, but I want to home in again on 
the common carrier doctrine. The most pressing concern in the 
1990's was that we wanted access to the Internet. We didn't 
want the digital divide to get worse, so we needed to be able 
to allow everyone, through the telecomm companies, to get 
access to the Internet. Those companies, quite rightly, were 
concerned that they would be liable for things being sent 
through their system.
    Let me give a couple of proposals as I am running short of 
time. The first one is that there should be notice and stay-
down. This would happen in two stages. First, it would be 
voluntary practices among the stakeholders to come together to 
come up with a system to stop the repostings, again for the 
clearly infringing works, and make some of these tools like 
Content ID available to the smaller OSPs that can't afford 
them. Google has done a fantastic job in getting a lot of web-
based tools. On my own blog I use Google Analytics. So there 
could be a way, then, to help the smaller OSPs get those.
    But stage two, if no agreement is reached in a reasonable 
time, we could amend the DMCA to add the duty to remove these 
reposted works or to lose the safe harbor. This would not be 
much different from terminating repeat infringer accounts.
    The second proposal is to codify willful blindness. Just 
like the safe harbor in some ways, with Congress setting policy 
after the Netcomm case, Congress could step in and set policy 
around willful blindness that now is being set by the courts in 
a confused array, as many of you have mentioned. What would 
happen, then, is that a website that had policies against 
monitoring and had a high volume of notices would lose the safe 
harbor.
    In conclusion, I think that these changes could reduce the 
volume of takedown notices to a manageable level, would relieve 
pressure on both artists and websites, and would help to change 
the culture of copyright contempt. No one wants a post-
copyright world. OSPs and artists have valuable IP interests 
that they need to protect.
    Thank you for your time.
    [The prepared statement of Mr. O'Connor follows:]
 Prepared Statement of Sean M. O'Connor, Professor of Law and Founding 
    Director, Entrepreneurial Law Clinic, University of Washington 
                               (Seattle)
    Chairman Goodlatte, Chairman Coble, Ranking Member Nadler, Members 
of the Subcommittee, thank you for the opportunity to testify today 
about the current state of notice and takedown provisions under the 
DMCA.
    I am a law professor at the University of Washington in Seattle and 
the Founding Director of its Entrepreneurial Law Clinic. We deliver a 
full range of corporate, IP, and tax services, focusing on business 
planning and transactions, to start-ups, artists, and nonprofits. I 
have also served as Director of UW Law School's Law, Technology & Arts 
Group and its Law, Business & Entrepreneurship Program. I currently 
also serve on the Academic Advisory Board of the Copyright Alliance. 
Before academia, I was a full time attorney at major law firms in New 
York and Boston. I have continued an active private legal practice, 
with current social media clients such as Kolidr, and was General 
Counsel to Rhizome.org, a nonprofit arts organization for the digital 
and net art community. Before law school I was a professional musician 
and songwriter for 12 years, receiving airplay on college and 
commercial stations in the Northeast. Because of my multiple 
affiliations, it is especially important to state that my views here 
are my own and do not necessarily represent the views of any of the 
organizations I am or have been affiliated with.
                              introduction
    The current litigation over the Innocence of Muslims video provides 
a timeliness to the hearing today, as the dispute started with a 
takedown notice from the actress, Cindy Garcia, to YouTube demanding 
that it remove the infamous video from its site.\1\ Putting aside the 
more complicated issues in that case, one of the defenses offered by 
Google (the owner of YouTube) was quite telling. Google asserted that 
taking down the video from YouTube would provide little relief to Ms. 
Garcia because it was so widely available on the Internet. Whatever the 
practical truth of this contention, Google's claim that relief from 
infringing online content is essentially impossible reflects a common, 
disturbing narrative that we live in a post-copyright world where 
everything is available everywhere and there is nothing we can really 
do about it.
---------------------------------------------------------------------------
    \1\ Cindy Lee Garcia v. Google, Inc., Slip. Op. No. 12-57302 (9th 
Cir., Feb. 26, 2014).
---------------------------------------------------------------------------
    This attitude is both a cause and a result of the main failure of 
the notice and takedown system that I want to address today: the 
relentless reposting of blatantly infringing material. This is not 
material that the poster believes he has rights to, either by 
ownership, license, or transformative fair use. It is simply posted as 
an end run around copyright law for fun or profit. This end run is 
largely made possible by notice and takedown and the safe harbor for 
online service providers.
1.  The Notice and Takedown system is not working for artists, 
        copyright owners, or companies in the innovation and creative 
        industries
    The current notice and takedown system under Sec. 512 of the 
Digital Millennium Copyright Act \2\ is not working for any of its 
intended beneficiaries: artists, copyright owners, or online service 
providers. For artists and copyright owners, the time-honored analogy 
of a whack-a-mole game sums up the situation. No sooner does an artist 
or owner get an infringing copy of their work taken down than other 
copies get reposted to the same site as well as other sites. It would 
be one thing if these were copies that at least purported to be 
transformative. And there are some of those. But holding them to the 
side, for many artists and owners the majority of postings are simply 
straight-on non-transformative copies seeking to evade copyright.\3\ 
This is the flagrant infringement facilitated by mirror sites and 
endless links. To give a sense of the scope, a recent report showed 
that mainstream copyright owners send takedown notices for more than 
6.5 million infringing files to over 30,000 sites each month.\4\
---------------------------------------------------------------------------
    \2\ 17 U.S.C. Sec. 512.
    \3\ For example, one can find the original recording of pretty much 
any popular commercially released music title posted to SoundCloud 
(www.soundcloud.com). This is not SoundCloud's doing or fault 
necessarily. SoundCloud is a legitimate and useful service for 
musicians looking to post their own material.
    \4\ See Bruce Boyden, The Failure of the DMCA Notice and Takedown 
System: A Twentieth Century Solution to a Twenty-First Century Problem 
(Center for the Protection of Intellectual Property, George Mason Univ. 
School of Law, Dec. 2013), at http://cpip.gmu.edu/wp-content/uploads/
2013/08/Bruce-Boyden-The-Failure-of-the-DMCA-Notice-and-Takedown-
System1.pdf (citing Transparency Report: Copyright Owners, GOOGLE 
(Sept. 8, 2013) http://www.google.com/transparencyreport/removals/
copyright/owners/?r=last-month). The Report also notes that printing 
out the list of sites for which Google received takedown notices in 
just one week ran to 393 pages. Further, for the six-month period 
ending last August, member companies of the Motion Picture Association 
of America sent takedown notices for nearly 12 million files to search 
engines, and over 13 million directly to site operators.
---------------------------------------------------------------------------
    If this infringement were restricted to ``pirate'' sites and others 
who are positioning themselves outside the legal system anyway, then 
this would be a different concern. That is a problem of combatting 
piracy and not specifically a problem with notice and takedown. But 
many of the infringing posts I refer to are on legitimate online 
service provider websites. These sites at least nominally claim to want 
to be in compliance. And many of them are truly sincere in this. I have 
counseled web start-ups that very much want to do the right thing. But 
there are challenges presented by notice and takedown that make this 
difficult.
    Entrepreneurs starting web businesses that allow user generated 
content are generally told two things by attorneys: i) put strong terms 
of service agreements and the Sec. 512 copyright information page on 
your site,\5\ and ii) do not monitor content.\6\ Those who know the 
details of Sec. 512 may find the second piece of advice curious. There 
is nothing in the law that prevents a service provider from monitoring 
content for copyright infringement. Further, doing so will not push the 
service provider outside the crucial safe harbor provided for in 
Sec. 512. But the start-up IP lawyer's perspective is that there is no 
upside, and some serious potential downside, for the service provider 
to monitor content. Because the service provider is shielded from 
infringement liability regardless of whether it monitors, then there 
are only costs associated with monitoring and no extra benefits. But 
even worse, given the ``red flag'' provisions under Sec. 512(c)(1)(A), 
any service provider who monitors may well have actual knowledge of 
infringement or an awareness of facts or circumstances from which 
infringing activity is apparent. When this occurs (and this may be hard 
to determine), the service provider must expeditiously remove or 
disable access to the relevant infringing material, or else lose the 
safe harbor. Monitoring content is a pretty sure way to get actual 
knowledge or awareness of facts and circumstances. And then the service 
provider must act, even without having received a takedown notice, to 
preserve the safe harbor. Thus, the advice is ``don't monitor,'' and 
don't even look.\7\
---------------------------------------------------------------------------
    \5\ And set up your registered agent with the Copyright Office. 
Privacy policies are recommended too, although this gets more 
complicated as to form and content.
    \6\ The exception is for offensive or obscene material (unless of 
course that is the point of the site).
    \7\ This is similar to a certain strain of advice from patent 
attorneys for patent applicants who want to do a ``prior art'' search 
to see what is out there that might affect the patentability of their 
invention. Because of the duty of candor to the U.S. Patent and 
Trademark Office (USPTO) for patentees and their patent agents/
attorneys, the applicant must disclose to the USPTO any relevant prior 
art that it is aware of. But it is under no duty to undertake a prior 
art search. Thus, for some patent agents/attorneys, the less they and 
their clients know about the prior art, the better. There is no upside 
for disclosing, while there is significant downside risk that the very 
thing you disclose will be the art the examiner rejects your 
application on. The attitude is ``let the examiner do the prior art 
search.''
---------------------------------------------------------------------------
    At the same time, websites that want to do the right thing fear the 
``chump'' factor. If everyone else is playing fast and loose with 
copyright--and making money or getting attention for doing so--why 
should they walk the straight and narrow path (losing eyeballs and 
money along the way)? Further, in an environment glamorizing ``piracy'' 
and adhering to the updated credo ``everything wants to be free,'' \8\ 
then the copyright compliant website might look decidedly uncool.
---------------------------------------------------------------------------
    \8\ This is of course a play on the ``information wants to be 
free'' ethic.
---------------------------------------------------------------------------
    Related to this, because copyright infringement is so rampant, and 
so many websites are facilitating it, entrepreneurs question their 
attorneys' credibility on the law. I cannot tell you how many times a 
web entrepreneur has asked me and other internet attorneys I know ``are 
you sure about that?'' The follow-up to our affirmative answer on the 
point of copyright law is ``but [famous company x] is doing it; their 
lawyers must think it is OK.'' I am now old enough to remember this 
line of questioning from my start-up clients when ``famous company x'' 
was Napster, and then Grokster. And we all know how that ended.
    Equally important is that web businesses want to focus on business, 
not mediating notice and counter notices. Many entrepreneurs are 
shocked when I put together the basic legal documents they need for 
their site. In particular, they chafe at the formality of the ``DMCA 
copyright page'' as we call it. They are also concerned about the flood 
of notices that will likely come their way if they host user generated 
content, and the requirement to register an agent with the Copyright 
Office. The natural response is to want to monitor the site, but this 
brings its own costs and downsides as mentioned earlier.
    Accordingly, no one seems to be happy with notice and takedown. 
Service providers are certainly thankful for the safe harbor. But the 
burden it creates on them is significant, especially for small to 
medium service providers that cannot afford a compliance staff. At the 
same time, artists, content owners, and others in the creative 
industries are burdened with the seemingly impossible task of 
protecting their lifeblood works through endless takedown notices. Most 
problematic is the unintended consequences: the current state of safe 
harbors may be contributing to the free-for-all attitude among service 
providers as there is little downside for turning a blind eye and a lot 
of upside.
2.  Original purpose of the Safe Harbors versus current online service 
        provider protections
    For context and potential solutions, it is important to recall 
where this all started. The safe harbors were carefully negotiated 
compromises among different interest groups solving specific Internet 
issues of the 1990s. But, as Bruce Boyden notes, that makes them a 
``twentieth century solution to a twenty-first century problem.'' \9\ 
In particular, there were two kinds of internet service providers that 
sought a safe harbor: telecommunications companies that provided access 
to the Internet, and websites that ``distributed'' content by hosting 
it on their servers. The former arguably had the stronger claim to a 
safe harbor. Both are discussed in the following sections.
---------------------------------------------------------------------------
    \9\ Boyden, supra Note 4.
---------------------------------------------------------------------------
            A. The common carrier doctrine and Internet open access
    In the earliest days of public access to the Internet, users' 
access was somewhat limited. I remember having my first email and 
Internet access as a grad student in the early 1990s, which was a 
typical starting point for Internet users in those days. Those 
affiliated with universities, the military or government, and some 
large businesses, had reasonably easy (and free or low cost) access. 
Others had to find relatively obscure Internet service providers. Users 
were few, and the online community was small.
    As commercial providers such as America Online became more 
widespread, however, there was a question of who they would, and 
should, accept as customers. The government started calling for open 
access (similar to requirements for access in the earlier 
telecommunications revolution of widespread telephone service). Indeed, 
open access to any paying member of the public seemed ideal for both 
business and the growth of the Internet. However, service providers 
balked at one implication of open access: If they could not choose 
their subscribers, they had limited avenues for ensuring good behavior 
online, and thus feared liability for that bad behavior.
    The solution to this concern was an update on the common carrier 
doctrine that had served reasonably well in transportation and other 
regulated industries. If access to a carrier must be open to all, then 
the carrier should not have liability for the potential bad acts of 
those granted access. But this was generally held to apply only where 
the carrier was not directly involved in the activities and instead 
merely provided the conduit or vehicle.
    This concept led to the safe harbors under the DMCA for Internet 
access providers under Sec. Sec. 512 (a)-(b). These providers would not 
have material residing on their servers or on websites they hosted. 
Rather, they provided access to the pipeline through which subscribers 
would send and receive materials to/from other points on the Internet. 
Thus, the materials would be transitory through the providers' servers, 
routers, and networks. The safe harbor for this activity is under 
Sec. 512 (a). Caching of frequently sent/received materials at nodes 
could speed up access and functioning of the Internet, and so this kind 
of temporary storage of materials solely for the caching function also 
was granted a safe harbor under Sec. 512 (b).
            B. Online service providers and content distributors
    The common carrier logic did not apply as well to those providing 
websites hosting other people's content. First, there was no call for 
these firms or individuals to allow everyone to use their sites. In 
fact, from the earliest days until now there have been many limited 
access sites protected by passwords and/or firewalls. Second, the 
content on these sites was not just passing through on its way from 
Point A to Point B. It was staying there either directly visible 
through a browser or downloadable from an FTP directory.
    Notwithstanding this, following the discussion of Internet bulletin 
board services' liability for user's postings in Religious Technology 
Center v. Netcom On-Line Communication Services, Inc.,\10\ website 
operators who allowed users to post and download content argued that 
they were acting more as content distributors than publishers. 
Accordingly, even though they were not providing access to the 
Internet, they argued that they were still a kind of conduit on the 
Internet and should likewise enjoy a safe harbor. While this is a less 
compelling argument, in my opinion, a safe harbor was nonetheless 
included for service providers who stored content at users' direction 
and did not participate in decisions to post the content. Given the far 
lower speeds on Internet connections and smaller capacity of storage on 
users' computers, there was not much concern that users would be able 
to routinely post high quality digital images, much less audio or video 
back then. Therefore, it may have seemed a safer compromise from the 
artists' and content owners' perspective to allow a safe harbor even 
for these online service providers who were not performing a critical 
Internet access function. Nonetheless, the common carrier rationale 
still did not apply, and so there was less of the quid pro quo that 
justified the safe harbors for access providers.
---------------------------------------------------------------------------
    \10\ 907 F.Supp. 1361 (N.D. CA 1995).
---------------------------------------------------------------------------
    But the safe harbor for hosted materials was not a free pass to 
allow flagrant copyright infringement on one's site just because a user 
had posted it without the operator's participation. Instead, part and 
parcel with the safe harbor was the notice and takedown system so that 
copyright owners could let website operators know that infringing 
material had been posted. As the responsible party and ultimate 
controller of what could reside on the website, the operator was a 
natural party for such notice. Further, with the incidence of 
infringing posts assumed to be relatively low, this was not envisioned 
to be a frequently used procedure.
    Today, by contrast, we have a number of tools to post large content 
files easily, whether we have rights to them or not.\11\ This has 
resulted in a mind-boggling array of posts. Within these exist millions 
of clearly infringing content items. Notice and takedown, as a somewhat 
time-consuming task are not made for this kind of volume of 
infringement.\12\ But the lesson we should learn from this problem is 
not that copyright is too expansive or that we should simply roll back 
notice and takedown to make service providers' jobs easier. Instead, 
the lesson we should take is that we need to find a way to reduce the 
amount of infringing posts. We do not live in a post-copyright world, 
and such a world would not be beneficial to service providers. It is 
easy to dismiss the importance of someone else's intellectual property, 
but one's own is a different matter. Innovative Internet start-ups hold 
intellectual property as core assets just as much as do creative 
industries firms. Accordingly, a solution to the overwhelmed notice and 
takedown system is in everyone's interest.
---------------------------------------------------------------------------
    \11\ Note that the innovation that made YouTube famous was an easy 
to use solution to this exact problem. Users could effortlessly post 
relatively large video files that they could not before.
    \12\ See Boyden, supra Note 4.
---------------------------------------------------------------------------
3. Proposed solutions
    Radical solutions to the notice and takedown problem could include 
revisiting the whole safe harbor construct and/or eliminating notice 
and takedown altogether. However, those could have far-reaching and 
unintended consequences. Instead, we should focus on solutions that 
simply return some semblance of sanity to notice and takedown. I 
propose two solutions.
            A. Proposal 1: ``Notice and Stay-down''
    The highest volume of notices seem to be for reposted works, i.e., 
ones that have already been taken down on notice, yet reappear within 
hours often on the same site. Further, many of these do not even 
purport to be transformative or noninfringing. They are not mash-ups, 
remixes, covers, etc. They are simply the original work reposted 
repeatedly by unauthorized persons. That the posters do not seem to 
believe they have any real rights to the works seems supported by the 
surprisingly low number of counter notices submitted (relative to the 
enormous number of takedown notices).
    My first proposal has two stages. In the first stage, service 
providers should establish voluntary best practices to monitor for, and 
immediately remove, reposted works. We know that Content ID and other 
systems are reasonably effective at identifying copyright works 
generally. They could be even more effective when used to identify 
works that have been taken down under notice. The service provider 
knows what the work is now--because it has taken it down--and so it can 
add the work to the filter's catalog. Such a system could then automate 
a ``notice and stay down'' regime. This would have benefits for all 
parties as it would likely result in a dramatic downturn in infringing 
postings and, concomitantly, in notices sent. The time and money 
savings for all parties could allow them to focus more on the difficult 
situations where arguably some transformative use has occurred and fair 
use might apply.
    The second stage would take place if service providers cannot agree 
to or implement a meaningful private ordering notice and stay-down 
system. Congress should then consider amending the DMCA to add an 
affirmative duty for online service providers to monitor for, and 
remove, reposted works that they had already received notice on. In 
fact, there is already an analog to this in the DMCA requiring 
termination of users' accounts that have been repeat infringers under 
Sec. 512 (i)(1)(A). In other words, while we might allow more leeway 
for first time infringers, and first posts of infringing works, repeats 
should not require repeated notices from copyright owners. In its 
strongest version, the proposal would also have Congress amend the DMCA 
so that service providers who do not implement a system to remove 
reposted works would be taken outside the safe harbor for any reposting 
of already noticed works.
            B. Proposal 2: Reassert or strengthen ``red flag'' 
                    provisions
    The ``don't monitor'' advice and glamorization of a piracy culture 
means that many websites are in fact turning a blind eye to extensive 
infringement on their sites. Courts have grappled with whether the 
common law concept of ``willful blindness'' as a kind of constructive 
knowledge is consistent with, or abrogated by, the DMCA red flag 
provisions.\13\ The Court of Appeals for the Second Circuit recently 
found that the DMCA limited, but did not abrogate, the applicability of 
willful blindness to online service providers.\14\ The district court 
on remand failed to find willful blindness or actual knowledge even 
where there was an extremely high volume of apparently infringing works 
on the defendant's site (YouTube). Other courts have failed to find 
actual knowledge or awareness of facts and circumstances indicating 
infringing activity even in situations where significant infringement 
was occurring.\15\
---------------------------------------------------------------------------
    \13\ See Viacom Int'l Inc. v. YouTube, Inc., 679 F.3d 19 (2d Cir. 
2012).
    \14\ Id.
    \15\ See, e.g., UMG Recordings, Inc. v. Shelter Capital Partners, 
LLC, 667 F.3d 1022 (9th Cir. 2011).
---------------------------------------------------------------------------
    My second proposal, then, is that Congress consider amending the 
red flag provisions to codify a stronger version of willful blindness 
than courts are currently using. Willful blindness could be defined to 
include any institutionalized policy prohibiting monitoring of content 
or consistent discouraging of employee monitoring or investigation of 
content posts. Evidence could be internal memos, emails, or other 
communications establishing a de facto ``do not look'' culture or 
policy in the case where the service provider's site has already 
significant takedown notices.
                               conclusion
    The notice and takedown system is not working for anyone--except 
possibly those who are posting flagrantly infringing works for their 
own purposes. Start-up online service providers are hit particularly 
hard as they cannot afford significant compliance staff. Similarly, 
independent artists cannot begin to keep up with the volume of takedown 
notices they would need to send to keep infringing versions of their 
work off the Internet. Returning to the origins of the DMCA safe 
harbors reminds us that a major initial justification was the common 
carrier doctrine: if we wanted open access to the Internet, then we had 
to immunize access providers from the bad actions of their subscribers. 
But this perfectly good notion does not stretch to online service 
providers who are not obligated to give open access to their sites, and 
at any rate are not providing access to the Internet itself. 
Accordingly, two solutions were recommended. First, notice and takedown 
should mean notice and stay-down in which service providers must take 
steps to limit the flagrant reposting of works already taken down under 
notice. Second, the red flag provisions should be strengthened by 
codifying a strong version of the willful blindness doctrine. Together, 
these solutions should reduce the enormous volume of takedown notices, 
while strengthening copyright enforcement. This could help reverse the 
``post-copyright'' mentality permeating the innovation industry 
ecosystem and help artists earn the money they deserve for their works. 
The value of both our innovation and creative industries is too 
important to allow them to continue in conflict over a system neither 
of them support (in its current form). We can fix this, and we should.
                               __________

