[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
COPYRIGHT AND THE INTERNET IN 2020:
REACTIONS TO THE COPYRIGHT OFFICE'S
REPORT ON THE EFFICACY OF 17 U.S.C. 512 AFTER TWO DECADES
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HEARING
BEFORE THE
SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 30, 2020
__________
Serial No. 116-90
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
42-772 WASHINGTON : 2022
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COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chair
MARY GAY SCANLON, Pennsylvania, Vice-Chair
ZOE LOFGREN, California JIM JORDAN, Ohio, Ranking Member
SHEILA JACKSON LEE, Texas DOUG COLLINS, Georgia
STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, Jr.,
HENRY C. ``HANK'' JOHNSON, Jr., Wisconsin
Georgia STEVE CHABOT, Ohio
THEODORE E. DEUTCH, Florida LOUIE GOHMERT, Texas
KAREN BASS, California KEN BUCK, Colorado
CEDRIC L. RICHMOND, Louisiana MARTHA ROBY, Alabama
HAKEEM S. JEFFRIES, New York MATT GAETZ, Florida
DAVID N. CICILLINE, Rhode Island MIKE JOHNSON, Louisiana
ERIC SWALWELL, California ANDY BIGGS, Arizona
TED LIEU, California TOM McCLINTOCK, California
JAMIE RASKIN, Maryland DEBBIE LESKO, Arizona
PRAMILA JAYAPAL, Washington GUY RESCHENTHALER, Pennsylvania
VAL BUTLER DEMINGS, Florida BEN CLINE, Virginia
J. LUIS CORREA, California KELLY ARMSTRONG, North Dakota
SYLVIA R. GARCIA, Texas W. GREGORY STEUBE, Florida
JOE NEGUSE, Colorado THOMAS TIFFANY, Wisconsin
LUCY McBATH, Georgia
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas
PERRY APELBAUM, Majority Staff Director & Chief Counsel
CHRISTOPHER HIXON, Minority Staff Director
------
SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY,
AND THE INTERNET
HENRY C. ``HANK'' JOHNSON, Jr., Georgia, Chair
J. LUIS CORREA, California, Vice-Chair
THEODORE E. DEUTCH, Florida MARTHA ROBY, Alabama, Ranking
CEDRIC RICHMOND, Louisiana Member
HAKEEM JEFFRIES, New York STEVE CHABOT, Ohio
TED LIEU, California MATT GAETZ, Florida
GREG STANTON, Arizona MIKE JOHNSON, Louisiana
ZOE LOFGREN, California ANDY BIGGS, Arizona
STEVE COHEN, Tennessee GUY RESCHENTHALER, Pennsylvania
KAREN BASS, California BEN CLINE, Virginia
ERIC SWALWELL, California
JAMIE SIMPSON, Chief Counsel
BETSY FERGUSON, Senior Counsel
C O N T E N T S
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September 30, 2020
Page
OPENING STATEMENTS
The Honorable Jerrold Nadler, Chair of the Committee on the
Judiciary from the State of New York........................... 2
The Honorable Jim Jordan, Ranking Member of the Committee on the
Judiciary from the State of Ohio............................... 124
WITNESSES
Mr. Jeffrey Sedlik, President and Chief Operating Officer, PLUS
Coalition
Oral Testimony................................................. 126
Prepared Statement............................................. 128
Ms. Meredith Rose, Senior Policy Counsel, Public Knowledge
Oral Testimony................................................. 132
Prepared Statement............................................. 133
Ms. Morgan Grace Kibby, Singer and Songwriter
Oral Testimony................................................. 141
Prepared Statement............................................. 143
Mr. Jonathan Band, Counsel, Library Copyright Alliance
Oral Testimony................................................. 145
Prepared Statement............................................. 146
Mr. Matthew Schruers, President, Computer & Communications
Industry Association
Oral Testimony................................................. 151
Prepared Statement............................................. 152
Ms. Terrica Carrington, Vice President, Legal Policy and
Copyright Counsel, Copyright Alliance
Oral Testimony................................................. 157
Prepared Statement............................................. 158
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Materials submitted by the Honorable Jerrold Nadler, Chair of the
Committee on the Judiciary from the State of New York for the
record
A statement from Emily R. Florio, President, American
Association of Law Libraries................................. 5
A letter from the American Intellectual Property Law
Association.................................................. 7
A statement from Mary Rasenberger, Executive Director, The
Authors Guild, Inc........................................... 10
A statement from Cloudflare, Inc............................... 22
A statement from Consumer Technology Association............... 30
A statement from Digital Media Association..................... 31
A statement from Corynne McSherry, Legal Director, Electronic
Frontier Foundation.......................................... 33
A statement from Engine........................................ 43
A statement from the Independent Film and Television Alliance.. 48
A statement from Jared Polin, Small Business Owner............. 53
A report by the Music Workers Alliance......................... 54
A statement from Don Henley.................................... 91
A statement from Elizabeth ``Betsy'' Rosenblatt and the
Organization for Transformative Works........................ 94
A statement from the Society of Composers & Lyricists.......... 109
A statement from the Songwriters Guild of America.............. 112
A statement from Stephen M. Wolfson, University of Georgia
School of Law................................................ 122
Materials submitted by the Honorable Andy Biggs, a Member of the
Subcommittee on Courts, Intellectual Property, and the Internet
from the State of Arizona for the record
Testimony from a Subcommittee on Intellectual Property hearing
by Rick Beato, July 28, 2020................................. 180
An article entitled, ``When a Guitar Lesson Becomes
Controversial,'' OZY......................................... 182
QUESTIONS AND RESPONSES FOR THE RECORD
Questions to witnesses submitted by the Honorable Greg Stanton, a
Member of the Committee on the Judiciary from the State of
Arizona for the record......................................... 208
Questions to Ms. Morgan Grace Kibby and Mr. Matthew Schruers
submitted by the Honorable Guy Reschenthaler, a Member of the
Committee on the Judiciary from the State of Pennsylvania for
the record..................................................... 211
A response to questions from Mr. Jeffrey Sedlik, President &
Chief Operating Officer, PLUS Coalition for the record......... 213
A response to questions from Ms. Meredith Rose, Senior Policy
Counsel, Public Knowledge for the record....................... 217
A response to questions from Ms. Morgan Grace Kibby, Singer and
Songwriter for the record...................................... 221
A response to questions from Mr. Jonathan Band, Counsel, Library
Copyright Alliance for the record.............................. 224
A response to questions from Mr. Matthew Schruers, President,
Computer & Communications Industry Association for the record.. 226
A response to questions from Ms. Terrica Carrington, Vice
President, Legal Policy and Copyright Counsel, Copyright
Alliance for the record........................................ 231
COPYRIGHT AND THE INTERNET IN 2020:
REACTIONS TO THE COPYRIGHT OFFICE'S
REPORT ON THE EFFICACY OF 17 U.S.C. 512
AFTER TWO DECADES
----------
Wednesday, September 30, 2020
House of Representatives
Subcommittee on Courts, Intellectual Property,
and The Internet
Committee on the Judiciary
Washington, DC
The Committee met, pursuant to call, at 12:07 p.m., in Room
2141, Rayburn Office Building, Hon. Jerrold Nadler [Chair of
the Committee] presiding.
Present: Representatives Nadler, Lofgren, Johnson of
Georgia, Deutch, Cicilline, Swalwell, Raskin, Jayapal, Demings,
Correa, Scanlon, Garcia, McBath, Stanton, Dean, Murcarsel-
Powell, Escobar, Jordan, Chabot, Gohmert, Roby, Biggs,
Reschenthaler, Cline, Armstrong, Steube, and Tiffany.
Staff present: David Greengrass, Senior Counsel; Madeline
Strasser, Chief Clerk; Anthony Valdez, Clerk and Professional
Staff Member; Moh Sharma, Member Services and Outreach Advisor;
Cierra Fontenot, Staff Assistant; John Williams,
Parliamentarian; Jamie Simpson, Chief Counsel, Courts,
Intellectual Property, and the Internet Subcommittee; Rosalind
Jackson, Professional Staff Member, Courts, Intellectual
Property, and the Internet Subcommittee; Chris Hixon, Minority
Staff Director; Tyler Grimm, Minority Chief Counsel for Policy
and Strategy; Ella Yates, Minority Director of Member Services
and Coalitions; Kiley Bidelman, Minority Clerk; and John Lee,
Minority USPTO Detainee.
Chair Nadler. [Presiding.] The Committee on the Judiciary
will come to order.
Without objection, the Chair is authorized to declare
recesses of the Committee at any time.
We welcome everyone to this afternoon's hearing on
Copyright and the Internet in 2020: Reactions to the Copyright
Office's Report on the Efficacy of 17 U.S.C. 512 After Two
Decades.
Before we begin, I would like to remind the Members that we
have established an email address and distribution list
dedicated to circulating exhibits, motions, or other written
materials that Members might want to offer as part of our
hearing today. If you would like to submit materials, please
send them to the email address that has been previously
distributed to your offices, and we will circulate the
materials to Members and staff as quickly as we can.
I would also remind all Members that guidance from the
Office of Attending Physician states that face coverings are
required for all meetings in an enclosed space, such as
Committee hearings. Everybody attending this hearing is
required to follow this guidance, and I will not recognize
Members to speak who are not in compliance with these rules. If
you do not wish to put on a mask, you have the option to
participate in this hearing remotely.
Finally, I would ask all Members, both those in person and
those appearing remotely, to mute your microphones when you are
not speaking. This will help prevent feedback and other
technical issues. You may unmute yourself at any time that you
seek recognition.
I will now recognize myself for an opening statement.
Today's hearing will examine how a key provision of
copyright law that guides how copyright and parts of the
internet interact with each other has fared in today's digital
age. This provision, section 512 of title 17, was enacted in
1998 as part of the Digital Millennium Copyright Act. Back
then, internet activity was in its nascency. Many of the online
platforms that we consider universal today had yet to be
formed. eBay had been around for just 3 years, Google was
founded that same year, and Facebook's birth was still 6 years
away. With the burgeoning ways for people to share and
distribute content through the internet, in enacting section
512, Congress sought to balance two goals: On the one hand,
promoting the growth and innovation of online networks, and, on
the other hand, protecting intellectual property rights and the
incentive system for promoting the creation of new expressive
works.
At the heart of section 512 is the notice and takedown
system. Broadly, under notice and takedown, a copyright owner
can send a notice to an online service provider when a third
party has used allegedly infringing material through or on the
provider's services. The online service provider must then take
that material down. If the online service provider complies
with the notice and takedown process, its liability for
infringement is limited. Twenty years have passed since section
512's enactment, and it would be an understatement to say that
the internet has changed rapidly during that time.
The internet has gotten faster and more accessible, and the
number of ways to share and view copyrighted content has
increased dramatically. In tandem with these increases, we have
also seen a dramatic increase in the volume of infringing
materials being shared and viewed online. Our copyright laws
must keep up. Today we seek perspectives on whether section 512
is working efficiently and effectively for this new internet
landscape and whether the balance that Congress sought in 1998
is still being achieved in 2020. Our discussion is guided by
the Copyright Office's recent report that studied this very
question.
I want to applaud the Copyright Office for the care and
diligence with which it undertook this study. Their work began
two Congresses ago when this Committee requested that it study
section 512 in light of all the changes the internet had
undergone. The Office's review is exhaustive. They reviewed
more than 90,000 comments, held public roundtables in
Washington, New York, and San Francisco, and conducted an
extensive review of case law on this issue.
Turning to the report's substance, the office concluded
that the balance that Congress originally sought in enacting
section 512 is now askew. The Office found that online service
providers and user groups were generally satisfied with section
512's operation, but copyright owners typically disagreed,
finding section 512 ineffective in the face of the current
scale of infringement. To address this imbalance, the Copyright
Office includes recommendations in areas that Congress may wish
to fine tune or clarify, as well as voluntary measures that the
Office considers valuable for increasing the efficacy of
section 512.
To better understand the Copyright Office's
recommendations, staff of the Committee held a series of 11
listening sessions over the summer, hearing directly from over
90 panelists, including creators, and artists, and
representatives of public interest groups, libraries, online
service providers, internet service providers, legal
practitioners, and the sports, live entertainment, music, film,
television, software, newsprint, and photography industries. I
want to thank the many people who participated and all those
who followed up with written statements for this hearing.
Without objection, I will place those statements into the
record.
[The information follows:]
CHAIR NADER FOR THE RECORD
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[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chair Nadler. Here with us today, we have six Witnesses to
provide the Committee with a representative set of reactions to
the Copyright Office's report and recommendations and ultimate
conclusion that section 512 is out of balance. Today's
Witnesses reflect the diverse interests at stake when copyright
and the internet intersect, and their perspectives are
invaluable. A lot has changed since 1998, and today's dialogue
will mark an important step forward in ensuring that our
copyright laws are keeping pace with reality. I thank our
Witnesses for joining us today, and I look forward to their
testimony.
I now recognize the Ranking Member of the Judiciary
Committee, the gentleman from Ohio, Mr. Jordan for his opening
statement.
Mr. Jordan. Thank you, Mr. Chair. I, too, want to thank our
Witnesses for being here today. The Digital Millennium
Copyright Act, or DMCA, was a landmark piece of legislation
when it was enacted in 1998. It provided needed certainty for
stakeholders in the copyright system and a framework that
contributed to more than 2 decades of explosive growth and
innovation online. As important as the DMCA was and continues
to be, 2 decades is an eternity when it comes to the internet,
as you expressed in your opening comments as well.
Many of the ways in which Americans access content online
today had not been invented or developed when the DMCA was
enacted. For example, YouTube, Facebook, Twitter, Pandora,
Spotify, and Hulu all started years after this legislation was
passed two decades ago. Over the past decade, Congress has
begun to look more closely at how the copyright system and the
DMCA is interacting with this shifting landscape online. The
stakes are critical to our economy and to our country. The
creative industry contributes hundreds of billions of dollars
to our economy each year and employs millions of Americans.
Today, creative content is primarily produced and
distributed and consumed digitally over the internet. As a
result, writers, musicians, filmmakers, photographers, and
other artists depend on online service providers to reach their
audiences and earn a living. They are not alone. Creative works
also represent the talents and skills, engineers, researchers,
editors, and countless others, all of whom depend on the
economic success of those creative works online. This is why
DMCA is important, and particularly section 512.
Section 512 protects online service providers but requires
them to implement procedures intended to allow copyright
holders to protect and control their creative work on those
services. Over the past decade, though, many stakeholders have
come to Congress to alert us they feel that this section is not
working as it was intended. The problem facing many creators
today is not a few dozen fake CDs or DVDs sold on the street,
but instead illegal uploads on multiple websites where they are
accessed or downloaded millions of times. The economic harm of
millions of unauthorized downloads to a creator is obvious
since each download is potentially a lost sale, but the true
impact may be much wider. By some estimates, online piracy
costs our economy around $30 billion a year and affects
everyone in the creative industry.
For their part, service providers must advance the purpose
of section 512 to protect copyrighted works online in order to
benefit from its safe harbors, but they must also balance the
rights of users, including freedom of expression. That can be a
difficult task, particularly considering the vast amount of
content uploaded to the internet each day. For example, YouTube
alone sees 500 hours of video uploaded every minute. Every
single minute. Fortunately, technology exists to help in that
task, and additional advancements in years to come will help
further. While the government should not become more involved
than necessary, we must continue to monitor this area of law
and play a constructive role by making any necessary
adjustments to the section 512 framework and by incentivizing
innovation to better address online copyright infringement. The
system must do a better job protecting the rights of copyright
holders while balancing the interests of the public. That is
why I'm pleased the Committee has convened this hearing in
exploring these issues that are vital to our economy and to our
country.
I want to thank all our Witnesses for participating, as I
said earlier, and assisting us in this hearing. Mr. Chair, I
would yield back.
Chair Nadler. Thank you, Mr. Jordan. Without objection, all
other opening statements will be included in the record.
I will now introduce today's Witnesses.
Jeffrey Sedlik has been a professional advertising
photographer in Pasadena, California for 35 years. He has been
a professor at the Art Center College of Design for 25 years,
teaching courses on copyright law and licensing. Additionally,
as the President of the nonprofit PLUS Coalition, he manages
the successful development of multiple standard technical
measures for visual arts. Meredith Rose is the policy council
at Public Knowledge where she specializes in technology,
telecommunications, and intellectual property policy.
Previously, she worked on consumer policy issues at the Federal
Communications Commission, the Transatlantic Consumer Dialogue,
and Knowledge Ecology International. Ms. Rose received her
bachelor's degree and law degree from the University of
Chicago.
Morgan Kibby is a classical pianist, cellist, and vocalist.
In addition, as a writer, producer, and performer, she has both
created solo works and works produced in collaboration with
many other artists, which have garnered critical acclaim and
award nominations. More recently, she has scored projects for
several online streaming services and for films in competition
at major film festivals. Jonathan Band is counsel for the
Library Copyright Alliance. He is also an adjunct professor at
the Georgetown University Law Center, has written extensively
on intellectual property and the internet, and has many years'
experience in private practice. He is a graduate of Harvard
College and Yale Law School.
Matt Schruers is President of the Computer and
Communications Industry Association where he directs its
advocacy on behalf of leading internet, communications, and
technology companies. He joined CCIA from private practice in
2005. For 10 years, he has served as an adjunct professor,
teaching both intellectual property and internet law at
Georgetown University and American University Washington
College of Law. He is a graduate of Duke and the University of
Virginia School of Law. Terrica Carrington is Vice President,
legal policy and copyright counsel at the Copyright Alliance,
an organization dedicated to protecting the rights of creators
and advocating policies that promote the value of copyright.
Ms. Carrington is also an adjunct professor at George Mason
University School of Law. She is a graduate of the University
of North Carolina Chapel Hill and George Mason University
School of Law.
We welcome all our distinguished Witnesses. We thank them
for their participation. Now, if you would please rise, I will
begin by swearing you in.
Do you swear or affirm under penalty of perjury that the
testimony you are about to give is true and correct to the best
of your knowledge, information, and belief, so help you God?
[A chorus of ayes.]
Chair Nadler. Let the record show the Witnesses answered in
the affirmative. Thank you, and you may be seated.
Please note that each of your written statements will be
entered into the record in its entirety. Accordingly, I ask
that you summarize your testimony in 5 minutes. To help you
stay within that time, there is a timer on your screen. When
the light switches from green to yellow, you have 1 minute to
conclude your testimony. When the light turns red, it signals
your 5 minutes have expired.
Mr. Sedlik, you may begin.
TESTIMONY OF JEFFREY SEDLIK
Mr. Sedlick. Chair Nadler, Ranking Member Jordan, and other
Members of the Committee, thank you for the opportunity to
testify today on section 512 of the Digital Millennium
Copyright Act (DMCA). My name is Jeffrey Sedlik. I've been a
professional photographer for 35 years, and I am the author and
owner of hundreds of thousands of copyrighted photographs. I am
also the President of the PLUS Coalition, a global nonprofit
organization in which diverse stakeholders from 140 countries
have collaborated to develop standard technical measures to
ensure that the public can access and understand rights
information for visual works. The PLUS standard technical
measures have multiple adopters, including Google, Yahoo,
Adobe, and millions of creators and users throughout the world.
I make a living creating and licensing photographs to
appear in all manner of media. The photographs that I create
are protected under U.S. copyright law, at least in theory. In
reality, my photographs receive very little protection because
of the rampant infringement of my work that is knowingly
permitted by online service providers on their platforms and
websites.
Instead of using readily-available technologies to identify
and mitigate copyright infringement, service providers hide in
the safe harbor of 512, ignoring illegal activity, and allowing
infringers to infringe, exploit, and monetize my work with
impunity unless and until I submit a DMCA takedown notice. As a
result, I am forced to dedicate my very limited time to
searching for infringements, making screenshots to document the
infringing material, collecting hundreds or thousands of
infringement URLs, combing through obscure OSP menus to find
DMCA agent information, drafting and submitting takedown
notices, and responding to inane, unnecessary, superfluous
follow-up questions from service providers. Once the
infringement is taken down, it will inevitably return, often
the same day because service providers uniformly fail to
effectively implement and enforce repeat infringer policies.
Enforcing my rights under the DMCA is an impossible task,
not just for me, but for my fellow creators across this Nation.
Most visual artists operate as micro businesses, often with no
employees. Like other creators, in order to feed my family, I
must generate revenue by creating and licensing new works
continuously. In attempting to license my works, I find that I
am forced to compete with hundreds of thousands of unlicensed,
unpaid infringing uses of my works on service providers'
platforms and websites. If I do not enforce my copyrights, my
work has no value and my business is not sustainable, but if I
dedicate the time and effort necessary to identify and
repeatedly enforce my copyrights with takedown notices, I have
no time left to create new works. This is an untenable
situation--one that I and innumerable other visual artists and
small businesses are forced to confront on a daily basis.
If my takedown notice is met with a counter notice, 512
allows me just 10 days in which to interview and retain an
attorney and file a complaint in Federal court, or the
infringement will be back online. If I do not have a copyright
registration for the photograph in question, I face the
prospect of paying the Copyright Office more than 10 times the
normal registration fee to expedite processing of my
application under the special handling procedures with no
guarantee that the Office will be able to actually process and
approve my registration within 10 days. Certainly, this is not
the effective, balanced system envisioned by Congress when it
enacted the DMCA. The fact that millions of takedown notices
are issued each day is not a sign of success. It is a sign of
an unbalanced system under strain and on the verge of failure,
if not beyond.
I thank the Copyright Office for their years of great work
on the 512 report. I agree with and support the recommendations
of the Copyright Office. In my written testimony, I present 13
additional recommended revisions. I make these suggestions on
behalf of the American Photographic Artists, the American
Society for Collective Rights licensing, the American Society
of Media Photographers, the Digital Media Licensing
Association, the Graphic Artists Guild, the National Press
Photographers Association, the North American Nature
Photographers Association, the PLUS Coalition, and the
Professional Photographers of America. In closing, I, again,
thank the Committee for your efforts to improve the Copyright
Act and for the opportunity to share my experience and
suggestions in my testimony today.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chair Nadler. Thank you. Ms. Rose?
TESTIMONY OF MEREDITH ROSE
Ms. Rose. Chair Nadler, Ranking Member Jordan, Members of
the Committee, thank you for inviting me to testify today on
this important topic.
More than 229 million American adults use the internet each
day. It is not just a delivery mechanism for copyrighted
content. It is the lifeline by which they work, worship,
connect with their families and communities, seek and receive
healthcare, stay informed, organize debate, and exercise
political speech every single day. Yet, despite the scale and
importance of this constituency, they are conspicuously absent,
absent from the Copyright Office section 512 report, absent
from the oversight mechanisms governing their speech, and
absent from the debate on Capitol Hill. This is the
constituency on whose behalf I speak today, the forgotten 229
million users in this debate.
My written testimony gets into some detail, but I wanted to
use my time to touch on three major issues: Section 512's
outdated stance on broadband access, the powerful nature and
attendant abuse of takedown notices, and the difficult
realities of automated enforcement.
First, section 512 governs the way in which I am speaking
to you right now, through a broadband connection. The Supreme
Court has held that cutting individuals off, even after being
convicted for child sex offenses, raises grave constitutional
concerns. Therefore, we cannot as a society accept a law which
allows unvetted accusations from private parties of a civil
offense to disconnect an entire household from modern society.
Yet, lower courts have interpreted section 512 to mean exactly
that, that ISPs must shut off households' internet access upon
receiving unproven allegations of copyright infringement.
A bright spot of bipartisanship currently is the push to
expand broadband access, represented by no fewer than 30 bills
currently before Congress in both chambers and across the
political spectrum. Yet, major content companies insist that
this power they wield is not only appropriate, but insufficient
for their purposes. Historical context is important. When the
DMCA was passed in 1998, ISPs were software providers that
operated over the telephone network. As a user, if your AOL
account was terminated, you could instead subscribe to any of
the dozens of AOL competitors. In 2020, ISPs such as Comcast or
Verizon control both the software and physical connection into
your home. For the more than 100 million Americans living in
homes serviced by only one broadband provider, an account
termination means losing access to the internet in its
entirety. Shifting ISP business models as well as the rising
importance of broadband to modern life have rendered this
punishment wildly disproportionate to the alleged offense.
Second, we must acknowledge the systemic problem of bad
DMCA notices and their impact on everyday speech. A DMCA
takedown has a power which is unparalleled in the online
ecosystem. It can erase speech from the internet for up to two
weeks. Takedowns are rarely contested, and there's no
meaningful oversight of these notices or disincentive against
abuse, but the result is a long and thoroughly documented
history of weaponization with experts estimating that nearly
one-third of notices are problematic. Although bad notices stem
from everything from algorithmic defects to deliberate abuse,
their aggregate impact is undeniable. Senders can use takedowns
to censor legitimate content, incomplete or error-filled
notices can make it impossible for platforms to identify the
works involved, and search and notice bots can and have
disrupted livestreams and news broadcasts. Some stakeholders,
however, still insist that they need faster takedowns with
fewer user safeguards and greater potential liability for any
platform that attempts to filter out defective or malicious
notices.
Finally, we must understand the limits of private
technologically based enforcement solutions. These often sound
good in theory, but the reality is far messier. Because they
operate automatically, these algorithms are prone to removing
speech that is otherwise political, educational, or newsworthy,
and policymakers must grapple with what users and artists alike
have understood for ages, that the balance of equities in
practice is not determined by the law, but by the financial
incentives, design choices, and technological limitations of
those who design the algorithms.
We are at a historic inflection point politically,
economically, and socially. On the streets, at the polls, and
in their homes, Americans are online. We are registering to
vote, testifying before Congress, organizing political action,
and attending weddings and funerals all online. We are debating
and documenting our lives, our surroundings, and our realities
across ideological and geographic divides. The internet is how
we bear witness. It is how the work of community activists and
organizers is amplified, and how we see ourselves and how we
are seen by the eyes of the world. If we were to strike any
sort of new balance, it must keep the needs of 229 million
voices and their ability to speak freely at the front of mind.
Thank you, and I look forward to your questions.
[The statement of Ms. Rose follows:]
STATEMENT OF MEREDITH ROSE
Chair Nadler, Ranking Member Jordan, Members of the
Committee, thank you for inviting me to testify today on this
always-important topic.
Two hundred and twenty-nine million Americans use the
internet each day.\1\ That's 229 million American adults using
the internet towork, worship, connect with family and friends,
receive healthcare, consume and discuss the news, and organize
political action each and every day. The laws we debate here
set the rules for that speech. The ability of these 229 million
users to speak freely online must be the first motivating
priority of any reform to copyright liability. While we commend
the Copyright Office's herculean effort to comprehensively
evaluate section 512, wewere alarmed to see the resulting
Report dismiss the concerns of everyday users. The Office's
analysis performed a familiar sleight-of-hand by presenting
user interests as co-extensive with those of platforms,
effectively erasing free speech concerns from its analysis.
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\1\ U.S. Census Bureau, QuickFacts: United States, (last visited
June l, 2020), https://www.census.gov/quickfacts/fact/table/US/
PST0452l9 (The total U.S. population is estimated at 328,239,523; 77.6%
or 254,713,870 are over 18.); Monica Anderson, Andrew Perrin, Jingjing
Jiang & Madhumitha Kumar, 10% of Americans Don't Use the Internet. Who
Are They?, Pew Res. Ctr. (April 22, 2019) https://www.pewresearch.org/
fact-tank/2019/04/22/some-americans-dont-use-the-internet-who-are-they/
(if 10% of U.S. citizens over 18 do not use the internet, then 90% or
229,242,483 do).
---------------------------------------------------------------------------
Congress must abandon the idea that copyright debates are
mere sniping between rightsholders and platforms. The speech
interest of every American internet user is directly in the
crossfire. If we are to strike any sort of ``new balance,'' it
must center our nation's 229 million internet users and their
ability to speak freely--not merely the administrative
convenience of major industries.
I. The Risks to Users' Speech Online
A. ISP Disconnections
Alarmingly, stakeholders such as RIAA, MPA, and AAP \2\
contend that section 512 grants them the right to demand that
an entire household's internet access be terminated, based
purely on accusations of copyright infringement. It goes
without saying that Congress should not be making it easier for
private third parties to unilaterally terminate a household's
ability to participate in modern society.
---------------------------------------------------------------------------
\2\ U.S. Copyright Office, Section 512 of Title 17: A Report of the
Register of Copyrights at 98, fn 520 (May 2020)[hereinafter USCO 512
Report], https://www.coppyright.gov/policy/section-512/section-512-
full-report.pdf.
---------------------------------------------------------------------------
The Federal Communications Commission has found that
Americans use broadband ``for every facet of daily life.'' \3\
The current pandemic has driven Congress to emphasize the role
of broadband in Americans' work, education, social lives, and
health care services.\4\ Broadband providers have pledged not
to cut off people's broadband for non-payment, and Congress has
proposed several bills designed to not only protect broadband
as an essential communications service, but also to expand
access and affordability. Despite this, it is the position of
large rightsholders that their unvetted allegations of a civil
offense are sufficient to cut an entire household off from the
internet. Alarmingly, courts have largely gone along with this
argument. This provision, before all others, is sorely in need
of revision.
---------------------------------------------------------------------------
\3\ Inquiry Concerning the Deployment of Advanced
Telecommunications Capability to All Americans in a Reasonable and Time
Fashion, and Possible Steps to Accelerate Such Deploment Pursuant to
Section 706 of the Telecommunications Act of 1996, as Amended by the
Broadband Data Improvement Act, GN Docket No. 14-26, 2015 Broadband
Progress Report and Notice of Inquiry on Immediate Action to Accelerate
Deployment, 30 FCC Rcd. 1375, 1377 2 (2015).
\4\ See COVID-19 Broadband Bills, Public Knowledge (Current as of
June 1, 2020), https://www.publicknowledge.org/COVID-19-broadband-
bills/.
---------------------------------------------------------------------------
It is hard to overstate the outsize role that broadband
access has adopted in the 22 years between the DMCA's passage
and today. Americans use broadband to work remotely, attend
classes, access critical medical care, consume essential news
and information, and socialize. First responders use broadband
to communicate life-saving information to local residents, and
small- to medium-size businesses use broadband to access global
markets that are critical to staying afloat.\5\ This importance
cannot be reconciled with the broad interpretation of section
512(i) as requiring that ISPs adopt policies that provide for
the termination of subscribers upon repeat accusations of
infringement.\6\
---------------------------------------------------------------------------
\5\ Robert Pepper et al., Cross-Border Data Flows, Digital
Innovation, and Economic Growth, The Global Info. Tech. Rep. 40, 41 (20
I 6), http://www3.weforum.org/docs/GITR2016/WEF
_GITR_Chapter1.2_2016.pdf; FCC, Connecting America: The National
Broadband Plan 313 (March 17, 2010), https://transition.fcc.gov/
nationaI-broadband-plan/national-broadband-plan.pdf.
\6\ BMG Rights Mgmt. v. Cox Communs., 881 F.3d 293, 302 (4th Cir.,
2018).
---------------------------------------------------------------------------
Much of this disconnect is due to outdated statutory
terminology. Put simply, ``internet service providers'' meant
something very different in 1998 than it does in 2020. Modern
internet service providers have two distinct functions: The
interactive software-level component that connects and routes
traffic to the broader internet, and the physical
infrastructure over which the traffic flows. In 1998,
``internet service providers'' were strictly software-layer
services such as America Online and CompuServe, which operated
over infrastructure provided by the existing telephone network.
In 1998, termination from an ``internet service provider''
meant that a customer had to uninstall American Online and
subscribe to any of its software-layer competitors. In short,
when the DMCA was written, ISPs were edge services that
operated in a competitive market and operated over a
separately-owned, regulated common carrier. Congress did not
suggest that the operator of the infrastructural component
(i.e., the legacy telephone network) could be held liable for
copyright infringement.
In 2020, however, the software and infrastructure have come
under the same roof; modern ISPs both route traffic and own the
cable (or fiber) over which the traffic flows. This radically
alters the stakes of ``subscriber termination,'' as terminating
an account bars the subscriber from the physical network. This
is particularly dire in light of the current ISP market, which
severely lacks competition. More than 100 million Americans
live in homes serviced by only one broadband provider.\7\
Forty-two million lack access to any wired or fixed wireless
broadband, instead relying on limited mobile or satellite
connectivity.\8\ Only 27% of census blocks have access to more
than two broadband providers at standard (25 Mbps) speeds;
fewer than 2% have competitive access to 100 Mbps speeds.\9\
---------------------------------------------------------------------------
\7\ Christopher Mitchell, Repealing Net Neutrality Puts 177 Million
Americans at Risk, Community Networks (December 11, 2017), https://
muninetworks.org/content/177-million-americans-harmed-net-neutrality.
\8\ John Busby, Julia Tanberk et al., FCC Reports Broadband
Unavailable to 21.3 Million Americans, Broadband Now Study Indicates 42
Million Do Not Have Access, BroadbandNow (February 3, 2020), https://
broadbandnow.com/research/fcc-underestimates-unserved-by-50-percent.
\9\ The FCC, Internet Access Services: Status as of December 31,
2016, fig. 4 (February 2018),https://transition.fcc.gov/Daily_Releases/
Daily_Business/2018/db0207/DOC-349074Al.pdf. The FCC's more recent
report contains less reliable figures as it includes satellite
broadband, which is not an adequate substitute for terrestrial fixed
connections, in the higher speed tiers. See Internet Access Services:
Status as of December 31, 2017, fig. 4 (August 2019), https://
docs.fcc.gov/public/attachments/DOC-359342Al.pdf.
---------------------------------------------------------------------------
While deployment and speeds have improved marginally over
time, competition has not. The reasons for this are numerous
and well-documented: Truly high-speed wired broadband is only
feasible over fiber and coaxial cable; the DSL providers who
once provided a level of competition to cable are increasingly
irrelevant; and mobile broadband remains a complement, not a
substitute, to wired household broadband for the vast majority
of users. Thus, for most households, being cut off from wired
broadband means losing the kind of internet access necessary
for those public policy reasons--school, work, and healthcare--
that Congress and the FCC have consistently advanced its
adoption.
It is also questionable (both as a legal and policy matter)
whether the Act of providing broadband access should ever give
rise to any form of secondary liability from which a provider
must be shielded. The law does not specify how ISPs are
supposed to obtain knowledge of repeat infringers; they are not
required to accept DMCA takedown notices, as other online
service providers are, since they do not actually host any
material. ISPs also do not (and should not) have a general duty
to monitor and track their users' activity. Private allegations
of civil offense have never been--and should never be--
sufficient reason to compel utility companies to cut off a
customer's water or power. Within the context of copyright
liability, modern-day ISPs are more akin to the power company
that powers a user's computer than they are to a file-sharing
service or streaming site.
B. Bad Notices
DMCA takedown notices are extraordinarily powerful tools
with a documented history of abuse. A DMCA takedown has
unparalleled power in the online ecosystem--the power to
unilate rally, and nearly instantaneously, erase speech from
the internet. Even when challenged, the law requires that the
speech stay down for up to 14 days.
This power would be concerning even in a well-governed
system. However, by any measure, the DMCA notice-and-takedown
scheme is not well-governed. It suffers from a disproportionate
number of bad notices that hide non-infringing speech and
information from public view, affecting the ability of users
and creators to use the internet for free expression and
creativity. A quantitative study of more than 108 million
takedown requests revealed that approximately 30% of requests
were ``potentially problematic,'' and further, that 4.5 million
of the problematic requests were ``fundamentally flawed.'' \10\
Common causes include anticompetitive behavior,\11\ a
misunderstanding or misapplication of copyright,\12\ and lack
of useful identifying information for either the infringed-upon
work or the allegedly infringing material.\13\ The kinds of bad
notices vary by plat form, and reflect the particulars of its
user base; on Amazon's Kindle Direct, for example,
approximately half of DMCA takedown requests are not
infringement-driven, but are instead attempts by authors to
remove competitors' books from the rankings.\14\ Bad notices
are, by any measure, pervasive, and have a substantial
aggregate impact on user speech.
---------------------------------------------------------------------------
\10\ Jennifer M. Urban, Joe Karaganis, & Brianna Schofield, Notice
and Takedown in Everyday Practice 2 (March 22, 2017) (UC Berkeley Pub.
L. Res. Paper No. 2755628) [hereinafter Urban Report], https://
ssrn.com/abstract=2755628.
\11\ See U.S. Copyright Office, Section 512 Study: 9th Circuit
Public Rountable 248 (May 13, 2016) (Testimony of Stephen Worth, Assoc.
General Counsel of Amazon.com), https://www.copyright.gov/policy/
section512/public-roundtable/transcript_05-13-2016.pdf.
\12\ See, e.g., Google Additional Comments Submitted in Response to
U.S. Copyright Office's Nov. 8, 2016, Notice of Inquiry 9 10 (February
21, 2017). https://www.regulations.gov/document?D=COLC-2015-0013-924873
(``[W]e explain at the appropriate step in our form that merely being
the subject of a photo does not give one a copyright interest in the
photo. In our experience, this warning dramatically cut down on the
number of misguided notices.'').
\13\ Urban Report at 90 (noting that, by conservative estimates,
4.6% of notices contain incorrect or missing information about the
allegedly infringed work or allegedly infringing material).
\14\ See Testimony of Stephen Worth, Assoc. General Counsel of
Amazon.com, supra note 11. (``[W]ith Kindle Direct publishing, authors
routinely try to climb to the top spot in their category . . . by
issuing bogus notices against higher ranking titles. And this for us
actually accounts for more than half of the takedown notices that we
receive.'').
---------------------------------------------------------------------------
1. Sources of Bad Notices
Bad notices stem from a variety of sources that range from
technical errors to deliberate bad faith. Generally, they can
be broken down into four categories: Misuse of copyright, abuse
of the DMCA takedown procedure for non-copyright ends,
technical flaws, and algorithmic defects. Similarly, the goals
and motivations behind bad notices can range from political
censorship, to innocent error, to overzealous enforcement. Even
at their most granular, each category of bad notice still
accounts for millions of problematic takedowns.\15\ Any
solution to address the bad notice problem requires an
understanding of these categories and how they occur.
---------------------------------------------------------------------------
\15\ Urban Report at 96.
---------------------------------------------------------------------------
Copyright misuse occurs when a notice sender leverages the
notice-and-takedown process to remove content that incorporates
or references their work, but is obviously noninfringing or
fair use. For example, in 2019, several unreleased seasons of
Starz shows and three episodes of American Gods were leaked to
the public via a Russian streaming site. Starz used the DMCA
takedown process to remove tweets and articles that reported on
the leak, even though the coverage did not itself contain any
infringing material.\16\ By doing so, Starz was able to
leverage the DMCA process to censor legitimate--if
embarrassing--journalism. This type of takedown also catalyzed
copyright law's most recent scandal, in which two authors both
pulled unprotectable stock elements from a popular fanfiction
trope.\17\ In response to a new competitor in the niche genre,
one author had her publisher issue takedowns against her
competitor's work across several online retail sites, claiming
an infringed-upon interest in stock elements which the author
later admitted she had not created.\18\
---------------------------------------------------------------------------
\16\ Ernesto, Starz Goes on Twitter Meta-Censorship Spree to Cover
Up TV-Show Leaks (Updated) TorrentFreak (April 15, 2019), https://
torrentfreak.com/starz-goes-on-twitter-mela-censorship-spree-to-cover-
up-tv-show-leaks-190415/.
\17\ Alexandra Alter, A Feud in Wolf-Kink Erotica Raises a Deep
Legal Question, N.Y. Times (May 23, 2020), https://www.nytimes.com/
2020/05/23/business/omegaverse-erotica-copyright .html.
\18\ See, e.g., Atari, Inc. v. N. Am. Phillips Consumer Execs.
Corp., 672 F.2d 607, 616 (7th Cir. 1982); Walker v. Time Life Films,
Inc., 784 F.2d 44, 50 (2d Cir. 1986) (``Elements such as drunks,
prostitutes, vermin and derelict cars would appear in any realistic
work about the work of policemen in the South Bronx.'').
---------------------------------------------------------------------------
A similar strain of abuse occurs when a claimant issues
takedowns to remove or temporarily disable unfavorable content
for reasons wholly unrelated to copyright. One of the most
notorious forms of this is a practice known as ``backdating.''
In order to remove or hide content, the actor will make a copy
of the content and post it on an obscure site, backdating the
copied material to a time before the original post. They will
then issue takedowns against search engines and other indexes,
forcing removal of the unfavorable original from search
results, while ensuring that the fraudulently backdated copy
remains far enough down the results to be functionally
obscured. News outlet Benzinga was a victim of this exact
practice after it published an article about the financial
difficulties faced by Amira Nature Foods, a publicly traded
company.\19\ Other groups, including the Church of Scientology,
have used groundless takedown claims to censor criticism and
harass former Members.\20\ Repressive regimes across the world,
from Russia \21\ to Ecuador, \22\ have become adept abusers of
the DMCA's notice-and-takedown regime to stifle critics and
suppress coverage of human rights violations.
---------------------------------------------------------------------------
\19\ Andrea Fuller, Kirsten Grind & Joe Palazzolo, Google Hides
News, Tricked by Fake Claims, Wall St. J. (May 15, 2020) https://
www.wsj.com/articles/google-dmca-copyright-claims-takedown-online-
reputation-11589557001.
\20\ Eva Galperin, Massive Takedown of Anti-Scientology Videos on
YouTube, Electronic Frontier Found (September 5, 2008), https://
www.eff.org/deeplinks/2008/09/massive-takedown-anti-scientology-videos-
youtube.
\21\ Fuller, supra note 19.
\22\ Alexandra Ellerbeck, How U.S. Copyright Law Is Being Used to
Take Down Correa's Critics in Ecuador, Comm. to Protect Journalists
(January 21, 2016), https://cpj.org/2016/01/how-us-copyright-law-is-
being-used-to-take-down-co/.
---------------------------------------------------------------------------
Most bad notices are the result of technical errors which,
despite being technical in origin, nevertheless undermine the
fundamental due process protections built into section 512. Two
of the most substantively important requirements--that a
takedown notice contains sufficient information about the
allegedly infringed work (``AIW'') \23\ and allegedly
infringing material (``AIM'') \24\--are often unmet.\25\ The
same study that found problems with 30% of all takedown notices
also discovered that it was difficult to identify the AIM in
13.3% of requests, and difficult to identify the AIW in 6% ofr
equests.\26\ Moreover, notices covering multiple claims do not
always include clear details on the location of the allegedly
infringing works. This has resulted in substantial, costly
litigation over whether rights-holders or OSPs bear the cost of
identifying infringing work.\27\
---------------------------------------------------------------------------
\23\ 17 U.S.C. 512(c)(3)(A)(ii).
\24\ 512(c)(3)(A)(iii).
\25\ Urban Report at 93.
\26\ Id at 94.
\27\ Id. at 93; see, e.g., Perfect 10, Inc. v. Google, Inc., No. CV
04-9484 AHM SHX, 2010 WL 9479060 (C.D. Cal. July 30, 2010), aff'd., 653
F.3d 976 (9th Cir. 2011).
---------------------------------------------------------------------------
Finally, many bad notices can be pinned squarely on the
rise of algorithmic monitoring and enforcement. Though the
limitations of algorithms are discussed more extensively below,
some examples may be illustrative. In one case, NBC issued
automated takedowns against NASA's SpaceX launch livestream--
because NBC was using the same feed on its own network, under a
license (ironically) from NASA.\28\ In another, algorithmic
enforcement ``blocked a 10-year-old boy's self-authored
original video starring his LEGO mini-figures and garbage truck
despite the fact that he used royalty-free music.'' \29\
Ultimately, user speech and online ecosystems cannot sustain a
system that defaults uniformly in favor of those issuing
takedown notices.
---------------------------------------------------------------------------
\28\ Chris B--NSF (@NASASpaceflight), Twitter (May 28, 2020, 9:46
AM), https://twitter.com/NAASpaceflight/status/
1266002935051403264?s=?0.
\29\ Maayan Perel & Niva Elkin-Koren, Accountability in Algorithmic
Copyright Enforcement, 19 Stan. Tech. L. Rev. 473,476 (2016), https://
Iaw.stanford.edu/wp-content/uploads/2016/10/
Accountability-in-Algorithmic-Copyright-Enforcement.pdf.
---------------------------------------------------------------------------
2. Lack of Redress
There are no disincentives, either in the statute or the
common law, against filing malicious notices. Section 512(f),
which Congress included to deter abuse ex ante by providing
penalties for bad notices, has been rendered dead letter--an
outcome which, it is worth noting, is endorsed with some
enthusiasm in the Copyright Office's 512 Report.\30\ Users
whose speech has been improperly removed lack any meaningful
redress ex post as well. Counter-notices are subject to a
waiting period of up to 14 days, a duration that can be lethal
to time-sensitive speech including news reporting,
documentation of human rights abuses, political speech, public
debate, and critique. For individuals who make their living
through their online speech, that fourteen days represents the
loss of both direct income and relevance. Moreover, the mere
Act of filing a counter-notice opens the user up to a
potentially frivolous lawsuit. It is perhaps no surprise that
platforms have reported counter-notice rates between 4.7% and
0.02%.\31\
---------------------------------------------------------------------------
\30\ The Copyright Office believes that the only case which
provides even a modest nod toward 512(f)'s enforceability--Lenz v.
Universal Music Group Corp., 815 F.3d 1145 (9th Cir. 2016)--was wrongly
decided for placing potential liability on rights holders. See USCO 512
Report
at 5.
\31\ See Senate Committee on the Judiciary Subcommittee on
Intellectual Property, Is the DMCA's Notice-and-Takedown System Working
in the 21st Century? (June 2, 2020) (Testimony of Abigail A. Rives,
Intellectual Property Counsel, Engine Advocacy and Research Foundation)
https://www.judiciary.senate.gov/imo/media/doc/Rives%20Testimony.pdf.
---------------------------------------------------------------------------
3. Platform Responses to Bad Notices
In the absence of meaningful statutory safeguards, some
platforms have sought to screen out abusive or detective
notices, including by requesting missing information,
clarification of ambiguous notices, or additional information
about the nature of the claim prior to processing. As noted
above, different communities, and the platforms on which they
congregate, have different use cases for copyrighted content,
and thus different risk profiles for use (and misuse) of DMCA
notices. For example, the Hugo Award-winning Archive of Our
Own, maintained by the nonprofit Organization for
Transformative Works, hosts more than four million works which
remix major media properties and one another.\32\ Other sites,
such as TikTok, base their core functionality around users'
ability to share, remix, and build upon one another's work,
attracting users specifically because of that function. And
some sites, such as ecommerce platforms, are more at risk for
abusive or anticompetitive takedown notices that could
substantially prejudice the economic interests of merchants or
artists using the platform.\33\
---------------------------------------------------------------------------
\32\ See, e.g., Caitlin Busch, An Archive of Our Own: How AOJ Built
a Nonprofit Fanfiction Empire and Safe Haven, SyFy Wire(February 12,
2019), https://www.sify.com/syfywire/an-
archive-of-our-own-how-ao3-built-a-nonprofit-fanfiction-empire-and-
safe-haven; See also, The Digital Millennilium Copyright Act at 22:
What is it, why was it enacted, and where are we now? Before the
Subcomm. on Intellectual Prop. of the S. Comm. on the Judiciary, 116th
Cong. 9(2020) (Statement of Professor Rebecca Tushnet Harvard Law
School), https://www.
judiciary.senate.gov/imo/media/doc/Tuslmet%20Testimony.pdf (Archive of
Our Own``receive[s] relatively few notices of claimed infringement few
of them are automated, and we subject them to individual review for
validity. In the rare case that the notice complies with the DMCA and
doesn't raise obvious fair use issues or assert non-copyright claims,
our abuse team will remove the accused content and inform the user. Our
experience with small-scale senders, consistent with the experience of
many other OSPs, is that small-scale senders often consider DMCA claims
to be a catch-all for objections such as that a work on the OTW's
Archive has the same title as a differt work they've published for sale
or that they don't wish their name to be used in a work. Our experience
with large-scale senders is that many are careful to avoid challenging
non-exact copies, but unfortunately some do send takedown notices based
on unhelpful metadata (e.g., title of a work even though the content is
clearly different from that of the copyright claimant's work).'').
\33\ More than half of the DMCA takedown notices issued to Amazon's
Kindle Direct, for example are attempts to deliberately suppress a
competitor's book from climbing the rankings. U.S. Copyright Office,
Section 512 Study; 9th Circuit Public Roundtable 248 (May 13 2016)
(Testimony of Stephen Worth Assoc. General Counsel of Amazon.com),
https://www.copyright.gov/policy/section512/public-roundtable/
transcript_05-13-2016.pdf ``[W]ith Kindle Direct publishing, authors
routinely try to climb to the top spot in their category . . . by
issuing bogus notices against higher ranking titles. And this for us
actually accounts for more than half of the takedown notices that we
receive.'').
---------------------------------------------------------------------------
Alarmingly, the Copyright Office study decides that these
requests are sufficient to strip a platform of its safe
harbor.\34\ lt goes on to characterize users' anti-abuse
proposals as attempts to ``strip[] rightsholders from any
realistic ability to enforce their (Congressionally mandated
and constitutionally supported) rights.'' \35\ In short, the
Copyright Office's position as articulated in its Report is
that all notices, no matter how obviously spurious or in bad
faith, must be honored without further inquiry, and even the
most cursory attempts at vetting will strip a platform of its
safe harbor protections. This largely aligns with the position
of rightsholders, who have balked at the idea of introducing
additional safeguards into this system. Instead, these
stakeholders insist that targeted speech must be removed
faster,\36\ with a longer period before reinstatement,\37\ and
the removal must be executed without any human oversight or
verification of claims.\38\
---------------------------------------------------------------------------
\34\ USCO 512 Report at 155.
\35\ Id. at 169.
\36\ Id. at 159.
\37\ Id. at 162.
\38\ Id. at 152 n. 813.
---------------------------------------------------------------------------
It bears repeating: The DMCA's notice-and-takedown
provisions are extraordinarily powerful tools with a documented
history of weaponization. It is true that artists face a
difficult task in attempting to police the use of their
copyrighted content online; however, we must acknowledge the
enormous power of these takedown notices, their documented
history of misuse, and the profound effect of that misuse on
lawful speech. Asking for faster, more powerful notices with
fewer safeguards is akin to discarding a tank and asking for a
warhead.
II. Algorithmic Enforcement Is Not a Viable Answer
We cannot reasonably think about reforming Section 512
without understanding the private enforcement mechanisms that
stakeholders have held out as possible solutions. Given the
time and expense of federal litigation faced by rights-holders
(and the pressures of operating at scale faced by platforms),
it is unsurprising that many stakeholders have embraced the
idea of technological solutions. But while automated private
solutions ``might sound good in theory,'' the messy realities
of implementation--technological limitations, complex legal
protections and provisions, and the influence of a designer's
commercial interests--``raises a slew of questions regarding
policy.'' \39\ Private enforcement ``can have the same far-
reaching effect as actual law,'' including the ability to
deprive users of legitimate income streams, ``without any
corresponding due process or accountability.'' \40\ Because
they operate automatically, these algorithms have the
remarkable power to almost instantaneously erase speech--
including political speech, education, news, and speech which
supports the livelihoods of millions of creators who derive
their primary income via platforms with algorithmic content
matching. A system which relies wholly on automated enforcement
erases the very ``safety valves'' which prevent copyright law
from becoming absolute, and violative of the First Amendment.
---------------------------------------------------------------------------
\39\ Lauren D. Shinn, Youtube's Content ID as a Case Study of
Private Copyright Enforcement Systems, 43 AIPLA Q. J. 359,372 (2015).
\40\ Id.
---------------------------------------------------------------------------
A. Automated Solutions are Designed To Answer the Problems of
Their Designers--Not Anyone Else
The way in which these systems operate is determined by the
particular needs, commercial interests, and resource
limitations of the developer and any large stakeholders with
which that developer is cooperating. Policymakers must grapple
with what users and artists alike have understood for ages--
that the balance of equities in practice is determined less by
the contours of law than by the aggregate results of numerous
design choices which often have ``more profitable'' or ``less
profitable'' answers, but rarely have clear right or wrong
ones. An automated system which perfectly serves the needs of
any one stakeholder--be it platforms, commercial-scale rights-
holders, users, or small artists--invariably prejudices the
interests of the remaining stakeholders.
B. Automated Solutions Have Multiple Points of Failure
We cannot reasonably think about reforming section 512
without understanding the private enforcement mechanisms that
stakeholders have held out as possible solutions. Given the
time and expense of federal litigation faced by rights-holders
(and the pressures of operating at scale faced by platforms),
it is unsurprising that many stakeholders have embraced the
idea of technological solutions. But while automated private
solutions ``might sound good in theory,'' the messy realities
of implementation--technological limitations, complex legal
protections and provisions, and the influence of a designer's
commercial interests--``raises a slew of questions regarding
policy.'' \41\ Private enforcement ``can have the same far-
reaching effect as actual law,'' including the ability to
deprive users of legitimate income streams, ``without any
c01responding due process or accountability.'' \42\ Because
they operate automatically, these algorithms have the
remarkable power to almost instantaneously erase speech--
including political speech, education, news, and speech which
supports the livelihoods of millions of creators who derive
their primary income via platforms with algorithmic content
matching.
---------------------------------------------------------------------------
\41\ Shinn at 372 (2015).
\42\ Id.
---------------------------------------------------------------------------
Algorithmic matching has numerous steps, which we will
necessarily simplify here. First, the system designer must
compile and maintain a database of known content to which the
algorithm can refer. A robust database contains, among other
things, a reference file and ownership information for each
work. The algorithm then uses reference files to create digital
``fingerprints,'' which it compares against unknown media in an
attempt to identify it.\43\ When the algorithm returns a match,
it provides rightsholders with a series of options. The scope
and availability of these options depends on the design of the
system, the level of access granted to the rights-holder, and
other variab les. Common options include claiming the content's
ad revenue, taking the content offline (either in toto or
selectively disabling the matching piece), or doing
nothing.\44\
---------------------------------------------------------------------------
\43\ See David Kravets, YouTube Alters Copyright Algorithms, Will
``Manually'' ReviewSome-
claims, Wired (October 3, 2012), https://www.wired.com/2012/10/youtube-
copyright-
algorithm/.
\44\ See, How Content ID Works: What Options Are Available to
Copyright Owners?, YouTube (2020), https://support.google.com/youtube/
answer/2797370.
---------------------------------------------------------------------------
Though various kinds of errors can occur throughout this
process, users are most frequently affected by ``false
positives''--situations in which the algorithm incorrectly
identifies content they have uploaded as infringing. Three
common points of failure are errors in the database; erroneous
flagging of content that does not match the reference file; and
``content that matches the reference file and is owned by the
claimant, but constitutes a legal use of the content.'' \45\
---------------------------------------------------------------------------
\45\ Shinn at 372.
---------------------------------------------------------------------------
1. Database Errors
The first category of false positives--where the flagged
content matches a reference file in the database, but the
database's ownership information is incorrect--can be broadly
thought of as database errors. These happen for reasons that
range from banal to malicious. Some database errors are caused
by bad actors making false ownership claims, a problem that was
particularly acute on YouTube in the early 2010s.\46\ A low-
quality or overbroad reference file can also cause an algorithm
to throw false matches.\47\ Selective additions of media to the
database can also trigger improper takedowns, as when a new
piece of media incorporates a pre-existing sample, and
inclusion of the new media causes the algorithm to flag and
remove the older clip.\48\
---------------------------------------------------------------------------
\46\ Perhaps the most notable instance of this misuse was when a
Russian group falsely claimed ownership over a number of viral cat
videos, diverting the videos' ad revenue into their own pockets. David
Kravets, Rogues Falsely Claim Copyright on YouTube Videos to Hijack Ad
Dollars, Wired (November 21, 2011), https://www.wired.com/2011/11/
youtube-fiIter-profiting/.
\47\ See Urban Report at 90-92 (analyzing specific instances when
targeted material did not match the allegedly infringed work).
\48\ Notably, a 2016 episode of Family Guy ``included a clip from
1980s Nintendo video game Double Dribble showing a glitch to get a free
3-point goal. Fox obtained the clip from YouTube where it had been
sitting since it was first uploaded in 2009. Shortly after, Fox told
YouTube the game footage infringed its copyrights. YouTube took it
down.'' Fox dropped the claim and issued an apology when the story went
viral. Andy, Fox ``Stole'' a Game Clip, Used It in Family Guy & DMCA'd
the Original, TorrentFreak (May 20, 2016), https://torrentfreak.com/
fox-stole-a-game-clip-used-it-in-family-guy-dmcad-the-original-160520/.
---------------------------------------------------------------------------
These kinds of false positives force us to confront
difficult questions around database design, integrity, and
access. In an ideal world, a content-matching database would be
full of high-quality reference files, complete with thorough,
current, and accurate information on ownership, licensing, and
payment. An ideal database would also be widely open and
available to artists who wish to use it to monitor (or
monetize) their work. However, these two principles are often
in tension; universal access creates a greater risk of
introducing errors into the system, while curation creates
gatekeeping power and an attendant risk of competitive
concerns.
As with algorithmic design more broadly, any commercial
database will reflect the priorities of its designer. These
influences affect who is allowed to populate the database, how
that information is vetted or revised, the oversight and
handling of ownership disputes, and the transparency (or lack
thereof) regarding its operation. We need look no further than
the debates surrounding YouTube's Content ID system to see the
risks and trade-offs of a private, in-house fingerprinting
system designed to address the business interests of a specific
platform.\49\
---------------------------------------------------------------------------
\49\ See e.g., John Paul Titlow, How YouTube Is Fixing Its Most
Controversial Feature, Fast Company (September 13, 2016), https://
www.fastcompany.com/3062494/how-youtube-is-fixing-its-most-
controversial-feature; Patrick McKay, Open Letter to YouTube Regarding
Content ID, FairUseTube.org (September 15, 2011), http://
fairusetube.org/articles/21-open-letter. But cf. SoundExchange Direct
(2020), https://sxdirect.soundexchange.com/login/?next=/. While
SoundExchange Direct is designed to organize metadata (rather than
content fingerprint for large-scale algorithmic enforcement), is a good
example of how a database can be structured to accommodate the needs of
artists. Sound Exchange is, notably, a nonprofit.
---------------------------------------------------------------------------
2. Strict Versus ``Fuzzy'' Algorithms
The second failure case--flagging content that does not
match the reference file--reflects yet another trade-off in
algorithmic design. Algorithms that only flag exact or near-
exact matches protect a greater range of unlicensed, yet legal,
uses and exert less of a chilling influence on user speech.
However, they are also easier to circumvent through basic
manipulation of the underlying media, such as altering the
tempo or pitch of a sound recording, or flipping a video to its
mirror image.\50\ Algorithms that flag ``fuzzy'' matches will
be harder to evade, but will throw more false positives and
stifle some legitimate uses of content.
---------------------------------------------------------------------------
\50\ Nick Douglas, You Can't Fool YouTube's Copyright Bots,
LifeHacker (January 24, 2018) https://lifehacker.com/you-cant-fool-
youtubes-copyright-bots-1822174263.
---------------------------------------------------------------------------
It is worth noting that the degree of ``fuzziness'' in an
algorithm is a design choice that explicitly prioritizes
certain genres and styles of content over others. Fuzzy
algorithms are good at catching and flagging algorithm-evading
``edits'' to popular content such as Top-40 hits.
However, those same algorithms struggle when faced with
classical and jazz music, where the underlying musical work is
often in the public domain, and the difference between a
copyrighted recording and a public domain or live performance
may be as little as a few notes on an improvisational section,
or the sound qualify of the space in which it was recorded.\51\
Content ID, often held up as the industry standard of content-
matching, once erroneously flagged a video that was ten minutes
of solid (original) White noise.\52\
---------------------------------------------------------------------------
\51\ Michael Andor Brodeur, Copyright bots and classical musicians
are fighting online. The bots are winning., Wash. Post (May 21, 2 020),
https://www.washingtonpost.com/entertainment/music/copyright-bots-and-
classical-musician-are-fighting-online-the-bots-are-winning/2020/05/20/
alle349c-98ae-11ea-S9fd-28fb313d1886_story.html. See also Ulrich
Kaiser, Can Beethoven
Continued
Send Takedown Requests? A First-Hand Account of One German Professor's
Experience WithOverly Broad Upload Filters, Wikimedia Found (August 27,
2018), https://wikimedia foundation.org/news/2018/08/27/can-beethoven-
send-takedown-reguests-a-first-hand-account-of-one-german-professors-
experience-with-overly-broad-upload-filters/.
\52\ Chris Baraniuk, White Noise Video on YouTube Hit by Five
Copyright Claims, BBC News (January 5, 2018), https://www.bbc.com/news/
technology-42580523; Timothy Geigner, White Noise on YouTune Gets FIVE
Separate Copyright Claims From Other White Noise Providers, TechDirt
(January 5, 2018), https://www.techdirt.com/articles/20180105/
l0292038938/white-noise-youtube-gets-five-separate-copyright-claims-
other-white-noise-providers.shtml.
---------------------------------------------------------------------------
3. Legally Permissible Uses
Unlike an algorithm, copyright law is not binary or
automated; the American system provides a number of exceptions
and limitations that serve as a ``safety valve'' to protect
legitimate policy ends. The Supreme Court has described these
limitations and exceptions--specifically citing fair use--as
``built-in First amendment accommodations'' to prevent
copyright law from unduly burdening free speech.\53\ These
contours of copyright law, however, depend heavily on social,
factual, and cultural context. The fundamental balance of
copyright law rests in ``[d]etailed doctrines . . . carefully
designed to guide traditional, human law enforcement agents in
addressing these questions'' of appropriate unlicensed use.\54\
Algorithmic enforcement, as a binary system designed to equate
the presence of copyrighted content with its misuse, ``is
blatantly hostile to users' interests because it shifts the
neutral presumption of fair use against them.'' \55\ Moreover,
systems such as Content ID allow rights-holders to
instantaneously divert revenue streams away from claimees upon
filing a claim, leading to lost or delayed revenue, as well as
a host of secondary knock-on effects for the user whose speech
has been removed.\56\
---------------------------------------------------------------------------
\53\ Eldred v. Ashcroft, 537 U.S. 186, 219 (2003).
\54\ Maayan Perel and Niva Elkin-Koren, Accountability in
Algorithmic Copyright Enforcement, 19 Stan. Tech. L. Rev. 473 (2016),
https://www-cdn.law.Stanford.edu/wp-content/uploads/2016/10/
Accountability-in-Algorithmic-Copyright-Enforcement.pdf.
\55\ Taylor B. Bartholomew, The Death of Fair Use in Cyberspace:
YouTube and the Problem With Content ID, 13 Duke L. & Tech. Rev. 66, 68
(2015), https://schoolarship.law.duke.edu/cgi/
viewcontent.cgi?article=1271&context=dltr.
\56\ Amanda Perelli, Prominent YouTube Creator Lindsay Ellis J.
Challenging the Platform Over the Way It Handles Copyright Claims, Bus.
Insider (Oct. 29, 2019), https://www.businessinsider .com/youtuber-
lindsay-ellis-fights-platform-universal-over-copyright-claim-2019-10.
---------------------------------------------------------------------------
Conclusion
Two hundred and twenty-nine million American adults live
their lives online under the shadow cast by section 512.
Whatever the risks or rewards, we cannot be reckless with the
speech rights of those who find themselves governed by the
system we create. Congress must acknowledge that this debate is
not happening in a vacuum, and reject the fantasy of copyright
being a struggle between ``tech'' and ``content.'' Copyright
law, broadband access, algorithmic governance, and economic
incentive structures are all intertwined, and all impact
Americans' ability to speak online. In a moment of massive
social change, we must not take that for granted.
Chair Nadler. Thank you. Ms. Kibby?
TESTIMONY OF MORGAN GRACE KIBBY
Ms. Kibby. Chair Nadler, Ranking Member Jordan, and Members
of the Committee, thank you for inviting me to talk about the
Copyright Office's report on section 512 of the DMCA. I
appreciate the inclusion at the heart of this discussion is not
just legal jargon, market analysis, or political calculations,
it's the real and profound effects section 512's failings have
on people like myself.