    Mr. Coble. Thank you, Professor.
    Professor Bridy?

TESTIMONY OF ANNEMARIE BRIDY, ALAN G. SHEPARD PROFESSOR OF LAW, 
               UNIVERSITY OF IDAHO COLLEGE OF LAW

    Ms. Bridy. Mr. Chairman and Members of the Subcommittee, 
thank you for the opportunity to appear before you today. I 
appreciate the opportunity to address the effectiveness of 
Section 512 of Title 17. I would like to make two points about 
Section 512 that I believe are important to bear in mind as the 
Committee contemplates the scope and shape of what Register 
Pallante has called the Next Great Copyright Act.
    My first point is that the balancing of interests struck in 
Section 512 is both sound copyright policy and sound innovation 
policy. Section 512 has three groups of beneficiaries: owners 
of copyrights in digital content, users of copyrighted digital 
content, and online intermediaries that act as conduits and 
repositories for that content. Over the years, all three groups 
have been well served by the nuanced enforcement framework 
embodied in Section 512.
    The second point I will make and one that I think may not 
be shared by some in the room is that Section 512 has proven to 
be resilient in the face of the Internet's evolving culture and 
technology. No one doubts that the scale of copyright 
infringement online is massive or that willful infringers 
online are adept evaders of enforcement. But perfect copyright 
enforcement online is a chimera. It is technically impossible 
and economically infeasible.
    I think what Section 512 facilitates is not perfect 
enforcement but fair and workable enforcement. The notice and 
takedown regime in Section 512(c) has scaled well for enforcing 
copyrights in the voluminous content hosted by online service 
providers. Corporate copyright owners and OSPs have cooperated 
to automate the notice-and-takedown process to the greatest 
extent possible, thereby lowering the significant costs 
associated with enforcement for both groups.
    For copyright owners who can't afford automated systems, 
many of the larger online user-generated content platforms 
provide fillable forms that can be electronically submitted. I 
think it would be a good idea for this to be expanded beyond 
the larger online UGC platforms. It is true that Section 512 
has scaled less well for enforcing copyrights over peer-to-peer 
networks. Statistics show recently, however, that usage of such 
networks has been declining as legal download and streaming 
services expand for both music and video.
    Under the division of labor created in Section 512, 
copyright owners are responsible for investigating and 
identifying specific instances of infringement, and online 
service providers are responsible for removing or disabling 
access to infringing material when they know about it. The 
framework imposes significant costs and responsibilities on 
both parties, in recognition of the fact that online 
enforcement must be collaborative if it is to be effective.
    The legislative history of the DMCA frames the statute as a 
means of ensuring the continued global growth of the Internet. 
If growth of the Internet is a metric by which we can gauge the 
success of Section 512, then Section 512 has been successful. 
Fifteen years after the DMCA's enactment, there are over 2.4 
billion Internet users worldwide, a growth rate of over 550 
percent between 2000 and 2012.
    As the Internet has grown and thrived, so too have the 
copyright industries, which have successfully adapted their 
business models to meet robust consumer demand for music and 
films distributed online at reasonable prices in digital 
formats.
    According to the IFPI, global revenue from digital music 
sales was $5.8 billion in 2012, which represented growth of 8 
percent over the previous year. There were 4.3 billion paid 
downloads, a 12 percent global increase.
    If the music industry stumbled in its initial transition to 
online distribution, it has since returned to a very secure 
footing. Thanks in no small part to the workable balancing of 
interests accomplished by Section 512, copyright owners, OSPs, 
and the American public are all sharing in the fruits of the 
Internet's cultural and commercial flourishing.
    Thank you.
    [The prepared statement of Ms. Bridy follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Coble. Thank you, Professor Bridy.
    Mr. Doda?
    Mr. Doda, I think your mic is not activated.

TESTIMONY OF PAUL F. DODA, GLOBAL LITIGATION COUNSEL, ELSEVIER 
                              INC.

    Mr. Doda. Thank you, Chairman Goodlatte, Chairman Coble, 
Ranking Member Conyers, Ranking Member Nadler, and Members of 
the Subcommittee. I appreciate this opportunity to address the 
Committee on Elsevier's behalf.
    Elsevier is a 130-year-old publisher of books and journals. 
We also create technology-driven products that allow 
researchers to leverage massive amounts of data to pursue 
science and medical breakthroughs.
    I have been a lawyer for 23 years, the past 7 at Elsevier. 
During that time, I have become familiar with the challenges 
that Elsevier faces addressing online infringements under the 
DMCA. There are many challenges for a company like Elsevier. 
With global content and a large portfolio of works to cover, we 
can't possibly search for all of our content all over the 
Internet. We focus on sites with the most Elsevier content.
    The main challenges we face with these sites are a growing 
volume despite having issued notices for years, the need to 
repeatedly send notices for the same infringing works, and the 
speed at which infringing copies are re-uploaded. It has truly 
become impossible for Elsevier to keep pace.
    Elsevier issued over 240,000 takedown notices for book 
infringements in 2013, with zero counter-notifications. That is 
because we take our DMCA responsibilities seriously. We take 
three steps to verify that entire copies of our books are being 
offered before issuing notices, but there is a cost for playing 
by the rules. It makes it more difficult to keep pace with the 
infringements.
    Here are some examples from 2013. The main sites that 
comply with takedowns continue to have 500 to 1,000 
infringements monthly without any significant drop-off. Many of 
these infringements are for the same books re-uploaded to the 
same sites. On a site called 4shared, we found a book re-
uploaded 571 times, and another book 384 times. On a site 
called Uploaded, we found a book re-uploaded 231 times and 
another book 112 times. It takes, on average, seven to 9 days 
to have books taken down. During that time, the books are 
exposed to millions of users for download.
    I have one final example beyond book piracy. It shows the 
damaging ripple effect that can occur from piracy. Elsevier 
publishes confidential exams used to prepare nursing students 
for national licensing requirements. In some instances, the 
exams have been stolen from schools and offered on the 
Internet. We have issued takedown notices to certain sites with 
little effect. We have not been able to prevent the stolen 
exams from being sold by the same sellers because takedowns 
have not been uniformly honored and repeat infringer policies 
have not been adequately enforced.
    When stolen nursing exams are shared freely, it hurts not 
only Elsevier; it undermines the academic process itself. It 
also affects the quality of nurses trusted with patient care.
    We think these examples show that the system is out of 
balance and breaking down. But the question, of course, is how 
can we make improvements to address these challenges without 
going too far, without stifling creativity and freedom of 
expression. We think the answer is in reasonable technical 
measures like filtering, which is not a new idea but one that 
we think should be revisited urgently by all good-faith 
stakeholders.
    The most successful filtering solutions have resulted from 
collaboration between rights holders and sites with significant 
user-uploaded content. In the book publishing industry, we 
think the website Scribd is a good example of how targeted 
filtering can be applied in good faith and work in a fair and 
effective manner. Scribd uses fingerprinting that involves the 
creation of a digital reference database containing unique 
characteristics of copyrighted books. User uploads are checked 
for matches against the reference database. The fingerprint 
system uses best practices that we endorse. It only catches 
matches, and users are promptly notified so that they can 
dispute the rejection of their uploaded content.
    But while Scribd is a good example of what works, we need 
more examples of collaboration in the publishing industry. That 
is why we would urge Congress to help bring together all 
relevant stakeholders to work on standard measures to reduce 
online infringement. Without that intervention and oversight, 
there are not sufficient incentives for the parties to come 
together in a timely way.
    Elsevier remains concerned, however, that notwithstanding a 
government-mandated process to create voluntary measures, some 
sites that need them the most will drag their feet. If these 
sites refuse to consider reasonable measures that peer 
companies are adopting, it may be necessary for Congress and 
the courts to step in to provide remedies to copyright owners.
    Today, Elsevier sends hundreds of notices to the same sites 
for the same books year after year. It does so in good faith in 
compliance with the DMCA as it exists today. If these sites 
will not meet us halfway, in fairness, we should not be left 
without a remedy.
    Thank you for the opportunity to testify today.
    [The prepared statement of Mr. Doda follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Coble. Thank you, Mr. Doda.
    Ms. Oyama?

                 TESTIMONY OF KATHERINE OYAMA, 
           SR. COPYRIGHT POLICY COUNSEL, GOOGLE INC.

    Ms. Oyama. Thank you, Chairman Coble, Ranking Member 
Nadler, Chairman Goodlatte, Ranking Member Conyers, for 
inviting me to testify today. It has never been a more exciting 
time for creativity on the Internet. With the Internet as a 
global distribution platform, more musicians, filmmakers and 
artists are creating more content than ever before. And with 
that in mind, I just want to emphasize two points today.
    First, the technology sector has been the engine of U.S. 
economic growth and job creation. Online services have created 
new markets and generate billions of dollars for the content 
industry, and this has only been made possible because of the 
legal foundation that is provided by the DMCA.
    And second, Google's experience shows that the DMCA's 
notice and takedown system of shared responsibilities strikes 
the right balance in promoting innovation and protecting 
creators' rights online.
    The DMCA's key principle, that Internet platforms are not 
held liable for every comment, post or tweet by their users, is 
an essential feature on which every Internet company today 
relies. Before the DMCA became law in 1998, companies like 
Yahoo, Google, eBay, they faced the prospect of crushing 
statutory damages for providing their services. And today on 
YouTube, more than 1 million creators are earning revenue from 
their videos. And in the last several years, Google has sent 
more than $1 billion to the music industry alone, including new 
revenue streams for user-generated content. Companies like 
Netflix who use Spotify and Pandora have transformed the 
ability of creators to grow new audiences, and this is just the 
beginning. With more than 5 billion users coming online in the 
next decade, the market for digital entertainment is expanding 
rapidly.
    The foresight Congress showed in crafting the DMCA has 
helped enable this economic success. The notice and takedown 
process creates legal certainty to incentivize venture capital 
investment and new services, and it protects rights holders. 
Only copyright owners know what material they own and where 
they want their works to appear, and when they send takedown 
notices, online platforms disable access to infringing content 
in response. This cooperative process allows for innovation and 
encourages investment, and hugely popular platforms like 
Facebook, Twitter, Pinterest would not be possible without 
these.
    As for Google, we take our responsibilities under the DMCA 
very seriously. We have made our takedown process faster and 
easier for rights holders to use than any other online 
platform. And despite a dramatic increase in the volume of DMCA 
takedown notices that we receive, our average turnaround time 
for removing content from search results has actually decreased 
to less than 6 hours. And even now, the notices that we receive 
cover far less than 1 percent of all of the content that we 
index.
    There are, unfortunately, abuses of the system, and we work 
hard to detect and reject them. Attempts to use the DMCA to 
censor criticism, attack a business competitor, or gain 
political advantage are relatively rare but are very important 
to guard against.
    The legal certainty provided by the DMCA has allowed 
companies like Google to develop innovative systems that 
generate new revenue for rights holders. For example, YouTube's 
Content ID system enables rights holders to choose in advance 
whether they want to track, monetize, or remove user-uploaded 
videos that match their content. All of the major record labels 
and movie studios use Content ID, and most of our partners are 
choosing to monetize their content rather than having it all 
come down.
    We are also devising new ways to highlight legal content in 
order to make it easier to find. When you Google a TV show like 
``Game of Thrones,'' or a film like ``12 Years a Slave,'' we 
provide a prominent link on the right-hand panel for you to buy 
that show or movie instantly through services like Amazon and 
Google Play. If you search for a film playing in theaters, the 
first result you will likely see is going to include local show 
times, a link to purchase tickets, and other things like 
trailers.
    We recognize that despite all these steps, piracy remains a 
serious problem. The most effective way to combat rogue sites 
is to attack their sources of revenue. For our part, we have 
expelled over 73,000 rogue sites from our advertising services 
over the past 2 years, mostly based on our own detection 
efforts.
    In conclusion, I urge the Committee to preserve the current 
DMCA framework to ensure that the U.S. Internet industry 
remains at the forefront of the global economy, and we should 
incorporate DMCA-like safe harbors in our trade agreements to 
encourage the innovation and growth in other countries that the 
DMCA has enabled in the United States.
    Thank you.
    [The prepared statement of Ms. Oyama follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Coble. Thank you, Ms. Oyama.
    Ms. Schneider?