The Copyright Office's report is confirmation of what
creators and copyright owners have said for years about section
512. It's just not working, but that statement is too benign.
It's undermining creativity and, more alarmingly, systemically
undercutting our next generation of artists. It's jeopardizing
livelihoods of working-class musicians and obliterating healthy
monetary velocity in our creative community. It's rewarding
unscrupulous services that deal in the unauthorized trade and
use of our works, and it's fundamentally sabotaging the
legitimate online marketplace that we all rely on and that
Congress envisioned.
As a self-employed creator, I've dedicated my life to my
craft. Through decades of study, collaborating, and touring
with artists like Amity 3 and Lady Gaga, unrelenting deadlines,
scoring for film and TV, promoting my work, and navigating a
music industry in constant structural flux, I have methodically
committed myself to building my career and making art that
moves people. It's no secret that the creative life can
sometimes have little promise beyond that exchange, and so it
becomes my very dedication that is robbed of agency when there
is a clear expectation that I now also spend hours looking for
violations of my work.
The popular mantra of working of 10,000 hours to achieve
mastery should apply to my craft, not to the protection of my
content. I can't afford to spend even a fraction of this time
monitoring and noticing infringements as it's time spent away
from my work, which is creating. So, the truth is I just don't
do it. Trying to enforce my work within section 512's notice
and takedown system is a futile endeavor as monitoring for
infringements and sending notices does not curtail unauthorized
works from popping up. It's like digging in the sand at high
tide. And this problem is existential. When nascent artists
don't see a viable path forward in a career already laden with
inherent challenges, some simply won't continue. Perpetuating
an ineffective enforcement system means fewer creative works,
shrinking cultural identity, and fewer creators who cannot
afford to press on. The intention of the DMCA's drafters was to
decrease infringement, not to decrease production of creative
works.
I've heard claims that implementing a system that takes
down infringing copies promotes censorship. I would counter
that stripping creators like myself of their fundamental
rights, livelihood, and contributions is the true censorship.
I'm frustrated that the existing system devalues us and, in
turn, weakens our very culture. I recognize that creative
fields occupy an odd place in the consciousness of priorities,
especially in this challenging year, but culture is art defined
by a systemic empowerment of creators. How many artistic
futures will we sacrifice because we can't come together to get
this right?
Unfortunately, service providers have no desire to shift
our current paradigm. Why? Because the status quo under section
512 is simply more lucrative. Commercial works like mine drive
online traffic and, in turn, generate advertisement revenue. In
a system that allows for perpetual removal of works after the
fact instead of requiring proactive licensing, there's simply
no incentive to secure licenses or stop infringement. There is
financial incentive to do the exact opposite. This is a flawed
system established by section 512, and online services must be
required to do their part to resolve it. The Office reportedly
understood this and provided guidelines, including clarifying
who actually qualifies for the safe harbor, strengthening
policies on repeating infringers, and requiring more action by
services. So, while my area of expertise is art, there's
technology. They surely can create algorithms to help us
curtail the flow of infringing works on their platforms.
Some artists can afford to allow their works to be
distributed freely across these platforms, seeing it as
promotion, perhaps meaning to go viral. But even as a musician
lucky to make a living doing what I love, every dollar counts.
And in the shadow of an industry transformed with peer-to-peer
sharing and the post COVID-19 obliteration of touring, our
works on these platforms generate income. They're not a loss
leader for other revenue streams. Undoubtedly, technology can
be used to distinguish between artists who are okay with their
unauthorized works on these platforms and those who aren't.
There are already programs in place to monitor and filter
unauthorized content. So, I have to ask, with the more than
capable minds of tech, how hard can it be to present users with
questions to confirm that they have authorization to upload
content?
I'm grateful that Congress recognizes we are attempting to
fix this and is pushing service providers to participate in
finding solutions. As the Copyright Office put it, ``The degree
and breadth of cooperation between OSPs and rights holders that
was anticipated in 1998 has not come to full fruition.'' It's
absolutely true, and it's a shame because that is what was
intended, a balance of interests and a balance of
responsibility. So, we're hopeful that our tech partners will
join us to finally achieve a fair and effective DMCA for all.
Thank you so much.
[The statement of Ms. Kibby follows:]
STATEMENT OF MORGAN GRACE KIBBY
Chair Nadler, Ranking Member Jordan, and Members of the
Committee:
I want to thank you for inviting me here today to talk
about the Copyright Office's report on section 512 of the DMCA.
I appreciate you including me because the heart of this
discussion is not legal jargon or market analysis or political
calculations. It is the real and profound effect section 512's
failings have on everyday people like myself.
The Copyright Office's report is confirmation of what
creators and copyright owners have been saying for years about
section 512: It's just not working the way it's supposed to.
But, that's too benign a way to describe the situation. It's
worse than just broken. It is undermining creativity, and more
alarmingly, quietly undercutting our next generation of
artists. It is jeopardizing livelihoods for working class
musicians, obliterating healthy monetary velocity in our
creative community. It is rewarding unscrupulous services that
deal in the unauthorized trade and use of our works. It is
fundamentally sabotaging the legitimate online marketplace that
we all rely on and that Congress envisioned.
As a self-employed creative, I've dedicated my life to my
craft. Through studying voice, piano and cello, working and
touring with groups like M83 & Lady Gaga, 16 hour days for
months on end meeting deadlines while scoring for film and
television, writing and producing for other artists, vigorously
hustling to promote my work, and navigating a music industry
that is in constant structural flux--I have passionately and
methodically committed the time, sweat, and tears required in
order to make a living doing what I love, coupled with a desire
to produce art that moves people. It's no secret that the
creative life can sometimes have little payoff beyond that
exchange, and so it is this very dedication that is robbed of
agency when there is a clear expectation that I now spend hours
in front of a computer screen looking for violations of my
work.
The popular mantra of working 10,000 hours to achieve
mastery, (which, with the benefit of two decades in my field, I
would amend to 100,000 hours) should apply to my craft, not to
the protection of my own content. I can't afford to spend even
a fraction of that time monitoring and noticing infringements
as it's time spent away from my work--creating. So, the truth
is, I just don't do it. Spending my time enforcing my work
within section 512's notice and takedown system is a futile
endeavor, even with the backing of a large management company.
I can monitor for infringements and send notices all day long,
but more unauthorized works will just keep popping up. It's
like digging in the sand at high tide. That may sound to some
like defeatism, but it's the immediate reality that if dwelled
on, feels insurmountable. The Copyright Office report itself
stated that, ``despite the advances in legitimate content
options and delivery systems, and despite the millions of
takedown notices submitted on a daily basis, the scale of
online copyright infringement and the lack of effectiveness of
section 512 notices to address that situation, remain
significant problems.''
Unfortunately, it remains problematic for millions of
creators and it's existential. When artists, especially nascent
ones, don't see a viable path forward in a career already laden
with inherent and nebulous challenges, they simply won't
continue. More alarmingly, some may not choose to walk a
creative path. Perpetuating an ineffective enforcement system
means fewer creative works, shrinking cultural identity, and
fewer creators who cannot afford to stay in our business.
That's not how it's supposed to be. The intention of the DMCA's
drafters was to decrease infringement, not to decrease
production of creative works themselves.
I've heard some claims that implementing a system that
takes down infringing copies promotes censorship. However
stripping creators of their fundamental rights, their
livelihood, and ultimately their creative contributions is the
real censorship. I am frustrated by how much the existing
system devalues creators such as myself, and in tum weakens our
very culture. I recognize that creative fields occupy an odd
place in the consciousness of priorities, especially in this
chaotic and challenging year. But culture is art, defined by
systemic empowerment of already inherently courageous creators.
How many of today's voices and bright creative futures are we
willing to sacrifice because we can't come together to get this
right?
Unfortunately, many short-sighted service providers have no
desire to shift our current paradigm. Why? Because the status
quo under section 512 is simply more lucrative. Commercial
works like mine drive online traffic, which in tum generates
advertising revenue. In a system that allows for perpetual
removal of works after the fact, instead of requiring proactive
licensing, there is simply no incentive to secure those
licenses or stop the infringement. In fact, there is a
financial incentive to do exactly the opposite. This is the
flawed system established by section 512 and online services
must be required to do their part to resolve it. If you have
water pouring into your home, you don't resign yourself to
endlessly cleaning up the puddles, you fix the leak where the
water is streaming in.
The Copyright Office report understood this and provided
some guidelines, including clarifying who actually qualifies
for the safe harbor, strengthening policies on repeat
infringers, and requiring more awareness and action by
services. Clearly, service providers can do more. My area of
expertise is art; theirs is technology. They can create
algorithms to help you discover new artists or predict what--
song you want to hear next; surely they can find ways to
curtail the flow of infringing works on their platforms.
I know some artists are ok with their works being
distributed freely across these platforms. They see it as
promotion, perhaps even a means to go viral, and that's fine as
long as that is their choice and they can afford to do that.
But as a solidly working/middle-class musician who is lucky
enough to make a living solely doing what I love, every dollar
counts. $100 here and there may not seem like much, but
sometimes even this small amount keeps the lights on in my
studio. Sweat equity is not a factor to discount, but it should
also be a choice, not an unspoken mandate to participate.
Ultimately my work and my time are not simply investments: This
is my occupation, my career. In the shadow of an industry
transformed overnight with peer to peer sharing, and with the
recent obliteration of one of the last remaining bastions of
income in light of COVID-19 touring, my works on these
platforms generate income; they're not a loss-leader for other
revenue streams. Undoubtedly, technology can be used to
distinguish between those artists who are ok with their
unauthorized works on these platforms and those who aren't.
There are programs already in use to monitor and filter
unauthorized content. Even YouTube has its Content ID (though
it remains inexplicably inaccessible to many and inadequate for
others). So, I have to ask the most basic and obvious of
questions: with the capable minds of tech, how hard can it be
to present users with questions to confirm they have the
authorization to upload content?
I am grateful that Congress recognizes what we are
attempting to fix and is pushing service providers to
participate in finding solutions. As the Copyright Office put
it, ``the degree and breadth of cooperation between OSPs and
rights holders that was anticipated in 1998 has not come to
full fruition.'' That's absolutely true and it's a shame,
because that's what was intended--a balance of interests and a
balance of responsibility. We've been at the table waiting
perhaps a little less patiently every day, but we are here. We
are hopeful our tech partners and will join us to finally
achieve a fair and effective DMCA for all.
Thank you.
Chair Nadler. Mr. Band?
TESTIMONY OF JONATHAN BAND
Mr. Band. Chair Nadler, Ranking Member Jordan, Members of
the Committee, I'm grateful for this opportunity to provide the
views of libraries on the Copyright Office's section 512
report. I will briefly discuss the importance of section 512
safe harbors to U.S. libraries. I will then make three points
about the 512 report.
First, libraries agree with the report that Congress should
not consider foreign approaches to online infringement, such as
notice and stay down. Second, libraries agree with the
Copyright Office that abusive takedown notices are a series
problem requiring congressional attention. Third, libraries
disagree with the report's conclusion that the balance Congress
established in section 512 is askew. To the contrary, the DMCA
is working just as Congress intended.
Libraries provide a variety of internet-related services.
As a practical matter, libraries can provide these services
only because of the DMCA's safe harbor limits libraries
liability for their users' online activities. In particular,
the mere conduit safe harbor in section 512(a) enables
libraries to provide internet access to their users. Libraries
are the only source for free internet access for most
Americans. Also, they often are the only source for reliable
broadband in rural areas. Even now during the pandemic when
many libraries are closed, they've left their Wi-Fi networks
on, enabling users to access the internet from parking lots.
The section 512(a) safe harbor allows libraries to provide
internet access without the threat of large copyright damages
for infringing user activity.
Turning to the section 512 report, we agree with its
conclusion that Congress should not adopt a notice and stay
down regime. The filtering necessary to implement notice and
stay down would have many false positives and would not
accommodate fair use. This would be a serious problem in the
area of political speech. A filter could wrongly block a
campaign ad on the eve of an election. We also agree with the
Office that the issue of abuse of takedown notices is serious
and requires congressional attention. We urge the Committee to
explore possible solutions to the misuse of the notice and
takedown system. Perhaps the Federal Trade Commission should be
provided with additional tools to address this issue.
While the 512 report got many things right, it got one very
important thing wrong. It concluded that the balance Congress
intended to strike in section 512 is askew. It reaches an
incorrect conclusion because it did not appreciate the
interconnected structure of the DMCA. Contrary to the
suggestion of some that the grand bargain of the DMCA is to be
found within section 512 itself, the DMCA's grand bargain was
the adoption of the section 512 safe harbor in exchange for the
enactment of the prohibition on the circumvention of
technological protection measures in section 1201. As the
Committee studies this issue, it must always bear in mind that
section 1201 dealing with TPMs and section 512 dealing with
safe harbors were enacted together to create a balanced
approach to copyright infringement in the internet environment.
Thus, the effect of this and the fairness of the safe harbor
system should not be considered in isolation, but in relation
to the effectiveness and fairness of the anti-circumvention
provisions.
Unfortunately, the Copyright Office conducted two separate
studies, one of 512 and the other of 1201. The Office looked at
each section in isolation, and, thus, did not consider whether
the overall balance Congress struck in 1998 was still intact.
The Committee should examine copyright and the internet through
a wide lens. The question is not whether some individuals or
even some industries are disadvantaged by online infringement
and could be benefited by imposing greater burdens on service
providers through amendments to section 512. Rather, the
question should be whether the goals of the copyright system,
promoting the creation and distribution of works for the public
benefit, would be best served by recalibrating the balance
established in the DMCA.
We live in a golden age of content creation and
distribution. The DMCA is in large measure responsible for this
golden age. It is a shining example of enlightened legislation
for the public good. We disturb it at our peril. Thank you very
much.
[The statement of Mr. Band follows:]
STATEMENT OF JONATHAN BAND
Chair Nadler, Ranking Member Jordan, Members of the
Committee, I am counsel to the Library Copyright Alliance
(``LCA''), which consists of the American Library Association,
the Association of College and Research Libraries, and the
Association of Research Libraries. These associations
collectively represent over 100,000 libraries in the United
States employing more than 300,000 librarians and other
personnel. An estimated 200 million Americans use these
libraries more than two billion times each year. U.S. libraries
spend over $4 billion annually purchasing or licensing
copyrighted works.
I am grateful for this opportunity to testify on the
Copyright Office's report on section 512 of the Digital
Millennium Copyright Act (``DMCA''), 17 U.S.C. 512. I will
briefly discuss the importance of the section 512 safe harbors
to U.S. libraries and the American public. I then will make
three points concerning the Copyright Office's report. First,
LCA strongly agrees with the Office's recommendation that
Congress not consider foreign approaches to online infringement
such as notice-and-staydown and site blocking. Second, LCA
appreciates that the Office recognized that abuse of the
notice-and-takedown system is a serious problem requiring
Congressional attention. LCA urges this Committee to explore
possible solutions to this issue. Third, LCA strongly disagrees
with the Office's conclusion that the balance Congress
established in section 512 is askew. To the contrary, the DMCA
is working just as Congress intended.
I. The Importance of the DMCA Safe Harbors to U.S. Libraries.
Libraries provide to their users a variety of Internet-
related services. As a practical matter, libraries can provide
these services only because the DMCA's safe harbors limit
libraries' liability for their users' online activities. The
``mere conduit'' safe harbor in section 512(a) has enabled
libraries to provide Internet access to its users; the section
512(c) ``hosting'' safe harbor has permitted academic libraries
to serve as institutional repositories for open access
materials; and the section 512(d) ``linking'' safe harbor has
allowed libraries to provide information location services to
users.
A. Internet Access
Not only large commercial entities such as Verizon and AT&T
Act as ``service providers'' within the meaning of section
512(k)(l)(A). Libraries play this role as well. In the United
States, there are virtually no Internet cafes that provide
users with the hardware necessary for Internet access. While
Starbucks has Wi-Fi, it does not supply laptops. Although
increasingly more Americans at all income levels own smart
phones, it is difficult (if not impossible) to fill out an
online job application, or apply for healthcare or unemployment
benefits, on a smart phone. Libraries are the only source for
free Internet connectivity and Internet-ready computer
terminals for most Americans.
Seventy-seven percent of Americans without Internet access
in their homes rely on public libraries for Internet access.\1\
Public libraries provide the public with access to over 294,000
Internet-ready computer terminals.\2\ In 2016, there were 276
million user-sessions on these computers. There were 227
computer uses per 1,000 visits to public libraries.\3\
---------------------------------------------------------------------------
\1\ Pew Research Center, ``Public libraries and technology: From
`houses of knowledge' to `houses of access,' '' https://
www.pewresearch.org/intemet/2014/07/09/public-libraries-and-technology-
from-houses-of-knowledge-to-houses-of-access/ (2014).
\2\ Institute of Museum and Library Services, Public Libraries in
the United States Survey, Fiscal Year 2016, 29 (2019).
\3\ Id.
---------------------------------------------------------------------------
A Pew Research Center survey revealed that 23% of Americans
ages 16 and up went to libraries to use computers, the
Internet, or a WiFi network.\4\ Seven percent of Americans used
libraries' Wi-Fi signals outside when the libraries were
closed.\5\ (During the COVID-19 pandemic, even though many
public libraries were-and often still are-closed, the libraries
left their Wi-Fi networks on, enabling users without home
connectivity to access the Internet from outside the library
structure. Indeed, some libraries boosted their Wi-Fi networks
to enhance this outside-the-premises access.) Library users who
take advantage of libraries' computers and Internet connections
are more likely to be young, Black, female, and lower
income.\6\ Forty-two precent of Black library users used
libraries' computers and Internet connections, as did 35% of
those whose annual household incomes were $30,000 or less.\7\
---------------------------------------------------------------------------
\4\ Pew Research Center, Library usage and engagement, https://
www.pewresearch.org/internet/2016/09/09/library-usage-and-engagement/
(2019).
\5\ Id.
\6\ Id.
\7\ Id.
---------------------------------------------------------------------------
According to the Pew Research Center survey, 61% of library
computer users used the Internet at a library in the past
twelve months did research for school or work; 53% checked
email; 38% received health information; 26% took online classes
or completed an online certification.\8\
---------------------------------------------------------------------------
\8\ Id.
---------------------------------------------------------------------------
Libraries' broadband connections are particularly important
in rural areas; 58% of rural adults believe that access to high
speed Internet is a problem in their community.\9\ Accordingly,
public libraries in rural areas have the highest ratio of
Internet accessible computers: Twenty-three computers per 5,000
people.\10\
---------------------------------------------------------------------------
\9\ Pew Research Center, Digital gap between rural and nonrural
America persists, https://www.pewresearch.org/fact-tank/2019/05/
31Idigital-gap-between-rural-and-nonmral-america-persists/ (2019).
\10\ Institute of Museum and Library Services, Public Libraries in
the United States Survey, Fiscal Year 2016, 29 (2019).
---------------------------------------------------------------------------
Libraries in K-12 schools and institutions of higher
learning provide Internet access for students and faculty.
Additionally, at many institutions of higher education, the
library operates the campus-wide network.\11\ Academic and
school libraries also provide Internet access for students who
do not have such access at home. During the COVID-19 pandemic,
some community colleges that were otherwise closed still
allowed students without broadband to use Internet-connected
computer terminals in the college libraries.\12\
---------------------------------------------------------------------------
\11\ At many colleges and universities, the libraries participate
in the Administration of campus-wide Internet access services. Under
the Higher Education Opportunity Act, educational institutions have
significantly more obligations to address copyright infringement by
subscribers than do commercial Internet service providers. See http://
www.educause.edu/library/higher-
education-opportunity-act-heoa.
\12\ Lauren Lumpkin, A community for students' needs, Washington
Post, Bl, April 2, 2020.
---------------------------------------------------------------------------
The section 512(a) safe harbor for ``mere conduits'' has
enabled libraries to provide Internet access without the
specter of liability for onerous copyright damages because of
infringing user activity.
B. Institutional Repositories
With the growth of open access scholarly communications,
libraries increasingly host online institutional repositories
where academic authors can post papers, articles, and
theses.\13\ The section 512(c) safe harbor shelters libraries
from liability for infringing material that may be contained in
the materials posted by third parties. Elsevier, for example,
sent thousands of takedown notices to websites hosted by
Harvard University, University of California, Irvine and
academia.edu, a social networking site for academics. The
articles targeted by these Elsevier notices typically had been
posted by their authors, who may have transferred their
copyright to Elsevier in the publication agreements. The
publication agreements often allow authors to post their final,
peer-reviewed manuscript of the articles, but not the final
published version, i.e., as formatted by the publisher.
---------------------------------------------------------------------------
\13\ See Brianna Schofield and Jennifer Urban, Takedown and Today's
Academic Digital Library, November 2015, available at file: https://
papers.ssrn.com/sol3/papers.cfm?abstract_ id=2694731.
---------------------------------------------------------------------------
Elsevier asserted that it pursued only final versions of
published journal articles posted without their authorization.
The section 512(c) safe harbor provided a mechanism for
libraries to avoid getting caught in the middle of a dispute
between the authors and their publishers.
C. Information Location Tools
Libraries also rely on the section 512(d) safe harbor for
information location tools. Librarians prepare directories that
provide users with hyperlinks to websites the librarians
conclude in their professional judgment to contain useful
information. Section 512(d) shelters a library from liability
if the website linked to, unbeknownst to the library, contains
infringing material.
II. The Importance of the DMCA Safe Harbors to the U.S. Public
The section 512 safe harbors have enabled the Internet to
expand into a global communications medium that allows any
speaker to reach a worldwide audience. It is section 512 that
facilitates the Committee live-streaming this hearing across
the country and around the world. It enables people watching
the hearing to post responses online in real time. It permits
experts and ordinary citizens to upload blog posts and videos
tomorrow dissecting my testimony and that of my fellow
panelists. Some of these videos might include mashups of our
testimony. It allows Committee staffers next week to find and
access all this this material and troves of other information
concerning section 512 available online. Without the safe
harbors of section 512, the providers of the services that
enable all these activities would have to find alternative
means of limiting their liability for the statutory damages
available under the Copyright Act. This would involve filtering
or limiting posting privileges to preapproved entities and
individuals. Either alternative would in effect constitute
censorship.
The pandemic has made us increasingly dependent on the
Internet, and by extension on section 512. It is no
exaggeration to say that section 512 has enabled millions of
Americans to survive the pandemic by working, shopping and
studying from home; communicating with friends and family; and
accessing a bounty of entertainment content during these
difficult times. To be sure, businesses and individuals pay for
Internet access, but the cost would be far greater if the
Internet access service providers had to contend with the cost
of copyright infringement liability for their subscribers'
actions.
III. The Copyright Office's Section 512 Report
Turning to the Copyright Office's section 512 report, we
acknowledge the Office's effort to solicit the views of all
stakeholders and agree with its conclusion that Congress should
not adopt a notice-and-staydown regime. Additionally, the
Copyright Office correctly recognized that abuse of the notice-
and-takedown system by rights holders, or people claiming to be
rights holders, is a serious problem. At the same time, we
disagree with the Copyright Office's conclusion that the
balance Congress intended in section 512 is ``askew.''
A. Notice-and-Staydown and Site-Blocking
LCA strongly agrees with the Copyright Office's
recommendation that Congress not pursue foreign approaches such
as notice-and-staydown or site-blocking. The Office stated:
There are important reasons to proceed cautiously when
considering any of the proposed international solutions. While
the Office has received submission from thousands of
rightsholders, users, OSPs, academics, and others arguing for
or against adoption of the international models below, much of
the evidence is anecdotal or conflicting. The Office still has
relatively little data on how well these international regimes
are working in practice, or even how a notice-and-staydown
requirement will ultimately be implemented in the European
Union. To make the most informed decision possible, it will be
necessary for Congress to consider many factors beyond simply
the copyright law-questions of economics, competition policy,
fairness, and free speech, to name but a few. It is the opinion
of the Office that the international approaches discussed below
should be adopted, if at all, only after significant additional
study, including evaluation of the non copyright implications
they would raise.\14\
---------------------------------------------------------------------------
\14\ U.S. Copyright Office, Section 512 of Title 17, 185 (2020).
Likewise, in its June 29, 2020, letter to Chair Tillis and
Senator Leahy, the Office noted that a notice-and-staydown
filter might prevent future uploads that ``differ in
significant respects from the subject of the takedown notice,''
such as a sample of a song being used as background music for
different content. A staydown filter could also prevent the
incorporation of a song into a political ad. The Office
correctly asked, ``how do you comply with staydown request
requirements while also protecting legitimate speech?'' Notice-
and-staydown could have a particularly chilling effect on
scholarly communications. A professor's fair use inclusion of
an audio or video clip in an online article could result in the
blocking of that article.
B. Abuse of the Notice-and-Takedown System
The Copyright Office report itself did not give sufficient
weight to the problem of the abuse of the notice-and-takedown
system. Despite evidence that as many as 30 percent of notices
are defective in some manner, the Office did not recommend any
concrete action by Congress to protect fair use and free
speech. In a footnote, it did acknowledge that ``abuses of the
DMCA system do call for some enforcement mechanism.'' \15\ It
questioned the effectiveness of private actions under section
512(f) in deterring such abuses. Instead, the Office suggested
that ``to the extent that such tactics represent ongoing
patterns of abusive business practices, governmental
enforcement outside the context of section 512 would appear to
be a better avenue for addressing their proliferation.''
However, the Office did not specify what sort of ``government
enforcement'' would be appropriate, and by what agency.
---------------------------------------------------------------------------
\15\ Id. at 148 n.790.
---------------------------------------------------------------------------
The Office was stronger on this issue in the Tillis-Leahy
letter: ``The issue of abusive allegations of copyright
infringement is serious, and congressional attention to the
broader question of how to best discourage such uses of the
copyright system could provide more effective mechanisms to
address the problem.'' The Office still provided no specific
course of action, perhaps feeling that this was outside the
scope of its expertise. But anticompetitive conduct is very
much within the expertise of this Committee, and LCA urges the
Committee to explore possible solutions to the anticompetitive
misuse of the notice-and-takedown system. Perhaps the Federal
Trade Commission should provide additional tools to address
this problem.
Abuse of the notice-and-takedown system threatens not only
fair uses; it can stifle any form of speech. Simply by sending
a takedown notice, a person can cause the removal of speech
with which he disagrees.
C. The Balance in the Safe Harbors
While the Copyright Office section 512 report got many
things right, it got one very important thing wrong: It
concluded that the balance Congress intended to strike in
section 512 is askew. It reached this erroneous conclusion
because it did not appreciate the interconnected structure of
the DMCA. Contrary to the suggestion of some that the ``grand
bargain'' of the DMCA is to be found within section 512 itself,
the DMCA's ``grand bargain'' was the adoption of the section
512 safe harbors in exchange for the enactment of the
prohibition on the circumvention of technological protection
measures (``TPMs'') in section 1201. As the Committee examines
this issue, it must always bear in mind that section 1201,
dealing with TPMs, and section 512, dealing with safe harbors,
were enacted together to create a balanced approach to
copyright enforcement in the Internet environment. Thus, the
effectiveness-and fairness-of the safe harbor system should not
be considered in isolation, but in relation to the
effectiveness and fairness of the anti-circumvention
provisions.
What became section 512 and 1201 were originally introduced
as separate bills in the 105th Congress. The TPM bill was
supported by the entertainment industry and opposed by sectors
of the technology industry. The safe harbor bill was supported
by the online service providers and opposed by the
entertainment industry. In the face of this opposition, both
bills stalled. Chair Hatch, in a bold legislative move, merged
the two bills into one. He calculated that the entertainment
industry would be willing to accept the safe harbors in
exchange for TPM protection. This calculation proved correct.
The entertainment industry believes that section 1201 has
benefitted it enormously. In response to a notice of inquiry
issued by the Copyright Office concerning section 1201, the
Association of American Publishers, the Motion Picture
Association of America, and the Recording Industry Association
of America filed joint comments stating that ``the protections
of chapter 12 have enabled an enormous variety of flexible,
legitimate digital business models to emerge and thrive . . .
'' Likewise, the tech industry, libraries, and consumer groups
believe that the section 512 safe harbors have ``allowed the
Internet to become what it is today--a worldwide democratizing
platform for communication, creativity, and commerce.'' \16\
Although Congress attempted to achieve a degree of balance
within each title--each title contains internal compromises--at
the end of the day, the grand bargain of the DMCA was the
marriage of the TPM and the safe harbor bills.
---------------------------------------------------------------------------
\16\ Matthew Schruers, ``Music Industry DMCA Letter Seeks to Tum
Back Clock on Internet,'' Disruptive Competition Project (June 21,
2016), http://www.project-disco.org/intellectual-property/062116-music-
industry-letter-seeks-to-tumback-clock-on-internet/#WHQCArYrKl5.
---------------------------------------------------------------------------
Significantly, these titles are working just as Congress
intended. To be sure, one can disagree with some of the policy
choices Congress made in each title.\17\ But Congress made
these policy choices with open eyes and a clear understanding
of where the technology was headed. The courts generally have
applied the DMCA in a manner consistent with Congress's intent.
The overall balance struck in 1998 remains in place today.
---------------------------------------------------------------------------
\17\ In my view, the theory underlying title I remains
fundamentally flawed. While TPMs have been extremely helpful to the
development of legitimate digital business models, the critical element
has been the technological protection provided by TPMs, not the legal
prohibition on circumvention and circumvention tools. Section 1201 is
overbroad; because it is not limited to acts of circumvention (and
circumvention tools) that facilitate infringement, it interferes with
lawful uses. Further, the triennial rulemaking is not a nimble enough
process to address these many lawful uses inhibited by section 1201.
The number of these uses continues to grow as more devices are
controlled by software, which in turn is protected by TPMs. These TPMs
interfere with repair, maintenance, and customization. The Copyright
Office through the triennial rulemaking in effect regulates vast swaths
of the U.S. economy.
---------------------------------------------------------------------------
As evidence of the imbalanced application of section 512 by
the courts, the Copyright Office cited the concerns raised by
the entertainment industry. But the entertainment industry has
always opposed safe harbors for Internet service providers. The
entertainment industry agreed to the safe harbors in 1998 as
the price of obtaining the TPM provisions. As soon as the DMCA
was signed into law, the entertainment industry reverted to its
complaints about the safe harbors and how the Internet service
providers were not doing enough to combat online infringement.
While the rights holders did receive some benefit from the safe
harbors--the automatic injunctions of a takedown in response to
a mere notice of infringement--section 512 was never intended
to provide a complete solution to the problem of infringement.
Section 512 was adopted to help the service providers, not the
content providers.
Unfortunately, the Copyright Office conducted two separate
studies, one of section 512, the other of section 1201. It
suggested amendments of both sections. The Office looked at
each section in isolation, and thus did not consider whether
the overall balance Congress struck in 1998 was still intact.
LCA urges the Committee to view the issue of copyright and
the Internet through an appropriately wide lens. The question
is not whether some individuals, or even some industries, are
disadvantaged by online infringement, and could be benefited by
imposing greater burdens on service providers through
amendments to section 512. Rather, the question should be
whether the goals of the copyright system--promoting the
creation and distribution of works for the public benefit--
would be best served by recalibrating the balances established
in the DMCA.
In LCA's view, this is not even a close call. The amount of
information individual users can access from home, the office,
or the road, is astounding.\18\ Much of this information,
posted with the authorization of the rights holder, is free.
Similarly, the Internet enables these users to upload their own
creations to social media platforms where they can be accessed
by a global audience. If the safe harbors limiting the
copyright liability of the websites hosting this content were
contracted, then the Internet could not be as open. Web hosts
would only make available material from trusted sources or
would have to impose higher fees. Resources such as Wikipedia
might disappear or greatly diminish.
---------------------------------------------------------------------------
\18\ See Techdirt, The Sky Is Rising, https://skyisrising.com/.
---------------------------------------------------------------------------
At the same time, it is entirely speculative whether
changing the safe harbors would benefit copyright owners
economically. The majority of infringing content available
online is hosted overseas, beyond the reach of U.S. law. The
large service providers have automated the process of
submitting takedown notices, and have developed other tools
content providers can use to combat infringement. Most content
industries have adjusted their business models towards
streaming to take advantage of the low distribution costs and
enormous audiences of the Internet while minimizing the risk of
infringement. While the transparency reports released by
Internet companies indicate a large number of takedown notices,
this volume is a function of a number of factors: The
automation of the process; rights holders sending notices to
search engines on the assumption that the search engines are
indexing the infringing content, even if they are not;
governments and corporations realizing they can use the DMCA
process to censor legitimate speech; and the enormity of the
Internet, social media platforms, and search engines. While 75
million takedown notices a month may seem like a large number,
it is a tiny fraction of the content available on the Internet.
At the same time, this volume of automated notices
indicates that fair use is not considered before notices are
sent, which in tum suggests that far more content is being
removed than should be.
Because we disagree with the Copyright Office's assessment
that section 512's balance is askew, we oppose the various
amendments the report proposed, such as amending the red flag
knowledge framework or adjusting the standards for terminating
the accounts ofrepeat infringers. Section 512 is by no means
perfect. We too could propose various changes, such as
eliminating the requirement of every service provider
registering its DMCA agent with the Copyright Office. Overall,
section 512 works in the manner Congress intended.
We live in a golden age of content creation and
distribution. The DMCA is in large measure responsible for this
golden age. It is a shining example of enlightened legislation
for the public good. We disturb it at our peril.
Chair Nadler. Thank you. Mr. Schruers?
TESTIMONY OF MATTHEW SCHRUERS
Mr. Schruers. Thank you, Chair Nadler, Ranking Member
Jordan, Members of the Committee. My name is Matt Schruers. I
am President of the Computer and Communications Industry
Association, which represents many of the world's leading
internet communications and technology firms. Thanks for the
opportunity to discuss section 512 today.
Section 512 represents an enduring compromise which
requires service providers to respond expeditiously to
complaints from rights holders in exchange for certain
liability limitations. In return, rights holders get rapid
extra judicial relief from reported acts of alleged
infringement. This gives critical legal certainty to the
digital economy, which accounted for 6.9 percent of U.S. GDP as
early as 2017. CCIA members and thousands of other services,
websites, and apps utilize these protections. An even larger
number of small businesses and independent creators utilize
those 512-dependent services to engage in communications,
creativity, commerce, and campaigning, as well as accomplishing
daily activities, a need that is particularly acute when a
pandemic compels social distancing in so many contacts like
this hearing.
Some companies voluntarily invest in additional service-
specific tools to mitigate infringement and help monetize
content. Section 512 makes this voluntary private sector
cooperation possible. It is sometimes called DMCA plus because
these service-specific systems exceed section 512's
requirements. DMCA plus systems offer speed and efficiency, but
they are costly. They're site and often media specific, and
they do struggle with false positives. That's important because
the more powerful the tool, the bigger the risk of misuse
against users. So, companies have to balance these concerns
when employing DMCA plus tools.
The Copyright Office's report omits any consideration of
this, and, as you've already heard, takes a very isolated view
that largely overlooks users as a constituency in DMCA
policymaking. This despite coming right on the heels of a Wall
Street Journal investigation that uncovered serious cases of
misuse by claimed rights holders who are actually attempting to
suppress lawful speech. Now, to be fair, the Office
subsequently acknowledged these concerns, but the omission of
these well-documented problems in the report is noticeable. As
my testimony describes in greater detail, political campaigns
have been targeted with section 512 misuse for over a decade
and even in this cycle. As an association executive, I
frequently hear from industry about these problems, so any 512
amendments need to address these issues.
Speaking more broadly, amending section 512 is not the low-
hanging fruit. The twin goals of ensuring that creators are
compensated and that the public can access creative work is
better served by promoting more legitimate channels through the
distribution of copyrighted works and enforcing existing laws
against offshore actors who aren't complying with section 512
in the first place. So, I would say one more effective way to
prevent infringement is to enforce our existing laws against
offshore actors who don't view the DMCA as a constraint, and
then, separately, to ensure that consumers have options to
lawfully access content when they want it and where they want
it.
We know piracy rates fall when consumers have multiple
lawful means of getting access to digital media, and CCIA
members play an increasingly-important role here, enabling
creators of all walks to reach a worldwide audience online.
Digital services are increasingly the leading means by which
creators can monetize their works, and they're playing a
critical role in distributing creative content in the pandemic.
Legislative efforts focused on fostering this kind of digital
commerce would probably bear more fruit than implementing the
report's uncertain recommendations.
Thank you. I appreciate it and look forward to any
questions you have.
[The statement of Mr. Schruers follows:]
STATEMENT OF MATT SCHRUERS
Chair Nadler, Ranking Member Jordan, and Members of the
Committee, my name is Matt Schruers, and I serve as President
at the Computer & Communications Industry Association (CCIA),
which represents Internet, technology, and communications
firms.\1\ CCIA was founded in 1972 to promote open markets,
open systems, and open networks in the computer and
telecommunications industry. Today, the Association continues
to champion the same principles across these increasingly
diverse and important sectors of the global economy.
---------------------------------------------------------------------------
\1\ CCIA is an international, not-for-profit association
representing a broad cross section of communications, technology and
Internet industry firms. CCIA member's employ more than 1.6 million
workers and generate annual revenues in excess of $870 billion. A list
of CCIA members is available at https://www.ccianet.org.
---------------------------------------------------------------------------
Thank you for the opportunity to discuss the Copyright
Office's report on section 512 of Title 17. My statement
focuses on the economic significance of section 512, and why
the report inadequately reflects the interests of users,
particularly when targeted by misuse of the statute to suppress
speech and economic activity. It concludes by discussing how
promoting lawful alternatives to piracy can achieve more than
the unpredictable outcomes that would result from implementing
the report's recommendations.
I. History and Economic Significance of Section 512
Section 512 was enacted by title II of the 1998 Digital
Millennium Copyright Act (DMCA). It formed part of a compromise
alongside title I of the DMCA, which attaches civil and
criminal penalties to circumventing technological measures that
we generally refer to as ``DRM'' (digital rights
management).\2\ Service providers agreed to support giving
legal force to technological measures, and in tum, rightsholder
constituencies endorsed section 512.
---------------------------------------------------------------------------
\2\ These provisions, codified primarily at 17 U.S.C. 1201 et seq.,
are not otherwise a subject of this testimony.
---------------------------------------------------------------------------
There are also compromises embodied within section 512. The
compromise at the heart of section 512 imposes upon service
providers the responsibility of responding expeditiously to
complaints by putative rightsholders in exchange for liability
limitations. In turn, section 512 guarantees to rightsholders
rapid, ex parte extrajudicial relief from specific acts of
alleged infringement upon affirmatively reporting those acts.
In order for services to benefit from section 512, they must
satisfy recurring compliance responsibilities. In addition to
expeditiously responding to notices of claimed infringement and
complying with Copyright Office formalities, section 512
compliance also includes maintaining and implementing a
procedure for terminating repeat infringers, among other
requirements.
Section 512 provides critical legal certainty for the
digital economy, which according to U.S. government data
accounted for 6.9% of U.S. GDP, $1.35 trillion, in 2017.\3\
Economic research demonstrates that regulatory certainty about
copyright intermediary protections encourages investment and
innovation in this sector.\4\ While section 512's protections
are critical for CCIA member companies, they are also essential
to economic interests far beyond the tens of thousands of
websites and service providers that utilize its protections. An
even larger number of small businesses and independent creators
utilize section 512-dependent service providers to engage in
communications, commerce, and campaigning, as well as
accomplishing their daily activities--a need that is
particularly acute when the ongoing public health crisis
compels social distancing in so many contexts, including this
hearing.
---------------------------------------------------------------------------
\3\ Bureau of Economic Analysis, Digital Economy Accounted for 6.9
Percent of GDP in 2017 (Apr. 4, 2019), https://www.bea.gov/news/blog/
2019-04-04/digital-economy-accounted-69-percent-gdp-2017.
\4\ Survey research found that changing regulations to remove
intermediary protections would have a negative effect on venture
capital investment. Booz & Company, The Impact of U.S. Internet
Copyright Regulations on Early Stage Investment: A Quantitative Study
(2011), https://www.strategyand.pwc.com/media/uploads/
Strategyandimpact-US-Internet-Copyright-Regulations-Early-Stage-
investment.pdf. Similarly, economic research found that venture capital
investment in cloud computing firms increased significantly in the U.S.
relative to the EU after a copyright decision involving intermediary
liability. Compare Josh Lerner, The Impact of Copyright Policy Changes
on Venture Capital Investment in Cloud Computing Companies (Analysis
Group 2011), available at https://www.analysisgroup.com/globalassets/
content/insights/publishing/impact-copyright-policy-changes-venture-
capital-investment-cloud-computing-companies .pdf; with Josh Lerner,
The Impact of Copyright Policy Changes in France and Germany on Venture
Capital Investment in Cloud Computing Companies (Analysis Group 2012),
available at http://cdn.ccianet.org/wp-content/uploads/library/
eu%20cloud%20computing%20white%20 paper.pdf.
---------------------------------------------------------------------------
a. Section 512 Balances Not Two, But Three Separate Sets of
Interests
Section 512 is often construed as mutually benefiting and
burdening two groups: service providers and rightsholders. This
is true, but incomplete. Users represent the critical third
stakeholder of section 512's balancing act. Congress
acknowledged this in legislative history, noting that it
``believes it has appropriately balanced the interests of
content owners, on-line and other service providers, and
information users in a way that will foster the continued
development of electronic commerce and the growth of the
Internet.'' \5\
---------------------------------------------------------------------------
\5\ H.R. Rep. No. 105-551, pt. 2, at 21 (1998).
---------------------------------------------------------------------------
These stakeholders also increasingly overlap and intersect.
For example, many CCIA members are highly successful content
creators and benefit from copyright protection, in addition to
limitations and exceptions like section 512. Many users are
also creators; a 2019 study found that nearly 17 million
American creators earned incomes from posting their personal
creations on nine platforms in 2017, collectively earning $6.8
billion.\6\ Unfortunately, users' interests were largely
overlooked by the Office's section 512 report.
---------------------------------------------------------------------------
\6\ Robert Shapiro & Siddhartha Aneja, Taking Root: The Growth of
America's New Creative Economy (2019), https://
www.recreatecoalition.org/wp-content/uploads/2019/02/ReCreate-2017-New-
Creative-Economy-Study.pdf.
---------------------------------------------------------------------------
b. ``DMCA-Plus'' and Voluntary Measures
In addition to general section 512 compliance, some
companies voluntarily invest in offering additional service-
specific suites of tools for different types of creators to
help prevent infringement online, and in some cases, monetize
content. Section 512 makes this voluntary private sector
cooperation possible. Providing rightsholders additional tools
and services for content protection and monetization is
sometimes referred to as ``DMCA-Plus'' because these service-
specific systems exceed the requirements that businesses must
meet to qualify for statutory protection under section 512.\7\
These voluntary, additional layers of protection are desirable
because they can expedite action, and often provide
rightsholders opportunities not just to remove infringing
content, but also to track and monetize their works online.
---------------------------------------------------------------------------
\7\ See Jennifer Urban et al., Notice and Takedown in Everyday
Practice (2016), http://papers
ssrn.com/sol3/papers.cfm?abstract_id=2755628, at 52.
---------------------------------------------------------------------------
DMCA-Plus systems provide value when deployed voluntarily
by firms that have the resources to do so competently. Services
without the resources to implement such measures should not be
penalized for lacking the capacities of their larger
competitors, however. If the section 512 protections were
interpreted otherwise, it would raise barriers to entry for
startups, entrenching existing services behind a compliance
moat. Section 512 protections were intended to reduce
regulatory burdens in order to encourage investment and
innovation, not to deter companies from experimenting because
of fears of incurring costly new obligations.
The benefits of DMCA-Plus systems include speed,
efficiencies of scale and, where automated, lower costs for all
parties. However, DMCA-Plus tools are costly to develop,\8\
site- and media-specific, and often struggle with false
positives. False positives merit particular attention because
any unjustified content filtering or takedown may suppress
users' lawful free expression--another reason that it is
fundamental that users be acknowledged as one of section 512's
stakeholders.\9\
---------------------------------------------------------------------------
\8\ YouTube has invested more than $100 million building Content
ID. Google, How Google Fights Piracy (Nov. 2018), https://blog.google/
documents/27/How_Google_Fights_Piracy_ 2018.pdf.
\9\ The Copyright Office noted this in a letter following this
report. See Letter from Acting Register Maria Strong to Senator Tillis
and Senator Leahy (June 29, 2020), https://www .copyright.gov/laws/
hearings/response-to-may-29-2020-letter.pdf (``Even the most advanced
filtering systems result in a non-negligible number of false positives
and cannot identify whether content is protected by fair use.'').
---------------------------------------------------------------------------
The more powerful the copyright management tool, the bigger
the risk of abuse. Companies must therefore balance these
concerns so that the risk of abuse and misuse is as low as
possible. Companies calibrate access to tools to the needs of
different rightsholders and creators, which may differ in, for
example, the types of content they own, the volume of requests
they submit, their ability to dedicate time and resources,
their understanding of copyright law, and the complexity of
their licensing arrangements.
In addition to aiding copyright enforcement, DMCA-Plus
systems can generate revenue for rightsholders. For example,
YouTube's Content ID has paid billions to the content industry,
including $6 billion to the music industry as of 2018.\10\ With
Content ID, rightsholders can opt to remove the content, but
may also claim the right to monetize it, in which case
advertisements are placed adjacent to said content and
rightsholders receive a share of the revenue stream associated
with those advertisements. The inclusion of an advertising
option benefits all of section 512's constituencies, since
users' disputed content remains online, while the rightsholder
receives previously unrealized revenue.
---------------------------------------------------------------------------
\10\ Google, How Google Fights Piracy (Nov. 2018), https://
blog.google/documents/27/How _Google_Fights_piracy_2018.pdf.
---------------------------------------------------------------------------
As another example, Facebook's Rights Manager tool was
first launched in 2015 and has developed in close consultation
with rightsholders. Rights Manager identifies millions of
pieces of copyrighted content per week and provides
rightsholders with the ability to block and disable content, in
addition to a variety of other actions. For instance, Rights
Manager allows rightsholders who choose not to disable content
to obtain various forms of value, including data and insights
about how their content is performing, promotional
opportunities, and allows rightsholders to claim money from
advertisements placed into their content via a streamlined in
product process.
II. The Copyright Office's Report Is of Limited Use for
Policymaking
Because it omits a critical constituency, and does not
discuss one of the longest standing challenges confronting
section 512, the Copyright Office's report is of limited use.
It is encouraging that the Copyright Office recognized
wholesale changes to the notice-and-takedown system are not
needed. This includes the Office's decision not to recommend
importing from abroad controversial proposals like ``notice-
and-staydown,'' a policy which has animated the European
Union's contentious Directive on Copyright in the Digital
Single Market. However, while the Office said it recommended no
wholesale changes, it highlights a dozen areas for Congress to
fine-tune, which arguably results in broad changes. By
suggesting that numerous major cases on section 512 since
1998--all defense wins--should be reversed, the consequences of
the Office's report would be considerable and unpredictable.
The report also conspicuously overlooked the problem of
section 512 misuse. It is disappointing that the report said so
little about fraudulent use of takedown demands to suppress
speech, particularly as it came on the heels of a major Wall
Street Journal investigation that uncovered serious cases of
abusive takedowns aimed at disappearing legitimate information
from public view.\11\ The Washington Post also recently covered
how section 512 misuse and overclaiming harms creators, and the
New York Times just covered how easily section 512 can be
``maliciously'' ``weaponized by authors seeking to take down
their rivals.'' \12\
---------------------------------------------------------------------------
\11\ Andrea Fuller, Kirsten Grind & Joe Palazzolo, Google Hides
News, Tricked by Fake Claims, Wall St. J. (May 15, 2020), https://
www.wsj.com/articles/google-dmca-copyright-claims-takedown-online-
reputation-11589557001.
\12\ Michael Andor Brodeur, Copyright bots and classical musicians
are fighting online. The bots are winning., Wash. Post (May 21, 2020),
https://www.washingtonpost.com/entertainment/music/copyright-bots-and-
classical-musicians-are-fighting-outline-the-bots-are-winning/2020/05/
20/a11e349c-98ae-11ea-89fd-28fb313dl886_story.html; Alexandra Alter, A
Feud in Wolf-Kink Erotica Raises a Deep Legal Question, N.Y. Times (May
23, 2020), https://www .nytimes.com/2020/05/23/business/omegaverse-
eroitca-copyright.html.
---------------------------------------------------------------------------
However, in a June 29 letter responding to an inquiry from
Senator Tillis and Senator Leahy regarding the report, the
Copyright Office acknowledged concerns regarding the impact of
abusive takedowns on speech, among other important
considerations affecting users. The Office wrote that ``[t]he
issue of abusive allegations of copyright infringement is
serious, and congressional attention to the broader question of
how to best discourage such uses of the copyright system could
provide more effective mechanisms to address the problem.''
\13\ CCIA shares this view. The recognition of the seriousness
of section 512 misuse is significant, and the report should
therefore be read in conjunction with the Copyright Office's
June 29 letter.
---------------------------------------------------------------------------
\13\ Letter from Acting Register Maria Strong to Senator Tillis and
Senator Leahy (June 29, 2020), supra note 9.
---------------------------------------------------------------------------
a. Section 512 Misuse Disrupts Speech and Commerce
Although the Office subsequently recognized that section
512 misuse is a serious problem, the omission of this subject
from the report itself is a significant deficiency. Misuse of
section 512's extremely powerful takedown remedy is a well-
documented, long-standing challenge. A decade ago, the Center
for Democracy & Technology authored a report documenting
section 512 abuse in political campaigns, and the concerns it
identified then remain equally salient today.\14\ Campaigns
supporting the late Senator McCain and former President Obama
were prominent victims of dubious takedown demands by copyright
owners.
---------------------------------------------------------------------------
\14\ Center for Democracy & Technology, Campaign Takedown Troubles:
How Meritless Copyright Claims Threaten Online Political Speech (Sept.
2010), https://cdt.org/wp-content/uploads/pdfs/copyright_takedowns.pdf,
at 1.
---------------------------------------------------------------------------
Takedown abuse persists this campaign season; in 2020,
multiple CCIA member companies have received false section 512
notifications in connection with the Presidential debates and
campaign videos on social media.\15\ Committee Members can
imagine what it would be like to have their most effective
campaign ad temporarily forced offline on the eve of an
election by dubious copyright claims, just as it was gathering
steam. The same can happen to individual creators, when the
viral success of their work is cut short by someone who doesn't
like their message, or a small business whose e-commerce site
is struck down by a competitor on Black Friday.
---------------------------------------------------------------------------
\15\ Charlie Hall, Report: Phony DMCA claims nuked Twitch streams
of the Democratic debate, Polygon (Feb 28, 2020), https://
www.polygon.com/2020/2/28/21155955/twitch-streamers-banned-democratic-
debate-phony-dmca; Matt Schruers, Claims Against Trump Campaign Video
Call for Revisiting Intersection of Speech and Copyright, Disruptive
Competition Project (June 6, 2020), https://www.project-dlsco.org/
intellectual-property/060620-claims-against-trump-campaign-video-call-
for-revisiting-intersection-of-speech-and-copyright/.
---------------------------------------------------------------------------
As an association executive, I frequently hear from
industry about fraudulent and abusive takedown demands that
stifle speech and disrupt commerce. Most of these incidents do
not receive the media attention they deserve. Abusive behavior
includes fraudulent notices, as well as over-reaching reports
purportedly based on copyright that in fact are attempts to
censor legitimate speech, even complete fabrications to remove
content considered undesirable by the claimant.
Publicly documented examples of section 512 misuse that
CCIA member companies have experienced include extortion
schemes tied to the section 512 takedown process; \16\ blatant
disregard for fair use; \17\ section 512 abuse as a business
model, such as reputation-related removals masquerading as
copyright; \18\ abuse to target competitors in online
marketplaces; \19\ and flawed automated systems that broadly
target unrelated content.\20\ Some companies receive floods of
batch notices from large rightsholders directed to short clips
of content in which music is incidental as a means to force
them to negotiate.\21\
---------------------------------------------------------------------------
\16\ Julia Alexander, YouTube gets alleged copyright troll to agree
to stop trolling YouTubers, The Verge (Oct. 15, 2019), https://
www.theverge.com/2019/10/15/20915688/youtube-copyright-troll-lawsuit-
settled-false-dmca-takedown-christopher-brady.
\17\ Brief for Amici Curiae Automattic Inc., Google Inc., Twitter
Inc., and Tumblr, Inc., Lenz v. Universal Music Corp., 815 F.3d 1145
(9th Cir. 2015) (No. 13-16106), available at https://www.eff.org/files/
2015/10/30/lenz-automattic_google_twitter_tumblr_amicus.pdf.
\18\ Andrea Fuller, Kirsten Grind & Joe Palazzolo, Google Hides
News, Tricked by Fake Claims, Wall St. J. (May 15, 2020), supra note
11.
\19\ Alexandra Alter, A Feud in Wolf-Kink Erotica Raises a Deep
Legal Question, N.Y. Times (May 23, 2020), supra note 12.
\20\ Ernesto Van der Sar, Bizarre DMCA Takedown Requests Censor EU
``Censorship'' News, TorrentFreak (Aug. 11, 2018), https://
torrentfreak.com/bizarre-dmca-takedown-requests-censor-eu-censorship-
news-181011/.
\21\ See Jennifer Urban et al., Notice and Takedown in Everyday
Practice (2016), supra note 7, at 72.
---------------------------------------------------------------------------
Any review of section 512 needs to account for these
challenges. Section 512(f)'s penalties, designed to deter
misuse, are obviously inadequate, but strengthening this
provision is an incomplete solution, and is unlikely to resolve
all of the scenarios described above.
b. Promoting Lawful Alternatives to Piracy Can Achieve More
Than Implementing the Report Recommendations
In the sense that ``the best defense is a good offense,''
the most effective way to prevent the infringement of
copyrights is to ensure that members of the public, most of
whom want to pay for content, can lawfully consume works
digitally whenever and wherever they want. As the Commerce
Department has noted, the digital distribution of content is a
crucial component to ensuring Internet users consume lawfully
licensed content.\22\
---------------------------------------------------------------------------
\22\ Department of Commerce Internet Policy Task Force, Copyright
Policy, Creativity, and Innovation in the Digital Economy (July 2013),
at 77-78, http://www.uspto.gov/sites/default/files/news/publications/
copyrightgreenpaper.pdf.
---------------------------------------------------------------------------
Research consistently shows that piracy rates fall when
consumers have broad access to lawful means of digital media
consumption,\23\ such as when legitimate services such as
Spotify and Netflix enter markets.\24\ A copyright system with
robust protection and flexibilities is essential, but
ultimately, access to legitimate alternatives is the best way
to fight online piracy, and CCIA members are playing an
increasingly important role in this space.\25\ Digital services
enable creators, ranging from the largest content producers in
the world to the individual artist working from home, to reach
a worldwide audience online. Because section 512 facilitates
the provision of many such services, it remains a crucial
aspect of U.S. copyright policy.
---------------------------------------------------------------------------
\23\ Karl Bode, Studies Keep Showing That the Best Way To Stop
Piracy Is to Offer Cheaper, Better Alternatives, Vice (Feb. 26, 2019),
https://www.vice.com/en_us/article/3kg7pv/studies-keep-showing-that-
the-best-way-to-stop-piracy-is-to-offer-cheaper-better-altematives.
\24\ See, e.g., Scoop Media, Netflex is killing content piracy
(Feb. 26, 2019), https://www.scoop.co.nz/stories/BU1902/S00685/netflix-
is-killing-content-piracy.htm; Copia Institute, The Carrot Or The
Stick? Innovation vs. Anti-Piracy Enforcement (Oct. 8, 2015), https://
copia.is/library/the-carrot-or-the-stick/; Sophie Curtis, Spotify and
Netflix Curb Music and Film Piracy, The Telegraph (July 18, 2013),
http://www.telegraph.co.uk/technology/news/10187400/Spotifyand-Netflix-
curb-music-and-film-piracy.html.
\25\ See, e.g., Dave Axelgard, Helping Creators and Publishers
Manage Their Intellectual Property, Facebook (Sept. 21, 2020), https://
about.fb.com/news/2020/09/helping-creators-and-publishers-manage-their-
intellectual-property/; Leo Olebe, Making Music & Streaming Easier
(Sept.
Continued
14, 2020), https://www.facebook.com/fbgaminghome/blog/making-music-and-
streaming-easier (``Instead of suggesting you go to music law school to
figure it all out, we want to make the whole process a lot easier so
you can focus on being a great streamer, and not a rights specialist.
That's why we're partnering with the music industry to open up a vast
catalogue of popular music for Facebook Gaming Partners to play while
livestreaming games.''); Tatiana Cirisano, Amazon Music Will Now Let
Artists Integrate Twitch Livestreams: Exclusive, Billboard (Sept. 1,
2020), https://www.billboard.com/articles/business/streaming/9442797/
amazon-music-twitch-livestream-artists; Sam Byford, Google Images is
making it easier to license photo rights, The Verge (Aug. 31, 2020),
https://www.theverge.com/2020/8/31/21408305/google-images-photo-
licensing-search-results.
---------------------------------------------------------------------------
IV. Conclusion
The Copyright Office's report largely ignored one of
section 512's three constituencies, as identified by Congress;
called for the rejection of decades of settled case law; and
failed to address the critical issue of abuse of the processes
that section 512 established. As such, it is of limited value
in assessing the current copyright landscape. Past experience
teaches that the twin goals of ensuring creators are
compensated and that the public can access creative works are
best served by promoting a diversity of legitimate options for
accessing media.
Chair Nadler. Thank you. Ms. Carrington?
TESTIMONY OF TERRICA CARRINGTON
Ms. Carrington. Good afternoon, Chair Nadler, Ranking
Member Jordan, and Members of the Committee, and thank you for
the opportunity to testify today. I am Terrica Carrington, VP
and legal policy and copyright counsel at the Copyright
Alliance, an organization dedicated to advocating policies that
promote and preserve the value of copyright and to protecting
the rights of creators and innovators, including the more than
13,000 organizations and 1.8 million individual creators whose
interests we represent.
After nearly 5 years of thoughtful and comprehensive
deliberation by the Copyright Office, earlier this year, the
Office issued its long-awaited section 512 report, which
concludes that section 512 is unbalanced and not working as
Congress intended. While online service providers, or OSPs, are
routinely shielded from liability under the DMCA, the problem
of online piracy has grown enormously, leaving copyright owners
to shoulder the burden alone. Today I expect this Committee
will hear from representatives of OSPs who will say that
section 512 is working just fine. This only reinforces our
point. Where the OSPs are pleased with section 512 and the
copyright community is not, it is clear that the appropriate
balance has not been achieved.
I want to focus my time on three issues of concern that
highlight this imbalance.
(1) The intent of the notice and takedown process was to give
copyright owners a faster alternative to filing for a temporary
restraining order in light of the speed at which infringement can occur
online. Today, vastly increased internet speeds and capabilities have
left copyright owners virtually no opportunity to prevent mass
infringement. The notice and takedown process does not work well for
any size or type of copyright owner, even when automated technologies
are used. The number of takedown notices sent is staggering and
steadily increasing. The Office's report recognizes the frustrations
related to the constant game of whack-a-mole faced by creators simply
trying to enforce their rights. For example, the report details how the
Recording Industry Association of America sent over 175 million
takedown notices in the span of 3 years, yet continues to see those
words show up again and again.
Make no mistake. The large number of notices is not a
measure of success. It is an indicator of a systemwide failure.
The consensus from our individual creator membership is that
online infringement has reached a point where, without access
to effective tools, they're unable to protect their work. The
Office's report states that, ``A system that fails to provide
adequate protection of creators' rights of all sizes ultimately
fails to carry out congressional intent regarding section 512
as well as the overall purpose of copyright law.'' We agree.
(2) One of the most significant problems with section 512 stems
from incorrect court interpretations and applications of the statutory
text, particularly those regarding red flag knowledge and willful
blindness. Various courts' interpretation of the red flag standard is
so restrictive that they have basically eliminated the careful balance
that Congress intended and have effectively written the red flag
knowledge standard out of the statute. Some courts have also
incorrectly applied the concept of willful blindness, allowing OSPs to
benefit from safe harbor protection despite turning a blind eye to
infringement.
(3) I'll address repeat infringement policies. These policies are
essential to maintaining the strong incentives for OSPs to prevent
their services from becoming safe havens or conduits for known repeat
infringers. The problem is not in the legal framework drafted by
Congress, but instead in how OSPs choose to implement these policies.
OSPs and copyright owners, with the assistance of government, need to
work together to ensure that repeat infringement policies are effective
and are being implemented as intended. Through such cooperation, OSPs
should be able to adopt more acceptable repeat infringement policies.
There is no silver bullet solution to fixing what ails
section 512. Instead, we must consider a host of different
options, including implementing standard technical measures,
developing private sector voluntary agreements, enacting the
CASE Act and legislation to harmonize criminal penalties for
infringement, and amending the statute to clarify the knowledge
standards in overturned erroneous case law. We applaud the
Office for calling attention to areas of imbalance related to
section 512 and how overly expansive or narrow interpretations
of the statute have aided in skewing the balance that Congress
intended. The copyright community stands ready to work with
this committee, the Copyright Office, and other stakeholders to
reduce today's rampant online piracy in a way that takes into
account the interests of all stakeholders involved.
Thank you again for the opportunity to testify at this
hearing, and I am happy to answer any questions.
[The statement of Ms. Carrington follows:]
STATEMENT OF TERRICA CARRINGTON
Good afternoon, Chair Nadler, Ranking Member Jordan and
Members of the House Judiciary Committee, and thank you for the
opportunity to testify at today's hearing titled, ``Copyright
and the Internet in 2020: Reactions to the Copyright Office's
Report on the Efficacy of 17 USC 512 After Two Decades.''
My name is Terrica Carrington and I am VP, Legal Policy &
Copyright Counsel at the Copyright Alliance, a non-profit, non-
partisan public interest and educational organization dedicated
to advocating policies that promote and preserve the value of
copyright, and to protecting the rights of creators and
innovators. The Copyright Alliance represents the copyright
interests of over 13,000 organizations in the United States,
across the spectrum of copyright disciplines, and over 1.8
million individual creators, including photographers, authors,
songwriters, coder, bloggers, artists and many more individual
creators and small businesses tbat rely on copyright law to
protect their creativity efforts and investments in the
creation and distribution of new copyrighted works for the
public to enjoy.
One of the greatest threats to the welfare of the creative
community is piracy. Piracy is a persistent and evolving
problem for virtually all types of copyrighted works and
copyright owners and undermines the rights of creators and the
value of copyright. It is essential that the copyright
industries, including the millions of individual creators and
small businesses across the country that rely on copyright law
be able to recoup their investments in order to fund the next
wave of investment, create and distribute quality content for
the public to enjoy and ensure job stability for the nearly 5.7
million men and women these industries employ in the United
States. Piracy poses a threat to those investn1ents by unjustly
enriching bad actors who make no investment and take no risk,
at the expense of the creators behind those works.
Congress has long recognized the harms of piracy, and in
1998, passed the Digital Millennium Copyright Act (DMCA) as the
primary way to combat online piracy. Section 512 of the DMCA
includes a notice and takedown process for copyright owners and
a safe harbor for online service providers (OSPs). The safe
harbor for OSPs was meant to be a limitation on monetary
liability, not an exception to copyright infringement.\1\ OSPs
were concerned about being party to lawsuits over isolated acts
of infringement by their users, even if they were otherwise
cooperative in remedying the infringement as soon as they were
put on notice.\2\ In exchange for OSPs' cooperation in
detecting and addressing infringement, Congress created ``safe
harbors'' to minimize the possibility that fear of liability
would inhibit technological innovation. Section 512 sought to
protect OSPs who work with the copyright community to mitigate
and combat online infringement. The inclusion of these safe
harbors, along with the other provisions in the DMCA, allowed
the DMCA to ``provide greater certainty to service providers
concerning their legal exposure for infringements that may
occur in the course of their activities.'' \3\ Indeed, a review
of the legislative history reveals that the intent of the safe
harbors was to afford reasonable immunity to reasonable actors;
not to create a mechanism by which OSPs could disregard
copyright law.\4\
---------------------------------------------------------------------------
\1\ See Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004) citing
S. Rep. 105-190, at 19 (``Congress provided that `limitations
ofliability apply if the provider is found to be liable under existing
principles of law.' ''); S. Rep. 105-190 (``The [safe harbor]
limitations . . . protect qualifying service providers from liability
for all monetary relief for direct, vicarious and contributory
infringement. Monetary relief is defined in subsection [(k)(2)] as
encompassing damages, costs, attorneys' fees, and any other form of
monetary payment. These subsections also limit injunctive relief
against qualifying service providers to the extent specified in
subjection G).'').