  TESTIMONY OF MARIA SCHNEIDER, GRAMMY AWARD WINNING COMPOSER/
CONDUCTOR/PRODUCER, MEMBER OF THE BOARD OF GOVERNORS, NEW YORK 
                CHAPTER OF THE RECORDING ACADEMY

    Ms. Schneider. Chairman Goodlatte, Chairman Coble, Ranking 
Members Conyers and Nadler, and Members of the Subcommittee, my 
name is Maria Schneider. I am a composer, bandleader, and 
conductor based in New York City, a three-time Grammy-winner in 
the jazz and classical genres, and a board member of the 
Recording Academy's New York Chapter. The Recording Academy is 
the trade association representing individual music creators. I 
am deeply honored to speak with you this morning about my 
personal experiences with the notice and takedown provisions of 
the DMCA.
    I come here as an independent musician in the prime of my 
career, grateful for a steadily growing fan base and critical 
acclaim. But my livelihood is threatened by illegal 
distribution of my work, and I cannot rein it in.
    The DMCA creates an upside-down world in which people can 
illegally upload my music in a matter of seconds, but I must 
spend countless hours trying to take it down, mostly 
unsuccessfully.
    It as a world where the burden is not on those breaking the 
law, but on those trying to enforce their rights. It is a world 
with no consequences for big data businesses that profit from 
unauthorized content, but with real-world financial harm for 
creators.
    Like most artists, I love technology. I became a pioneer in 
online distribution when my release ``Concert In the Garden'' 
became the first Internet-only album to win a Grammy, and it 
also heralded the age of fan funding.
    Yet today, I struggle against an endless number of Internet 
sites offering my music illegally. After I released my most 
recent album, I found it available on numerous file-sharing 
sites. I am an independent artist, and I put $200,000 of my own 
savings on the line and years of work for this release, so you 
can imagine my devastation.
    Taking my music down from these sites is a frustrating and 
depressing process. The DMCA makes it my responsibility to 
police the entire Internet on a daily basis. As fast as I take 
my music down, it reappears again on the same site, like an 
endless whack-a-mole game.
    The system is in desperate need of a fix, and I would like 
to propose three commonsense solutions.
    First, creators of content should be able to prevent 
unauthorized uploading before infringement occurs. We know it 
is technologically possible for companies to block unauthorized 
works, as YouTube already does this through its Content ID 
program. But every artist should be entitled to this service, 
to register their music once and for all. Just like the 
successful ``do not call'' list, creators should be able to say 
``do not upload.'' If filtering technology can be used to 
monetize content, it can also be used to protect it.
    Second, the takedown procedure should be more balanced. 
Most of my fans who upload my music probably have no intention 
of harming me. But to upload my music, one simply has to click 
a box. On the other end of the transaction, I must jump through 
a series of hoops, preparing a notice for each site, certifying 
documents under penalty of perjury, and spending hours learning 
the sites' unique rules for serving the notice. Creators should 
have a more streamlined, consistent process to take content 
down.
    Internet services should be required to put consumers 
through a series of educational steps to help them understand 
what content can be lawfully uploaded. If consumers had to go 
through a more robust process to upload others' content, the 
system would be more efficient for everyone.
    Third, takedown should mean stay-down. Once a service has 
been notified of an infringement, there is simply no excuse for 
the same work to show up again and again on the same site.
    Mr. Chairman, my fellow creators and I have an important 
job. We create art, the fabric of life for our citizens. It is 
our greatest ambassador to the world. Our Founding Fathers gave 
authors the right to copy and distribute their own work in 
order to incentivize creation. It is such a powerful concept 
that it is in our Constitution.
    But I must tell you that the current environment does not 
fulfill that constitutional mandate. The majority of my time is 
now spent simply trying to protect my work online. Only a small 
fraction of my time is now available for the creation of music. 
So instead of the Copyright Act providing an incentive to 
create, it provides a disincentive. The simple changes I have 
outlined would make great strides in fixing a broken system.
    Mr. Chairman, our Founding Fathers showed great wisdom in 
seeking to protect creators. I have hope that you and your 
colleagues will also show great wisdom in ensuring that this 
protection will soon apply to the digital age.
    Thank you.
    [The prepared statement of Ms. Schneider follows:]
    
    
    
    
    
    


                               __________
    Mr. Coble. Thank you, Ms. Schneider.
    Mr. Sieminski?

 TESTIMONY OF PAUL SIEMINSKI, GENERAL COUNSEL, AUTOMATTIC INC.

    Mr. Sieminski. Thank you, Mr. Chairman, Members of the 
Committee. I am General Counsel of Automattic and appreciate 
the opportunity to testify to you today about our experiences 
with the DMCA notice and takedown process. In particular, I 
would like to talk about ways that we have seen the DMCA 
process misused and how this misuse can harm companies like us, 
our users, and especially freedom of expression on the 
Internet.
    Automattic is a small company that has a big impact on the 
Internet. We operate the popular WordPress.com publishing 
platform where anyone can create and publish a website for free 
in minutes. WordPress powers some of the largest media 
properties in the world, as well as millions of small business 
websites, law firm homepages, and family blogs that are used to 
share updates with friends and family. We host more than 48 
million websites that receive over 13 billion page views a 
month, and we reach this huge audience with only 232 employees 
and one lawyer. That is me.
    The DMCA's safe harbor provisions provide important legal 
protections to us as a small and growing company, and its 
systems work reasonably well overall. However, we have recently 
seen a troubling rise in the misuse of the DMCA takedown 
process.
    The most egregious cases we have seen are notices from 
those who fraudulently misrepresent that they own a copyright 
at all in order to strike content from the Internet that they 
simply don't agree with. Other examples include DMCA notices 
sent by companies to remove articles that are critical of their 
products or copyright holders who send overly broad blanket 
DMCA notices to take down content even though it is being 
legally and fairly used.
    At Automattic, we do our best to review and weed out 
abusive DMCA notices, and given our limited manpower, these 
efforts, on top of the time we spend processing our volume of 
legitimate notices, take resources away from other important 
pieces of our business. More importantly, DMCA abuse suppresses 
legitimate free expression and erodes trust in our system of 
copyright enforcement overall.
    We certainly appreciate the frustrations that rights 
holders voice about the DMCA system. Piracy is a real issue on 
the Internet, but we see abuses by those who submit takedown 
notices as well.
    The DMCA gives copyright holders a powerful and very easy-
to-use weapon, the unilateral right to issue a takedown notice 
that a website operator like us must honor or risk legal 
liability. Under the DMCA safe harbors, the safe thing for an 
Internet service provider to do is to comply with the notices 
it receives with no questions asked. Unfortunately, this puts 
the full burden of defending content on users of Internet 
platforms who themselves are often small, independent artists, 
musicians, and amateur publishers. Very often, these 
individuals don't have the resources or the sophistication to 
fight back.
    To make matters worse, unlike the large statutory damages 
that exist for copyright infringement, there are no real 
deterrents under the law for misusing the DMCA. So most 
instances of abuse result in successful takedown of targeted 
content and on repercussions to the abuser.
    The only counter-measure available is an action for 
misrepresentation under Section 512(f) of the DMCA. We recently 
joined with some of our users who were victimized by abuses in 
filing two such lawsuits. These suits were expensive to bring, 
time-consuming to prosecute, and we expect very little 
compensation in return. Still, they are the only resource 
available under the current statute, and the only deterrent 
that we saw to prevent future abuse.
    In closing, the DMCA has succeeded in its goal of fostering 
a vibrant social Internet on a scale that no one could have 
imagined. Today you can create a Facebook page, Twitter 
account, or your very own WordPress website for free. These 
innovative tools allow anyone to publish a cooking blog, build 
a business as an independent publisher, or even organize a 
democratic, grassroots overthrow of an oppressive regime in the 
Middle East.
    The Internet's communication and sharing tools are used by 
literally billions of people, and all of them grew up under the 
DMCA. For the most part, the statute has worked to encourage 
the growth of innovative platforms and businesses like ours, 
but we should be mindful of the ways that the law doesn't work 
for everyone and can be abused to suppress the freedom of 
expression that it has been so successful in fostering.
    Automattic is very focused on trying to correct the issues 
we see in our own corner of the Internet, and I would urge the 
Committee to keep companies like us and our community of 
creators in mind as we think about the laws governing copyright 
on the modern Internet.
    I thank you again for the opportunity to talk to you today 
and I look forward to your questions.
    [The prepared statement of Mr. Sieminski follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Coble. I thank all of the witnesses for your 
contribution today. I commend you that you did not abuse the 5-
minute rule, and for that we are appreciative. We will try not 
to abuse it on our end, as well.
    I will start with Professor O'Connor. Professor, your 
testimony suggests several changes to Title 17 to modernize its 
impact. To the extent that changes are warranted, should such 
changes be written in detail or left to broad parameters in 
order to account for the future technological changes?
    Mr. O'Connor. Yes, thank you for your question, Chairman 
Coble. I am always a little nervous about getting too detailed 
in a statute because, as you mentioned, technology will change. 
That is why in the first stage of my first proposal I suggested 
again that we have a voluntary stakeholder process to try to 
come up with it, and only if that doesn't happen to then move 
on to some changes. I know that the USPTO and the Copyright 
Office are both trying to work through some of these voluntary 
arrangements. It could very well be that Congress could do a 
change to the statute that would then authorize the Copyright 
Office to then do some regulations around it.
    Mr. Coble. I thank you, Professor.
    Mr. Doda, should there be a numerical threshold of notices 
or other measures above which ISPs are required to undertake 
more action related to online infringement and below which 
ISPs' obligations should be more limited?
    Mr. Doda. Thank you, Chairman Coble.
    Mr. Coble. Pull that mic a little closer to you, Mr. Doda, 
if you will.
    Mr. Doda. We do not think there should be limits on the 
number of notices so long as, of course, the notices are issued 
in good faith and there is sufficient vetting that the copies 
are infringing. We would not support limits on the number of 
notices.
    Mr. Coble. I thank you, sir.
    Mr. Sieminski, do you think that the provisions currently 
in Section 512(f), which create liability for damages, costs 
and attorney fees in the case of misrepresentations, is notice 
to adequately protect against the likelihood of abusive 
takedown notifications? How have courts interpreted this 
provision?
    Mr. Sieminski. Thank you for the question, Mr. Chairman. 
And I think the answer is we don't really know, and I think the 
reason is the volume of cases that have been brought under 
512(f) have been so low. The reason for that is there is just a 
great imbalance of power between, I think, those that are 
sending the notices and those that are receiving them. By that 
I mean the companies that are sending takedown notices are 
often big corporations. The people on the receiving end are 
often individual users. So in order to bring a case, we have 
only seen a few of them, and I think we, as I mentioned in my 
testimony, brought a couple recently alongside our users. 
Without, I think, our intervention, those cases would not have 
been brought.
    So I think the number of cases that we have seen and the 
amount of case law we have on 512(f) is just very small, so it 
is very hard to say.
    Mr. Coble. Thank you, sir.
    Professor Bridy, should Congress create incentives for 
voluntary systems to be created to address infringement? And if 
so, what types of incentives would be most appropriate?
    Ms. Bridy. Thank you, Chairman. I think that the market has 
created sufficient incentives as evidenced by the fact that we 
have seen some really meaningful voluntary agreements entered 
into recently. I think also, at the behest of the Office of 
Intellectual Property Enforcement Coordinator, which has taken 
a role in trying to encourage these voluntary best practices 
agreements. One, as I think you may have mentioned, is the 
Copyright Alert System between copyright owners and ISPs, 
Internet access providers. We have also seen some voluntary 
best practices agreements with ad networks, as Ms. Oyama 
discussed. (Google has entered into that voluntary best 
practices agreement.) And also payment processors, online 
pharmacies.
    So I think that the industries have been working together 
cooperatively without statutory incentives to do so. So I am 
not sure they would be necessary. Thank you.
    Mr. Coble. Thank you, Professor.
    Ms. Schneider, are there other areas besides technical 
measures that Congress could create incentives to reduce 
infringement?
    Ms. Schneider. I think that all I have come up with, my 
ideas, are the three points that I have put forth here, and I 
think those kind of measures, maybe lawyers are better 
equipped--we have five of them here--to come up with that. I 
don't know.
    Mr. Coble. Does anybody else want to weigh in on that?
    [No response.]
    Mr. Coble. If so, I see the red light has been illuminated, 
so I will recognize the gentleman from New York, Mr. Nadler.
    Mr. Nadler. Thank you, Mr. Chairman.
    Ms. Oyama, we have heard that one of the biggest problems, 
maybe the biggest, certainly from the content provider's point 
of view, is the whack-a-mole problem. You serve notice on an 
infringing thing, it gets taken down, it reappears instantly, 
and this can go on over and over and over again, and you never 
catch up.
    Professor O'Connor suggested a notice and stay-down 
procedure. Would you comment on that proposal as a solution or 
a possible solution to the whack-a-mole problem?
    Ms. Oyama. Yes, thank you. I think all service providers 
are also very sensitive to this issue because the service 
providers haven't done anything wrong, and we are also working 
extremely hard to rid our systems of any of this type of bad 
content. And I understand why the notion of a stay-down notice 
and stay-down might be attractive.
    I think you really have to look across the products. I 
think Congress got it right. When they created the DMCA, they 
did not impose these types of pre-filtering and pre-monitoring 
obligations on service providers. So companies like Facebook, 
Twitter, Google, we can allow our users to post content in real 
time without having to filter every comment and tweet.
    I also think we have to think about the scale of the entire 
Internet. So there are something like 60 trillion web 
addresses, and almost anything on the Internet can be 
copyrighted.
    Mr. Nadler. Let me focus in a bit more. Ms. Schneider 
writes a song. That song is improperly posted. She sends you a 
takedown notice. You take it down. Somebody else immediately 
re-posts the exact same song. Is there the technology so that, 
having received a takedown notice on that song or that nursing 
exam or whatever and taken it down, that the moment someone re-
posts exactly the same thing it can be automatically taken down 
again? That is what I take it you mean by ``stay-down.''
    Ms. Oyama. The notice and takedown system is the best 
system for that because the copyright owners themselves are the 
ones--they know what they own, not the service providers. They 
know where it is authorized and where it is not.
    Mr. Nadler. They have notified you, somebody has notified 
you that this song is unauthorized. You have taken it down. The 
exact same song gets re-posted. You don't need a second notice. 
Is the technology available, and is it easy to use or terribly 
hard to use, so that you could say that the moment something 
that has already been taken down gets posted in exactly the 
same thing, it automatically doesn't go up or it gets taken 
down automatically without the necessity of a second takedown 
notice? Is that practical?
    Ms. Oyama. It depends on the platform. It is not practical 
as a technical mandate on all service providers because if 
somebody says this is my song and it can only be on two sites, 
everything else has to stay down, that does not account for 
fair uses in U.S. law. Members have content of news clips that 
go up on their websites. There is a lot of different uses for 
content, and the intermediaries in the middle don't actually 
know who are the rights owners and where is the content allowed 
to be.
    So this notice of the cooperative approach, where we get a 
notice and it comes out as the right way, I think there have 
been some great models in the private sector. On YouTube, 
because we have Content ID, because these are hosted platforms, 
we have copies of all of the files that are uploaded, we have 
copies of reference files, businesses can build on top of that 
and build new systems.
    In our hosted platforms, there is a way rights holders in 
advance can give us their files and tell us before anything 
goes up what they want to have happen.
    Mr. Nadler. Okay. Thank you. Thank you very much.
    Professor O'Connor, Congress also did allow for red-flag 
knowledge triggering obligations. So at what point should 
repeat notices trigger some obligation on providers' part? And 
in answering that question also, if you feel it is advisable, 
you might want to comment on Ms. Oyama's answer to my question 
about your proposal.
    Mr. O'Connor. Thank you, thank you. The issue on the red 
flags is the way the courts have been addressing it is to use 
this doctrine of willful blindness, but willful blindness is 
not in the statute. So we are seeing quite a division among the 
courts. So I think that what would be very helpful is for 
Congress to decide on policy, on what willful blindness should 
mean, and then put it into the statute.
    I would also then respond respectfully to Google about the 
situation with identifying content with my own anecdote, which 
is that I had videos where I was demonstrating copyright, about 
how songwriters should think about copyright, using my own 
guitar, although not playing bluegrass but playing ZZ Top 
songs. I had posted it on YouTube, and very quickly it was 
taken down.
    I was impressed. First I thought that it was because of my 
rendition of ZZ Top's La Grange the electronic algorithm picked 
it up, but I think it was because I also played a little 
recorded snippet.
    So again, the important thing is that those kinds of fair 
use transformative uses, those are a different category. I 
think the technology--again, I am not at Google, so I certainly 
can't speak for them. But I believe, from my experience, the 
technology is strong enough to recognize that here is the 
entire song. So again, if it has been already noticed and taken 
down, then that could stay down.
    Mr. Nadler. Thank you.
    Mr. Coble. The gentleman's time has expired.
    Mr. Goodlatte. Mr. Chairman?
    Mr. Coble. Chairman Goodlatte?
    Mr. Goodlatte. Thank you, Mr. Chairman, and I want to thank 
everyone on this panel. It is an excellent panel of witnesses 
and excellent presentation of a number of ideas.
    About 16 or 17 years ago, then-chairman of the Judiciary 
Committee, Henry Hyde, asked a relatively junior Member of the 
Committee to sit in a very hot hearing room--it is no longer a 
hearing room; I think staff has to use that room now--with 
about 30 representatives of various interests on this issue, 
content community representatives and Internet service provider 
and technology community representatives, and some with a foot 
in both camps. I was that junior member, and I had literally no 
idea what I was getting into.
    But my job was not to figure out how to solve this problem 
of getting great content onto the Internet in a digital format 
but to keep everyone in that room until we succeeded. All of 
these representatives succeeded in coming up with the notice 
and takedown provisions and the safe harbor, which were 
incorporated into the DMCA.
    So now, nearly two decades later, how does one measure the 
success of Section 512? Is it by, as some might suggest, the 
number of notices sent, or is it, as some others might suggest, 
by the amount of infringing content that not only is taken down 
but stays down, or by some other measure?
    Let me start with you, Professor O'Connor.
    Mr. O'Connor. Thank you, Chairman Goodlatte. And again, I 
want to make very clear that we all very much appreciate the 
work that was done to put Section 512 in place in the first 
place. It has on many counts for many years been very 
successful.
    Mr. Goodlatte. I have a very limited amount of time, so can 
you get to the question? What is the best measure of success?
    Mr. O'Connor. Okay. I think the best measure of success is 
whether it is a balance between the parties, whether you have 
artists feeling like they can, in fact, get their material 
taken down and it stays down and that they don't have to engage 
in the whack-a-mole.
    Mr. Goodlatte. Professor Bridy?
    Ms. Bridy. Thank you. I think the best measure of success 
is in terms of empirical numbers about the growth of the 
Internet and the growth of the industries that distribute 
content over the Internet. I think those numbers are good news 
on both sides.
    Mr. Goodlatte. Ms. Oyama, I want to come at the issue that 
the gentleman from New York was asking about but from a 
different perspective. Should ISPs be required to respond 
differently to a takedown notice when it is the 50th or the 
50,000th notice of the same content?
    Ms. Oyama. I think generally you want to have a consistent 
set of obligations. So we have YouTube. We have over 100 hours 
of content that is uploaded in an hour, a vast amount of 
content. We need to know each time whether the use is 
appropriate or not. So just looking at the specific quantity 
wouldn't be enough.
    Mr. Goodlatte. Mr. Doda?
    Mr. Doda. Certainly in some circumstances. I think the key 
is that one size does not fit all, and I think my written 
statement and Google's written statement share that sentiment. 
Where sufficient matching can occur, I think it is appropriate 
for stay-down. So Google provides, as I understand it, 
flexibility through the Content ID system, that when sufficient 
matches occur, they can either be monetized or the rights 
holder can direct that they be taken down. So I think it is a 
question of collaboration and coordination in order to achieve 
that goal.
    Mr. Goodlatte. All right. And the last question I want to 
ask I will let all of you answer, and that is on this whole 
issue of whether appropriate penalties exist for those who 
abuse the notice and takedown system. So I will start with you, 
Mr. Sieminski. Do you think appropriate penalties exist? And if 
not, what should the penalties be?
    Mr. Sieminski. I would say, from our standpoint, I would 
say no, just because of the volume of these abusive notices 
that we are seeing and really just the fact that----
    Mr. Goodlatte. Do you have a solution? Because I am down to 
a minute, and I have five more people to answer.
    Mr. Sieminski. No. I mean, I think we have statutory 
damages for copyright infringement. We should have----
    Mr. Goodlatte. Something like that.
    Ms. Schneider?
    Ms. Schneider. I think that if the proper things are in 
place to keep improper uploading, once it is up and I say it is 
down and it goes down, we don't have to worry about punishing 
people because there are stops to bad Internet behavior.
    Mr. Goodlatte. But you would say there are not adequate 
penalties now?
    Ms. Schneider. Absolutely not, because----*
---------------------------------------------------------------------------
    *The witness inserts the following text to complete her response:

      . . . abuse of the current notice and takedown system is 
      very rare and the issue is used as a distraction from the 
      real issue of rampant online infringement. Congress should 
      focus its efforts in this area of the law on making the 
      notice and takedown process meaningful and effective for 
      creators and copyrights owners.
    Mr. Goodlatte. Ms. Oyama?
    Ms. Oyama. I think we want to incentivize transparency. We 
have Google's copyright transparency report by showing actually 
which sites are targeted and who is sending them. That has 
helped, I think, everybody in the system figure out who are the 
best vendors here, how does automation help, and then who are 
the bad actors. News reporters have looked at this, as well. 
That constantly improves the system to make it more efficient 
and more accurate.
    Mr. Goodlatte. Mr. Doda?
    Mr. Doda. First I think that it has to be placed into 
context. The number of abuses and mistaken notices are 
exceedingly, exceedingly rare.
    Second, I think the statute itself, as I understand it 
through the counter-notification process, already provides that 
if a response to the counter-notice is not made, that in fact 
the content can be put back up.
    In terms of 512(f), we are certainly in support of a level 
playing field in terms of abuses being addressed, whether it is 
in the nature of an abuse of a notice or an abuse of a counter-
notice.
    Mr. Goodlatte. Mr. Chairman, I know my time has expired, 
but if we could allow Professor Bridy and Professor O'Connor, I 
would like to hear them.
    Mr. Coble. Without objection.
    Ms. Bridy. I think the remedies that currently exist are 
not adequate, and I think statutory damages or some enhanced 
measure of damages might be appropriate.
    Mr. O'Connor. I think that they are adequate now for the 
abusive notices, as we have seen in some of these cases where 
services have denied actually taking down things.
    Mr. Goodlatte. Thank you very much.
    Thank you, Mr. Chairman.
    Mr. Coble. The gentleman's time has expired.
    The distinguished gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Thank you, Mr. Chairman.
    I congratulate all of the witnesses on their testimony. It 
has been very important.
    But since I don't question Grammy winners too often, I 
would like to ask Ms. Schneider and attorney Doda about 512 
that places primary burden of finding online infringement on 
rights holders, and because of the rapid increase and 
availability of infringing material we have gone through some 
changes, and I noticed that we got two recommendations from 
Professor O'Connor, and then we had two more recommendations 
from Professor Bridy, and then we got three recommendations 
from Ms. Schneider.
    What do you think of these? How do we ensure, especially 
for the smaller artists and musicians and businesses? Because 
those are the ones I am mostly concerned with, because the big 
corporations are going to usually take care of themselves. But 
give me any views that you have on this kind of an approach, 
and then I will open it up for everyone else.
    Ms. Schneider. I would like to share with you what I 
encounter on the Internet when I find an abuse.
    Mr. Conyers. Please do.
    Ms. Schneider. This is what it takes and what typically you 
see when you upload material. [Witness holds up poster.]
    Now, you probably can't read it, and actually you can 
barely read it when you are on a computer either. It has a 
little thing you can click talking about Terms of Use or 
something. But basically, it says nothing about accountability 
whatsoever.
    Now, when I find the abuse, this is what I am given. 
[Witness holds up poster.]
    It is in larger print from the same site. I have not 
enlarged the print. This is telling me all the hoops I must 
jump through in order to take it down.
    Mr. Conyers. Quite a few?
    Ms. Schneider. Yes, I will say so. It is pretty 
frustrating.
    Now, I will say, I want to congratulate YouTube because the 
takedown procedure is such a relief now. It is just so much 
better, but there is one issue. I took down something the other 
day, and now this is what the link sends to you. [Witness holds 
up poster.]
    Can you read it? It says, ``This video is no longer 
available due to a copyright claim by Maria Schneider,'' and 
then there is a sad face. Now, I find that that is designed to 
turn animosity toward me. That is, you know, when you put 
something up on YouTube, all you have to do is put a user name. 
I don't know who the person is. And now suddenly I have been 
exposed as the meanie. I think this should absolutely be 
changed. But otherwise, I like their takedown procedure. It is 
much better. I think they need work when people upload. It 
needs to be very robust.
    Mr. Conyers. Attorney Doda? Thank you.
    Mr. Doda. Thank you, Mr. Conyers. We accept that the onus 
is on the rights holder at the outset. I think one way to 
reconcile the relative burdens when you are dealing with a 
large corporation with resources or an individual creator 
obviously diverted from their creative endeavors if they have 
too much of a burden is, again, through the filtering process, 
and I would endorse what Ms. Schneider suggested, which is a 
contribution appropriately verifying that she owns a work, a 
contribution to a referential database, for example.
    I think another factor would be if a notice is sent and 
there are no counter-notices or objections and it is deemed 
valid, that her work should stay down. In terms of the 
difficulties that individuals have in navigating the notice 
requirements and the shame, if you will, I think those types of 
issues are properly addressed in a process like the PTO, as I 
understand, is undertaking to discuss the nuts and bolts, if 
you will, of the takedown system and improvements that can be 
made.
    Mr. Conyers. Well, do you think, in closing, that the 
smaller artists, the non-Grammy winners, the musicians and 
businesses, aren't they even in a more restricted position than 
other more successful people in the field, Professor O'Connor?
    Mr. O'Connor. Yes, I think they are. If you are a smaller 
artist, you are a small web startup, you don't have the 
compliance staff to try to get in the middle of the notice and 
takedown ping-pong match. That is why I do think that if we 
could have tools made available at reasonable cost to help 
them, again to stay-down the really infringing stuff, it would 
take down the volume and they wouldn't have to have a 
compliance staff of that magnitude.
    Mr. Conyers. That is where I am going to put my emphasis, 
out of all of the things that I have heard in this hearing, and 
I thank all of the witnesses.
    I thank the Chairman.
    Mr. Coble. Thank you, Mr. Conyers. Your time has expired.
    The gentleman from Ohio, Mr. Chabot, is recognized for 5 
minutes.
    Mr. Chabot. Thank you very much, Mr. Chairman. I thank you 
for holding this hearing. I think it has been very good so far, 
and I want to applaud, first of all, the efforts of Google and 
other online service providers, what they have done to address 
the copyright infringement by voluntarily working with content 
providers. The development of the content idea in similar 
systems is a testament to a free-market solution, protecting 
the interests of copyright owners, certainly not perfect, and 
businesses alike.
    This is a step in the right direction, but there is 
obviously still a lot more to be done, as we have heard here 
this morning. Only a collaborative effort between the content 
service providers, payment processors, and advertisers will 
ensure the development of a more finely-tuned technical system. 
It is my belief that the best solutions to this problem will be 
developed not by the government but rather by free-market 
collaboration.
    Clearly, copyright infringement takes an economic toll on 
both content and service providers alike. For example, Ms. 
Oyama, you mentioned that YouTube could never even have 
launched as a startup back in 2005 if it had been required to 
implement a Content ID system. In what ways and methods has 
this negatively impacted your businesses and other startup-type 
companies, and how has copyright infringement stunted growth 
and development for other online startups? And finally, what 
collaborations do you hope to see as you move toward a 
technological solution in addressing copyright infringement?
    Ms. Oyama. Thank you. It is something that all providers 
face, as well as a challenge. It is something at Google we 
spend tens of millions of dollars investing systems to root out 
infringers and eject them from our services. But I think the 
overall picture is extremely positive, and the DMCA has 
provided a foundation of legal certainty that has allowed 
online services to thrive, and then it has also created an 
incentive to innovate, and we have a lot of mutual business 
incentives.
    So today on YouTube, we have licenses with all the major 
labels and all of the studios, and we have worked together to 
build a system of Content ID where rights holders now, when a 
user uploads content, rights holders can decide what to do. So 
they can remove it or they can monetize it. Actually, more 
often than not, the majority will actually now choose to leave 
the content up and share in the revenue. So they get the 
majority of the revenue as the rights holder, and then the user 
gets to keep their content up, and the platforms are also doing 
well and able to share this.
    So I think incentivizing those kind of business 
partnerships and collaborations so that everyone can kind of 
grow this pie together and get more content out there with 
users is the right way to go.
    Mr. Chabot. Let me ask you another question. You had 
mentioned that you had identified and gotten rid of 73,000 
rogue sites. Over what time period was that again?
    Ms. Oyama. Those were in the last 2 years, ejected from our 
advertising programs.
    Mr. Chabot. The last 2 years? How many of those would you 
estimate were outside the U.S., originated outside the U.S. 
versus in the U.S.?
    Ms. Oyama. A large, large number are internationally based.
    Mr. Chabot. Okay, so outside the U.S.
    Ms. Oyama. It's a mixture.
    Mr. Chabot. The vast majority would you say?
    Ms. Oyama. I would have to go back and check on the 
percentage.
    Mr. Chabot. Okay. If you wouldn't mind at some point, I 
would be interested in seeing that.
    Ms. Oyama. Sure.
    Mr. Chabot. Ms. Schneider, let me ask you, if I can, I 
understand and sympathize very much with what you are saying. I 
think there are a lot of other people out there, maybe college 
students, maybe younger people, and older people as well, who 
sort of look like a lot of people in your position as being, 
well, they are really wealthy and they ride around in limos, 
and I am just a poor college student and I am really not 
hurting anybody, and this may be an opportunity for you--and 
you have, I think, quite eloquently thus far, but is there any 
message that you would like to say on the other hand, that 
there is another side to this?
    Ms. Schneider. You mean about the young college student? 
First of all, I am not driving a limo, you know. I am still 
$100,000 in debt, and that three-time Grammy-winning album that 
I made that should have long paid for itself if it wasn't being 
pirated all over the Internet. And I do talk to young students 
all the time when I teach in business conferences at colleges. 
They ask how can I have what you have, and a lot of the 
conclusions that young musicians are coming to now is what is 
hurting us is that we are so diluted by being splashed all over 
the Internet.
    So we are slowly, as a community, coming to the conclusion 
that all this exposure is not coming to us in money. What it is 
really doing is diluting us, and once somebody sees us all over 
YouTube in a dozen different performances, they aren't coming 
to our website and buying the record, and this is what people 
are finding, and they are hurting. Young people are really, 
really scared. I am telling you, I hear from them all the time. 
They ask me what can I do, and you know what I say? I say get 
educated, start advocating, and write to your congressman.
    Mr. Chabot. Thank you very much.
    I yield back.
    Mr. Coble. I thank the gentleman, the gentleman from Ohio.
    The gentle lady from California, Ms. Chu.
    Ms. Chu. Thank you, Mr. Chair. Before I begin my 
questioning, I would like to submit two items into the record. 
First is the op-ed that was co-authored by myself and Congress 
Member Marino, a member of the Creative Rights Caucus, about 
the notice and takedown. This editorial came out in today's 
editorial section in The Hill, and it essentially talks about 
how our digital copyright system is not working for smaller and 
independent creators who are ultimately victims of theft but 
have to fight tooth and nail to protect their property and how 
we need to take a closer look to improve the notice and 
takedown notice under DMCA.
    The second item I would like to submit is Chris Castle's 
article in The Trichordist that talks about how the safe harbor 
is not a loophole and documents five things that we could do 
right now to make notice and takedown work better for 
individual artists and creators.
    Mr. Coble. Without objection.
    [The information referred to follows:]
    
    
                               __________
                               
                               
                               
                               
                               
                               
                               __________
    Ms. Chu. Okay. Thank you so much.
    Well, MPAA did a study which showed that search engines are 
the main means by which people get pirated content, so I would 
like to ask Ms. Oyama some questions about this.
    We felt that it was such a positive step in 2012 when you 
changed your algorithm by taking into account the number of 
takedown notices for any given site in the ranking system for 
search. This change could have resulted--it should have 
resulted, that is, in sites with high numbers of removal 
notices, takedown notices, appearing lower in the Google search 
results, therefore helping users find legitimate, quality 
sources of content more easily.
    Yet, several months later, studies show that the sites for 
which Google received hundreds of thousands of infringement 
notices are still appearing at the top of search returns. 
Actually, while we were sitting here and I was listening to 
your testimony, I decided to see for myself whether I could 
watch ``12 Years a Slave'' for free, or ``Frozen'' for free. So 
I had my iPad here, and I just input into it on the Google 
search, and I input ``watch 12,'' and I only got to ``12'' 
before something popped up that said ``Watch 12 Years a Slave 
online free.'' So that was the number-two search term that came 
up.
    And then I wanted to see if I could watch ``Frozen'' for 
free, and so I input ``watch Frozen'' and clicked that one on, 
and the number-one site that comes up is ``Mega Share Info 
Watch Frozen Online Free,'' and the number-two site is ``Watch 
Frozen Online, Watch Movies Online, Full Movies.''
    So there seems to be no real improvement in this algorithm 
change. Why do we continue to see your search engine ranking 
the illegitimate sites high?
    Ms. Oyama. Thank you for the question. I think there has 
been a lot of improvement. When we started working on this 
problem, what we heard from rights holders was they were 
concerned, when they were searching for movies and music 
content, that there were certain results that they were unhappy 
with. The vast, vast majority of users who are using Google 
search, they search for movie titles, they search for artists' 
names, they search for artists' song titles.
    So if you go to Google Search Trends--it is a public, open 
database--you can actually type in the terms and you can see 
relatively how popular are certain queries. So if you go in and 
you type ``12 Years a Slave,'' that is going to be a very 
highly, highly frequented query, and the results there, because 
of these signals and other things, working with rights holders, 
they are clean. They are to movie trailers. There are links to 
purchase, information about the film or its website.
    You can also type into the Search Trends ``12 Years a 
Slave, watch free.'' You can add those other terms that we are 
talking about. And I just want to make sure that we are 
informing this conversation with data and being very clear that 
there are still conversations happening about those very 
specific queries that end in ``free'' and ``stream'' and 
``watch'' and ``download.'' I think there is a lot of 
collaboration there. It involves a lot of technical steps about 
optimizing things that are legitimate, and part of that is 
working with retailers to make sure that the pages there have 
words like ``stream'' and ``free'' and ``download'' so that 
those will also surface.
    But if you look at actually what users are looking for, the 
vast majority are looking for artists and songs. They are 
looking for the types of queries that you can go to Google 
today, look at those results, they are clean. We are talking 
about a very relatively small set of queries that we are still 
working on together.
    For those queries, we need something legitimate to surface. 
So if a film is not available online, it is hard for us. We 
also lose money if someone goes to pirate sites. We have Google 
Play, where we would love to rent and----
    Ms. Chu. Okay. I wanted to make this point. I didn't put 
the word ``free'' in any of my search terms. I just said 
``watch Frozen,'' or ``watch 12 Years a Slave.'' So the 
``free'' wasn't in there at all, and yet it came up as number 
one or two in the search results.
    Ms. Oyama. But the search engine will show what people 
actually look for, regardless of what you see in the auto-
complete.
    Ms. Chu. Okay. Well, then I would like to follow with this, 
which is what I understand your algorithm to be, which is that 
the takedown notices must exceed 5 percent of the total 
transactions on that site or there is no algorithm change. And 
that means that an infringing company could, say, have 500,000 
movies uploaded for free. Five percent equals 25,000. So if the 
number of the takedown notices is less than that--say, 20,000 
takedown notices--then it doesn't qualify for an algorithm 
change. And yet, to me, 20,000 takedown notices is a lot, and 
it would seem that it could qualify to at least go down on the 
search.
    So my question is, does such a policy exist? And if so, how 
do smaller and independent creators with limited resources 
expect to have any impact when sending notices with regard to 
the search rankings?
    Ms. Oyama. There is no minimum threshold to trigger that 
part of data. So we are using as a constant feed the copyright 
removal notices that we get kind of into the algorithms. So 
there is no baseline threshold of a 5 percent. I think when we 
are talking about those smaller set of queries, we are actually 
talking about piracy, which is something we all want to prevent 
against. We are heartened to see more creativity online. We are 
heartened to see revenues for these industries increasing and 
for creators to be using the web tools.
    But we also have to realize if we are actually talking 
about truly bad actors, if we are talking about sites that are 
popping up that are dedicated to illegal content, we also need 
to be targeting them at their source, and I think that is where 
some of the ``follow the money'' strategies and other things to 
get them off of the web are really going to be more effective. 
So targeting the problems, and then making sure we are all 
working together to direct consumers as much as we can to great 
content that they are happy to pay for.
    Ms. Chu. Thank you. I yield back.
    Mr. Coble. The gentle lady's time has expired.
    The gentleman from Texas, Mr. Farenthold.
    Mr. Farenthold. Thank you, Mr. Chairman.
    I would like to start with Ms. Schneider. I appreciate that 
you own some songs and some rights. Let's say I want to put up 
a video of my cat and put some music behind it. How easy is it 
for me to get a license to put your music, or somebody else's 
music, under my cat video? I mean, how many hoops are there to 
jump through on that?
    Ms. Schneider. You know, anybody who wants to use my music 
for something, all they have to do is ask me for permission, 
and that is up to me to give you permission.
    Mr. Farenthold. Okay. So I then have to go Google your 
name, find out who you are. Then I have to go Google the 
performer and find out who they are. I mean, this is a very 
complicated process.
    Ms. Schneider. Not really. Why don't you just go to 
MariaSchneider.com, my ArtistShare website? You can contact me 
there.
    Mr. Farenthold. I guess the point I am trying to make is we 
saw a dramatic drop--we actually saw Napster and some of these 
peer-to-peer really drop when legitimate music became much more 
viably available. Isn't there an opportunity for your industry 
and some of your artist groups to come up with a way to make it 
easier for innovators or somebody who wants to create 
derivative works to license your content and do it legally?
    Ms. Schneider. That is legalese to figure out how to do it. 
But I am telling you that if my music is used in many different 
ways without my permission, that is violating my copyright.
    Mr. Farenthold. And I appreciate that, and I want to 
respect your copyright, but I might also want some music on my 
cat video.
    Let me go to----
    Ms. Schneider. Public domain.
    Mr. Farenthold.--Ms. Oyama. I am sorry if I got your name 
wrong.
    I am a little bit concerned that search engines, not Google 
in particular but any search engine, is an enabler for 
copyright infringement, and I am wondering if your industry 
might be better served to take a lesson from the MPAA, the 
content creators. When Congress was threatening to go in and 
regulate movie content, they created the rating system 
voluntarily. Isn't a good corporate citizen something that 
maybe your industry should work together on and finding a way, 
especially on this whack-a-mole? I can get Shazam in a noisy 
room and identify a song. It seems like large companies like 
you guys and Bing, the big companies ought to have the 
technology to do something more about that and maybe not be 
required to but do it on a voluntary basis.
    Ms. Oyama. I think there is a lot of ways that we are 
always working to address this. One of the biggest things that 
we have done for search is use automation to improve this 
process so that rights holders can, as easily as possible, let 
us know. So we have very simple-to-use web-based complaint 
forms across all of our products.
    For search, we are actually processing public information 
on the transparency page, more than 20 million notices per 
month, so that is every 30 days.
    Mr. Farenthold. I am just curious about the other side of 
that. Of that 20 million takedown notices you get, how many do 
you get a counter-notice on?
    Ms. Oyama. Small. We say on the transparency report that we 
process about 99 percent. So the remaining 1 percent were 
rejected because they were either erroneous or because there 
was a counter-notice.
    One more thing just on the search?
    Mr. Farenthold. Sure.
    Ms. Oyama. We absolutely agree with you on wanting to 
direct users to legitimate content. So if you look for 
something like ``Frozen,'' you may also see at the top a very 
new feature that we have added, which would be some advertising 
services to direct people on one click to go purchase it. There 
are also the knowledge panels on the right, which is authorized 
content.
    I just wanted to be clear, we do not want infringing links 
in search, and as much as possible we are always trying to 
direct them to YouTube or Play and platforms that make money 
for everybody involved.
    Mr. Farenthold. And I think we have to be careful as we 
draft regulations on this. Expecting something of a large 
company like Google is very different from expecting something 
from a small, independent website owner or even smaller ISP. On 
your YouTube platform you will have the technology and 
expertise to do this screening, but if I have a bulletin board 
up and somebody uploads a copyrighted photo, I don't think I 
would have the resources to go check to see whether or not that 
was copyrighted or not. I could easily deal with a takedown 
notice.
    So again, I encourage the industry to cooperate with the 
artist to find a way to end that.
    I am out of time. I had plenty more questions, but in 
respect for the 5-minute rule, I will yield back.
    Mr. Coble. I thank the gentleman from Texas.
    The gentleman from Florida, Mr. Deutch, is recognized for 5 
minutes.
    Mr. Deutch. Thank you, Mr. Chairman. Mr. Chairman, I would 
like to request that a letter from the Copyright Alliance be 
submitted for the record.
    Mr. Coble. Without objection.
    [The information referred to follows:]
    