\2\ See S. Rep. No. 105-190.
\3\ S. Rep. No. 105-190, at 20; H.R. Rep. No. 105-551, pt. 2, at
49-50.
\4\ See H.R. Rep. No. 105-551.
---------------------------------------------------------------------------
The notice and takedown process is a tool for copyright
holders to get user-uploaded material that infringes their
copyrights taken down off of websites and other internet sites.
The process entails the copyright owner (or the owner's agent)
sending a takedown notice to an OSP requesting the OSP to
remove material that is infringing their copyright(s). In
exchange for taking down infringing content, an OSP who did not
upload the infringing material receives a safe harbor from
monetary liability--but only if they comply with additional
obligations, including: Implementing a repeat infringer policy;
registering an agent with the Copyright Office; and responding
to infringements ``expeditiously'' once they have actual or
apparent knowledge of them. Even if a takedown notice meets all
the legal requirements, the OSP still may refuse to takedown
the material. However, if they fail to do so, then they open
themselves up for potential secondary liability for assisting
with copyright infringement.
After a takedown notice is sent to an OSP, the OSP usually
notifies the user, subscriber or other person who is
responsible for engaging in the infringing activity. If that
person--the alleged infringer--in good faith does not think the
activity is infringing, he or she can send a counter notice to
the OSP explaining why they disagree with the copyright owner.
After receiving a counter notice, the OSP forwards that counter
notice to the person who sent the original takedown notice.
Once the OSP has received a valid counter notice they wait 10-
14 days. If the copyright owner sues the alleged infringer in
that time frame the material will remain down, but if no suit
is filed then the OSP must re-activate or allow access to the
alleged infringing activity. This entire process is what is
commonly referred to as the notice and takedown process. An OSP
is not required to take any of these actions unless it wants to
avail itself of the DMCA safe harbor.
In passing the notice and takedown provisions in section
512 of the Act, Congress intended to encourage copyright owners
and OSPs to work together to combat existing and future forms
of online infringement.\5\ This approach was designed to remedy
hardships faced not only by large copyright owners and OSPs,
but also individual creators who undeniably lack meaningful
tools to fight online infringement.
---------------------------------------------------------------------------
\5\ See H.R. Rep. No. 105-796, at 72 (1998).
---------------------------------------------------------------------------
Over two decades have now passed since the DMCA was
enacted. Since that time, the interconnectivity provided by the
internet has fundamentally changed commerce, communication, and
the way the public experiences copyrighted works. Consumers can
access and enjoy all sorts of copyrighted works where and when
they want, and creators benefit from new platforms that reach
new audiences. Although the intemet's impact on creativity and
interconnectivity have given us much to cheer about over the
past two decades, there is also much that is problematic. One
of these problems is rampant online piracy. In the past two
decades since the DMCA was enacted, online infringement has
increased exponentially, causing widespread harm to the
economic and creative vibrancy of the copyright community.
Although section 512 seemed to have achieved Congress's
purpose when it was first enacted, over the past twenty-two
years, court rulings and other unanticipated changes that have
taken place in the online environment have rendered these
provisions less effective, creating an ecosystem where mass
copyright infringements are an unfortunate and regular
occurrence. While section 512 remains a workable legal
framework, it is evident that the statute is under strain and
that stakeholder collaboration is needed in order for the
statute to live up to its potential as imagined by Congress. If
such collaboration doesn't come to fruition, perhaps it is time
for Congress to reconsider this twenty-two-year-old bargain
with an eye toward determining what areas of section 512 may
need to be recalibrated in order to rebalance the system.
Members of this Committee will no doubt hear from OSPs who
will say that section 512 is working just fine and
recalibration is not necessary. From the perspective of the OSP
community, that viewpoint makes sense because the section 512
safe harbors have routinely protected OSPs from liability. That
is only one half of the section 512 bargain. While OSPs are
routinely shielded from liability under the DMCA, the other
half of the bargain remains unfulfilled, as online copyright
infringement has grown enormously--leaving copyright owners to
bear the brunt of the burden of taking action against
infringement--with little to show for it.
To be clear, the fact that copyright owners shoulder most
of the burden of taking action against infringement is not--
standing alone--the only problem with section 512. An equally
significant problem is that, when they do take on that burden
and send takedown notices, the notices have little (if any)
effect, as the infringing material is often immediately
reposted. This results in the burden being placed almost
exclusively on the creative community, and that is far from the
balance and cooperation that Congress intended. This is a
problem that can no longer go unaddressed.
When the Committee evaluates the divergent views on the
efficacy of section 512, the primary focus should be whether
section 512 effectively balances the interests of OSPs and
copyright owners, and incentivizes cooperation between OSPs and
rights holders to detect and address infringement, as Congress
intended. Balance would be reflected by the fact that both
sides are in agreement that section 512 is working (or not).
Where one side, the OSP community, is pleased with section 512
but the other side, the copyright community, is not, it is
clear that this balance has not been achieved.
We have identified below specific problem areas of section
512 that the Committee should consider as it moves forward with
its evaluation of section 512.
I. The Notice and Takedown Process
In 1998, the intent of the notice and takedown process was
to give copyright owners a faster alternative to filing for a
temporary restraining order in court, mostly so they could
prevent copies distributed legally on physical goods (DVDs,
CDs) from being illegally distributed on the internet for
people to download. Today, vastly increased download speeds and
instant streaming capabilities have left copyright owners
virtually no opportunity to prevent mass unauthorized copying,
distribution and performance. The notice and takedown process
doesn't work well for any size or type of copyright owner--even
when automated technologies are used. As observed by Professor
Bruce Boyden,\6\ ``even for the largest media companies with
the most resources at their disposal, attempting to purge a
site of even a fraction of the highest-value content is like
trying to bail out an oil tanker with a thimble. The expenses
of locating, identifying, and then sending a notice for that
many files is so significant that even large companies must
limit their efforts.'' \7\
---------------------------------------------------------------------------
\6\ Professor Bruce Boyden is a Professor at Marquette University
Law School and a member of the Copyright Alliance Academic Advisory
Board.
\7\ See Bruce Boyden, The Failure of the DMCA Notice and Takedown
System: A Twentieth Century Solution for a 20-First Century Problem,
Center for Protection of Intell. Prop. (Dec. 5, 2013).
---------------------------------------------------------------------------
The number of takedown notices sent is staggering, and this
number is steadily increasing.\8\ The Copyright Office's
recently published section 512 Report recognizes that the
massive amounts of notices sent by copyright owners represent a
never-ending uphill battle against infringement.\9\ The report
details the frustrations related to the constant game of
``whack-a-mole'' as illustrated by the experience of
organizations such as the Recording Industry Association of
America (RlAA), whose Victoria Sheckler explains, ``[w]e have
sent over 175 million notices in the past three years to a
variety of entities that claim DMCA status, or DMCA safe harbor
status. And yet, we continue to see our members' works show up
again and again and again on these sites.'' \10\
---------------------------------------------------------------------------
\8\ Transparency Report, Google, https://
transparencvreport.google.com/copyright/reporters/1594?hl=en (last
updated Aprll 8 2020). As of April 2020, the Recording Industry
Association of America (RIAA and its members have sent nearly 94
million notices to Google alone).
\9\ U.S. Copyright Office. Section 512 of Title 17: A Report of the
Register of Copyrights at p. 81 (May 2020), available at: https://
www.copyright.gov/policy/section-512/section-512-full-
report.pdf.
\10\ Id.
---------------------------------------------------------------------------
Despite these glaring inefficiencies, there are those who
believe that the large number of takedowns is evidence that the
notice and takedown system is working. That is complete
fallacy. The large number of takedown is not a measure of
success; it is an indicator of a system-wide failure--
especially when those numbers are increasing.
There are numerous examples of this failure for both large
and small copyright owners. For example, consider a large movie
studio's use of the process. For three months during the fall
of 2015, Disney sent about 35,000 takedown notices directed to
illegal copies of Avengers: Age of Ultron--which was still in
theaters at the time--to a single site. That's more than 10,000
notices a month, more than 300 a day, directed to a single
movie on a single file hosting site. Similarly, in the 3 months
in the spring of 2015, Fox sent more than 57,000 takedown
notices to a single file-hosting site for the film Kingsman:
The Secret Service. That's 19,000 notices a month, to one site,
for the same movie. Were the DMCA working as intended, one
would expect the number of notices to the site to decrease over
time. Yet, we see the opposite. For instance, in the Kingsman
example, on April 30, Fox sent 697 takedown notices. On July
21, three months later, it had to send 881 notices to the same
site for the exact same work. This is not an effective way to
address piracy.
Online infringement is especially problematic for
individual creators. Individual creators (who typically have
been provided little information and lack meaningful resources)
must usually rely on manual web searches, reverse image
searches, Google alerts, or word of mouth to discover
infringements of their work. In 2017, we conducted a survey of
our members to gauge their experiences with the notice and
takedown process in section 512 of the DMCA (2017 Survey).\11\
Of the 1,362 respondents who took our survey, 52% said that
they currently monitor the internet for copyright infringement
of their copyrighted works, or have monitored in the past,
while 37% said that they have never monitored for infringement.
While it may be surprising that such a significant portion of
creators do not monitor for infringement, the reasons why are
enlightening. A lack of education and understanding about the
DMCA and how to find and report online infringements was the
most significant cause for their not monitoring. The second
most significant cause was the difficulty and time commitment
associated with small creators policing the internet for
copyright infringement.
---------------------------------------------------------------------------
\11\ https://copyrightalliance.org/wp-content/uploads/2017/03/
Copyright-Alliance-Section-512-Empirical-Research.pdf.
---------------------------------------------------------------------------
That is only part of the challenge for the individual
creator. According to another survey of our members (2016
Survey),\12\ even when a creator does discover an infringement
of his or work, many of them do not know how to file a takedown
notice or even what the notice and takedown process is; and
even when they have participated in the process, they lack
access to the technologies necessary to actually keep
infringing content from reappearing.\13\ About 70% of the
creators responding to the 2016 Survey had never filed a
takedown notice before because (1) they had never heard of it;
(2) it would take too much effort; (3) the process is too
difficult to navigate; or (4) they were skeptical it would do
anything to stop online infringement.\14\ The 2017 Survey
indicated that most creators who monitor for infringement and
have discovered infringement online want the material taken
down, but only 35% actually send a DMCA takedown notices. The
remaining 65% use other means for contacting the site
(including ``flagging'' or ``reporting'' content) or the user
directly.\15\ These results illustrate a need for easily
accessible educational resources to help creators better
understand and avail themselves of the notice and takedown
process. These educational offerings will also serve OSPs;
better informed copyright owners will ultimately cut down on
the number of inappropriate or incomplete DMCA takedown notices
filed.
---------------------------------------------------------------------------
\12\ https://copyrightalliance.org/wp-content/uploads/2016/11/
Copyright-Alliance-Section-512-Comments1.pdf.
\13\ Id.
\14\ Id.
\15\ https://copyrightalliance.org/wp-content/uploads/2017/03/
Copyright-Alliance-Section-512
---Empirical-Research.pdf.
---------------------------------------------------------------------------
Individual creators who file notices lack the resources of
larger copyright owners to make a meaningful impact. Creators
report that sending takedown notices takes time from their
creative pursuits, which pushes many to give up enforcement
efforts all together. These creators are defenseless against
the volume and reach of online infringement, especially given
the speed at which content is reposted anew by users. For
example, Keith, a writer from Austin, has never personally
posted his work on social media sites, but still spent four
hours on Tumblr trying to locate 50 of the 2,000+ URLs that
contained re-postings of his work: ``I can't afford the time to
find the full 2,000 [that Tumblr asked for],'' he said. He has
also found his work on numerous other sites, including Twitter,
Facebook, and lnstagram.\16\
---------------------------------------------------------------------------
\16\ Id. And online infringement does not just stop at loss of
compensation or control; it also can damage the professional integrity
of creators. For example, Melissa, a photographer from California, was
horrified to learn that her Victoria Secret style bridal photos were
stolen and used on pornography sites. ``This has been horrible!'' she
said. ``I've been in business for 32 years. Married for 35 years and
would never create anything for porn!''
---------------------------------------------------------------------------
The consensus from our individual creator membership is
that online infringement has reached a point where content can
be posted on hundreds of online infringement sites within days,
and where individual creators-without access to effective
tools-are unable to make any real impact in protecting their
work. Online infringement has become so commonplace that it
destroys once legitimate markets for creators' works. For
example, Susan, an audio producer from California, was told by
a radio station that they saw no point in paying her for her
work because they could ``get it for free.'' \17\
---------------------------------------------------------------------------
\17\ Id.
---------------------------------------------------------------------------
The impact of online infringement on a creator's livelihood
has been thoroughly documented in testimony, news articles, and
blog posts over the past several years. Here are just a few of
the many stories told by creators:
Maria Schneider, a Grammy award winning composer,
testified before the House Judiciary Committee that she invested
$200,000 of her own money into a new album to only discover her song
had quickly been pirated all over the Internet.\18\ ``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.'' \19\
---------------------------------------------------------------------------
\18\ Section 512 of title 17: Hearing Before the Subcomm. of
Courts, Intel. Prop., and the Internet of the Comm. on the Judiciary
(2014) (statement of Maria Schneider).
\19\ Id.
---------------------------------------------------------------------------
Kathy Wolfe, the owner of the independent film company
Wolfe Video, lost $3 million in revenue in 2012 from the excessive
pirating of her top 15 film titles.\20\ She ``found more than 903,000
links to unauthorized versions of her film'' in a single year, spending
``over $30,000 a year-about half of her profits--just to send out
takedown notices.'' \21\ With losses this large, she was forced to cut
her marketing budget in half, cut employees' pay, and discontinue her
own salary.\22\ Making art is often expensive, and most artists already
sacrifice paying themselves to keep the art going; this should not be
exacerbated by online infringement.
---------------------------------------------------------------------------
\20\ Christopher S. Stewart, As Pirates Run Rampant, TV Studios
Dial Up, Wall Street Journal, Mar. 3, 2013.
\21\ Id.
\22\ Id.
---------------------------------------------------------------------------
Tor Hanson, co-founder of YepRoc Records/Redeye
Distribution, testified in 2013 at the House Judiciary Committee
hearing on Innovation in America: The Role of Copyrights on this very
point: ``[We] have limited budgets and whatever revenue and profits
[we] can eke out are directed toward [our] primary goals, music
creation by [our] music label's artists and then the marketing and
promotion of this music to the American public so they are able to
continue this creative process.'' \23\
---------------------------------------------------------------------------
\23\ Innovation in America: The Role of Copyrights: Hearing Before
the Subcomm. On Intellectual Property, Competition, and the Internet of
the H. Comm. on the Judiciary, 113th Cong., 6 (2013) (Statement of Tor
Hansen, Co-President/Co-Founder YepRoc Records/Redeye Distribution).
---------------------------------------------------------------------------
Jonathan Yunger, Co-President of Millennium Media, an
independent film production company, testified on March 10, 2020 at the
Senate Committee on the Judiciary, Subcommittee on Intellectual
Property hearing on Copyright Law in Foreign Jurisdictions: How are
other countries handling digital piracy? that despite Millennium
Media's investment in film security, piracy continues to affect its box
office revenue and distributors.\24\ ``[I]n 2014, our film, Expendables
3, was stolen by an employee of one of our venders and released online
a month before it could open in theaters. By opening day, the movie had
been downloaded 60 million times. It was calculated that we lost about
$250 million in box office revenue.'' \25\
---------------------------------------------------------------------------
\24\ See Copyright Law in Foreign Jurisdictions: How are other
countries handling digital piracy? Hearing Before the Subcomm. on
Intel. Prop. of the S. Comm. on the Judiciary, 116th Cong. 1, 4 (2020)
(statement of Johnathan Yunger, Co-President of Millennium Media).
\25\ Id. at 4.
Individual creators face numerous other significant
barriers to the effective use of the notice and takedown
process, include the lack of uniformity and consistency from
one OSP's web form to the next, and the practice by some OSPs
of imposing requirements beyond those prescribed under the law.
In addition, these individual creators and small businesses
cite as barriers difficulty locating web forms and designated
agents due to inconspicuous placement--since the DMCA only
requires the information to be ``in a location accessible to
the public,'' but not conspicuously placed.
Numerous individual creators also voiced safety and privacy
concerns about backlash from notice recipients. They are
sometimes reluctant to send notices which require them ``to
reveal their personal information including phone numbers and a
home address,'' due to safety concern and fear of
retaliation.\26\ Concerns over safety and privacy caused Blake
Morgan, a musician and owner of the record label ECR Music
Group, to stop sending takedown notices altogether because ``it
simply was not wmih it.'' \27\ Photographer Yunghi Kirm's
decided not to send a takedown notice to a website where her
image had been used without permission because the group
appeared to endorse violence and, in light of that, she was
uncomfortable revealing her personal information to the group
via a takedown notice.\28\ Other individual creators have
similar experiences. At least one Copyright Alliance member has
even reported receiving death threats as a result of sending a
takedown notice.
---------------------------------------------------------------------------
\26\ The Arts and Entertainment Advocacy Clinic at George Mason
University School of Law, Comment on Section 512 Study (Apr. 7, 2016),
at 10, https://www.regulations.gov/document ?D=COLC-2015-0013-90145.
\27\ Id. at 12.
\28\ Id. at 12.
---------------------------------------------------------------------------
II. The Repeat Infringement Problem
No one in the notice and takedown ecosystem likes spending
time and money to send or process the millions of takedown
notices that are sent daily. This is time and money that the
individual or company could have spent innovating and creating
instead, which is bad for the U.S. economy. Congress clearly
did not intend such outcomes when it passed the DMCA--section
512 was designed to protect copyrights, to protect non-culpable
OSPs from liability when users uploaded infringing files and to
maintain many of the traditional contours of secondary
liability in the digital environment.\29\ Congress understood
that internet enforcement could not be solved unilaterally
through government regulations. So, Congress created section
512 with the intent that the law would bring OSPs and copyright
owners together to cooperate to detect and eliminate infringing
material before that material was illegally distributed widely.
---------------------------------------------------------------------------
\29\ Columbia Pictures Indus. v. Fung, 710 F.3d 1020, 1039-40 (9th
Cir. 2013) (noting that ``the DMCA's legislative history confirms that
Congress intended to provide protection for at least some vicarious and
contributory infringement,'' and explaining that inquiries into
contributory copyright infringement and the prerequisites for one or
more of the DMCA safe harbors should be conducted independently);
Playboy Enters., Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993); S.
Rep. No. 105-190 at 19, 20 (1998); Boyden, supra note 7.
---------------------------------------------------------------------------
Today, not only are stakeholders grappling with tens of
millions of notices a year,\30\ but even worse, the business
models employed by certain bad actors actually take advantage
of judicial interpretations of this statutory scheme. As a
result, uploaders repost infringing content within seconds, and
these bad actors profit from having millions of infringing
files shuffle off and back onto their website. After all, an
OSP can obtain revenues even when copyrighted content stays up
only for a brief time. If copyrighted content receives just one
viewing or download before being taken down, in the aggregate
of millions of works, that adds up to millions of ad revenue-
producing views for the OSP.\31\ Congress did not envision this
type of abuse when it enacted the DMCA; such abuse needs to be
addressed.
---------------------------------------------------------------------------
\30\ Boyden, supra note 7.
\31\ David Newhoff, The Illusion of More, Copyright Office to
Review Safe Harbor in DMCA (Jan. 6, 2016), http://illusionofmore.com/
copyright-office-to-review-safe-harbor-in-dmca/.
---------------------------------------------------------------------------
This viewpoint is supported by Professor Sean O'Connor, who
explained that:
The highest volume of notices seems 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 non-
infringing. They are not mash-ups, remixes, covers, etc. They
are simply the original work reposted repeatedly by an
unauthorized person. 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 oftakedown notices.\32\
---------------------------------------------------------------------------
\32\ Section 512 of Title 17, Hearing Before the Subcomm. Of
Courts, Intell. Prop., and the Internet of the Comm. on the Judiciary,
14 (2014) (testimony of Sean O'Connor).
III. DMCA Provisions Interpreted Contrary to Congressional
Intent
One of the most significant problems with section 512 stems
from incorrect court interpretations and applications of the
statutory text. When this occurs it results in section 512
falling short of the goals Congress had for section 512 and
dramatically shifts' the balance between the burden and
responsibilities of copyright owners and OSPs. The area where
this is most evident is in court interpretations of red flag
knowledge contributory and vicarious liability and willful
blindness, as well as the provision of section 512(c) that the
copyright owner's notice may include a ``representative list''
of the infringements.
a. Red Flag Knowledge and Willful Blindness
An OSP will lose safe harbor protection by failing to Act
when confronted with actual or apparent knowledge opyright
owners can provide the OSP with actual knowledge by sending a
notice or they can prove the OSP has apparent knowledge \33\ of
infringement under the ``red flag knowledge'' standard.\34\
Once aware, the OSP is required to Act expeditiously to remove,
or disable access to, the material'' to remain eligible for
safe harbor protect ions.\35\
---------------------------------------------------------------------------
\33\ 17 U.S.C. 512(c)(1)(A)(ii) (``red flag knowledge'').
\34\ H.R. Rep. No. 105-551 (II), pt. 2, at 58 (1998).
\35\ 17 U.S.C. 512(c)(1)(A)(iii).
---------------------------------------------------------------------------
Under the red flag knowledge standard, a copyright owner
can prove an OSP has knowledge by showing it was aware of facts
or circumstances that make infringement apparent. The court
asks whether (1) the OSP was aware of the circumstances of
infringement (the so called ``subjective prong''); and (2) the
``infringing activity would have been apparent to a reasonable
person operating under the same or similar circumstances'' (the
so-called ``objective prong'').\36\ However the Second Circuit
in Viacom v. YouTube \37\ and the Ninth Circuit in UMG
Recordings v. Shelter Capital Partners \38\ and Perfect 10 v.
CCBill \39\ arguably made the OSPs only responsible for
responding to the infringement explicitly identified in
takedown notice. \40\ These decisions were exacerbated by the
recent decision in Ventura Content, Ltd. v. Motherless Inc.
\41\ which held that ``even if it were obvious to a reasonable
person that some of the material on the site must be
infringing, that is not enough to lose the safe harbor. It must
be obvious that the particular material that is the subject of
the claim is infringing.'' These courts' interpretation of the
red flag standard is so restrictive that it has basically
eliminated the carefully balanced burden allocation that
Congress intended and effectively written the red flag
knowledge standard out of the statute.
---------------------------------------------------------------------------
\36\ H.R. Rep. 105-551, pt. 2, 61 (1998).
\37\ 676 F.3d 19 (2d Cir. 2012).
\38\ 106 U.S.P.Q. 2d 1253 (9th Cir. 2013).
\39\ Perfect 10 v. CCBill, 488 F.3d 1102, 1113 (2007).
\40\ See Boyden, supra note 7.
\41\ Ventura Content, Ltd. v. Motherless, Inc., 885 F.3d 597, 611
(9th Cir. 2018).
---------------------------------------------------------------------------
Some courts have also incorrectly applied the concept of
willful blindness in the safe harbor context. Knowledge of
infringing activity will be imputed to an OSP who has
consciously avoided obtaining actual knowledge under a theory
of willful blindness.\42\ In Viacom v. YouTube, the Second
Circuit articulated that willful blindness is triggered when
the OSP is ``aware of a high probability of the fact [of
infringement] and consciously avoid[s] confirming that fact.''
\43\ The willful blindness doctrine provides courts with
additional guidance and effectuates Congress's intent to
``discourage today's common `do not look' policy.'' \44\ But in
Capitol Records v. Vimeo, the court shielded the OSP from
liability despite a record that showed the OSP and its
employees turned a blind eye to infringement. The court
determined that any conscious avoidance by the OSP needs to be
``tailored'' to the ``specific infringing content at issue in
the litigation,'' and that the knowledge demonstrated in the
record ``did not relate to the Videos-in Suit.'' \45\ However,
the hallmark of a willfully blind defendant is that the
defendant has affirmatively avoided acquiring specific
knowledge about infringing material or activity on its system.
By definition, then, an OSP that is willfully blind to
infringing activity on its system has ensured that it will not
have knowledge that is ``tailored to'' the ``specific
infringing content at issue,'' because that is the very
knowledge the service provider has consciously avoided.
---------------------------------------------------------------------------
\42\ Viacom, 676 F.3d at 35 (quoting Tiffany (NJ) Inc. v. eBay
Inc., 600 F.3d 93, 109 (2d Cir. 2010)).
\43\ 676 F.3d 19 (2d Cir. 2012).
\44\ Steven Tjoe, Taking a Whack at the DMCA: The Problem of
Continuous Re-Posting, Center for Protection of Intellectual Property
(Mar. 14, 2014), http://cpip.gmu.edu/2014/03/14/taking-a-whack-at-the-
dmca-the-problem-of-continuous-re-postings/.
\45\ Vimeo, 972 F. Supp. 2d at 524-25.
---------------------------------------------------------------------------
As a practical matter, if improper court decisions like
these continue to proliferate, OSPs will effectively have no
obligations other than to react to DMCA notices. Congress
envisioned the DMCA as creating a regime of joint
responsibility, in which OSPs would Act reasonably and
proactively in the face of actual or apparent knowledge.
Coupled with the existing practical limitations of the notice
and takedown process, copyright owners would have little
meaningful protection against online infringement. When there
is no meaningful ``red flag'' knowledge requirement, the result
is a toothless statute.
b. The ``Representative List'' Requirement
The section 512 notice and takedown process, as often
interpreted by the courts, has largely placed the burden on
copyright owners to list every instances of infringement on an
OSP's website. The ``representative list'' requirement in
provision 512(c)(3)(A)(ii) specifies that a takedown notice
must identify the ``copyrighted work claimed to be infringed,
or, if multiple copyrighted works at a single online site are
covered by a single notification, a representative list of such
works at that site.'' This is paramount, given the volume of
online infringement, because creators too often lack the time,
money, and resources to list with specificity every single URL
containing infringing copies of their work. Notwithstanding
this language, many courts have placed the sole burden of
tracking, identifying, and ``adequately documenting''
infringements squarely on the copyright owner which makes
little sense in practice and discourages individual creators
from enforcing their rights.\46\
---------------------------------------------------------------------------
\46\ See Perfect 10 v. CCBill, 488 F.3d 1102, 1113 (2007); Viacom
Int'l. v. YouTube, Inc., 940 F.Supp. 2d 110, 115 (S.D.N.Y. 2013).
---------------------------------------------------------------------------
Congress did not intend this high degree of specificity for
notices. As noted in the legislative history, the
``representative list'' requirement is satisfied,
[f]or example, where a party is operating an unauthorized
Internet jukebox from a particular site, it is not necessary
that the notification list every musical composition or sound
recording that has been, may have been, or could be infringed
at that site. Instead it is sufficient for the copyright owner
to provide the service provider with a representative list of
those compositions or recordings in order that the service
provider can understand the nature and scope of the
infringement being claimed.\47\
---------------------------------------------------------------------------
\47\ H.R. Report No. 105-551 (emphasis added).
The legislative history demonstrates that the
interpretation of the ``representative list'' standard in
section 512 is yet another example of the courts misinterpreted
the language of section 512 in a manner that directly
contradicts the intent of Congress, makes the notice and
takedown process in effectual and harms the creative community.
IV. Repeat Infringer Policies
Section 512(i) provides that to be eligible for the DMCA
safe harbor, an OSP must adopt and reasonably implement ``a
policy that provides for the termination in appropriate
circumstances of subscribers and account holders . . . who are
repeat infringers.'' What constitutes a reasonably implemented
repeat infringer policy has been interpreted as being highly
fact specific and may vary from one context to another. But any
interpretation regarding a user's status as a repeat infringer
or whether a policy has been reasonably implemented has to
align with the purpose and intent of the statute. Congress
intended section 512 to encourage cooperation between OSPs and
copyright owners in combating online infringement. As such,
512(i) incentivizes OSPs to cooperate by conditioning the
benefit of the DMCA safe harbor on implementation of a policy
that would help to deter infringement.\48\
---------------------------------------------------------------------------
\48\ ``[T]hose who repeatedly or flagrantly abuse their access to
the Internet through disrespect for the intellectual property rights of
others should know that there is a realistic threat of losing that
access.'' S. Rep., No. 105-190, at 52 (emphasis added).
---------------------------------------------------------------------------
Repeat infringer policies are ``fundamental safeguard[s]
for copyright owners . . . essential to maintain[ing] the
strong incentives for [OSPs] to prevent their services from
becoming safe havens or conduits for known repeat copyright
infringers.'' \49\ The problem is not in the legal framework
drafted by Congress, but instead in how OSPs choose to
implement policies. As illustrated in Capitol Records v.
Escape, some OSPs are fully capable of identifying works and
tracking repeat infringers, but instead choose to craft a
repeat infringer policy in a way that makes enforcement
nonexistent.\50\ As the court found, the online music service
provider Grooveshark, owned by Escape, had two policies for
removing content: One Strike and DMCA Lite.\51\ Under the One
Strike policy, content would be removed and the user would be
banned from re-posting content.\52\ On the other hand, under
the DMCA Lite policy-which made up 94% of all Grooveshark
takedowns-any takedown notice that Grooveshark decided did not
perfectly comply with the DMCA's requirements would only result
in the content being removed. The user's account would remain
active.\53\ In denying Grooveshark immunity under the safe
harbor, the court noted that ``[a]dopting a repeat infringer
policy and then purposely eviscerating any hope that such a
policy could ever be carried out is not an 'implementation' as
required by 512(i).'' \54\ Yet because Grooveshark publicly
claimed it complied with the DMCA (even though it did not) it
was able to operate for 8 years.\55\ For nearly a decade,
Grooveshark profited from massive copyright infringement,
misled users into thinking that they were a legitimate music
service, and competed unfairly with other legitimate and
licensed music services.
---------------------------------------------------------------------------
\49\ Capitol Records, Inc. v. MP3Tunes, LLC, 821 F.Supp.2d 627, 637
(S.D.N.Y. 2011).
\50\ Copy L. Rep. (CCH) P30, 744 (S.D.N.Y. 2015).
\51\ Id.
\52\ Id.
\53\ Id.
\54\ Id.
\55\ Letter from Paul Geller, Grooveshark's Executive Vice
President (``There does appear to be some confusion about whether
Grooveshark is a legal service. So, let's set the record straight:
There is nothing illegal about what Grooveshark offers to consumers . .
. . First, there is a distinction between legal and licensed. Laws from
Congress. Licenses come from businesses. Grooveshark is completely
legal because we comply with the laws passed by Congress, but we are
not licensed by every label (yet). We are a technology company, and we
operate within the boundaries of the Digital Millennium Copyright Act
of 1998.'') Digital Music News has since removed the open letter from
their website.
---------------------------------------------------------------------------
More recently, in Sony Music Entertainment v. Cox
Communications, Inc.,\56\ a jury in the United States District
Court for the Eastern District of Virginia found Cox liable for
contributory and vicarious copyright infringement, and
ineligible for the DMCA safe harbors because it did not
implement measures required by the DMCA to fight against
infringement. Specifically, Cox would limit the number of
infringement notices to get through, effectively allowing
infringement to continue. Importantly, it also failed to
discontinue service for its customers who pirated content. The
complaint stated at least 20,000 Cox subscribers are repeat
offenders. Ultimately, Cox's malfeasance led the jury to find
that Cox's conduct was willful, awarding the plaintiffs $1
billion in damages for the 10,017 sound recordings and musical
compositions at issue.
---------------------------------------------------------------------------
\56\ Sony Music Entertainment v. Cox Commc'ns, Inc., 426 F.Supp.3d
(D.E.D.Va. 2019).
---------------------------------------------------------------------------
Similarly, in UMG v. Grande Communications,\57\ the court
concluded that not only did Grande ignore over a million
copyright infringement notices that were sent to it, it did not
even have an existing repeat infringer policy. The court
referred to this behavior as ``the complete abdication of
responsibilities to implement and enforce a terminating
policy.'' \58\
---------------------------------------------------------------------------
\57\ UMG Recordings, Inc. v. Grand Commc'ns Networks, LLC, 384
F.Supp.3d 743 (D.W.D.Tex. 2019).