    
    
    
    
    
    
    
    
    
    
    

                               __________
    Mr. Deutch. Thank you. I think this letter highlights some 
of the problems that creators have with the way that the DMCA 
is currently working. As we look at the strengths and 
weaknesses of the current system, it is important to keep in 
mind, as I think so much of this hearing has done, the 
experience of artists and creators, especially independent 
artists, Ms. Schneider, who rarely have access to the resources 
and infrastructure that are needed to keep up with this 
Internet piracy whack-a-mole. That is the difficulty that you 
face.
    I agree with, I think, most of the witnesses that the 
balance struck by the DMCA to encourage cooperation and to 
preserve protections for technology companies acting in good 
faith is the right one. As many have already said today, 
without the DMCA protections, it would be hard to imagine the 
growth of the Internet and other digital services that we have 
seen over the past decade.
    This hearing and the Committee's subsequent work examining 
copyright law will be a much needed opportunity to ensure that 
the current balance of the DMCA is working for creators and 
technology providers without imposing undue burdens on either 
side for takedown notices, and it is this balance that I am 
concerned about. I think the letter of the law was clear that 
the DMCA was designed to protect good-faith actors from 
liability but not to protect people who were benefitting 
financially from pirated content. But the reasonable division 
seems to have become obscured as courts have looked at it.
    Ms. Oyama, I just wanted to ask you about that. It is my 
understanding--and I would like to give you the opportunity to 
help me understand how we are coming at this issue--that Google 
has intervened as a friend of the court in a number of cases, 
including those against infringing file-sharing and cyber 
locker sites, to press the view that the DMCA is available as a 
defense not only for innocent service providers but also for 
those who are actively inducing copyright infringement, which 
is surprising to me. As the Supreme Court defined inducement, 
it applies specifically to people who act with, and I quote, 
``an unlawful objective to promote infringement, and premises 
liability on purposeful, culpable expression and conduct.''
    In one of these cases, the district court described 
inducement liability and the safe harbor as inherently 
contradictory and how there is no such safe harbor for such 
conduct. But my understanding is that Google has strongly 
rejected that view, arguing instead that the DMCA protects 
qualifying service providers against all claims of 
infringement, including inducement.
    So something would seem to be wrong if the safe harbor 
offers liability protection to people who are engaged in 
purposeful, culpable expression and conduct with an unlawful 
objective to promote infringement. I would like to hear your 
views on that. Help me understand where you are coming from to 
clarify the issue.
    Ms. Oyama. I am not aware of the specific briefs there, but 
I think the DMCA, the critical purpose there was to incentivize 
providers to participate in this cooperative process to give 
them legal certainty so that they can grow their services, and 
today we are seeing tremendous boost to the creative industries 
based on these platforms.
    The case law that I am aware of has been very good in 
distinguishing bad actors, sites where they have been found to 
be committed to engaging in piracy, things like the Hot Files, 
from legitimate services like YouTube and Google. We have also 
been targeted by these types of lawsuits. We have had to spend 
a lot of money defending ourselves, and today these are the 
platforms that are helping more than a million different 
creators earn revenue, sending more than a billion dollars just 
back to the music industry.
    Mr. Deutch. So the law shouldn't be used to shield those 
engaged in copyright infringement and inducement from 
liability. That is not the purpose of the law, is it?
    Ms. Oyama. No. The law should be--if you are a good actor 
and you are abiding by the DMCA in your responsibilities, I 
think you don't want to be the target of litigation. If you are 
not, there are bad sites that don't operate within the DMCA, 
they are pursuing----
    Mr. Deutch. I just want to be clear, though. It is not a 
question of operating within the DMCA. It is whether the 
purpose of the site is to induce infringement of copyright. 
Then that site and those site operators shouldn't be entitled 
to the safe harbor provisions of the DMCA whether they are 
technically falling within them or not.
    Ms. Oyama. That sounds reasonable. Sometimes in amicus 
briefs there are many different issues that come up. I would be 
happy to follow up with you on that.
    Mr. Deutch. In the last few seconds I have, if others on 
the panel have thoughts on this? Professor?
    Mr. O'Connor. Well, I think one thing that should be clear 
here is that there are mechanisms, then, to allow content to be 
legitimately licensed. So I think the issue is that we should 
not be using the safe harbor to shield people who are just 
putting up clearly, blatantly infringing material. There are 
easy ways to get at it legally.
    Mr. Deutch. Thank you.
    Thank you, Mr. Chairman. I yield back.
    Mr. Coble. I thank the gentleman. The gentleman's time has 
expired.
    The distinguished gentleman from Pennsylvania, Mr. Marino.
    Mr. Marino. Thank you, Chairman, and thank the panel 
members for being here.
    I hear dozens and dozens of war stories from creators who 
have come to personally see me and they have shared their 
nightmares with me, almost exactly the way Ms. Schneider has 
genuinely and eloquently stated what she has been going 
through. So with that in mind, Mr. Sieminski, I see that you 
mentioned in your statement that you have seven people that are 
devoted to addressing the notice and takedown requests full 
time. So pursuant to that, if you receive hundreds of notices 
and takedown requests for content posted by the same user on 
your site, is there a process of how you can interact with that 
user? Number one.
    Number two, do you put a hold on their account? Number two.
    And number three, do you relay some sort of warning against 
posting more content in the future?
    And if you need me to repeat any of those, just tell me.
    Mr. Sieminski. Thank you for the question. To answer your 
question, yes, as required by the law, we have a repeat 
infringer policy, as most websites do, and if a user does 
receive over a certain amount of notices for their site, their 
account is suspended permanently. So the answer is yes.
    Mr. Marino. All right. Thank you.
    Ms. Oyama, you and I had the opportunity a couple of weeks 
ago to talk about many issues, this being one of them, and it 
was very enlightening. I mean, you showed me a lot of what was 
being done. I guess I am looking at this from a proactive 
approach. We talked about the red light/green light system a 
little bit by which a provider would denote in a search result 
those sites which may have been tagged as likely to contain 
infringing content with a yellow or red light or some 
explanation.
    Would you be willing to create with the providers that you 
can work with, or you at Google create a method to implement 
this type of system? And further, would you be willing to move 
these authorized, legitimate results to the top of the page?
    Ms. Oyama. I think we always want to have authorized, 
legitimate results appear. We have done a lot of great work, 
especially using the signal and other things, working with 
rights holders to make sure that for the vast majority of 
queries that are related to media and entertainment content, 
the ones that I discussed earlier about looking for films, that 
the legitimate results are surfacing.
    I think the red light/green light concept that we talked 
about was in the context of kind of flagging for users that 
sites might be good or they might be bad. I think we just have 
to remember that DMCA applies to all service providers. There 
are 66,000 or more.
    Mr. Marino. I understand that, but I am really one that 
does not want the Federal Government to get involved in what it 
is involved in now. I am a states' rights guy, and I want to 
see less Federal Government in my life. But we need to ramp 
this up a little bit, and I am looking toward the industry. I 
am having some faith, for the time being, in the industry and 
the providers to come up with methods. I mean, Google, you are 
a smart operation over there. I am very impressed. But I am 
looking to you to create a system whereby people like Ms. 
Schneider are not damaged as they are.
    For example, when someone types in a ``movie free,'' can 
you not do something? I can't believe you cannot. I think we 
can. If we can put a man on the moon and we can transplant a 
heart, we certainly can say that when someone shows up 
``free,'' do something about that. Help me out. Give me some 
suggestions, please.
    Ms. Oyama. Yes, okay. So I think we cannot strike the word 
``free'' from search. There is a lot of legitimate free music 
and movies, and that is good for everybody. It is good for 
consumers. Some artists, the first thing they want is they want 
people to know about who they are. They want to get their name 
recognition out, and from there they use popularity. Songs go 
viral. They go number one on iTunes. They travel the world. 
These are good things to have the Internet available to have 
distribution of music.
    I think the key place here that we all can continue to work 
together is how do we surface legitimate content. So if we want 
to fight piracy, we need to increase the availability of 
legitimate offerings.
    Mr. Marino. Let me stop you there for a moment. I mean, 
there has got to be a process by which, when certain words come 
up--``free,'' ``I don't want to have to pay for it''--that that 
can be flagged.
    Ms. Oyama. Right, yes.
    Mr. Marino. My 18-year-old daughter, my 14-year-old son 
make these little programs to do some things that I just can't 
believe they are doing.
    Ms. Oyama. One of the places we have had some good 
conversations with folks about is if you want legitimate pages 
to surface for a query for ``free,'' the pages should have the 
word ``free.'' So you could say ``free music sample,'' anything 
with that word ``free'' that would help it surface.
    We are also trying to use additional space in search on the 
knowledge panel and the advertising to get customers to 
purchase.
    Mr. Marino. Let me get to another question concerning 
mobile apps. Malicious and----
    Mr. Coble. Very briefly. The gentleman's time has expired, 
but one more question would be fine.
    Mr. Marino. The mobile app.
    Thank you, Chairman.
    There have been quite a few high-risk Android apps and 
growing, from 6,000 in the first quarter of 2012 to 1,100,000 
in 2013. Malware in apps is a huge concern. What can we do 
about it?
    Ms. Oyama. Apps is a tremendous space. We have Google Play. 
As folks move to mobile, being able to purchase legitimate 
content, we are really hopeful that is going to grow 
opportunities for artists, from independent creators to the 
biggest companies. We are super, super excited about the 
direction of mobile.
    For apps, the biggest thing there I can just tell you in 
terms of DMCA, we have notice and takedown procedures. We 
kicked out about 20,000, 25,000 apps last year under this 
notice and takedown system.
    Mr. Marino. Chairman, thank you.
    Mr. Coble. You are welcome. The gentleman's time has 
expired.
    For the information of all the Members, we will have 5 
additional days for the Members to submit appropriate questions 
and for the witnesses as well to respond, so nobody is being 
cut off.
    The gentleman from Louisiana, Mr. Richmond.
    Mr. Richmond. Thank you, Mr. Chairman.
    Let me just say that, especially in my time in the state 
legislature, sometimes we are forced to act, and I acknowledge 
that we are probably not the best people to act on this because 
technology changes so fast. But if we are forced to act, I 
don't think anybody is going to like what we do because it 
wouldn't be a comprehensive solution. So I would suggest that 
stakeholders get together and figure it out.
    But let me just start with you, Ms. Oyama. You mentioned 
the auto-complete. I guess my question is can you all 
manipulate or manage the auto-complete? Because someone who is 
just going to Google about ``12 Years a Slave,'' once you get 
to ``12 Years'' and you see all of them come up, and one says 
``free'' or ``watch for free,'' then you are pushing them to 
that space even if they didn't want to go there.
    I am thinking of my mother, who is probably not an Internet 
sophisticated person. So if I can get her to go Google ``12 
Years a Slave,'' and she sees ``free,'' you kind of are 
enticing her to go that way. So can you all manipulate auto-
complete at all?
    Ms. Oyama. I just want to be clear on the interaction 
between auto-complete and search results. You can go into 
Google Search Trends today and you can actually see what real 
users are actually typing in, and you can see that it is the 
movies and artists. You can go into Google, type those queries, 
and there are clean results. On any links that are a problem, 
we will take them out. We take out more than 23 million----
    Mr. Richmond. No, no, I understand the results. But I am 
strictly speaking of the auto-complete.
    Ms. Oyama. The policy that we have, actually, it has been a 
good ongoing conversation with rights holders. So our policy is 
we will accept terms. If rights holders are concerned that 
these terms are closely associated with piracy, we have 
accepted them. We have actually accepted almost every term we 
have received.
    But a word like ``free,'' you can't strike. A word like 
``music,'' things like that, there is actually a lot of 
legitimate content offerings. But if they pass that threshold, 
there has been a good amount of coverage on this. There are 
definitely terms and words, services that have been removed, 
and it is not a finished conversation. So if there are more 
words that are concerning to folks, that should be an open 
conversation. There are always new services popping up or new 
bad actors, and we want to make sure that that does stay 
updated in real time.
    Mr. Richmond. Well, let me ask your opinion on something. I 
represent New Orleans, which is a hotbed of creativity, whether 
it is independent filmmakers, whether it is musicians, and 
whether it is small authors who self-publish. What advice would 
you give them in terms of protecting their copyright, 
considering they are probably not a big corporation and they 
are just someone who loves music and would like to earn a 
living singing, whatever they are singing about?
    Ms. Oyama. Yes. You know, some of the advice I actually get 
from them, which is how excited they are about the web and how 
important it is for them to be looking at new distribution 
models. So I think 5 years ago if we were having this 
conversation, everyone, probably even in the industry, was very 
focused on takedown, things we don't want on the web, or we 
want total control, and today we are seeing tremendous 
opportunities. When users are getting excited about music, that 
is awesome for the original creator, and they are, in turn, 
being able to monetize that, get revenue, grow their audience.
    So I would really encourage them to stay focused on the 
enforcement, and different people are more focused on that than 
others, but to also think about the other ways that they can 
use the Internet to enable their businesses. There was an op-ed 
that I read this morning by Jo Dee Messina, a really well-known 
country artist, and it was titled ``How the Internet Saved My 
Career.'' It is about how she used things like analytics that 
would show her where users are based who are watching her 
videos or listening to her music, and you can actually add 
those to your tours. So for the creators that you are working 
with there, they may not even realize that there was a 
population of fans in Canada, and they could add that city to 
their tour, things like that, things about collaboration.
    So different artists working together on the web and 
joining different fan bases together, figuring out I think 
pretty quickly what it is you want as your monetization 
strategy. So for YouTube, we have the ability to run 
advertising around the content so that the rights holder gets 
the majority.
    Mr. Richmond. Right. But I would just ask that you use your 
legal mind and pretend that the artist is your client and think 
about how you would advise them in protecting their copyright 
and making sure that others are not making money off of 
something that they shouldn't, especially when you look at the 
investment sometimes that people put out in life savings. We 
don't want others to just come in and take it.
    Ms. Oyama. Absolutely.
    Mr. Richmond. So it is a delicate balance, and I would just 
ask that everybody look at it from the other person's side so 
that we can get to a good place here where everybody is maybe 
not happy but content and pleased that we are understanding 
each other.
    With that, Mr. Chairman, I yield back.
    Mr. Coble. I thank the gentleman.
    The gentleman from Missouri, Mr. Smith.
    Mr. Smith of Missouri. Thank you, Mr. Chairman.
    Mr. Chairman, I want to express my thanks again for holding 
these copyright hearings. It has been very beneficial and 
helpful to get down to the point.
    And I want to thank all of you for appearing here today.
    And I also want to thank all the stakeholders for working 
together to help solve this problem outside of this room, and I 
think you can do a lot of that upon your own work.
    But my question is for Mr. Doda. In your written testimony, 
you mention the need for the private entities to enter into 
voluntary agreements to help combat infringement in some sense, 
and I definitely agree with you, as I mentioned earlier. I tend 
to be a fan of less government involvement in most of our way 
of life, but we have already seen some of these agreements, and 
for that I applaud the parties involved in those agreements.
    But I would like for you to briefly elaborate on some of 
the key components of what you think these agreements should 
look like.
    Mr. Doda. Thank you for the opportunity, Congressman. We 
are encouraged at Elsevier by some of the voluntary private 
agreements, particularly with respect to ad services and 
payment providers. The difficulty we see with some of those 
agreements are that they, in effect, are a bit cumbersome to 
accomplish their task. I could follow up in more detail, but my 
recollection of the voluntary agreement with respect to ad 
services, for example, essentially imposes another layer of 
notifications. So that would be one issue.
    The voluntary measure that I am aware of in the payment 
sector is one that unfortunately is not well suited to a 
problem that we experienced with these host sites that are 
overrun with user-uploaded content. That mechanism, by virtue 
of the way that program operates, would not, in fact, we think, 
adequately capture those types of sites in terms of stopping 
the payment processing.
    Mr. Smith of Missouri. All right. Thank you.
    Ms. Oyama?
    Ms. Oyama. Yes.
    Mr. Smith of Missouri. We heard a lot today about Google's 
Content ID program. Could you briefly highlight for us how and 
why this tool was able to be produced, and do you think there 
are ways of improving on it?
    Ms. Oyama. Yes, thank you. I think the DMCA played a big 
role in providing the foundation for companies like YouTube to 
develop really great tools like Content ID. So YouTube is a 
well-known brand today, but it did start also as a couple of 
guys in their garage with a great idea, and what the DMCA does 
is it provides this playing field, it provides a system that if 
you are a new company and you are launching your service, you 
are launching your startup, you can be clear on what the rules 
of the road are. You can get investment and you can start to 
build, and then over time maybe your business gets bigger and 
maybe you become more well known, it becomes more 
sophisticated. When YouTube became a part of Google, we really 
injected a huge amount of effort, so more than $60 million, 
more than 50,000 engineering hours went into building this 
system.
    What it does today is it allows us to get fingerprint files 
from rights holders. So they will give us the technical 
fingerprint of their film or their song, and then that allows 
us, when users are uploading their content, we scan more than 
15 million fingerprints, and if there is a match we go back to 
the rights holder and we ask them what they would like to do. 
They can take it down if they want, they can track and use 
analytics, or they could monetize. The vast majority actually 
choose to monetize.
    We sent more than a billion dollars just back to the music 
industry alone in the last couple of years. But many more 
independent creators are also making easily six figures on this 
through those channels. This is the way that they grow their 
audience, the way that they reach new fans, and actually how 
they get revenue.
    So from people like songwriters to artists to filmmakers 
alike, they are using this system extremely well.
    Mr. Smith of Missouri. All right. Thank you.
    Thank you, Mr. Chairman.
    Mr. Coble. I thank you, sir.
    The gentle lady from Washington.
    Ms. DelBene. Thank you, Mr. Chair.
    And thanks to all of you for being here today.
    One thing we haven't quite talked about as much yet is that 
there are really no borders on the Internet, and we know that 
as we discuss what we do here domestically, we still are going 
to be impacted and content will be impacted internationally.
    So I wanted to get feedback from all of you on what you 
think might be doing well in other places, what issues we 
should be aware of as we look at the impact we are going to 
have from international laws, international content or people, 
international websites and how they deal with content.
    So I just wanted to start with you, Ms. Oyama, since you 
deal with this already, on how you see what the challenges we 
face or what we need to keep in mind.
    Ms. Oyama. Thank you. So on the enforcement side, a couple 
of places. One is when we know that sites are based in foreign 
countries, sometimes they are with countries where we don't 
have very good diplomatic relationships. Other times we 
actually do. They could be an allied country. So I think 
figuring out how to better apply and coordinate some 
international diplomatic pressure to target bad actors would be 
a good place. We have also endorsed ``follow the money'' 
strategies, that if we can actually get to those foreign sites, 
drying up any U.S. ties or any incentives to help them with 
their revenue is super smart. We are really happy to have the 
ad networks best practices in place.
    There are actually hundreds of other ad networks in the 
ecosystem. So although the leading ones have now stepped up, we 
love to see that spread further so that the real financial 
incentives of those business models isn't just to get a new ad 
network but actually to have no advertising.
    The third thing I would add on the foreign policy side is I 
think there is an increasing awareness that there are 
tremendous amounts of the U.S. economy that are economically 
reliant on these other parts of U.S. law. So the exclusive 
rights have been extremely important for creators. We want to 
continue to press on them. But things like fair use and these 
safe harbors, many U.S. companies, every Internet company 
relies on these to exist. So if we see those safe harbors 
threatened or eroded in foreign countries, that means we 
wouldn't be able to deliver our services like Play or YouTube 
into those countries. That wouldn't be good for the creators 
for making revenue or for the American companies.
    So I think having that ongoing conversation with new 
companies that are starting to build up their Internet policy 
frameworks would be fantastic.
    Ms. DelBene. Ms. Schneider, how about you in terms of I 
don't know if you have had any interaction there.
    Ms. Schneider. Well, one thing I would say is that 
sometimes I hear people say, oh, we don't have to do anything 
really because the whole world is such a mess, and I just feel 
like we should set the bar as an example to the world about how 
to go ahead protecting artists. I mean, a company that is 
making billions on their own patents, thousands of patents, and 
on artists' intellectual property, now look at me and my 
community and what we represent. We are hemorrhaging red ink on 
our intellectual property. There has to be something that 
brings these two sides together and makes it sustainable.
    I want to feel good about this whole world. I want it to 
benefit me. I don't want it just to benefit the big players. 
And like Ms. Oyama said, there was somebody on YouTube that did 
so great and had millions of views. That is like going into a 
poor neighborhood and finding one person that won the lottery 
and saying, wow, look, you won the lottery, while everybody 
else is suffering. So that is my view.
    Ms. DelBene. Thank you.
    Professor O'Connor, you talked about the kind of blurriness 
between what we think of as content creators and providers. So 
as we look around the world, do you have feedback on what we 
need to do and what we need to keep in mind and not have just 
pure categories of industry players who are either just content 
creators or are just service providers?
    Mr. O'Connor. Yes, thank you for that question. As Ms. 
Oyama was saying, there are a lot of exciting platforms now for 
artists to try to promote their careers, so more and more 
artists are stepping over into being entrepreneurs themselves. 
So what we need to do, though, is to allow them an environment 
in which they do know that they can do the right thing, respect 
rights, and not be taken advantage of by people who then will 
just relentlessly repost.
    So, in other words, if we don't give them the right space 
and tools to be able to do the right thing, then they will have 
to start acting like the other side that just relentlessly 
infringes.
    Ms. DelBene. Thank you.
    My time has expired. I yield back, Mr. Chair.
    Mr. Coble. I thank the gentle lady.
    The gentleman from Georgia, Mr. Collins.
    Mr. Collins. Well, thank you, Mr. Chairman.
    You know, we are talking about songs and your deep love of 
bluegrass. I am from the north Georgia mountains, and also 
remember that you helped a gentleman named Earl Scruggs. Here 
you go, Mr. Chairman, here is some bluegrass.
    [Music.]
    Mr. Coble. Pardon my immodesty, but I was invited to 
present Earl Scruggs with his Grammy Award, oh, I guess five or 
6 years ago, and I will never forget. He reached over and 
touched my shoulder. He said, ``Thank you, man, for coming out 
here.'' Thank you for that.
    Mr. Collins. I wanted to bring back good memories for you, 
Mr. Chairman.
    As many of you know, I try to bring it back to what the 
bottom line is. That is the user and that is the person, that 
is the creator, that is the formats. And again, that is just 
from our Chairman's perspective, but we all have those 
memories.
    Ms. Bridy, I have a question for you. In your written 
testimony you say that it is reasonable for cost of enforcement 
to fall more heavily on content owners. But what about the 
individual songwriters and the independent filmmakers? They 
often have limited or no technical expertise or software at 
their disposal to ease some of these costs to make enforcement 
meaningful.
    We met with the Directors Guild, 15,000 independent 
directors, true creative incubators. These are small players 
who can't afford to absorb those costs with those practical 
mechanisms to operate within the DMCA framework.
    How do you address the small creator issue?
    Ms. Bridy. I think it is a great question, and I think it 
really is important to remember on all sides of this issue that 
the different actors are differently situated, right? There are 
large corporate rights owners and small creators; there are 
also large Internet service providers--online platforms like 
Google, and then also very much smaller ones.
    So I think that one key would be to make it easier for 
people like Ms. Schneider to navigate the takedown process by 
having fillable forms like Google does. I think it is probably 
not that expensive for most smaller Internet companies to just 
have a fillable form for DMCA compliance so that there can be 
electronic submission of takedown notices. I think that is 
probably a fairly easy place to start.
    But I think it is also important to remember that companies 
like Google have the money to be able to make the investments 
to have these really sophisticated tools. We also have to be 
careful to think about the startups that don't have that money 
and to be careful when we are imposing burdens to make sure 
that they are not going to be felt disproportionately by small 
Internet companies.
    Mr. Collins. And I appreciate that because that is a 
concern.
    Ms. Oyama, we have talked before, and I am glad you are 
here, and these are interesting issues. But in a follow-up to 
that discussion, again concerned about the smaller creator in 
this, you mentioned just a few moments ago that YouTube was 
once a small startup; Google was as well. Now it has grown to 
the point where my folks in northeast Georgia have the world 
literally at their fingertips as far as access not only to your 
platform but others.
    Because of your success, we need your continued help with 
the Internet ecosystem. The small creator needs your help, and 
I don't want Congress to have to legislate. It has been talked 
about that this is something that we can work on. I want the 
industry to be able to use voluntary agreements to effectively 
fight online piracy, and you guys are doing a pretty good job 
at that. But I am afraid the volunteer agreements may not be 
taking into account the quieter voices of some of the smaller 
creators.
    Is there anything that Google can do to help navigate 
Section 512? And I have a follow-up to that, as well.
    Ms. Oyama. Sure. I actually really very much agree with 
what Professor Bridy said. So making this process as simple and 
automated and low cost as possible for everyone I think is a 
place where automation can play a big role, so the web forms 
that we have across our products.
    The second piece would be there is actually a very thriving 
vendor market in this space, so people that are becoming very 
specialized in sending these notices. So no one is touching 
keyboards. It is automated on one side, it is automated on the 
other side, and many different people can use those services. 
Those folks that have specialties in this area are getting 
smarter and faster about it because it is their expertise.
    So if we can also bring them into the conversation, if they 
have tips and tools about how to find piracy and how to quickly 
send so it is quickly removed.
    Mr. Collins. And very quickly, most of your requests are 
taken down within a matter of hours, but there is a small 
percentage that do not get taken down quickly, and one of the 
reasons given is you need additional information. While we are 
talking about this, what is the additional information? And if 
we are looking at making changes here, how could we incorporate 
that into the discussion here? Why is there an additional 
information lag?
    Ms. Oyama. I think the web forms have a pretty simple place 
to fill those out. So if they are rejected because of a lack of 
information, it would be a deficiency that someone hasn't 
filled in the basic requirements of the form. So one example 
could be if you were unclear about who was the owner of the 
copyright.
    So the notice and takedown regime I think rightly, as 
Congress set it up, gives rights holders, the creators, the 
owners of the work the ability to send, but you wouldn't want 
somebody else in the public saying what to do with Ms. 
Schneider's work.
    So if it is not clear, you are not saying you are the 
authorized person----
    Mr. Collins. And we are just trying to figure out how can 
we help make it clear to say this is what you need to do. But I 
appreciate it.
    Thank you, panel.
    Mr. Chairman, I yield back, Earl Scruggs and everything.
    Mr. Coble. I want to say to the gentleman from Georgia, 
thank you for that intro.
    And for the benefit of the uninformed, the late Earl 
Scruggs, the late North Carolinian Earl Scruggs was generally 
recognized as the world's premier five-string banjoist.
    Thank you again, sir.
    The gentleman from New York.
    Mr. Jeffries. Thank you, Mr. Chairman.
    Let me thank the witnesses for what I think has been a very 
informative discussion.
    Let me begin with Professor Bridy. The Supreme Court in the 
1975 decision--I believe it was written by Potter Stewart--20th 
Century Music Corporation v. Akin, made the statement, ``The 
immediate effect of our copyright law is to secure a fair 
return for an author's creative labor. But the ultimate aim by 
this incentive is to stimulate artistic creativity for the 
general good,'' a statement made by the Supreme Court about the 
underpinnings of our copyright law.
    Would you agree with the sentiment that was expressed by 
the Court in this opinion?
    Ms. Bridy. I do very much agree with that. I think that it 
is very important to secure to creators a return on their 
investment so that they are incentivized to create more 
creative content for the public, but that ultimately the system 
is designed to deliver creative works to the public. So I very 
much agree with that statement, and I think that the DMCA has 
really worked a good balance to try to help that policy 
objective to thrive in the digital environment.
    Mr. Jeffries. Now, I agree with your observation that the 
DMCA should be or is correctly about promoting a balance 
between sound copyright policy on the one hand and sound 
innovation policy on the other. And in the context of sound 
innovation policy, is it fair to say that a robust safe harbor 
provision is important to allowing for innovation to continue 
to flourish in the digital age?
    Ms. Bridy. I think it is crucial. I think there is no 
question.
    Mr. Jeffries. Now, as it relates to the applicability of 
the safe harbor provision to Internet companies, it is my 
understanding that if there is either actual knowledge or red-
flag knowledge of infringement activity, then that safe harbor 
provision is no longer applicable; correct?
    Ms. Bridy. That is right. It puts them outside the safe 
harbor.
    Mr. Jeffries. Now, in the context of how courts have 
defined red-flag knowledge, could you provide for us some 
clarity as to what the current state of the law is in this 
area?
    Ms. Bridy. Sure. I think we are going to get some more 
guidance in not very long from the Second Circuit on this issue 
because the Viacom v. YouTube case is on appeal for the second 
time in the Second Circuit, and one of the issues that is live 
before the Circuit now is what the interaction is between red-
flag knowledge and this doctrine of willful blindness about 
which Professor O'Connor spoke earlier.
    So I think that most of the courts that have decided this 
issue have said that red-flag knowledge is knowledge of facts 
or circumstances from which infringing activity is apparent and 
that the knowledge in question can't just be generalized 
knowledge. It has to be red-flag knowledge of specific 
instances of infringement on a service provider's system.
    Mr. Jeffries. Thanks.
    Now, Professor O'Connor, in your view, have the courts 
provided either sufficient guidance as it relates to red-flag 
knowledge? And, as they have defined this area, has it been 
sufficiently robust to make this particular provision 
meaningful?
    Mr. O'Connor. Thank you, Representative Jeffries. 
Respectfully, I don't think they have adequately taken care of 
the doctrine. I think that, as Professor Bridy is saying, they 
really are limiting it. Well, she might not be saying that, but 
to where you have actual knowledge of that particular work. So 
it gets narrowed and narrowed, so that even if you have a sense 
that there is lots of infringement going on, you can still 
essentially turn a blind eye to it, and I don't think that was 
the intent.
    So I do again suggest respectfully that Congress could 
consider setting the policy on what willful blindness should 
be. If you are aware there is infringement going on on your 
site, you should take some steps to mitigate it.
    Mr. Jeffries. Now, I would note that in other areas of the 
law, you have a commonly understood principle of either actual 
knowledge or constructive knowledge. The term ``constructive 
knowledge'' doesn't appear in the DMCA, but presumably that is 
part of what Congress had intended in terms of bringing this 
particular provision to life.
    But, Ms. Oyama, I would also note that perhaps there is a 
reasonable argument that the Internet context is different. In 
the fraud instance, for instance, constructive knowledge 
requires a duty of inquiry which it appears the DMCA explicitly 
did not impose in this particular instance.
    What are your views as it relates to whether red-flag 
knowledge should be more broadly defined?
    Ms. Oyama. I think, actually, the Internet context makes 
the requirement of knowledge of specific infringing acts even 
more important because of the diversity and the ecosystem and 
the different ways that creators are engaging with content.
    So just because--imagine we were even able to say this is a 
song and this is all the places that it appears. Artists have 
very different standards on where they want it to appear, who 
they are authorizing, who is not allowed, who is allowed, and 
so that is why we need that cooperative process where they 
specifically tell us this one is okay, this one is not okay, 
this one I didn't know about but actually that is really cool, 
that one can stay up.
    I think you want to make sure that we are not giving the 
wrong incentives to online services and platforms to build and 
innovate in this space. So if you narrow the safe harbors and 
you make it more risky for providers to be innovating in this 
space or building on their own above the law, filtering and 
monitoring and things like Content ID, you are going to make 
everybody very fearful that they are going to hit up against 
this legal liability. So I think creating a very clear and 
certain platform that then allows people to experiment and 
build better systems so that all of the businesses can be 
licensing and earning revenue from the content is the right 
direction to go.
    You don't want to inject a lot of fear and confusion into 
the ecosystem, especially with small companies that are trying 
to get investment. They don't want to get sued out of 
existence. If you start to impute more things of you might be 
taking actions and this will show you are willfully blind, no 
one understands what those standards are. They are very vague. 
That is going to be the wrong incentive, because they are not 
going to be trying to fix these problems voluntarily.
    Mr. Jeffries. Mr. Chair, if I could just ask one brief 
follow-up question.
    At the beginning of my remarks I referenced the Supreme 
Court decision that notice and principles, laws that can be 
boiled down to fair return and stimulating artistic creativity 
as underpinnings of our copyright law. Would you agree that 
those still remain, even in the Internet context?
    Ms. Oyama. Absolutely.
    Mr. Jeffries. The value of the innovation economy is a 
strong thing for us to consider?
    Ms. Oyama. Yes. I think incentivizing creativity is the 
place that we should all be looking toward and kind of working 
backwards from in terms of policies that we would support. It 
is an exciting time. There are more creators that are able to 
gain access to the tools of creation, to distribution, and to 
monetization. These industries are changing, but I think that 
is an exciting thing. There is more creativity out there than 
ever before.
    Mr. Jeffries. Thank you, Mr. Chair.
    Mr. Marino [presiding]. You are welcome.
    The Chair recognizes the Congressman from Texas, Judge Poe.
    Mr. Poe. I thank the Chairman.
    Thank you all for being here.
    As a former judge, I don't like stealing, sneaking around 
and taking somebody else's property. It is just bad, especially 