\58\ Id. The court found that even if the Grande had a policy of
terminating repeat infringers--based on an assessment of its internal
emails, statements by employees and utter lack of terminating even one
customer--it certainly did not reasonably implement that policy from
2010 through 2016. The facts showed that prior to 2010 Defendant had
terminate repeat infringer accounts. But from that time through May
2017, not a single subscriber account was terminated despite receiving
over a million copyright infringement notices from Plaintiffs and
tracking 9,000 customers in its DMCA ``Excessive Violations Report.''
It wasn't until this suit was filed that Grande terminated a
subscriber, and even then it was only 11 customers.
---------------------------------------------------------------------------
On the other hand, the Ninth Circuit in Motherless \59\
held that Motherless, a pornography site, was eligible for the
section 512 safe harbor even though it lacked a formal repeat
infringer policy. The evidence showed that repeat infringers
continued posting infringing material, and the website
maintained insufficient records from which failures to
terminate could be gleaned.
---------------------------------------------------------------------------
\59\ Ventura Content, Ltd. v. Motherless, Inc., 885 F.3d 597, 611
(9th Cir. 2018).
---------------------------------------------------------------------------
While there have been some helpful decisions relating to
the ``repeat infringer'' standard, the outcomes have not been
uniform, and the positive decisions are not the panacea that
some would make it out to be. First, as Cox and similar cases
illustrate, large and sophisticated companies may pay only lip
service to the requirement of a ``repeat infringer'' policy.
Second, it's important to understand that lawsuits like Grande
and Cox are expensive to bring--only a few can afford to bring
them. Third, the OSP's actions in cases like Grande and Cox
were so egregious and offensive that on a practical level those
cases are not very helpful. Lastly, it's important to note that
even where an OSP does reasonably implement a repeat infringer
policy and terminates a subscriber under that policy, it is
very simple for that person to circumvent the termination by
signing up with a different OSP or re-subscribing with the same
OSP under an alias.
That is why OSPs and copyright owners, with the assistance
of government, need to work together to ensure that that repeat
infringers policy are effective and being implemented as
intended. Through such cooperation, OSPs should be able to
adopt more acceptable repeat infringer policies.
V. Information Location Tools
When the DMCA was drafted, search engines already played a
significant role in the internet ecosystem. In the years
following its enactment, that role grew exponentially. Today
when someone is looking for something on the internet, the
first place they go to is a search engine. While search engines
often direct people to lawful sources of content, too often
they also direct users to illegal content. It is imperative
that search engines and other OSPs who provide information
location tools work with copyright owners find ways to work
together to effectively address these infringement problems.
While the copyright community appreciates many of the
additional steps these search engines have taken, it is
important that the steps be effective and not just symbolic.
For example, Google has implemented a policy whereby it demotes
sites based on the number of takedown notices that Google
receives in conjunction with other factors. Unfortunately, the
demotion policies, and other policies, have largely been
ineffective because infringing content still shows up near the
top of search results. One solution would be for search engines
to place less weight on the infringing site's traffic and more
weight on the number of takedown notices the site receives.
Another solution would be for search engines and copyright
owners to jointly enlist the support of independent third
parties to evaluate the effectiveness of particular measures,
develop ways to improve their efficiency and effectiveness, and
to highlight best practices.
Problems also remain with the autocomplete features of
Google's search bar. While efforts have been made to remove
piracy device terms like ``Kodi'' from autocomplete, the
feature continues to steer users towards illicit websites and
infringing content.\60\ An example of these enduring
shortcomings is evident by simply typing ``watch f' into the
search bar. A user may be trying to find a legitimate way to
watch the movie Frozen, and yet the search bar autocompletes to
``watch free movies,'' and the results display links to pirate
websites.
---------------------------------------------------------------------------
\60\ Dani Deahl, Google Removes ``Kodi'' From Search Autocomplete
in Anti-Piracy Effort, The Verge (March 29, 2018). https://
www.theveree.com/2018/3/29/17176894/google-removes-kodi-search-
autocomplete-anti-piracy.
---------------------------------------------------------------------------
VI. The Counternotification Process
Despite clear evidence that the notice and takedown system
is stacked against creators and copyright owners, some claim
that OSPs bear a heavier burden by having to process a
disproportionate amount of ``bad faith'' notices.\61\ A 2016
report describe OSPs as being inundated by ``mistaken and
abusive takedown demands, but a closer look at the data reveals
that these notices are not what the study claim them to be. A
response to the study by the Center for the Protection of
Intellectual Property (CPIP) explains:
---------------------------------------------------------------------------
\61\ Jennifer M. Urban, Joe Karaganis, and Brianna Schofield,
Notice and Takedown in Everyday Practice, UC Berkeley Public Law
Research Paper No. 2755628 at p. 87 (March 22, 2017). Available at
SSRN: https://ssrn.com/abstract=2755628 or http://dx.doi.org/10.2139/
ssrn .2755628.
The majority of the ``questionable'' notices come from those
notices that raise ``questions about compliance with the
statutory requirements'' (15.4%, about 281 notices) or raise
''potential fair use defenses'' (7.3%, about 133 notices). As
to the statutory requirements issue, the authors argue that
these notices make it difficult for Google to locate the
material to take down. This claim is severely undercut by the
fact that, as they acknowledge in a footnote, Google complies
---------------------------------------------------------------------------
with 97.5% of takedown notices overall.
Moreover, it wades into the murky waters of whether
copyright owners can send service providers a ``representative
list'' of infringing works. Turning to the complaint about
potential fair uses, the authors argue that copyright owners
are not adequately considering ``mashups, remixes, or covers.''
But none of these uses are inherently fair, and there's no
reason to think that the notices were sent in bad faith just
because someone might be able to make a fair use argument.\62\
---------------------------------------------------------------------------
\62\ Devlin Hartline and Kevin Madigan, Separating Fact From
Fiction in the Notice and Takedown Debate, Center for the Protection of
Intellectual Property (CPIP) (April 25, 2016). Available at: https://
cpip.gmu.edu/2016/04/25/separating-fact-from-fiction-in-the-notice-and-
takedown-debate/.
---------------------------------------------------------------------------
In the rare circumstance where a copyright owner sends a
notice by mistake or in ``bad faith,'' the counter notification
procedure\63\ offers an adequate remedy. In reality, very few
counter notices are ever filed as compared to the number of
DMCA notices sent because the content targeted by most takedown
requests is clearly infringing, or is posted by users who do
not wish to reveal their identity or location. However, when
counternotices are filed without basis, they effectively stifle
the enforcement efforts of copyright owners because they cannot
afford or it is impractical for them to file suit in federal
court.
---------------------------------------------------------------------------
\63\ See 17 U.S.C. 512(g)(2012).
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Where a counternotice is filed, and there is no basis for
it, the copyright owner has only ten days to bring suit against
the alleged infringer before the infringing material or link is
reposted.\64\ Bringing a federal lawsuit is a significant
burden, especially for individual creators; and the ten-day
requirement is, as a practical matter, virtually impossible to
satisfy for even the larger, more sophisticated copyright
owners.
---------------------------------------------------------------------------
\64\ 17 U.S.C. 512(g)(2)(C).
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Making matters worse, the U.S. Supreme Court's recent
decision in Fourth Estate v. Wall-Street.com,\65\ holding that
registration, under section 411 of the Copyright Act, occurs
when the Register acts to either complete a registration or
refuse it, effectively makes it impossible for copyright owners
to satisfy the ten-day window for filing suit as set forth in
the 512(g), unless they have previously registered their work.
The Fourth Estate decision means that if a work has not been
previously registered with the Copyright Office the copyright
owner must wait for Copyright Office action before filing a
lawsuit for copyright infringement, and that action may take
many months. Pendency of copyright applications with the U.S.
Copyright Office is measured in months, not days. So, unless a
copyright owner is willing and able to pay the fee for
expedited handling--a fee that is roughly over ten times the
normal application filing fee--there is no way the copyright
owner file a lawsuit before the ten-day window expires. And
even if they can afford to and pay for expedited handling ,
there is no assurance that the Office will Act on the
application before the ten-day window expires. So, in effect,
the Fourth Estate decision has created a new requirement for
using the notice and takedown system--the requirement that the
work be registered with the U.S. Copyright Office before a
notice is sent (i.e., well in advance of any infringement).
---------------------------------------------------------------------------
\65\ Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC,
139 S.Ct. 881 (2019).
---------------------------------------------------------------------------
One approach to solving this problem would be to extend the
ten-day window. But that does little for those copyright owners
who lack the financial resources to afford to litigate in
federal court, so extending the period of time in which they
may file a lawsuit before the infringing material is restored,
alone, fails to adequately address the issue.
One way to help these creators is to pass the Copyright
Alternative in Small-Claims Enforcement Act of 2019 (the CASE
Act), H.R. 2426 and S. 1273, a bill that would create an
optional small claims tribunal within the U.S. Copyright
Office. The Copyright Claims Board created by the CASE Act
would be able to hear claims of infringement brought by
copyright owners as well as declarations of non-infringement
brought by users (as well as claims of misrepresentation under
section 512(f), discussed below). Consequently, the small
claims court created by the CASE Act would benefit both
copyright owners and those who file counternotices but cannot
afford to bring their claims or defenses in federal court.
Ever since the DMCA was passed, some groups have voiced
concerns about the notice and takedown process being used to
harass users, suppress speech and remove material posted by
users who have valid fair use defenses. Such instances of
alleged abuse of the notice and takedown process by rights
holders, even if true, are vastly outnumbered by legitimate
efforts to enforce copyright. To the extent that abusive and
misleading notices occur, the DMCA adequately guards against
this sort of abuse. The DMCA protects against such misuse by,
among other things, requiring the sender of a DMCA takedown
notice to assert under penalty of perjury that the material is
infringing. Consequently, sending a takedown notice for the
sole purpose of stifling speech opens that person up to a
perjury charge.
Another way the DMCA protects against misuse is found in
section 512(f) of the DMCA, which makes ``any person who
knowingly materially misrepresents . . . that material or
activity is infringing'' liable for the damages suffered as
well as for attorneys' fees. Section 512(f) applies
misrepresentation claims under a subjective standard, placing
the burden on the alleged infringer to show that the copyright
holder believed that the content subject to its takedown notice
was non-in fringing.\66\
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\66\ In Rossi v. Motion Picture Ass'n., 391 F.3d 1000, 1004-05 (9th
Cir. 2004), cert denied, 544 U.S. 1018 (2005), the Ninth Circuit
articulated, ``[w]hen enacting the DMCA, Congress could have easily
incorporated an objective standard ofreasonableness. The fact that it
did not do so indicates an intent to adhere to the subjective standard
traditionally associated with a good faith requirement . . . . Congress
included an expressly limited cause of action for improper infringement
notifications, imposing liability only if the copyright owner's
notification is a ``knowing misrepresentation. A copyright owner cannot
be liable simply because an unknowing mistake is made, even if the
copyright owner acted unreasonably in making the mistake. Rather, there
must be a demonstration of some actual knowledge of misrepresentation
on the part of the copyright owner.''
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Some groups suggest that the protections afforded by
section 512(f) are essentially ineffective because most of the
recipients of takedown notices are individuals who do not have
the money to sue in federal court \67\ and because these
recipients are often too afraid to file DMCA counter notices
because of the requirement in the DMCA that the counter notice
include a ``statement that the subscriber consents to the
jurisdiction of Federal District Court for the judicial
district in which the address is located'' \68\ As a result,
these groups argue that, despite the statutory protections and
defenses afforded to recipients under the DMCA, the DMCA
takedown process is being misused because users with
meritorious fair use and misrepresentation claims are not able
to avail themselves of them.
---------------------------------------------------------------------------
\67\ Parker Higgins, Corynne McSherry, and Daniel Nazer, Who Has
Your Back: Protecting Your Speech from Copyright & Trademark Bullies,
at p. 7, Electronic Frontier Foundation (Oct. 27, 2014), https://
www.eff.org/files/2014/10/27/who-has-your-back-2014-copyright-trademark
_O.pdf. The EFF report says that ``Users also may fear the significant
expense of defending even a winning copyright case, allowing themselves
to be silenced rather than facing the expense and risk of vindicating
their speech in courts.'' (emphasis added); See Sherwin Siy, Court Says
Fair Use Still Matters in Takedowns: Here's Why That's a Real Victory,
Public Knowledge (Sept. 16, 2015); https://www.publicknowledge.org/
blog/court-says-fair-use-still-matters-in-takedowns-heres-why-thats-a-
real-victory/. Public Knowledge (PK) says states that ``bringing a
512(f) case is still an expensive proposition'' (emphasis added); See
also, Comments of Engine, GitHub, Kickstarter, Medium, and Redbubble,
section 512 Study: Notice and Request for Public Comment (April 1,
2016). Available at: http://statistical.squarespace.com/static/57I68
1753c44d835a440c8b5/t/573d28927c65e401e66l76df/1463625874743/Engine-
Copyright-Office-512-NOI-Comments.pdf. Engine says `` . . . the
economic injury attributable to any individual takedown is unlikely to
justify the costs of bringing a lawsuit under 512(f).'' (emphasis
added).
\68\ 17 U.S.C. 512(g)(3)(D); See Higgins, McSherry, and Nazer,
supra note 65. The EFF says ``many users are intimidated by the
requirement that they agree to be sued in federal court if the
rightsholder wants to claim copyright infringement''; See also Comments
of Engine, supra note 65. Engine states that'' 512(g)'s requirement
that senders of counter-notices consent to jurisdiction where they are
located and agree to accept service of process can be intimidating to
many users . . . . Even users who strongly (and correctly) believe
their use is fair or otherwise lawful may lack the legal sophistication
to feel confident about making such a sworn commitment.''
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To the extent these claims have any validity, the CASE Act
addresses them by creating a low-cost, efficient, and
streamlined way to resolve copyright disputes that is
accessible and affordable to individuals and small businesses
and is a viable alternative to federal court.
Furthermore, if, in fact, users with meritorious defenses
or viable misrepresentation claims are not using the counter-
notice process because they are intimidated by having to agree
to litigate in federal court, the CASE Act provides an ideal
alternative by allowing them to assert their claims and
defenses without the complexity and trepidation they associate
with federal court.
Copyright owners already bear the burden for enforcing
their copyrights on the internet, so if there were legislative
changes to expand 512(f), it would potentially open these
owners up to ``limitless lawsuits just [for] policing [their]
copyrighted material on the Inte rnet.'' \69\ The overwhelming
majority of takedown notices are legitimate; lowering the
threshold for what is considered an illegitimate notice, or
increasing penalties would severely undermine the statutory
scheme with little positive benefit. As such, any effort to
expand the scope of 512(f) liability or otherwise legislate new
penalties is unwarranted, and would effectively create more
barriers to enforcement for copyright holders.
---------------------------------------------------------------------------
\69\ Ouellette v. Viacom Int'l., Inc., No. CV-10-133-M-DWM-JCL,
slip op. (D. Mon. Mar. 13, 2012).
---------------------------------------------------------------------------
VII. Standard Technical Measures
The House Judiciary Committee's 1998 report on the DMCA
stated that ``technology is likely to be the solution to many
of the issues facing copyright owners and service providers in
this digital age,'' and the Committee ``strongly urge[d] all of
the affected parties expeditiously to commence voluntary,
interindustry discussions to agree upon and implement the best
technological solutions available to achieve these goals.''
\70\ This rationale led Congress to include 512(i) in the DMCA,
specifically conditioning eligibility for safe harbor
protection on whether a service provider ``accommodates and
does not interfere with standard technical measures,'' (STMs)
which are to be developed based on ``a broad consensus of
copyright owners and service providers in an open, fair,
voluntary, multi-industry standards process.''
---------------------------------------------------------------------------
\70\ See H.R. Rep, supra note 4, pt. 2 at 61.
---------------------------------------------------------------------------
Unfortunately, since the inception of the DMCA nearly 22
years ago, there have yet to be any standard technical measures
adopted, effectively rendering the provision useless. This is
one of the most significant drawbacks to the effective
application of the notice-and-takedown process, as it nullifies
a provision which is designed to facilitate cooperation between
OSPs and copyright owners. To date, platforms like YouTube,
Facebook, Scribd, and Dropbox have implemented technology
capable of identifying and removing unauthorized copyrighted
material posted by their users. Technologies like these should
be shared with other OSPs in the context of 512(i), which
specifies that STMs must be made ``available to any person on
reasonable and nondiscriminatory terms.''
As written, there is enormous potential for the STM
provision to incentivize new technologies and encourage
stakeholder collaboration. However, to satisfy the requirements
of the statute, stakeholders would need to come together ``in
an open, fair, voluntary, multi-industry standards process.''
\71\ And that is not happening, thereby making the STM
provision in section 512(i) irrelevant. That is clearly not
what Congress intended. Congress did not include 512(i) in the
DMCA to see it go unused for 22 years. Reviving 512(i) may be
the easiest and most important thing that could result from
Congressional review of section 512.
---------------------------------------------------------------------------
\71\ 17 U.S.C. 512(i)(2)(A).
---------------------------------------------------------------------------
VIII. Next Steps and Possible Solution
While there is much in section 512 that is not working as
Congress intended, the notice and takedown process can provide
a workable legal framework for OSPs and copyright owners to
protect against infringement of copyrighted content on the
internet. What needs to be improved is the implementation and
application of the process to better respond to highly advanced
online infringement tactics and the limited resources of
smaller creators and OSPs.
There is no silver bullet solution to fix what ails section
512. Instead, we must consider a host of different options,
some of which include:
a. Technological Solutions
Automated technologies-available to copyright owners and
OSPs no matter their size must be an integral part of any
forward-looking solution. Because of the explosion of
infringing content online, it is essential that such solutions
to the extent reasonable, include the use of automated
technologies. Automated technologies can intervene during the
upload process, and can simplify the takedown process to
effectively shorten the time that infringing content remains
available for consumption. The vast majority of notices issued
by reputable rights owners are legitimate. Even though the
occasional so-called ``bad notice'' may slip through using
automated technologies, the benefits of such services far
outweigh the rare cases of ``bad notices.'' And while we
recognize that these automated technologies may not work for
all OSPs, we remain optimistic that investment in new
technologies and collaborative agreements are essential to a
healthy online ecosystem.
Proper implementation and interpretation of all of the
section 512 provisions will also incentivize OSPs to invest in
automated technologies for copyright owners and their users.
That means, as explained in more detail above, finally
implementing STMs under section 512(i).
It has been said that section 512(m), which relieves OSPs
of any duty to monitor, in conjunction with section
512(c)(l)(A)(ii), which permits an OSP to be held liable for
``red-flag'' knowledge, discourages ISPs from adopting certain
technologies for fear that if they do, they may be liable under
section 512(c). OSPs that reasonably implement effective
filtering systems to monitor for and take affirmative action
against piracy should be rewarded, not penalized. Consequently,
we would be interested in exploring this dynamic further with
the OSP community to determine the viability of eliminating the
potential for liability through ``red-flag'' knowledge for
those OSPs that effectively monitor for and take action against
infringement.
Individual creators would benefit from greater access to
automated technologies to ease the burden of filing takedown
notices. The biggest hurdle is cost: Many automated
technologies are not yet affordable for the average individual
creator, but further discussions of the interested parties
could reveal at least some solutions to the problem. Generally,
OSPs (at least the larger entities) are better equipped to
implement and extend access to automated technologies than
individual creators.
b. Private Sector Voluntary Agreements
We enthusiastically support the use of voluntary,
collaborative efforts to address the problem of online
infringement. Such initiatives reduce and equitably apportion
the burden of reducing infringement, removing profit from
infringement, and educating users about legal alternatives. Any
initiative, whether voluntary or statutory, cannot be
considered effective if the burden of action falls primarily on
the creator; everyone in the online ecosystem has a role to
play in creating a fair and sustainable marketplace. We also
believe that these efforts should complement the DMCA rather
than supplement where the legislation falls short. For example,
while a growing number ofISPs are voluntarily implementing
content filtering technology, if STMs had been adopted in a
collaborative manner pursuant to section 512(i), there would be
less of a need for independently developed technology to
balance the burden where the law has failed to.
There is a long and successful history of stakeholders
developing voluntary agreements to further mutual objectives.
Some examples include:
The Trustworthy Accountability Group (TAG) initiative,
launched in February 2015 validates tools and services that take
measures to prevent advertisements from running on pirate sites.\72\
According to the Digital Citizens Alliance, ad-supported pirate sites
can be extraordinarily profitable, with many displaying ads from ``blue
chip premium brands.'' \73\
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\72\ TAG, a coalition of online advertising stakeholders, including
advertising agencies, ad placement networks, media companies, and
consumer protection organizations. Press Release, Advertising Industry
Launches Initiative to Protect Brands Against Piracy Websites,
Trustworthy Accountability Group (February 10, 2015), https://
www.tagtoday.net/advertising-industry-launches-initiative-to-protect-
brands-against-piracy-websites/.
\73\ Digital Citizens Alliance, Good Money Gone Bad: Digital
Thieves and the Hijacking of the Online Ad Business (Infograph) (2014),
available at http://www.digitalcitizensalliance .org/cac/alliance/
resources.aspx.
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In 2007, various stakeholders agreed upon the Principles
for User Generated Content to eliminate infringing content, while still
taking into account fair use considerations. This informal
understanding at least illustrates a willingness of OSPs and copyright
owners to agree on a middle ground.\74\
---------------------------------------------------------------------------
\74\ The agreement was made by CBS, Disney, YouTube, and other
copyright owners and OSP entities.
---------------------------------------------------------------------------
Finally, collaboration between copyright owners and
payment processors like Visa, Mastercard, and PayPal--encouraged by the
Intellectual Property Enforcement Coordinator--has led to a process
that prevents known infringing sites from access to payment networks.
This helps cut off the revenues that such sites rely on to operate.
Private-sector voluntary agreements are a critical tool for
addressing online infringement. It is time that the
stakeholders in the internet ecosystem explore what mutually
beneficial agreements may be possible moving forward.
c. Legislation
Legislative proposals could be enacted to help address some
of the problems with section 512, without the need for amending
section 512. The CASE Act is a good example of this type of
initiative. Copyright Office Modernization legislation could
also address some of the problems discussed above that was
created by the Fourth Estate decision. For example,
modernization legislation could provide that when a counter
notice is filed, the copyright owner is allowed to institute a
civil action for infringement of the copyright against the
filer immediately (without waiting for the Office to Act on the
registration application) once the registration application is
filed that meets the statutory requirements and other
requirements are met.
In addition, Congress should enact legislation to align
criminal penalties for infringement of the public performance
right, currently at most a misdemeanor, with those for
infringement of the reproduction and distribution, which can
result in felony charges for willful and egregious
infringement. Although criminal enforcement of copyright
infringement is a small portion of federal law enforcement
overall, the presence of criminal penalties plays a significant
role in deterring willful and egregious infringement. By
deterring this criminal conduct, legislation to close the
streaming loophole would therefore help reduce some of the
strain on the notice and takedown system.
d. Amending Section 512
If technological solutions, voluntary agreements and other
legislative proposals prove to be unavailing or ineffective,
then Congress should consider other alte rnatives, such as
amending section 512. While copyright owners collectively value
the same end result-a digital environment that neither
supports, nor cultivates piracy--different groups have
different ideas about how best to achieve that end. One
recommendation that is strongly supported by many Copyright
Alliance Members, but not all, is implementation of a ``notice
and staydown'' system. Before the possibility of a ``notice and
staydown'' provision can be fully considered we all need to
have a better (and common) understanding of what that means and
how that would be implemented. In concept, a ``notice and
staydown'' system makes a tremendous amount of sense, but
neither legislation nor voluntary measures can be implemented
based solely on a broad concept. We think the concept of a
notice and staydown system is ripe for discussion between the
copyright and OSP communities to better determine next steps.
Further, as explained above, the courts can alleviate some
of the burden felt by individual creators by properly adhering
to the red flag knowledge standard laid out in section 512.
Congress may want to consider fine-tuning this provision so
that when courts consider the red flag knowledge standard in
the future they interpret it correct and as Congress intended.
Chair Nadler. Thank you very much. We will now proceed
under the 5-minute Rule with questions. I will recognize myself
for 5 minutes.
One of the most striking changes between the early days of
section 512 and now is the sheer volume of takedown notices
that the biggest platforms now receive. It is orders of
magnitude larger than 20 years ago with the number reaching to
the hundreds of millions, getting close to a billion in some
cases. To me, this volume simply does not seem like the
hallmark of an efficient, well-functioning system, yet I know
opinions on what this means are divided. Ms. Carrington, can
you please identify whether you believe this volume is a sign
of success or failure, and briefly explain why?
Ms. Carrington. Yes, certainly. As you stated, I believe
that a vast number of takedown notices that are being sent are
an indication of a system-wide failure. They represent a lack
of balance that Congress intended. Section 512 was in no way
intended to be simply a notice and takedown framework. The
notice and takedown framework are one part of section 512, but
there are a number of other responsibilities that OSPs are
supposed to be sharing with creators.
So, when we see numbers, such as the Google Transparency
Report, showing, I believe, 75 million takedown notices or 75
billion takedown notices that is a clear indication of a
failure. It is showing that creators are continuing to use
their time over and over again to send these notices, and yet
continue to not see any actual practical effect on the rampant
piracy that exists online today.
Chair Nadler. What do you think we can do about that?
Ms. Carrington. Well, I think that there are a number of
solutions. I think the issues with section 512, we have reached
a point at this point where there is not going to be any one
simple fix, so we are going to need to do a number of different
things, which are going to include, for one, implementing
standard technical measures, making sure that OSPs have some
incentive to actually come to the table and negotiate and
actually implement those measures. To date, they do not have
any incentive to do so. They are very comfortable with the
status quo because the status quo allows them to operate in
ways that are easier for them, but much more detrimental to the
copyright community.
In addition, I think other voluntary measures need to be
implemented. In addition, I think passing the CASE Act would be
a huge step in the way of enabling copyright owners as well as
users to have an alternative to figuring out these disputes
outside of the section 512 framework. Then finally, amending
the statute to clarify the knowledge standards and overturn
erroneous case law will go a long way in restoring the balance
that Congress intended.
Chair Nadler. Thank you. Ms. Kibby, thank you for being
here today and sharing the perspective of someone trying to
make a living from their creative work. Your acknowledgement
that you do not really have the time to monitor for
unauthorized uses of your work online is both illuminating and
troubling. Is this a common situation for others you know
working in the creative industries? More importantly, what is
something we could do in Congress to help make it more
realistic for you to obtain a fair return on your work when it
is used on the internet?
Ms. Kibby. Yes. I mean, it is just virtually impossible to
spend any amount of time, even with the backing of a large
management company, which I am very lucky to be a part of or to
work with. As we all know, being self-employed, it requires you
kind of working mentally 24/7, so I kind of gave up. There is
just no way because the moment that I send any kind of notice
to get something taken down, it immediately just pops right
back up again.
I actually just found a video literally 5 days ago on
YouTube where someone was using a song of mine that I put out
years ago, but the title of the video was actually the official
music video for this particular song. Not only are they
infringing my rights in terms of it being my song that they are
using, but they are taking away the aesthetic of the art that I
am trying to create and misrepresenting me. I think that it
seems pretty obvious that there are some basic questions that
can be asked for people that are uploading content that we can
all agree on would just streamline the process so that we don't
get into the nitty-gritty. I think that there seems to be, to
me, a very black-and-white series of questions that we could at
least start with as something to discuss and agree on.
Chair Nadler. Okay. In my remaining time, Mr. Sedlik, I
know you have experience trying to develop standards that would
help visual artists, but it seems like success has been
difficult and slow. Are there steps that Congress could take to
help encourage the development and adoption of more standard
technical measures?
Mr. Sedlik. Yes. Our model at the PLUS Coalition was to
bring together all stakeholders into a group, in which we set
all our baggage aside and leave all other issues at the door,
and just talk about how to communicate rights information
accurately and effectively. Congress could help by enabling a
system that would allow the different stakeholder groups to
access and recognize STMs once they are developed. The
technology is readily available for a means to communicate
rights information for the identification of works and for all
systems to be able to be searched to be able to find the right
information before that work is posted. The missing piece is
education and the ability to identify the STMs.
Chair Nadler. Thank you very much. My time has expired. Ms.
Roby?
Ms. Roby. Thank you, Mr. Chair, and I want to thank all the
witnesses for being with us here today, so thank you so much
for your time. The Copyright Office's report, the product of
many years of review and submissions from hundreds of
stakeholders, concluded that the balance between copyright
holders and platforms has been tilted askew, ``fails to provide
adequate protection of creators' rights and fails to carry out
congressional intent regarding section 512,'' as well as the
overall purpose of copyright law. The DMCA is over 20 years
old. Google had just been founded the month before the law was
signed, and there was no YouTube, Twitter, Facebook, TikTok,
and many other web sites and platforms that we use today. At
the bare minimum, it seems like we should be looking at ways to
bring this law into the 21st century to address the current
internet, not one of 1998. I just want to say to each of you, I
appreciate very much your written testimony and your oral
testimony here today to lay out for us the most important of
the Copyright Office's suggestions for reform so that we can
ensure that the DMCA is working for all stakeholders.
Last year, I had the opportunity to travel to California to
tour several movie and TV studios, and one of the most eye-
opening experiences I had was when I saw the pirate living room
demonstration. This demonstration showed how easy it was for
people to access pirated material online and how much of that
material was infected with malicious software and viruses. Most
websites that offer pirated material are large criminal
organizations. However, under current law, if the material is
being offered in a streaming format, the operator of that
website is only able to be charged with a misdemeanor. In
contrast, if the same material is being offered in a
downloadable form, the operator can be charged with a felony.
This is commonly referred to as the felony streaming loophole.
As more content becomes available online through streaming
services, so, too, does the amount of pirated material.
As the Ranking Member mentioned, the U.S. Chamber of
Commerce estimated that commercial-scale piracy drains a
minimum of $29 billion from the legitimate American economy
each year. In my home State of Alabama, the motion picture and
television industry are responsible for more than 10,000 jobs
and $387 million total wages in our State. The music industry
contributes $636 million to the GDP and supports more than
14,000 jobs. These industries benefit small businesses, such as
florists, and restaurants, salons, caterers, hotels, and other
hospitality businesses that benefit the filming of a movie or
the recording of a song. When copyrighted materials get
pirated, it hurts all these small businesses.
Earlier this year, the Senate conducted several series of
roundtables with stakeholders from across the spectrum,
including several of our witnesses here today, to close the
felony streaming loophole. I was extremely pleased that as a
result of very hard work by everyone involved, there was
negotiated draft text and report language that was agreed to by
the stakeholders involved. I have been working with several of
my colleagues on the House side to move this negotiated draft
legislation forward, and I am hopeful that we can get it done
by the end of the year.
So, to confirm with our witnesses who directly participated
or were represented in these negotiations, Ms. Carrington, Ms.
Rose, Mr. Van, and Mr. Schruers, you are supportive or at least
neutral on this negotiated language? Each of you please answer.
Ms. Carrington. Yes, that is correct.
Ms. Rose. Yes, that is correct.
Mr. Band. Yes, that is right.
Mr. Sedlik. That is correct.
Ms. Roby. Well, I appreciate it very much, and I look
forward to continuing to work with you on this very important
issue. Again, I can't thank you enough for, again, your written
testimony, but also your oral testimony here today to talk
about this very serious topic. Thank you so much. I yield back.
Ms. Scanlon. [Presiding.] The gentlewoman yields back. The
Chair recognizes Ms. Lofgren for 5 minutes.
Ms. Lofgren. Thanks very much. This is a very useful and
interesting hearing. There is actually just a handful of us on
the Committee that were Members of the Committee when we wrote
the DMCA, and I am one of them, and I recall what we were
trying to achieve at that time. It is not always what people
describe today, but we did the best we could. What we wanted to
do was to make possible growth in the technology sector while
protecting the rights of creators, and that is kind of what we
hoped to do.
We had some concerns at the time, I did, Ms. Kibby is not
in favor of somebody abusing the notice and takedown. I mean,
you just want to get paid for your work, but there are some who
abuse it, for example, cited in some of the testimony, the
Church of Scientology doing takedown notices to prevent
criticism of their activity. That is not what you are about.