car thieves. My Jeep was stolen, and I was mad until they found 
the outlaw who stole it. But that is what we are dealing with 
in this whole thing, Internet thievery, piracy, if you will. It 
is a little different than most crimes in that generally in 
criminal situations you have law enforcement involved. Here, we 
are trying to solve this problem through the private sector. I 
think that is the biggest difference. And hopefully we can move 
down the road so people quit stealing from Ms. Schneider and 
Willie Nelson and everybody else.
    I have some questions for all of you. I will just see how 
far I can go before he gavels me.
    I want to thank Ms. Oyama and Google for what you have done 
on Internet trafficking issues and what you have done on the 
sites and helping stop this scourge, especially of child 
trafficking. Google and others are to be commended for this 
because it is just dastardly, and I hope we can solve that 
issue and catch those folks.
    Going to a specific thing while we are here, apparently we 
have all been on our iPhones looking up things on the Internet 
while this has been going on. I preferred to go to ``House of 
Cards'' to see, fantasy House of Cards. How does Google rank 
people who are--I think I am a typical person that uses the 
Internet. You go to one of the first three sites, you don't 
even have to go to the second page, and it seems to me like the 
first, maybe the first one was valid, but the second two I was 
kind of suspicious.
    Is there a way you can do this with your algorithms to make 
sure that the bad guys aren't at the top of the page when you 
look up House of Cards?
    Ms. Oyama. Yes. I think the system that Congress set in 
place, the notice and takedown system, is extremely well suited 
for that, because as soon as we are alerted, link 2 and 3 were 
bad, those are gone. So our average turnaround time is----
    Mr. Poe. How did they get to be 2 and 3 to begin with? That 
is my question.
    Ms. Oyama. Well, I think ``House of Cards'' is a great 
example. It feeds into the conversation we were talking about, 
what types of results are showing up. So if you Google ``House 
of Cards,'' take a look at what is there, it is going to be 
legitimate stuff. It is going to be the show's website and 
hopefully the knowledge panel and things about the actors.
    Just in terms of kind of feeding back into the Search 
Trends conversation----
    Mr. Poe. Just a second. Let me interrupt, because you have 
already lost me. I pull up ``House of Cards,'' I think I see 
the valid ``House of Cards,'' but I think I see some thievery 
going on, like the 2nd and 3rd, maybe the 4th one. How does 
that happen? Is there a way to prevent that from ever getting 
to be in those places without having to take them down? That is 
my question.
    Ms. Oyama. You could attack the people that are putting 
that up at their source. So sometimes it is a mistake, and I 
think the notice and takedown process is a good place there.
    Mr. Poe. Okay. I am a thief. I am stealing ``House of 
Cards.'' How do I get it to be number 2 when you pull up 
``House of Cards?'' That is my question.
    Ms. Oyama. It is not number 2.
    Mr. Poe. Okay, 3, 4, right up near the top.
    Ms. Oyama. It is not near the top for ``House of Cards.''
    Mr. Poe. Those are all legitimate sites.
    Ms. Oyama. They are going to be legitimate results, and 
``House of Cards'' is something like 121 times more popular 
than ``Watch House of Cards.'' So my point is the users are 
searching for ``House of Cards.'' Those are the types of shows 
they look for, and then you can look in Google search results. 
Those are legitimate, clean sites because they are popular and 
we have done a lot of strong work there.
    If it is a really bad actor, so if it is a company that is 
dedicated to spreading this kind of content and that is what 
has appeared, there is a role for intermediaries, and we are 
always working on building better and faster tools so that 
those will be removed. All we need to know is know that there 
is a problem, there is a link, we will take that out very 
quickly, 6 hours or less. You don't have to go to a court. It 
is a very special power.
    But if there is really a rogue actor out there that is 
determined to just keep resurfacing these, we have to figure 
out how to also direct our strategy to the source of the 
problem so that all of the service providers aren't in the same 
situation as the rights holders. We are all here together 
trying to scrub this stuff out. You have to disincentivize them 
and strike their business model or use civil law enforcement.
    Mr. Poe. I am going to reclaim my time. I have two more 
questions.
    Seventy-three thousand takedowns in 2 years; is that right?
    Ms. Oyama. Just out of the advertising system. Total, it is 
about 230 million last year.
    Mr. Poe. Okay. How much does that cost? How much does that 
cost? Make it so I can understand it.
    Ms. Oyama. It is pretty much unquantifiable because we have 
hundreds of folks that work on it. We have invested tens of 
millions of dollars into these systems. It is a huge burden.
    Mr. Poe. So you don't know.
    Ms. Oyama. A total number, no. It is lots of people and 
lots of----
    Mr. Poe. Okay. Take 6 hours to take down one site. How many 
people do you have reviewing those sites to take them down 
within 6 hours?
    Ms. Oyama. That is a great question. So for the most part 
at this point, because of the engineering effort that we have 
invested in, the tools, the bulk submission tools, trusted 
users, where we realize 95 percent of the requests that we were 
getting are actually from a fairly limited number, like 50 
major rights holders, we have developed faster tools to do that 
better.
    Across the company we have hundreds of people that work on 
these things, from engineering to legal, developing our 
policies, making them really clear. We prohibit infringement on 
our products. We don't want that. We have the same incentive as 
the content industry and the rights holders in that we are 
building businesses like Google Play and YouTube that are 
licensed. They are licensed with the studios, the labels. 
Independent creators can use these. We share revenue if 
creators are getting revenue. No one is making any money if 
somebody clicks on something in search and they are going to a 
bad place. So we are all losing money there.
    Mr. Poe. You don't know how many people, just hundreds of 
people?
    Ms. Oyama. Hundreds of folks, yes.
    Mr. Poe. Okay. Well, I hope you all can figure out a way to 
solve the problem without really getting a whole lot of 
government involved in this. Sometimes the government makes it 
worse, not better, no examples to be used. So I understand the 
problems and I hope we can figure out a way to solve this so 
people like Ms. Schneider stay in business and the thieves quit 
stealing.
    And I will yield back to the Chairman, who has let me go 
over. I appreciate it. Thank you.
    Mr. Marino. Thank you.
    The Chair now recognizes the gentleman from Rhode Island, 
Congressman Cicilline.
    Mr. Cicilline. Thank you, Mr. Chairman, and thank you to 
the witnesses.
    I think that protecting the creative products of artists 
and creators and the long-term success of the Internet and 
technology are more closely aligned than maybe we all realize. 
So navigating through these issues I think is particularly 
important. I am new to this Committee, so this hearing was very 
useful to me.
    But one thing I wondered is, in the very creation of 
Section 512, I mean, I have seen in the past safe harbor 
provisions that are created often after an actor is required to 
try to do something and has tried in good faith but has been 
unsuccessful, and so they are offered safe harbor. Section 512 
doesn't require that at all.
    So I guess one remedy would be to add a section that says 
the service provider has engaged in a good-faith or reasonable 
effort to prevent infringement of copyright. I think the reason 
that that was included--and I wasn't here--was we wanted to 
protect the certainty and the growth of the Internet and not 
put that burden on the service provider, and I think for all 
good reasons.
    But in light of what we have seen over the last several 
hours of testimony and what we know, it seems as if this kind 
of re-posting problem has made the notice and takedown 
provision a bit of a mockery. While there has been a lot of 
conversation about how we have improved it to make it easier to 
file it and quicker to respond to it, if you can just re-post 
it instantaneously, that is all well and good but it is not 
really having the effect we would want.
    So I suppose one other remedy we could provide is in this 
Subsection C where it says ``obtaining such knowledge or 
awareness, acts expeditiously to remove or disable access to 
the material,'' and we could add ``and prevent its re-
posting.'' So that is another mechanism that would seem to me 
an obvious solution.
    I recognize that it is much better if the industry figures 
this out, and I hear that from artists, and I hear that from 
creators, and I hear that obviously from technology 
entrepreneurs. But it does seem to me that if the technology 
exists when notice is provided that this is a copyright 
infringement, that we ought to have the ability not only to 
have it taken down but to prevent it from reoccurring. That 
doesn't solve all the problems, but I think it is what 
Professor O'Connor spoke about, Mr. Doda spoke about. But isn't 
that the responsibility of the industry to figure out how you, 
as Judge Poe said, not put all of this burden on the victim of 
the crime? And isn't it at least saying once you go through the 
burden of identifying it, notifying us, we will at least honor 
your request by not requiring you to do that non-stop all day?
    I don't know who wants to respond to that, but it seems to 
me like a pretty obvious solution.
    Ms. Schneider. May I again make these points? Okay, I think 
what could really solve and save companies like YouTube a lot 
of takedown is just to have for the person uploading some 
educational steps that they go through, not just clicking one 
box but asking them certain--are you sure? Is this something 
you wrote? Okay, if not, et cetera. Who knows? I mean, that has 
to be worked out.
    Mr. Cicilline. Right.
    Ms. Schneider. And then the streamlined, I applaud 
definitely the streamlined takedown. But, you know, the other 
thing is the Content ID, stopping it before it is there, like 
they do. I mean, if you didn't have Content ID for those big 
companies, I can't even imagine how big your takedown numbers 
would be. They would be insane. So imagine if Content ID worked 
for everybody and if we all then could find other ways to 
either stop or monetize.
    Mr. Cicilline. Thanks.
    Mr. Doda?
    Mr. Doda. Thank you, Congressman. I think hand in hand with 
what you identified is that many times the re-uploaders are 
repeat infringers. So another way that we can attack the 
problem is to have strengthened repeat infringer policies, 
clearer policies, clearer parameters around tracking repeat 
infringers and ensuring that those actors are kept out, because 
they contribute substantially to the re-upload problem.
    Mr. Cicilline. Professor O'Connor?
    Mr. O'Connor. I want to follow up on Ms. Schneider's 
comment and make it clear, too, that one of the educations that 
could be done would be directing people who want to upload 
things to copyright clearance centers, licenses. There are a 
number of mechanisms that, as Representative Farenthold was 
curious about before, is it hard? Do they have to contact Ms. 
Schneider directly? There are many mechanisms to do this 
legally to put up the content you want.
    Mr. Cicilline. Ms. Oyama, I just want to say thank you for 
all the work that Google has done in this area. I know that 
there is--while you are not the only one, there are obviously 
thousands and thousands of providers and search engines, but 
certainly the leadership of Google matters a lot, and I hope 
this is an issue that you will take on and lead to really 
figure out how we prevent this sort of re-posting and protect 
the creative products of artists and musicians and writers in a 
more effective way, and this sort of re-posting problem, which 
has really been identified as a serious one, I hope Google will 
help be part of the leadership that solves this problem.
    Ms. Oyama. Thank you. I think the education points you made 
are really well taken. It is something we worked really hard 
on. We have a YouTube Copyright School. If you get a strike 
against you, we send you to Copyright School to kind of learn 
some of the basics and earn your strike off. We have a very 
strong repeat infringer policy where if you are a repeat 
infringer you get ejected.
    I just do want to flag, I think some of the language that 
you read in the beginning, I can understand why that would 
sound attractive to impose on all service providers this 
requirement to prevent re-posting, but those service providers, 
they don't know if it is infringing or not if they don't hear 
from the rights holder. So that kind of duty, if it was enacted 
into legislation, it would require a service provider who has 
linking or comments or tweets on their system to somehow, 
before that user is able to add a link and a comment, somehow 
filter that out, know who was the rights holder, who was 
authorized. It would really chill the same services that are 
sending hundreds of thousands and hundreds of millions of 
dollars back into the content industry.
    So I just think we need to be careful when we are thinking 
about what those types of words would do on innovation.
    Mr. Cicilline. No, I think that is exactly right, which is 
why I think all of us are very hopeful that the industry will 
come together with all the stakeholders and develop good 
standards and good, responsible actions so that we don't 
attempt to try to solve this problem, because I think you are 
right, we may do more harm than good in the end.
    I thank all the witnesses and yield back.
    Mr. Marino. The Chair recognizes the gentle lady from 
California, Congresswoman Lofgren.
    Ms. Lofgren. Thank you very much, Mr. Chairman. I think 
this has been an instructive morning. I am thinking back to 
when we crafted the DMCA, and clearly, without safe harbor 
notice and takedown, there would not be an Internet. It 
wouldn't exist. So I think it is important that we recognize 
that and, as with the doctors, first do no harm.
    Thinking about what Google has done with YouTube, it is 
really impressive to spend that amount of money, $60 million, 
50,000 hours of engineering time, so that you can actually give 
a tool to artists to protect themselves. I want to commend you 
for that. Not all the artists know about that. So there may be 
some efforts that you might want to make to further publicize 
the opportunity, because sometimes I meet artists and they 
don't know.
    But the other thing that I think is interesting is that you 
own the data. I mean, you own YouTube, and you can take the 
fingerprint, and you can match it against your files, and that 
is entirely different than search and information that is out 
there. So as I am thinking about Content ID, I mean, it is a 
trivial matter to make a minor change to encryption or 
something else on re-posting. There is no way technologically 
that you could use the Content ID system to automatically scan 
on re-posting, is there, Ms. Oyama?
    Ms. Oyama. In a context like search, no, because the basic 
differences between the hosted platforms and something like 
search, the hosted platforms, we have two sets of data. So we 
have the reference files from the rights holders.
    Ms. Lofgren. Right.
    Ms. Oyama. We have the user-uploaded content. For search, 
we don't have either of those. We definitely don't have the 
content of every website. We might have some text. We might be 
able to copy text on the pages, but we don't have the embedded 
videos or other content. So there is no match on that side.
    And then without the cooperation of the rights holders, we 
wouldn't know what the rights are in this setting.
    Ms. Lofgren. But let's say you get a notice and takedown 
and you have the technological information on the file. You 
could just re-encrypt and upload and that would defeat the 
information that you were provided. Isn't that correct?
    Ms. Oyama. Yes, and that is why on the notice and takedown 
system it is important to continue to work on how to make that 
easier, more simple, faster, better for everyone. But that 
cooperative, kind of shared risk/responsibility piece, it is a 
delicate balance and incorporates a lot of different equities 
and has been the foundation for the Internet economy.
    Ms. Lofgren. Well, I remember when we went into the SOPA 
battle. One of the things that it is important for us to keep 
in mind is to not suggest things that are technologically 
impossible and that might actually destroy the inner workings 
of the Internet, some of which have been discussed here today.
    I want to talk also about Google is a big company with lots 
of money. You spend a lot of money to deal with piracy. I thank 
you for that. I think you are probably going to do more. I 
thank you for that, as well.
    On the other hand, WordPress has 48 million websites. I 
think, according to your testimony, in the month of February, 
740,000----
    Mr. Sieminski. New sites.
    Ms. Lofgren [continuing]. New sites were established. The 
idea that you could provide the same kind of scrutiny--I mean, 
each post, it could be part of a poem, it could be a link to--I 
mean, how would you possibly accomplish what YouTube has done 
with millions and millions of people who are also creators? 
They are creating websites, commentaries, poems and the like. 
How would you address that?
    Mr. Sieminski. That is a great question. Thank you. I 
think, number one, it is important to point out that YouTube, 
as you said, did great work in developing Content ID with $60 
million and with hundreds of engineers, which is many times the 
size of our entire company. So what they can do technologically 
I think is very different than what we can do technologically, 
and there are thousands of companies that are much smaller than 
us that are also subject to the DMCA.
    But to your second point, I think that is a very important 
one, because even if we could develop technology to identify a 
file as copyrighted or what-have-you, that doesn't answer the 
question of fair use or other rights that someone may have to 
post that to your website. You can't answer that question with 
technology.
    Ms. Lofgren. Let me just do a final question because there 
was testimony both from Ms. Oyama and also you, sir, about 
abuse of notice and takedown. When we wrote the DMCA, that was 
an issue that I talked about publicly because if you are the 
ISP and you get a notice and takedown, you don't have an 
incentive to stand up for the First Amendment rights of the 
people whose stuff you are taking down. Your entire incentive 
is just to take it down and not cause a problem. I saw from 
your testimony that you have seen cases where, for example, 
someone criticized a poem, and the poet who didn't like the 
criticism did a notice and takedown which was improper.
    What percentage are you seeing of those kind of improper 
uses, both Ms. Oyama and yourself, and do you think that some 
kind of--I mean, there is a disincentive that is financial for 
someone who flouts the notice and takedown. Should there be the 
same kind of financial disincentive for somebody who blatantly 
abuses it from a fair use point of view?
    Mr. Sieminski. Yes. I think the answer is yes to your 
second question. As I mentioned, there is statutory damages for 
copyright infringement, but there is no penalty at all for the 
other side of that equation. So, yes, I think there should be 
those penalties.
    We do see--it is not by any means the majority of the 
notices we get. It is a small handful. But even a little bit of 
censorship isn't okay in our opinion, and I think that relative 
to the kind of whack-a-mole problem or the other large-scale, 
the other types of issues we have been hearing about on the 
panel today, we don't see any of that on our platform because 