You want to get paid for your work. So, I was concerned at the
time that the tech sector would really not be motivated to
stand up for the First Amendment. They would want to take down
to protect themselves, and, in fact that has occurred, although
there are problems in terms of the volume.
Obviously, if you look at what has happened since 1998,
because of streaming services like Netflix, the MPA reported
global industry revenues of more than $100 billion for the
first time ever in 2019. For the music industry, U.S. revenues
for recorded music reached over $11 billion in 2019, the 4th
straight year of double-digit growth. Video games, global
revenues are way up, over $150 billion globally in 2019 and
higher, I am sure, since then. Entirely new categories for
creators have emerged online as podcasts and creators who share
their work on video platforms like YouTube and Twitch are
building audiences.
That doesn't mean that this has worked for everybody, and
we have heard from people that it hasn't worked for, so the
question for us now is how to adjust. We need to make sure that
we protect the rights of authors and creators in order to
promote the useful arts. That is what the Constitution says,
and so the question is how to do that. It is absolutely
appropriate to take a look at this because the entire world has
changed since we drafted the DMCA. We may take action that has
impacts that we don't want to have.
So, let me ask you this, Ms. Rose. You were trying to speak
for users, and I found the testimony of all the witnesses very
helpful, but some have suggested that we should adjust the red
flag knowledge infringement standard. I am wondering what you
think about that, and would that help, and would it have
impacts or unintended consequences. What is your thought on
that?
Ms. Rose. So, I apologize in that that is one of the
components of the section 512 that I am actually not terribly
familiar.
Ms. Lofgren. Okay. Fair enough. Let's see, who else? The
libraries may have an opinion on that.
Mr. Band. Sure. So, first, I think with respect to red flag
knowledge, I think the courts have interpreted it correctly.
The Office acknowledges that by changing the red flag knowledge
standards as they are suggesting, it could very well require
notice and stay down, i.e., filtering of some sort, so that
would move towards an EU model that really would have very
serious First amendment issues. So, you know, this is an area
where other changes could have, as you suggest, very serious
unintended consequences. Again, the report itself acknowledges
that, that changing the red flag knowledge standard could very
well lead to, as a practical matter, filtering requirements.
For the bigger platforms, that is not a big problem. For the
smaller platforms, that could be a very serious issue,
certainly libraries. If they needed to start doing that, that
would be very costly, but also it could have various impacts on
users.
Ms. Lofgren. I see my time is up, and I have a lot of other
questions. I want to thank the Copyright Office for the work
that is put in, and just note that I do think copyright
modernization is going to advance the cause of compensation for
artists tremendously. It is not going to solve all the
problems, but it is going to be a huge help for artists and
creators getting paid for their work. I will defer other
questions to my written opportunity and thank each and every
one of the witnesses for being with us today and sharing their
perspective. I yield back.
Ms. Scanlon. Mr. Biggs from Arizona is recognized for 5
minutes.
Mr. Biggs. I thank the Chair, and I am grateful for all the
witnesses being here today. It has been very interesting and
very informative. Because we only have 5 minutes and this is a
very, in some ways, very complex topic, I am going to approach
this from the point of view of one of my favorite YouTube
online creators, Rick Beato, who, Madam Chair, I would, without
objection, submit for the record Mr. Beato's testimony from
July 20, 2020 before the Senate Intellectual Property hearing,
and as well as a piece entitled, ``When a Guitar Lesson Becomes
Controversial.''
Ms. Scanlon. Without objection.
[The information follows:]
MR. BIGGS FOR THE RECORD
=======================================================================
Rick Beato's July 28, 2020 Testimony to the Subcommittee on
Intellectual Property hearing entitled,``How Does the DMCA
Contemplate Limitations and Exceptions Like Fair Use?''
Chair Tillis, Senator Coons, and Members of the
Subcommittee. I thank you for inviting me to participate in
today's hearing. My name is Rick Beato.
I have been asked to come here today and discuss the issue
of Fair Use related to my work as a content creator on YouTube.
For four years I have developed an educational YouTube
channel I call ``Everything Music.'' In this time, I have
steadily built an international audience of 1.7 million
subscribers and my channel has had over 200 million views. I
have created 750 videos on topics ranging from music theory,
ear training and improvisation, to film scoring, production,
copyright, interviews, and a series of 94 videos entitled
``What Makes This Song Great?'' In this series, I explore the
individual elements of famous songs, examining the melodic and
harmonic structure along with its production technique to
answer the question of what actually makes a song great.
When I began the series, I uploaded the episodes knowing
that the videos would be instantly recognized by YouTube's
Content ID algorithm and demonetized. A demonetized video means
that the artist or copyright holder receives all the ad revenue
generated from the video that would normally go to the content
creator. Some artists like the Eagles, Jimi Hendrix, and Guns
N' Roses are what I refer to as ``blockers.'' Blockers are
artists who have a zero use policy for ANY of their work,
regardless of the length or purpose of the excerpt. I have
never sought to claim Fair Use for any of these videos, even
though a case could be made that I was providing education
through commentary, criticism, research and teaching based on
the Fair Use policy defined by U.S. law.
From 1987 to 1992 I was an Associate Professor of Music at
Ithaca College. In those days just, as it is today, the use of
recorded music for analysis in classroom instruction was
commonly used and protected under Fair Use. YouTube, in many
ways, is the new university. It is a place where people go to
learn things. The do-it-yourselfers who want to fix their hot
water heater, consumers who want to compare cameras, or
students who want to simply learn how to play a song. In my
view, this is the most important function of YouTube.
As a songwriter I've been signed to multiple publishing
deals since 1992, most recently Sony ATV. I've had songs as a
writer on many records including a number one, million-selling
Country song as recently as 2013. Out of my 750 YouTube videos,
254 have been demonetized and 43 have been taken down or
blocked. For the record, I have never had a copyright strike
filed against me by YouTube.
This brings me back to Fair Use. Two elements of Fair Use
that I believe covers teaching videos have to do with the
amount of the copyrighted material used and whether or not it
harms the copyright holder's ability to profit from their
original work. I would argue that if a video is using brief
excerpts of music to demonstrate a compositional technique it
should be covered under the Fair Use guidelines. The rules
governing the application and interpretation of Fair Use should
be shouldered by all parties and not only the content creator.
The concept of Fair Use is meaningless when frivolous or random
interpretations allow a team of searchers, typically employed
by a major label, harass creators for content that falls under
the legal definition of Fair Use. A clear-cut case of piracy is
one thing, but there have to be exemptions for Fair Use.
One of my recent music theory videos called ``The
Mixolydian Mode'' was manually claimed by Sony ATV because I
played ten seconds of a Beatles song on my acoustic guitar to
demonstrate how the melody is derived from this scale. This is
an obvious example of Fair Use. In response, I made a video
entitled ``The Music Industry SCAM to Ripoff YouTubers.'' The
video describes how record labels employ Content ID farms,
essentially collection agencies, to manually claim YouTube
videos for demonetization. Don Henley testified to this before
this very Committee. My video received over 500,000 views
within 24 hours and the claim was then released by Sony without
me even filing a dispute. I believe the claim was released
because I have a channel with over one and a half million
subscribers and hence have a platform to air these grievances.
Creators with smaller audiences are not so fortunate.
I accepted the invitation to testify today because we need
to find solutions to these problems. In the case of Fair Use,
content creators should be protected from frivolous
demonetizations. I would like to propose what I call a Fair Use
Registry, where one could get a certification as a good actor
similar to Twitter's blue checkmark. When a video is posted, it
can be checked against the database of Certified Fair Users.
The content creator would then be whitelisted for use. YouTube
already sets benchmark's for channel monetization. The Fair Use
Registry would work along the same lines.
I reason that I create videos, such as those in my ``What
Makes This Song Great?'' series, is to introduce classic songs
to new audiences, and reinvigorate these same songs.
Thank you so much for your time. I would be happy to answer
any questions you have.
When a Guitar Lesson Becomes
Controversial--OZY
Posted: 08 Nov 2019 12:00 AM PST
In the smartphone era, anyone who dreams of being a rock
star can download instructional apps such as Yousician,
ChordBank and Fender Play, or spin up any number of YouTube
tutorials on how to cover the classics and look the part doing
it.
And while these free, straight-to-camera lessons range from
wobbly to accomplished, record producer Rick Beato (bee-YATO)
has attracted more than a million subscribers with
professional-looking segments combining a music teacher's ear
for detail, a mastery of multiple instruments and a bit of
Anthony Bourdain Swagger:.
As host of the popular YouTube series What Makes This Song
Great, Beato has now racked up no million views from a library
of 700-plus educational videos and nearly 80 deconstructions of
rock radio standards. But his illuminating and often
inspirational videos are under constant threat.
An ongoing copyright fight has embroiled many You Tube
content creators who feel they would be on firm legal ground
with ``fair use'' protections, if only they could afford to
mount a formal legal challenge. Still others stay mum out of
concern YouTube will penalize them or de-platform their
channels.
I'm basically creating free commercials for these
songs.
rick beato
Videos focused on the music of Radiohead and Fleetwood Mac,
among others, have been removed by artists and record companies
using YouTube's own scanning software and the site's manual
claiming tool, which can trigger a takedown notice or claim a
video creator's portion of any pre-roll ad revenue.
``These blanket takedowns prevent [artists'] music from
being discovered by a new generation and make their repertoire
mostly music for old people,'' Beato says. ``I'm basically
creating free commercials for these songs while I'm teaching
music appreciation, music production, songwriting and
arrangement.''
Beato's online scholarship can be highly technical, but his
insights into studio production, rock history and music theory
are accessible even if fans' knowledge of chord progressions is
limited to the lyrics of Leonard Cohen's ``Hallelujah.''
``I focus on important conventions,'' says Beato, 57, who
earned a master's degree in jazz studies from Boston's
prestigious New England Conservatory in 1987. ``So my core
audience of musicians will say, `Oh! So that's why my music
teacher was talking to me about that!' ''
Beato's own inspiration came early on at Sunday family
gatherings in Rochester, New York, where family members would
play everything from contemporary pop to traditional Italian
songs.
Today, the fun of Beato's videos is that of watching an
irreverent Mozart deconstruct Salieri as he plays in time with
each song's most recognizable riffs, beats and passages while
including a bit of band lore.
These segments could be considered part of a modern
nouvelle vague of online pop culture dissertations that
includes the piano-focused Playground Sessions and the comedic,
movie-themed Honest Trailers, Because Science and How It Should
Have Ended.
Beato breaks down the ``stems'' that make up each song,
showcasing individual band members' contribution to the track
and demystifying the process. He's able to identify and trace
some chord patterns even to antiquity: The Police's 1981 hit
``Every Little Thing She Does Is Magic'' is supported by an
ascending Lydian bass line that was known in ancient Greece,
possibly as far back as 500 B.C.
Clad in a simple black T-shirt and jeans in his Atlanta
studio, looking like the cool uncle who might buy you your
first beer, Beato explains why certain songs remain timeless,
despite shifting tastes. He notes that songs like Toto's
``Africa,'' the Beatles' ``Let It Be'' and U2's ``With or
Without You'' are constructed from the same chord progressions.
``The innovation is in the way it's put together,'' he says.
Beato says he, too, is building something new out of
familiar elements, protected under the fair use exemption in
copyright law that allows for the academic discussion,
commentary, criticism or parody of copyrighted works.
From the music industry's perspective, however, songs
streamed on YouTube can function as an on-demand jukebox,
eliminating the listener's need to ever buy the music. ``Music
publishers have a legal and fiduciary responsibility to our
songwriters to protect the value of their copyrights,'' says
Golnar Khosrowshahi, CEO of independent music publisher
Reservoir. ``We understand that the current systems,
particularly in the digital arena, are not structured in a way
that recognizes all creators fairly, and at Reservoir, we
continue to advocate for changes that will benefit everyone.''
The global recorded music market has grown to just over $19
billion, according to industry figures, with users of paid
streaming services accounting for 37 percent of total recorded
music revenue--as physical album sales and individual download
purchases decline.
For some in the music industry, the real issue is how
little YouTube pays well-known recording artists for the use of
their music on its site, meaning they need to be ever more
zealous about copyrights. According to Digital Music News,
YouTube pays artists $0.00074 per stream--less than Pandora and
Spotify--adding up to $1,500 for every 2 million plays on the
site.
For a massive company like Google, ``it's basically free,''
says Ashlye M. Keaton, an attorney who co-founded The Ella
Project, a nonprofit that provides legal resources to musicians
and content creators across Louisiana. The tech giants, she
says, avoid liability by using automated systems to take down
anything that could potentially violate copyright law.
Meanwhile, ``the `little guy content creator' arguing fair use
does not have the same privileges and protections that big
multinational firms have, so that hardly seems fair.''
In the face of criticism, YouTube--which did not reply to
requests for comment--has said it is curtailing the use of
manual claiming for "very short or unintentional uses of
music." But that wouldn't apply to Beato, who showcases entire
songs. Rather than dealing with legal hurdles, he has decided
to simply post his enthusiastic videos and hope for the best.
However, with the growing popularity of his channel, some
artists have started to embrace Beato's show. Last year, he
interviewed Peter Frampton in the singer's home studio about
how his iconic ``Do You Feel Like I Do?'' riff was originally
overlooked by the improvisational guitarist himself.
As for where the road takes him from here, Beato plans to
keep breaking down the chord progressions, odd time signatures
and songwriting innovations underpinning rock's most memorable
moments--and hoping YouTube and the record labels let them stay
up. ``I don't think I'll run out of videos,'' he says. ``If I
had to, I could probably name a thousand great songs off the
top of my head.''
Mr. Biggs. Thank you. Now, Mr. Beato is a songwriter,
producer, engineer, and educator, and he is a YouTube content
creator, which is why I watch him because he does incredibly
interesting theoretical breakdowns of what he calls the, I
think, the great songs. Maybe it is a Steely Dan song. Maybe it
is a Led Zeppelin song. Maybe it is a Police song. He will take
a small riff and he will define it, break it down, educate us
on it, and some folks immediately take down his content. He has
done more than 750 videos on topics ranging from music theory,
ear training, improvisation, et cetera, but he has done almost
100 videos of what makes a song great. Some of those
immediately come down, and I won't name the artists, but their
labels immediately pull them down.
So, we are talking about creators today, and I appreciate
the creators. I want to ask, Ms. Rose, the Copyright Office
report did not distinguish between traditional creators, such
as recording artists, from purely online creators, such as
those who produce content for YouTube or Facebook, such as Mr.
Beato. What makes the interests of such online creators
different from traditional creators with respect to section
512?
Ms. Rose. Thank you. I also am a fan of Mr. Beato's, so I
will commiserate there with the occasional disappearance of his
videos. There are a number of points of difference between what
we consider sort of the more ``traditional trajectories and
traditional artists,'' and those sorts of new creators that we
see emerging largely through online platforms. One is
obviously, the method of getting your content out to the
public. Those are going to be governed by different systems.
When you are a traditional recording artist, you have a record
label, the publishers.
Mr. Beato completely makes his own content, releases it
through YouTube, and thus is entirely subject to the way in
which YouTube has structured its particular implementation of
things like monetization, de-monetization, and notice and
takedown. At the end of the day, a lot of these new creators,
Mr. Beato, are reliant on some of the provisions of fair use,
which is a built-in sort of safety valve for First amendment
concerns, to alleviate some of the problems that would
otherwise arise from sort of total copyright control. In his
case, education, criticism, and commentary are the bread and
butter of what he does, and what he has been facing is a good
illustration of the fact that these systems, especially
algorithmic ones designed in-house for specific companies to
address their business needs, cannot account for those things.
They fundamentally can't. They are binary systems in a lot of
ways and copyright is not a binary system, and so it is a poor
match to say that really what we need to do is just sort of
nerd harder and develop better algorithms, and that will
somehow take care of these things, because at the end of the
day, they are just not capable of doing that.
Mr. Biggs. So, when we look at section 512(f), and you have
been critical of victims of abusive takedown notices, that the
provisions of 512(f) are too weak. What would you say is a
better way to beef up that for frivolous notices, while not
going so far as to o penalize copyright holders to issue
notices in good faith, but just turn out to be wrong?
Ms. Rose. So, I think the easy or the lowest-hanging fruit
on this is Lenz v. Universal decided that there was a
subjective knowledge standard for what constitutes good faith
notice. Changing that to an objective standard would be far
more enforceable at a minimum.
Mr. Biggs. Okay. Thank you. Really quick, Mr. Band, do you
believe that government enforcement is needed, and, if so, what
specific types of enforcement do you think should be
implemented to deter abusive takedown notices?
Mr. Band. Yeah, thank you for the question. I think that
something outside the DMCA might be needed, and so that would
be something along the lines of maybe FTC enforcement or some
other government agency. I think the Office recognizes that
that even though you could tinker with 512(f) and maybe make it
easier to bring action, still you are talking about individuals
bringing actions. Just as it is hard on the rights holders end
for individuals to enforce their rights, it is hard for
individuals on the user side to enforce their rights as well.
So, that is why you might need something, an agency like the
FTC, that could really bring the weight of the government and
go after these bad actors, and that would also have a
significant deterrent effect.
Mr. Band. Thank you. I yield back.
Ms. Scanlon. Mr. Johnson is recognized for 5 minutes.
Mr. Johnson of Georgia. Thank you, Madam Chair. Thank you,
and I thank the Chair for hosting this hearing today, and I
thank the witnesses for their testimony.
The IP Subcommittee has spent much of this Congress
exploring how to promote and protect intellectual property
rights in the patent and trademark space, and today's
discussion from the copyright angle has been particularly
informative. Copyright law governs the work of artists and
innovators, designers and developers, and other content
creators. It is crucial that these creators can rely on
copyright law protections to make their living. This is even
more true in an age where the click of a button can plagiarize
a lifetime of work. As Chair of the Subcommittee on
Intellectual Property, Courts, and Internet, I believe it is
important that we work with the Copyright Office to ensure that
the rules of the road are clear for content users, platforms,
and internet service providers.
Section 512 was created before the internet had permeated
our lives, and I am concerned that the law has failed to keep
up, not adequately protecting creators and not necessarily
providing clear guidance to users and others, and this needs to
change. So, I look forward to further hearing from the
witnesses. I thank you for the very great testimony that you
have already given, and we look forward to exploring how
Congress can help pave the way to the future.
Now, Mr. Sedlik, I understand that many online platforms
have now started to require those submitting takedown notices
to provide information above and beyond what section 512
requires in order to start the takedown process. Not only does
this seem to raise concerns about the extra burden imposed on
rights holders beyond what Congress intended, but it implies
that rights holders must figure out how to use takedown systems
that are potentially very different very different if they are
monitoring several platforms. Can you speak to the impact that
having to deal with different takedown processes is having on
rights holders?
Mr. Sedlik. Thank you for the question. Absolutely. As a
rights holder and creator, after a day of creating photographs,
I am forced to search for potential infringements and to send
DMCA takedown notices, of which I send 100 to 200 each week. I
have no employees, so in the evenings, I go to the platforms, I
find the DMCA agent information, which can take considerable
time because it is often buried in the terms and conditions on
these sites. Then each and every OSP has a different form, and
all of them are manual by the way. You must enter your name,
your address, and the other information manually, or you can
send an email. I choose to send an email.
I then send that email meeting every single requirement
with the actual sections of the statute identified, and then 1
or 2 days later I get in response a question such as, it is
unclear why you think this use infringes on your copyright, or
please provide a URL pointing to an example of your work on the
web, even though I have provided them with a copy of my work
with my DMCA takedown notice. It would help to have some level
of automation built into these forms, not to send the DMCA
takedown notices in bulk, but instead to be able to create an
account and be able to save my address and phone information
and be able to input just the specific information about that
particular takedown and submit it.
I would also say that these takedowns are not expeditious
as required under the statute. I have seen it with me take up
to a month or 6 weeks. Often it does happen within 72 hours,
and, further, there is this exchange back and forth repeatedly
asking me for information I have already provided. It would be
fantastic if the OSPs could each establish a way for us to more
efficiently submit these notices.
Mr. Johnson of Georgia. Thank you. Would you like to
comment on that as well?
Mr. Schruers. Certainly. Thanks for the question. I think
there is a lot that can be done by way of improving systems. A
lot of services are constantly trying to iterate on and improve
their systems so that they function more expediently. It is
important to recognize that a lot of platforms have entirely
different interfaces. The design of the platform is
asymmetrical from others, and, as a result, the content isn't
necessarily going to port easily from one web form to another.
The ease with which takedowns are filed in bulk is one of
the reasons why we are seeing takedown rates get so high, and,
unfortunately, there is no penalty for submitting inaccurate or
wrongful claims. As a result, there is an industry of
enforcement vendors that will take payment from rights holders
to go out and send these notices, often without paying much
attention to whether the work that they are complaining about
is actually where they say it is online.
Some surveys of these submissions reflect that in some
cases, upwards of 80 percent of things that are being submitted
in takedowns aren't even there in the first place, and that is
important because when you have an individual artist who is
trying to get content removed, their inquiry is in line behind
all this other spam.
Mr. Johnson of Georgia. How often does that spam occur?
Ms. Scanlon. I am sorry. The gentleman's time has expired.
The Chair recognizes Mr. Cline for 5 minutes.
Mr. Cline. I thank the Chair, and I want to thank our
witnesses for attending today. As has been explained, when the
DMCA was first passed by Congress, section 512 was meant to
preserve strong incentives for service providers and copyright
owners to cooperate to detect and deal with copyright
infringements that take place in the digital network
environment, while also providing greater certainties to
service providers concerning their legal exposure for
infringements that may occur in the course of their activities.
In the 20 years since the DMCA was first signed into law, the
volume of online piracy and infringements has exploded.
The study that has been 5 years in the making provides for
some very interesting debate and discussion. One area that has
been underutilized is 512(i)(2) dealing with standard technical
measures. In the study comments, many stakeholders noted that
no measures currently qualify as STMs despite the availability
of various technologies and the potential interest in consensus
building across industries. So, I would like to start with a
question to Mr. Sedlik. Can you just generally talk about what
standard technical measures are already out there and why they
haven't been more widely adopted or more measures developed?
Mr. Sedlik. I can speak to our standard technical measure
developed by the PLUS Coalition recently adopted by Google,
previously adopted by Yahoo, adopted by Adobe many years ago. I
believe that the hesitancy with regards to standard technical
measures is the perception, I think an incorrect one, that they
would be used to stifle fair use and to stifle free speech. The
visual creators at least, and I believe the other creators, not
only want to be compensated for their use, but they also want
attribution for their work as it is distributed.
So, the development of standard technical measures does
not, under the statute, require a formal standards body. It
only requires two groups of participants, the online service
providers and the copyright owners, to get together and to have
a discussion on how to use technology. The most important thing
to me is identification of creators' works and making
information available for users and machines to make an
informed decision about making use of works.
Mr. Cline. Do you believe that 512(i) has restricted or
discouraged the use of STMs? I mean, do you support the
recommendations in the report that Congress may want to either
broaden the language or give the Copyright Office regulatory
authority to oversee the development of STMs? It seems awfully
heavy handed.
Mr. Sedlik. I don't know that I support regulatory
authority. I do think that there needs to be a means of
recognizing STMs, and that can be done through a coalition or
consortium or Committee of stakeholder groups that look at STMs
and see if they can check the boxes in 512 as to whether or not
it is open and fair and developed in a broad process, et
cetera. In our process, we had 1,500 participants from 140
countries from all different stakeholder groups and individuals
participating to arrive at a way to identify works.
The big problem is that the OSPs are stripping out the
right information, what we call our embedded photo metadata,
from our works when it is distributed, and, thus, our works are
orphaned and virally distributed with no attribution
information. I do--
Mr. Cline. Mr. Schruers, do you want to respond to that?
Mr. Schruers. Certainly. So, as I was saying previously,
the number of variations and systems online is almost as many
as the number of online services. So, what technology may work
for short-form video service is not necessarily going to work
for a text-based social media service. As I think we have
heard, there are a lot of individual companies that have
implemented particular technical measures into their own either
DMCA compliance or their own DMCA plus systems. Now, the fact
that those might not qualify as standard technical measures
because of the narrowness of the definition in the statute
doesn't mean that they are not getting implemented by these
different companies. It is just an indication of the fact that
with the number of variations of services online, it is
somewhat more challenging to come up with a one-size-fits-all
solution.
Mr. Cline. Right, you don't agree that it requires
consensus from all stakeholders across every industry. You
agree that it requires only broad consensus, so that is
achievable in theory, correct?
Mr. Schruers. Well, I certainly think that achieving
standard technical measures in a way that complies with the
definition provided by the statute is feasible. The market has
evolved in such a way that the participants haven't found their
way on that consensus yet.
Mr. Cline. Okay. Well, I look forward to the Copyright
Office having additional discussions, and I think they are
going to have a symposium in the near future as to what they
have issued in their report, so I look forward to further
developments there. Thank you, Madam Chair.
Ms. Scanlon. Okay. Thank you. The Chair recognizes Ms.
Demings for 5 minutes.
Ms. Demings. Thank you so much, Madam Chair, and thank you
to all of you for being with us today. Ms. Kibby, the Chair
mentioned this somewhat, but when we think about the Congress
of yesterday, we could not have predicted how expansive and
advanced our online ecosystem would become. We had absolutely
no clue. So, as today's Congress continues to examine section
512, including whether any updates may or may not be needed,
what do you believe we should keep in mind to ensure that we
are future proofing, if you will, our work in this area? It is
so critical that we get it right. I would love to hear from
you.
Ms. Kibby. Thank you so much. I think it is about
simplifying, to be honest. The fact of the matter is that
artists such as myself, we are really just looking to get paid
for unauthorized use of our works and to take down things that
infringe on our artistic integrity. It is pretty basic. I mean,
I am only speaking for kind of my community that I am in,
specifically musicians that I know and artists, but I will come
back the idea of simplification. I refuse to believe that there
is not a way for us to come together as creators and service
providers, and I am not the person to perhaps come up with
these questions, but to have a discussion of what are some
basic questions that can be established that we check back in
on that would be viable, even 10 years from now. I think that
we are at a place where we have seen how the online service
providers have evolved in terms of their technology. I think
that we must be in participation with one another to come up
with some basic questions to make sure that our rights are
protected and also the creators on YouTube, for example, can
continue to do what they do, because it is not like we are not
in support of both types of creators and there must be some
kind of compromise. Ultimately, from my position and type of
creator, I can speak for musicians, and we are ultimately left
holding the bag at the end of the day.
Ms. Demings. Thank you. Mr. Sedlik, anything you would like
to add to what has been said?
Mr. Sedlik. Yes, and I would say that abuse of DMCA
takedowns pales in comparison. Certainly, there is abuse, but
it pales in comparison to abuse of the fair use exception. The
fair use exception is absolutely vital to copyright law, but it
is not a license to steal. Go ahead and criticize my work,
review it and make fun of it, teach about my work, but don't
make coffee mugs, and shirts, and posters, and iPhone cases.
Now, 9 out of 10 unauthorized uses, I get a response back from
the user saying this is fair use when they are using my work on
socks and tee shirts, and so education is a great first step.
The Copyright Office--I applaud them today--launched an
educational website for 512 to teach the public about notices
and takedowns and counter notices.
Ms. Demings. Thank you so much for that. Ms. Carrington, my
colleague, Ms. Lofgren, asked about this, but I would like to
hear your answer on red flag knowledge and hear what you
believe the practice means, and if you agree with the Copyright
Office's conclusion that the courts have blurred the lines
between actual knowledge and red flag knowledge.
Ms. Carrington. Yes, thank you for that question. I
completely agree with the Copyright Office's conclusion.
Section 512 is written such that even in the absence of actual
knowledge, red flag knowledge is supposed to trigger a duty to
investigate and find the infringing material. Unfortunately,
there have been a number of court cases--Viacom in the Second
Circuit, UMD, Perfect 10 in the Ninth Circuit and others--that
have conflated that red flag knowledge with actual knowledge in
a way that essentially reads the red flag knowledge out of the
statute, and what that does is it hinders the balance that
Congress intended. It was supposed to be a balance in which
copyright owners and OSPs are cooperating to address these
issues, but when courts have decided that they only need to
respond when they get specific notices or when they have
specific knowledge about infringement, that takes away a huge
part of the statute and really goes a long way towards
contributing to this unequal balance that the report documents
so well.
Ms. Demings. Again, thank you all. Madam Chair, I yield
back.
Ms. Scanlon. Thank you, and the Chair recognizes Mr. Chabot
for 5 minutes.
Mr. Chabot. I thank the Chair for yielding. All the way
back in 1789, our founding fathers included in our Nation's
most important governing document, the Constitution, a clause
granting Congress the power to quote ``promote the progress of
science and useful arts by securing for limited times to
authors and inventors the exclusive right to their respective
writings and discoveries.'' A year later, Congress did just
that by passing, and President Washington signed into law, the
first Copyright Act. In the 230 years since its enactment,
there have been millions of works registered and numerous
amendments passed to improve our copyright system. The most
recent significant change occurred in the Music Modernization
Act, and this was back in 201, intended to streamline and
reform how music is licensed and artists are compensated.
Before that, over 20 years ago, we passed the Digital
Millennium Copyright Act, or DMCA, to help protect the works of
creators on the internet. Obviously, a lot has changed since
then.
Ms. Kibby, let me begin with you. You have created a number
of works over the years since DMCA was enacted. How is your
ability to produce new creative works, and the ability of other
creators like you, been affected by activities needed to
protect your existing works through section 512?
Ms. Kibby. Thank you for asking. Honestly, like I said in
my opening statement, I just don't do it. I am so demoralized,
and frankly, don't know many other musicians in my small circle
that even consider it worth doing because they literally just
pop up again. I mean the internet is so vast that there is no
human way possible to really stay on top of infringements.
Mr. Chabot. Thank you very much. Some platforms, like
YouTube and Facebook, provide automated filtering tools that
are supposed to help find and block copyright infringement. I
would ask any of the panel Members who would like to address
this, how effective are they and are they adequate to protect
copyrighted works on those platforms? I would be interested to
hear from anyone who might like to comment.
Mr. Schruers. This is Matt Schruers. I would be happy to
comment on that.
Mr. Chabot. Thank you.
Mr. Schruers. So, these services, provide a valuable
additional tool to creative industries and individual artists
on top of, of course, the DMCA compliance. As I said in my
previous statement, a lot of these are both site and sometimes
media specific, and they require large investments, so
expecting small startups to implement these kinds of systems
isn't really practical. But, within the system, these not only
streamline and expedite enforcement, but they also create new
opportunities for monetizing content. So, in many cases,
artists can say this content, which is appearing on your site
belongs to me, but rather than take it down, why don't you run
ads next to it, and then the artists needn't do anything more,
but can now claim a share of the ad revenues that are
associated with the advertisements that have now been co-
located next to that content. So, in some ways, this is a way
of making lemonade from lemons, trying to turn this
infringement into a monetization opportunity that works.
Mr. Chabot. Yes?
Ms. Carrington. Yes, I would like to also respond.
Mr. Chabot. Go right ahead.
Ms. Carrington. Sorry.
Mr. Chabot. Go right ahead.
Ms. Carrington. Sure. So, I would also like to respond to
that. I think the technology that exists, such as Content ID,
Rights Manager, Audible Magic, right now, in the absence of
mandatory STMs per section 512(i) they are really, in a sense,
trying to put a band-aid on a gaping wound. What really needs
to happen is that these technologies, the underlying
technologies which would be completely appropriate to become
STMs, should be implemented as STMs. Of course, the technology
would have to be implemented in accordance with the statute,
which means that they need to assist copyright owners of all
sizes. I really want to emphasize that because there are
concerns with Content ID and other similar technologies, and
that they are not made available consistently to both large and
small content owners, and so, I really want to emphasize that.
Also, in addition, STMs are supposed to be developed with
participation from different stakeholders. The operations need
to be transparent, and they must be made available to all. So,
while these various technologies have assisted in some ways,
there are huge gaps that needs to be filled through STMs as
well as voluntary measures.
Mr. Chabot. Thank you, Madam Chair. My time has expired.
Ms. Scanlon. Okay. Thank you. The Chair recognizes Mr.
Deutch for 5 minutes.