we are not a filing-sharing platform. We are like most other 
sites on the Internet where we are providing a platform for 
people to post original content, and in that context the 
problem that we see is these abusive notices. It is not the 
majority of them, but it is the majority of the issues that we 
see.
    Ms. Lofgren. Thank you, Mr. Chairman.
    Mr. Marino. The Chair recognizes the gentleman from 
California, Congressman Issa.
    Mr. Issa. Thank you, Mr. Chairman. This is an important 
hearing, and sometimes these hearings are d?j? vu all over 
again. We have been here before, and I am sure we are going to 
be here again. But let me go through a couple of questions that 
I think will help make at least this moment in time accurate to 
the status quo.
    Professor O'Connor, happy St. Patrick's Day.
    Mr. O'Connor. Thank you.
    Mr. Issa. But more importantly, you are a law professor. I 
assume you went through law school some years ago?
    Mr. O'Connor. Yes.
    Mr. Issa. Did you ever get a Xerox copy of something that 
was presented to you as a student?
    Mr. O'Connor. You mean from my professor?
    Mr. Issa. Yes, a photocopy at a class.
    Mr. O'Connor. Yes.
    Mr. Issa. And if he gave it to everybody in the class and 
it was a substantial portion of a copyrighted material, isn't 
that a copyright violation?
    Mr. O'Connor. Well, there are interesting questions about 
classroom use and fair use, and I have to be quite honest that 
I don't think I ever got something that was the majority of, 
say, a book. It was usually just a few pages or an article, so 
I don't know that, especially my being a law student then, that 
I had the ability to say whether it was classroom fair use or 
not.
    Mr. Issa. Okay. But you went through law school or to 
undergraduate school in the 1980's or 1990's? When was it?
    Mr. O'Connor. Eighties.
    Mr. Issa. Eighties. So at that time, there was no Google, 
right?
    Mr. O'Connor. Correct.
    Mr. Issa. Well, let's just bring ourselves up to date a 
little bit.
    Ms. Oyama, if today in the online world the equivalent is 
occurring--in other words, somebody is using it in an online 
class, they are posting it on a website, et cetera--and let's 
just say that the professor here now wants to find out if 
somebody is doing the right or wrong thing, isn't to a great 
extent what Google provides to the copyright community a 
virtually unlimited instantaneous ability to find copyright or 
potential copyright violations or abuses in the open web?
    Ms. Oyama. I think that is right. Actually, there is this 
vibrant market that is growing of vendors that specialize in 
this. Sometimes I think they use these same tools to find where 
the problem is so they can then go on and attack them.
    Mr. Issa. Well, Ms. Schneider, obviously as a composer, I 
would sort of do the same thing, a composer, writer, producer. 
You are much younger, of course, than the professor, but three 
or four decades ago you wouldn't have known that somebody was 
ripping off your music unless somebody happened to report 
because they could photograph it, photocopy it. I can remember 
that the Catholic Church and other churches finally got called 
on using sheet music by simply mimeographing it and handing it 
out, but for generations they had not been held accountable to 
pay, and it wasn't fair use but they would have implied that 
giving everyone in the choir a copy of somebody's sheet music 
was okay. Do you remember hearing about that?
    Ms. Schneider. Do I remember hearing about that?
    Mr. Issa. Yes.
    Ms. Schneider. Yes.
    Mr. Issa. So a vast amount of this was going on, and for 
the most part it was impossible to track. Do you agree that 
today one of the disadvantages that leads to takedown is that 
it is fairly inexpensive for people to put things on the 
Internet? But isn't one of the advantages the fact that you now 
can quickly, you or a service can quickly find infringers on 
the Internet where you couldn't have found them, they were just 
copying for church on Sunday in Tuscaloosa?
    Ms. Schneider. You know, the digital age opened it up to 
such an expansive point. And I would like to point out that you 
were saying three or four decades ago. I mean, I don't know, 
maybe we were talking about cassettes at a certain point, which 
weren't very good quality, and then----
    Mr. Issa. I want you to know I was selling 8-tracks in 
college, so please do not lecture me on how bad they were. 
[Laughter.]
    But they were great in trucks when you couldn't hear 
anyway.
    But the point is you are arguing that somehow this new 
opportunity, which is, of course, creating a huge amount of 
sales--the majority of songs soon will, if they are not 
already, be sold online. Aren't we dealing with a balance of 
takedown allows for somebody to be essentially tried and 
convicted by an accuser? That is the current law, that you 
accuse. I am the copyright holder, I want to take him down. You 
get an immediate adjudication, effectively, and takedown, and 
yet I am being asked periodically to do more. SOPA and PIPA 
obviously was a discussion about doing more, having the Justice 
Department go out and criminalize this and do the work for 
copyright owners and so on.
    Isn't it today, unlike 10 years ago, 20 years ago, 30 years 
ago, the fact that you now can find and instantaneously, even 
automated, find and potentially accuse infringers and cause 
takedown notice? Isn't that the status quo? I just want to 
establish not right or wrong, not whether there could be more 
done, but isn't that really the status quo, that when the 
professor was in school, nobody knew whether his professor was 
making copies under fair use or not? It just wasn't available. 
The music, those 8-tracks, the bootleg 8-track industry, nobody 
knew how many were sold and whether a truck stop had legal or 
not legal.
    You know, or at least have the ability to know, don't you?
    Ms. Schneider. I can tell you that--I am just going to take 
a little step back.
    Mr. Issa. But the only thing I want you to do is----
    Ms. Schneider. The answer is no, it is not good, because 
there is so much of my music out there now compared to 8-track 
cassettes.
    Mr. Issa. Ma'am, I only wanted you to answer the question, 
and then you can talk as long as the Chairman lets you.
    Ms. Schneider. Okay.
    Mr. Issa. Isn't it true you now can find that out, where 
you couldn't have when the 8-track was being sold at Pop's 
Truck Stop 30 or 40 years ago?
    Ms. Schneider. Of course that is true. I can find it now.
    Mr. Issa. Okay.
    Ms. Schneider. But the quantity that is out there is just 
so vast. Now, I will tell you, in 2003 when this thing started, 
I happened to be--I consider myself the most well-equipped 
musician I know in the age of the Internet because I just 
happened to get on-board as the first artist with this company 
called ArtistShare. The whole idea was that we are going to 
connect directly with our fans. I am going to make a record, 
fan funding, and I am going to share my process.
    So I am a very insulated artist compared to most artists 
because I have established these questions. But even amidst 
this, with all these sites, there is so much of my content out 
there. The other night, in 20 minutes, I found 11 sites with 
just endless songs of mine that popped up again and again and 
again.
    So the ease and the scope at which people can do things 
now, it is impossible to rein it in, and it is so financially 
damaging to us. One point I want to make about this is that the 
vast, vast majority of artists now are paying for their own 
records. In the age of recording companies, the good part of 
recording companies is that when they invest, they took on the 
financial risk of a record. Now we are taking on the financial 
risk. All the record companies are done, and we are trying to 
pay back our loans, our mortgages on our houses, whatever we 
are doing to make these records in an age when everybody is 
stealing. It is really--I can't tell you how impossible it is 
to negotiate this.
    Something has to change, and I am asking, please, Congress, 
do something to change this.
    Mr. Issa. Mr. Chairman, if I could ask Ms. Oyama if she had 
anything to comment on, on the ability, the speed of takedown 
and the automation, if she has an answer to that.
    Mr. Marino. The Chair recognizes her for 30 seconds.
    Ms. Oyama. I think we are seeing the volumes of takedowns 
going up because the World Wide Web is expanding, but the 
takedowns are going down. The turn-around times are going down, 
and that is the place where you want to incentivize more folks 
to do the right thing when they can develop automation and 
things like that.
    Mr. Issa. Thank you, Mr. Chairman.
    Mr. Marino. The Chair now recognizes the gentle lady from 
Texas, Congresswoman Lee.
    Ms. Jackson Lee. Again, I would like to as well acknowledge 
this hearing as a very important hearing.
    Ms. Schneider, let me thank you for framing a very large 
issue for not only yourself but so many talented artists. Those 
of us who have served on this Committee for a period of time, 
we can recollect traveling to places such as Italy and Spain 
and China with then-Chairman Hyde on the issue of the question 
of intellectual property, and at that time it was in films and 
music.
    So I think this panel is very good because we have an 
appropriate balance and we have contributors to a solution to 
what you have just assessed. I want to find a solution.
    We are blessed to be in a new age, and I think I have heard 
quite a bit of compliments for Google. I will add mine because 
we need the continued technological inquiry to be able to keep 
moving and to find ways to address the respect for intellectual 
property, as well as for the new technology that we have.
    And that is why I want to go to Professor O'Connor and have 
him lay out for us, in Stage 2 of your first proposed solution 
that was in your testimony, you would have Congress add an 
affirmative duty to monitor for and remove re-posted works. Can 
you expound on that solution for a moment?
    I want to come back to Ms. Oyama again for a very 
exciting--I would just like to hear how it would work. The 
monetizing thing is a very exciting concept. Will it grow? Will 
you look for new technology to make it even more refined and 
more accessible? Because as I listen to the sophistication of 
Ms. Schneider, she is indicating that there may be rooms full 
of individuals that are not that sophisticated.
    But, Professor O'Connor, if I could.
    And I have a question for you, Mr. Sieminski, as well.
    Yes, Professor O'Connor?
    Mr. O'Connor. Thank you, Representative Jackson Lee. I 
appreciate this opportunity. I want to point out a couple of 
things. One is that we live in a digital world now, and so the 
content can be reproduced so much more quickly that simple 
mimeographs, as Representative Issa was talking about, really 
is not the world we live in now. So the reason why I want to 
have the red-flag provisions strengthened is because I believe 
that for the things that are the entire work and they are just 
being flagrantly re-posted, and because we do have Content ID, 
but as I mentioned before, it picked up even my song when I was 
playing a small snippet of a ZZ Top song, that is impressive 
technology.
    So I believe that we can do this. Again, let's just target 
the flagrantly infringing material and try to get that taken 
down, lower the volume of takedown notices.
    Ms. Jackson Lee. And who are you going against when you do 
that? Because we have to be sympathetic to the providers versus 
those who have content. Where is that going to be focused?
    Mr. O'Connor. So I think everyone would agree that we 
really want to get the people who are posting in the first 
place. But at the same time, why I focus on strengthening 
willful blindness is because we can't have this culture of 
copyright contempt where even startups are saying, look, I 
guess this is the game. The game is that I have to just turn a 
blind eye and let everyone post whatever they will. I can't 
monitor or I will get myself into trouble. I think we have set 
up the incentives exactly backwards.
    Ms. Jackson Lee. So I think what we would want is a really 
intense discussion listening from both sides of that.
    Ms. Oyama, you have made--well, let me just say, you all 
have looked for answers, as we understand it. So how far can we 
take that monetized approach that you are using, which I think 
is very interesting? I like the billion-dollar number. I like 
the partnership. How far can we take that?
    Ms. Oyama. I think the sky is the limit. We are seeing a 
really big uptick in the number of consumers globally, so not 
just in U.S. consumers but globally that are trending toward 
mobile and other devices. So as markets expand, as there are 
more users, more consumers of music, movies, other types of 
content, the question I think we are all grappling with is how 
do you direct legitimate content to those users. So one of the 
things that we have really always believed is the best way to 
fight piracy is to increase the availability of legitimate 
offerings.
    So there are data that show in markets where Spotify has 
entered the market, rates of piracy have dropped like 25 
percent. So those are the kind of things that we want to 
harness, how do we figure out our services. But there are also 
great innovations in the TV and film space that are getting 
into the home entertainment as well. How do we encourage rights 
holders to be comfortable getting their content into the 
digital space? How do we make consumers aware of it in 
compelling ways? And how do we all grow the pieces together?
    I think the one, just bringing it back to the safe harbors, 
these services are providing new and really tremendous 
opportunities for the industries. Their revenue continues to 
grow, as well as creators who can now access these types of 
tools that they wouldn't have been able to independently. They 
can now do that on their own at lower cost.
    So we have to think broadly about what kind of policies 
stimulate more services like that, more license services that 
will be paying rights holders, that will be feeding revenue 
back to the content industry. The safe harbors there, they have 
been critical for every U.S. Internet company that exists. And 
in other countries, places like Europe, they don't have the 
startup economy that we have. Southeast Asia, same thing. 
Silicon Valley is a precious part of the U.S. economy because 
of Congress' foresight in the DMCA.
    So I would just urge folks to be very careful when we think 
about whether or not we would want to start tinkering with that 
very careful balance.
    Ms. Jackson Lee. Mr. Sieminski, if I might, you indicated 
that your company received in the neighborhood of 825 takedown 
notices last month. How many counter-notices did you receive as 
a result of that?
    Mr. Sieminski. We received four last month on those 825.
    Ms. Jackson Lee. How do you assess that?
    Mr. Sieminski. I think----
    Ms. Jackson Lee. Because you are here to solve a problem.
    Mr. Sieminski. Yes. I think the counter-notice system has 
many of the same problems that we see with the notice system. I 
think the counter-notice procedures are very difficult to 
navigate, especially for the average user, and I think a big 
problem with it is even if you receive a notice for content 
that you legally have the right to post, if a website takes 
that down, and even if you go through the counter-notice 
process, there is a 10-day period when that content is down for 
good under the statute.
    So the notice process provides for content to be taken down 
for at least 10 days, and then there is a complicated process 
for counter-noticing that most people can't navigate.
    Ms. Jackson Lee. I have just a follow-up question, Mr. 
Chairman, for Professor O'Connor, if I might, and I will 
conclude with Ms. Schneider on a yes-or-no answer.
    I wanted Mr. Sieminski to speak because he indicated that 
there are no damages available for those who misuse the notice 
process. While there may not be statutory language in 512(c), 
the statute does provide for damages and fees if someone is 
found to have abused the process.
    Mr. O'Connor. Courts can craft remedies, yes.
    Ms. Jackson Lee. So is there a damage process, or do we 
need to make that more clear? Or do you believe there should be 
one, or believe there is one?
    Mr. O'Connor. I think it is not clear enough, and I think 
we should make sure that we can take care of the abuses if they 
are happening, although they should be happening on a 
relatively small scale.
    Ms. Jackson Lee. I just want to read this and conclude with 
Ms. Schneider. I think it is important. You may have said this, 
Ms. Oyama, but this sort of crafts the difficulty that we are 
in.
    This is really, really a good one in terms of the 
experience of notice and takedown. A physician claiming a 
copyright in his signature sent a takedown notice aimed at a 
document related to the suspension of his license to practice 
medicine. So I wanted to leave us on that note because this is 
in your testimony about takedown notices, that sometimes it can 
get really off center.
    But I want to agree with Ms. Schneider and simply say as 
you listen here to the testimony around the table, monetize, 
talking about trying to find a balance, are you seeing that as 
being helpful to you by looking at a way to balance these 
issues?
    Ms. Schneider. The takedown notices?
    Ms. Jackson Lee. No, not the takedown notices, just the 
idea of the utilization of your intellectual property monetized 
as a technology, looking at clarifying the law. Is that going 
to be helpful to you?
    Ms. Schneider. No, because it is such small quantities of 
money for so many views, advertising on Google and various 
things. I mean, the thing that is frustrating from a musical 
standpoint is that if you imagined music here with this much 
volume of money that was coming in, we refer to it now as 
content, and the content is being used by a number of companies 
on the Internet to draw people, to draw eyeballs, and the more 
eyeballs they get, the more data they collect, the higher 
paying the advertising is.
    Ms. Jackson Lee. So your answer is what? Your final answer 
is what, to the solution?
    Ms. Schneider. For me, the solution is that DMCA has to 
have a more robust upload, stay-down means takedown, and there 
should be a Content ID for every company so that everything is 
filtered, so that at least I can control what is being 
illegally uploaded out there.
    Ms. Jackson Lee. Mr. Chairman, thank you for your 
indulgence and courtesies, and to the Ranking Member as well. I 
do think there is a call for us to work together.
    I yield back.
    Mr. Marino. This concludes this hearing. I want to thank 
all our witnesses for attending. I want to thank our guests in 
the gallery for being here.
    Without objection, all Members will have 5 legislative days 
to submit additional written questions for the witnesses or 
additional materials for the record.
    This hearing is now adjourned. Thank you.
    [Whereupon, at 12:29 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record




 Material submitted by the Honorable Darrell E. Issa, a Representative 
 in Congress from the State of California, and Member, Subcommittee on 
            Courts, Intellectual Property, and the Internet





                               __________
                               
                               
                                                              
                               EXHIBIT A


                               EXHIBIT B



                               EXHIBIT C



                               EXHIBIT D



                               EXHIBIT E


                               EXHIBIT F


                               EXHIBIT G



                               EXHIBIT H



                               EXHIBIT I



                               EXHIBIT J


                               EXHIBIT K




                               EXHIBIT L



Response to Questions for the Record from Maria Schneider, Grammy Award 
Winning Composer/Conductor/Producer, Member of the Board of Governors, 
               New York Chapter of the Recording Academy




                                 