Mr. Deutch. Thank you, Madam Chair. After this Committee
embarked upon its own multi-year review of the Copyright Act to
examine what is working and what is not working for creators
and stakeholders, and now after the Copyright Office's thorough
review of section 512, I feel like we are in a good place to
actually Act on some of the recurring problems that we have
seen with the current system. The basic premise of our
copyright law is that we are all enriched when creators create,
and they must be able to earn a fair return on their ingenuity.
The core of what we are talking about today is how we can
improve accountability and curb abuses of the delicate balance
that the 512 notice and takedown system seeks to achieve
without upsetting the whole apple cart. As we have seen, and as
the Copyright Office's report reflects, section 512 has become
a cornerstone of growth and development of the internet as we
know it, both for better and for worse.
I have previously described 512 as a flawed framework
because it puts all the burden of enforcement on the victims of
the crime. While this is universally unfair in theory, the
system represents an insurmountable burden to small creators
who cannot afford the cost of enforcing their copyright across
the vast and ever-growing online platforms.
Now, Ms. Kibby, I would like to follow up and refer to a
conversation you had with Chair Nadler, something you point out
your testimony, that all the hours you spend trying to track
down and stop infringement of your works robs you of time spent
actually creating new music or further honing your craft. When
the internet was in its infancy, that searching might have been
a distraction and a frustration, but with the myriad of
platforms and services, it just seems impossible. So, Mr.
Sedlik, you go on to further describe how enforcing your rights
under 512 is impossible, and I agree with that. What we have is
a whole group of creators who have been effectively left out of
copyright protection. I think the CASE Act was a step in the
right direction here, but the 512 regime compounds existing
problems. So, Mr. Sedlik, can you elaborate on some of the ways
that you suggested to shift some of the weight of the burden
off small creators like yourself?
Mr. Sedlik. Sure. Well, one of them is to revise and
clarify the knowledge requirements recognizing that service
providers have the ability to control infringing activity and
deeming that willful blindness and negligent blindness are the
equivalent of actual knowledge. The service providers have
knowledge that there are works in their systems that have
identifying material embedded in the work that enable the
service providers, no matter what type of platform or
technology they are using, to read the information out of our
visual works and to Act on that information, or at least
consider it or make it available to the public. That is perhaps
the number one concern of creators in the visual arts is that
when we take the time to put our rights information into our
works, it should not be ignored by the service providers.
Google just took the right step on August 26th and is making
information available in all images that are in Google Images
if creators take the time to put work in there. We would like
to see that across the board from all OSPs.
Mr. Deutch. Great. I appreciate that. I want to just
finally to spend a minute talking about the bad actors, the
repeat offenders who take advantage of the system, that force
creators like Ms. Kibby and Mr. Sedlik into a perverse game of
whack-a-mole where creators must chase down each Act of
infringement online, each link, each stream. I wonder if there
is anything, we could do specifically on repeat infringers, the
small percentage of actors in this case who represent the
lion's share of the problem. Mr. Schruers, do you have thoughts
on that, how to better distinguish between legitimate users and
bad actors?
Mr. Schruers. Well, so section 512 already requires digital
services to have and enforce a repeat infringer policy, and we
have seen from the Cox case that the failure to meaningfully
enforce that kind of policy can result in serious liability. Of
course, there are certain constraints for anonymous users.
Unless you are going to forbid anonymous use of the internet,
it is difficult to meaningfully catch all repeat users, repeat
infringers. Certainly, we have seen courts say you need to have
this policy and you need to meaningfully enforce it. So, I
think that is certainly happening already, and I know within
industry that enforcing that policy is a critical part of their
internal DMCA compliance, lest you wind up facing a massive
judgment.
Mr. Deutch. I appreciate that. Madam Chair, section 512
certainly has value, but it also has flaws. We can't continue
to ignore the impact that those flaws have on American creators
and on our economy. I thank the witnesses for their time and
hope the Committee can navigate its way to tangible solutions
for the complex problems that we are discussing here today. I
yield back.
Ms. Scanlon. Thank you. The Chair recognizes Mr. Armstrong
for 5 minutes.
Mr. Armstrong. Thank you, Madam Chair. I want to talk a
little bit about the elements of notification in section 512(c)
and some of the legal and practical implications, and, Mr.
Sedlik, you had mentioned the URL issue earlier. So, a
claimant's infringement requires, among other elements,
identification of the material that is claimed to be infringing
and information reasonably sufficient to permit the service
provider to locate the material, and some courts have
interpreted this element to require a high degree of
specificity, including an exact URL for the alleged infringing
material. This creates a significant burden for rights holders
and contributes to the whack-a-mole problem. So, Mr. Sedlik,
what kind of burden is it for an independent singer-songwriter,
or anyone else for that matter, to track down each specific URL
to protect their copyrighted material?
Mr. Sedlik. If you could only see my spreadsheets of those
URLs. It is a huge burden, and the DMCA should be amended to
require that, upon receipt of a representative list of links to
infringing material, service providers must employ available
technologies to identify and remove not only those
representative examples, but all other existing infringement of
a copyrighted work. I would say that the statute says
information identifying and the work itself is, by definition,
data which is information identifying. So, if I were to provide
a copy of my work to an online service provider, there is
sufficient technology available to use my work to conduct image
recognition and identify all copies of my work across the
platform and give me the opportunity to determine which ones
are licensed and which are not, and give the users the ability
to claim fair use should they wish to do so.
Mr. Armstrong. Yeah, and the standard is information
reasonably sufficient to permit the service provider to locate
the material. Requiring an exact URL further shifts the burden
onto the rights of shareholders and away from the service
provider, who actually or theoretically controls the site and
often generates revenue from that contact. I don't think it is
a good argument for service providers to say they can't be
expected to search massive amounts of content on their site if
they generate revenue from that exact same content. Your
testimony suggests only requiring a representative list, URLs
that would serve as examples but would require the takedown of
all represented copyright work. Can you just elaborate on that
a little bit?
Mr. Sedlik. Sure. Well, the work itself should serve as a
way for the OSPs to be able to identify all copies of that work
even if they have been modified--cropped, flipped colorized,
changed in some ways--to determine where these copies exist on
their systems. So, the URLs aren't even needed. The work
itself, if submitted to the online service provider in a
similar system to what Facebook is implementing right now as a
means of rights holders to submit their work, would be
sufficient and should be sufficient under the statute. I think
the courts have got it wrong.
Mr. Armstrong. Mr. Schruers and Ms. Rose, I am going to ask
you the same question. Should larger, more sophisticated
service providers be able to search and filter infringing
material that is reasonably identified, meaning something more
general than a specific URL?
Mr. Schruers. So, if I may, some services already do this.
I would point out that there are inherent challenges in
assuming that because one iteration of a work that has been
identified as infringing, that it can necessarily be
extrapolated to all other uses of that work on the platform. We
do require rights holders to say that they have a good-faith
belief that this is infringing, but after they make that
representation with respect to all potential iterations the
work that exist across the platform. We have heard about the
scenario with Mr. Beato earlier today. I am not personally
familiar with his work, but it sounds like he is an educator
who helps people--
Mr. Armstrong. Yeah, and I am just going to stop you here
because that is not my question.
Mr. Schruers. Okay.
Mr. Armstrong. I understand the different iterations. I
mean, do they need the specificity of the exact URL, that is
the question, or can larger providers do it in a different way?
Mr. Schruers. Well, yeah. So, I think it is difficult to
paint all service providers with a broad brush, but in many
cases, the identifying information that is required in a
particular system is not necessarily the URL. The URL is sort
of the--
Mr. Armstrong. I have 15 seconds, and, I am sorry, Ms.
Rose, I hope we can get to you later. From an enforcement
standpoint, we have done this before, not necessarily in this
area, but we do it with drug analogs in the criminal system.
When we first started having analogs that existed, if you
changed one single thing in it, then it was legal until either
the DEA or the State legislation made it illegal again, and we
figured out that was untenable. While not exactly an apples-to-
apples comparison, there are ways to do this that would make it
a little less burdensome on the actual singer-songwriters. With
that, I yield back.
Ms. Scanlon. Thank you. The Chair recognizes Mr. Swalwell
for 5 minutes.
Mr. Swalwell. Thank you. Mr. Armstrong, if you have another
question, I am happy to yield to you if you want to get that in
there. I was interested in your dialogue.
Mr. Armstrong. I would just ask the same question to Ms.
Rose. Should larger, more sophisticated service providers be
able to search and filter infringing material that is
reasonably identified, meaning something more general than a
specific URL?
Ms. Rose. So, while I can't speak to the capacities of
larger platforms, and I think there is. Certainly, to agree
with my colleague, Mr. Schruers, I think that are some have the
capacity possibly to do that and some that don't. I worry about
any provision which would mandate such capacity, particularly
on smaller platforms. We tend to fall into a trap in a lot of
these situations where we have the impulse to legislate based
on what Google and Facebook are capable of doing, and in doing
so, create a set of rules that end up creating unfair or
unreasonable expectations for smaller websites, often run by
nonprofits that host user-generated content as well.
Mr. Armstrong. Just really quickly, and I agree with that
because what we don't want to do is create more of an incentive
to create market share in the top. Thank you, Mr. Swalwell. I
yield back.
Mr. Swalwell. Thank you and reclaiming my time. To follow
up on Mr. Deutch's point, Mr. Schruers, how do repeat infringer
policies vary among different online service providers?
Mr. Schruers. So, it depends very much on, in large part,
because we have a huge variety of service providers that fall
under section 512. So, the cost, for example, of terminating
somebody's social media account is perhaps not as serious, at
least for some users, then terminating someone's broadband
access, which could also terminate their livelihood, their
ability to engage in prayer and worship, and communication, and
so on. So, different services take different approaches. I know
some broadband providers, for example, have more extensive
policies. Some digital services, quite frankly, are very
strict.
The number of instances will often vary, and whether or not
a user disputes a claim against them will often be a relevant
factor, too. So, it is not uncommon for someone to submit a
takedown against a critic who says I don't like their work, or
a competitor. My testimony has a number of examples of that.
One doesn't want to hold against a legitimate user, a so-called
strike, when that claim was made in bad faith, and we will
often see policies take that into account.
Mr. Swalwell. Thank you. Speaking of livelihood, Ms. Kibby,
being someone in the artist community, lay out for us what it
means for you financially for your livelihood if we do not have
better protections for what you create?
Ms. Kibby. Yes, of course. Thank you. Unfortunately, as a
smaller artist, streaming is already not a huge part of my
income. I mean, we can all recognize that the music industry
has been completely turned on its head over the last 20 years,
I don't expect much from streaming to begin with. I think on
YouTube, 1,499 streams equals $1, so it is not that much. I am
a working-class musician, so let's say I get $100 from YouTube
streams. That could make the difference between me keeping the
lights on in my studio for a month or not. The frustrating
thing is that most of us are working-class musicians. We make
careers out of this. We are not famous. We don't dream of
buying big houses and expensive cars. We just want to do what
we love, and it is kind of bleak, to be perfectly honest.
Mr. Swalwell. We want you to do what you love, too, because
we love listening to it and being entertained by it. So, I am
grateful to the Chair for having this hearing, and I am
grateful to the panelists for participating. I yield back.
Ms. Scanlon. Thank you. The Chair recognizes Mr. Tiffany
for 5 minutes.
Mr. Tiffany. Thank you, Madam Chair. I yield my time to Mr.
Cline from Virginia.
Mr. Cline. Thank you. I thank my colleague, and I want to
follow up on Mr. Swalwell's questions to Ms. Kibby because we
all want you to do what you love, and we love that you are
doing it. So, when you are dealing with these platforms, are
you able to enter into agreements, licensing or otherwise, to
be compensated for your works across the board, or are there
some platforms that are more willing to enter into these
agreements than others?
Ms. Kibby. I would love to answer your question in an
intelligent way, but unfortunately, I cannot. As a general
rule, I make the art and my management takes care of the rest,
so I can't speak to the specifics of each platform
unfortunately.
Mr. Cline. Okay. Some of the larger platforms, whether it
is Facebook or Twitter, are they cooperating with you to make
sure that you are compensated for music that is put out there
on their platforms?
Ms. Kibby. Right. In general, any company that profits from
music, needs to pay the creators. We all agree on that.
Specifically, Twitter makes takedown very difficult, which adds
to the frustrations that I expressed earlier. It is not easy.
With YouTube, for example, the video that I mentioned earlier,
I sent a notice, and I must go through the whole rigmarole of
justifying what is my work. Well, not only my work, but also
misrepresenting me as an artist. It is very difficult across
the board, obviously, with differences here and there depending
on the platform, in general, it is extremely difficult. On top
of it, I am small enough that I will never have human
interaction with anybody from these platforms. I am relegated
to a general algorithm-generated email.
Mr. Cline. Thank you. Mr. Schruers, some of your
association's members have a business model based on internet
traffic, such as services supported primarily by advertising
revenue. Since infringing content can drive traffic just as
much, if not more, than non-infringing content, what incentives
exist for such providers to do more to help copyright holders
protect their works if their current efforts are enough for a
section 512 safe harbor?
Mr. Schruers. So, thanks for the question. I don't agree
with the contention that infringing works are necessarily
driving more traffic than non-infringing works. The vast
majority of users and people want to ensure that the artist
they know and love, are compensated for the work that they do.
On top of that, digital services want to be regarded as
valuable contributors to the creative economy. So, it leads to
these, as I said, voluntary efforts that we often see where
digital services try and find mechanisms whereby artists can
identify the works that have been uploaded without
authorization, and advertisements can be located next to those
works upon identification to allow the artist to monetize some
of that infringement. Those arrangements are, as I said, site
specific. They vary based on what kind of media is being used,
and so the ease with which that is done changes depending on
the particular context. These are the opportunities that
digital services are looking for to ensure that everyone can
take advantage of the value of these distribution systems.
Mr. Cline. Thank you. What problems do copyright holders
face? This can be for Ms. Carrington--when a counter notice is
filed to restore content that they requested be taken down, and
how should the counter notice system be changed to address
those problems in a fair and balanced way?
Ms. Carrington. Thank you for that question. So, one of the
major issues that contributes to the lack of balance in section
512 right now has to do with the notice and counter notice
process. Right now, if a creator finds their work has been
infringed, they are able to send a takedown notice, but the
users of that work have the ability to send the counter notice
putting that work back up, and often times they allege fair use
in ways that are very obviously not fair use. Once that
happens, a user sends a counter notice, there are really no
options left for a copyright owner. The statute basically says
that they would need to then go to Federal court. Most
creators, especially small individual creators and small
businesses absolutely cannot afford the cost of Federal court.
So, one option that I think would be a definite benefit in this
area, and I am very grateful to the House for having passed the
CASE Act 410 to 6, but it would be to pass the CASE Act, which
would give an alternative dispute resolution system for these
kinds of issues.
Mr. Cline. Thank you.
Ms. Scanlon. Thank you, and the Chair recognizes myself for
5 minutes. I do want to thank Chair Nadler for holding this
hearing. We have been hearing a lot in my region on the section
512 issue, particularly from small businesses and artists who
are struggling to effectively use the notice and takedown
system to enforce their copyrights online. In addition to
lacking the resources of larger creators or corporations, they
can even be prevented from using tools that could make
navigating the regime easier, and there seems like a fairness
issue. Given some of the conversations we have been having in
the Antitrust Subcommittee with some of the abuses and market
takeover of larger platforms, this seems like it fits right in
with that discussion. So, we have heard some conversation about
some of the larger platforms having developed automated systems
for the detection of copyright infringement. However, often
they are provided to only select rights holders, such as
YouTube with Content ID, and smaller businesses and small solo
creators can be locked out of those tools, forced to manually
detect infringement, and that puts them obviously at an extreme
disadvantage.
Mr. Sedlik, your story is one I have heard, and I would be
interested in hearing more about what you think might be
potential solutions to the problem. I am particularly
interested in the knowledge requirement and the willful
disregard issue.
Mr. Sedlik. Well, if the OSPs have access to a copy of a
protected work, whether by doing as Facebook is about to do in
requesting that creators submit copies of their work so that
people can recognize unauthorized copies on their system, then
that is a great step in the right direction. One of the most
significant benefits would occur if the OSPs were to recognize
and protect and maintain the rights information that we put
into our work, and that includes not just on the servers of
OSPs, but they use what are called content delivery networks,
which are other parties that do what is called localized
caching of works. Those parties, those localized caching
services and content delivery networks strip all of the rights
information out of the work to decrease the size of the work
and make it load faster.
If Congress can look at that and perhaps increase the scope
of the protections afforded under 1202, that would be a great
benefit. The stripping of our rights information is absolutely
key. As soon as our work is put up onto a social media
platform, it is injected into the stream of commerce. I marked
one of my works. I put a special mark on it, uploaded it to
Facebook as a test, and within 3 weeks, it was up on Amazon
being sold as socks, Miles Davis, right? On socks. I bought
these socks online very shortly after a specially marked
version was uploaded. This is a very real issue, and my
students at the Art Center College of Design are some of the
best artists I have ever seen in a generation of artists that
have very little chance at success in running a sustainable
business or even pursuing art and making art during their
lifetimes.
Ms. Scanlon. I think we can assume that you did not receive
any reimbursement from your purchase of those socks.
Mr. Sedlik. I did not, and there is no system that I know
of that provides artists with compensation when their work is
used, for example, on a social media platform. We are hoping to
see that developed, and the visual arts community is ready,
willing, and able to participate in discussions with social
media platforms on revenue shares for the use of our works.
Ms. Scanlon. Okay. Thank you. I appreciate your insight
here. With that, I will yield back, and the Chair recognizes
Mr. Raskin for 5 minutes.
Mr. Raskin. Madam Chair, thank you very much. I have got a
question based for Morgan Kibby. It is based on an article that
I read yesterday about a bunch of rock bands who have been in a
fight with President Trump because he has been using their
songs without their permission. The Rolling Stones are
involved, Neil Young, REM, Guns N' Roses, Elton John, Rihanna,
Tom Petty and the Heartbreakers, like, a dozen others, whose
music has been used in various Donald Trump campaign events
without their permission. They are furious about it because
they say they deplore his politics, and they don't want to be
associated with it. So, I guess my first question for you is,
you have expressed very powerfully how the copyright law at
least theoretically protects your financial interests, but
would you also describe how it protects your interests and the
integrity of your art and what you are trying to do with your
art against dilution and distortion and corruption online?
Ms. Kibby. Thank you so much for this question. It is just
as important as the financial benefit of having some agency
with my copyright. The video, once again, that I talked about
earlier, I dislike the imagery. It does not represent me. It
has nothing to do with me. In a world where people make snap
judgments about everything across the board day-to-day, for
artists particularly, especially one, I don't use social media
for personal purposes. It is literally only my art. I have
spent years developing my voice as an artist, growing,
maturing, crafting that into something that is very important
to me and helps people digest, who I am. So, yes, that is a
long answer to your question. Yes, it is just as important.
Mr. Raskin. Well, and if you have got giant rock and roll
bands, like the Rolling Stones, and Tom Petty, and George
Harrison's estate, that are wrestling with the President about
this and are caught up with lawyers, and who knows how much
money they are spending, is it possible for someone like you to
chase down people who are essentially tarnishing your
intellectual product and your artistic legacy online?
Ms. Kibby. We all know the answer to that question is
absolutely not. By the way, I am not a green musician. I have
been in the music industry for 20 years. I make a good living.
I am not rich. I am not poor. I am, solidly down the middle.
For me, it is virtually impossible to even consider pursuing
protecting myself. I must acknowledge Mr. Sedlik. Especially
working with young people, I see this. I have a couple of
mentees, and I work with younger people a lot in my industry.
It really breaks my heart because if it is difficult for me,
imagine how it is for this next generation of artists that will
not have the same opportunity to build a financial or create a
foundation the way that I was able to 15 years ago. So, I am
very concerned.
Mr. Raskin. Thank you. Ms. Rose, the gentlelady from
California mentioned the Church of Scientology as one that, as
an entity, abuses the takedown orders. I am wondering if you
know anything about that and if you could describe what they
have done, and who are the other abusers and how serious a
problem is that?
Ms. Rose. So, as far as the specific instance of Church of
Scientology, I do not have the examples at my fingertips, but
there have been several documented instances where critiques of
doctrine particularly, including quotes from some of their
texts, short quotes meant for the purposes of criticism or
education, as well as documentation, was in Going Clear, a
recent documentary about it, also faced some DMCA challenges
based purely on the desire to silence.
Mr. Raskin. Well, do you think it is possible people like
Morgan Kibby, while we prevent abuses by religions that claim
that their doctrine is somehow copyrighted and protected
material that can't be quoted by former members or people
criticizing them?
Ms. Rose. I think there certainly is. I think that is
something that is going to require a lot of effort, frankly. If
we knew what it was, we would have probably figured it out and
implemented it some time ago. What we need to do is move away
from the understanding that we had in 1998 where the balance
being set was one between established content industries and a
relatively nascent online tech ecosystem, and consumers were
not explicitly part of that. Now we have passed the point where
the ability of folks to speak and critique freely is so
dependent on access to the online ecosystem, we need to make
sure that consumers and everyday voices are a recognized
constituency group and help build our policy around that.
Mr. Raskin. Thank you.
Mr. Stanton. Congressman Raskin, your 5 minutes are up. The
next up will be Congresswoman Garcia. The plan right now is to
continue to go through all the Members' questions--
Ms. Garcia. I am trying to get this unmuted.
Mr. Stanton. --so that we don't stop for votes, but votes
are happening right now. Congresswoman Garcia?
Ms. Garcia. Thank you, Mr. Chair, and thank you to the
Chair for bringing this important bill to the table. I wanted
to start with Mr. Band. Mr. Band, libraries occupy a unique
space in providing public access to the internet. I can tell
you that without a public library in several areas, and I grew
up in a rural area, so every time I go home, I hear this from
my sister. She has got to go from the farm into town to go to
the library to be able to use the internet. The libraries still
play a very important role in America. So, what part of this
section 512 framework is most important for libraries being
able to carry out their functions, and, given their unique
role, can and should libraries take extra steps to educate
users about the function of copyrights to provide compensation
for authors and creators?
Mr. Band. Thank you very much for the question. The most
important part of the DMCA for libraries is section 512(a). It
is called the safe harbor for mere conduits, and so it makes
sure that if you are providing broadband access, that you are
shielded from liability for any infringing activities of your
users if you are not part of what they are doing. The potential
for damages could be enormous. Mr. Schruers alluded to this
case involving Cox where it might be liable for about $1
billion in damages. So, protecting libraries from that is
incredibly important, and it enables libraries around the
country to continue providing services for people who need it.
Ms. Garcia. Moving forward, I mean, a lot has happened
since this was first enacted, and now we are dealing and
wrestling with what changes need to be made. Moving forward and
looking at the role libraries will play in the future, is there
anything that we need to do today to prepare for the changing
times?
Mr. Band. Well, I think that preserving the basic framework
is the most critical thing, and to remember that, as others
have said, that the internet ecosystem is incredibly diverse.
You have large players. You have small players. You have for
profit. You have nonprofit. The legal framework needs to remain
relatively simple so that you don't have sort of a one-size-
fits-all and you don't have technological mandates because,
again, there is such a tension between different interests. In
particular, libraries are often interested in representing the
interests of their users, right? The amazing thing about the
internet is that it allows all of us to become artists and
speakers and allows all of us to share our views and our
perspectives with the world. This is where, it really
intersects with the First Amendment.
Ms. Garcia. Thank you.
Ms. Garcia. Thank you. In the interest of my time because I
have got little time left, Mr. Sedlik, I had a question for
you, and just in simple words, 25 words or less, if I could ask
every Panel Member, beginning with Mr. Sedlik. This all sounds
complicated if anybody's watching, unless they are really
experts in this field. Tell me in 25 words or less why it
matters to the everyday constituent in my district that we pass
this bill. I mean help me connect the dots here. Why does it
matter?
Mr. Sedlik. To which bill are we referring?
Ms. Garcia. I am sorry. The bill that we are discussing
today.
Mr. Sedlik. Updating the DMCA?
Ms. Garcia. Yes, sir. What does all this really mean, the
changes to section 220? How does the average person buy into it
and even care what we are talking about today?
Mr. Sedlik. My short answer is that creators depend on
having for a limited time the ability to benefit from their
creations, and then the ownership and the access and the use
passes to society. The DMCA is supposed to provide a fair means
for creators to be able to create and have an incentive to
create, and for OSPs to be able to have safe harbor when using
creative works that are uploaded by their users.
Mr. Stanton. Thank you very much. Congresswoman, the 5
minutes is up, and I appreciate those questions.
Ms. Garcia. Thank you, Mr. Chair. I yield back.
Mr. Stanton. Thank you, Congresswoman. Next will be
Congressman Correa.
Mr. Correa. Thank you, Mr. Chair. I want to thank Chair
Nadler for holding this most important hearing, and I want to
thank our guests today, our witnesses, for your time and
interest. As we think about DMCA 1998, 22 years have gone by,
and you have the evolution of the internet. I look at the
internet as a distribution system, so to speak, where small,
creative artists can market your products and get compensated
for what you do, because at the end of the day, all of us enjoy
your music, your songs. The world is much, much better off when
you are doing what you do best. So, I am going to ask Ms. Kibby
and Mr. Sedlik, do you believe that the notice and takedown
system of section 512 is robust enough to effectively handle
even greater shift in the online environment? Question?
Ms. Kibby. No.
Mr. Correa. Why not?
Ms. Kibby. No. It is just, the parameters for participating
in the structure that we have, it is not working. We have noted
earlier there are millions of takedown notices, and yet I still
see infringement on my rights popping up all the time.
Mr. Correa. Mr. Sedlik?
Mr. Sedlik. Yes, it is a distribution system, but it is a
distribution system for infringements. Ninty-nine percent or
more copies of my work online are unlicensed, unauthorized
uses, some being fair use, most being infringements. The DMCA
gives me the opportunity to pull some of those down, but there
are millions. In front of my class when I am demonstrating how
to file a DMCA takedown notice, I can find between 50 and 100
infringements in 10 minutes every semester, so this is an
untenable situation for us. The DMCA is a step in the right
direction, and it needs to be refined. I have provided some
specific recommendations in my written testimony.
Mr. Correa. So, a brief answer from all the panelists.
Since 1998, the ability to automate and detect infringement
online has improved. Some of the larger platforms have
developed much better automated systems to detect infringement.
Is this a benefit that the solo creators and small businesses
can take part, or is this just a benefit that is really
reserved for the bigger guys? Please.
Ms. Rose. I would like to answer that if I may.
Mr. Correa. Please.
Ms. Rose. Right now, most of the sort of algorithmic
detection processes that are available on the market have been
developed in-house by large established players. These are very
complex pieces of technology. They are usually designed to be
proprietary, especially in the case of YouTube's Content ID,
which is sort of one of the most famous examples. It is
designed very specifically for YouTube and YouTube's major
content partners. So, no, this is not something that is
available to small businesses, small platforms, and it is also
not available, frankly, to small artists. We have heard from a
few other folks, my colleagues here on the panel, who have
testified that this is not made available to small artists in
any meaningful capacity. So, any sort of private-side solutions
is necessarily going to reflect the priorities of the
individuals and organizations who develop it, and that's one of
the problems we have to wrangle with.
Mr. Correa. Would the ability to share this technology with
the small businesses, the individual songwriters, be part of
the solution?
Ms. Rose. Potentially. There is some discussion, for those
who are familiar with the patent sphere, something like a
standard essential patent where there are licensing obligations
placed on this kind of technology to license it out under fair,
reasonable, and non-discriminatory terms, is certainly an
option. As the market currently stands, it just risks re-
entrenching the market power of the few very, very large
dominant players who have managed to develop the technology in
the first place.
Mr. Correa. Solutions? Anybody? Got 30 seconds.
Ms. Carrington. So, I would also like to jump in on that
question. I agree, automated technologies are not made
available to small players, individual creators, and that is a
huge problem. The scale of piracy that is on the internet
today, expecting people to manually find and send takedown
notices for each instance of infringement is just an
unrealistic task, and it is an uphill battle that small
creators just cannot surmount.
Mr. Correa. Thank you very much. I am out of time. Mr.
Chair, I yield.
Mr. Stanton. Thank you, Congressman Correa. Next up will be
Congresswoman McBath for 5 minutes.
Ms. McBath. Thank you, Mr. Chair, and thank you to each and
every one of you for being here to discuss our copyright laws
today. I am proud to represent Georgia's 6th District, which is
home to many members of the creative community, especially
people are involved in film and music and television. I have to
say, probably outside of California and New York, we have now
become one of the largest environments for the creative
technology and creators of television and movies and music.
These creators, of course, and some like yourselves today,
bring much to our lives by sharing your talents. They are
sharing their talents, movies that inform and inspire us,
television shows that we watch with our loved ones, and music
that we dance to through every stage of our life. We rely on
graphic artists, too, when we send cards to a friend that we
can't see in person, which I am sure we are having a lot of
success doing that in COVID-19, and when we wear tee shirts to
express our views, and when we hire photographers to document
our most special moments.
Our world is so much richer because of the creative minds
among us, and, like I said, those of you that are with us
today. We have got to make sure that our laws are serving the
needs of persons such as yourselves, and this is especially
important right now as we continue through a health crisis that
has closed concert venues and limited the operations of music
and film studios. I believe that we can maintain the internet
as a critical place for the spread of information and ideas
while also making sure that our artists can actually make a
living.
Ms. Kibby, your testimony resonated with me, and I did read
it. It resonated with me because I have heard from many
working-class musicians, as you put it, from my own district.
You emphasize that copyrighted infringement is especially
damaging to musicians who are early in their careers or are
still thinking about whether their talent is something that
they want to continue to pursue professionally. Can you
elaborate on your experience working with and mentoring
emerging artists and how they are thinking about these issues
that we are discussing today?
Ms. Kibby. Yes, thank you for the question. It is
terrifying for them if I can be completely blunt. The pandemic
has just robbed us of one of the remaining viable ways to make
a living. You used to be able to hop in a van, and even if it
wasn't comfortable and it wasn't plush, you could tour and make
some money to get by. Now that is not even available to large
artists who are canceling multimillion-dollar tours and who
employ hundreds of people. It is just so saddening talking to
one of my mentees. She has to live with her mother, and she
doesn't know when she is ever going to be able to move out. She
is not able to participate in any active live shows and can't
even network with people now because she can't physically be
around people. It is kind of a conundrum.
Ms. McBath. Well, thank you so much for that, and I would
like to move on. Mr. Sedlik, I have read your testimony as
well, and thank you so much for the recommendations that you
made for revisioning section 512, to make revisions to 512. The
recommendations in your written testimony include prohibiting
service providers from publishing creators' names, addresses,
phone numbers, and emails, and you mentioned that publishing
this information has led to shaming and threatening creators.
Can you expand on these incidents and the reforms that you are
recommending, that you are suggesting?
Mr. Sedlik. Thank you for the question. So, when we as
creators, create our works initially, we do so with the
expectation that we are going to be able to benefit from them
over time. The first initial use for which the work is created
is only the first in a long chain of a lifetime of uses, over
our lifetime and our heirs' lifetime, of our works, and those
might be very different types of uses. For example, I might
create a book, and it will later be used on tee shirts without
my authorization, in magazines and newspapers for various
commercial uses, and so my ability to protect my work overtime
is absolutely essential. I lost my train of thought there, so I
am going to yield my answer.
Ms. McBath. Thank you. I yield back. Thank you for your
answers.
Mr. Stanton. I am going to yield 5 minutes to myself. One
of the concerns that I have heard about changing section 512
are the barriers for entry to new businesses. Uncertainty due
to changes in the law and not being able to afford litigation
on copyright infringement can cause new and smaller businesses
not to compete all together. This is a question for any of the
witnesses who would like to answer. What are some of the ways
that these concerns can be alleviated if section 512 is, in
fact, changed?
Mr. Schruers. If I may, unless somebody else wants to go
first.
Mr. Stanton. Jump in, please.
Mr. Schruers. All right. I guess what I would say is at the
outset, my testimony points out that arguably, section 512 is
not the low-hanging fruit of the Copyright Act. While we
acknowledge there are problems that affect creators as well as
users who are often the target of misuse that my testimony
describes in greater detail, providing additional certainty and
mechanisms around encouraging the promotion of creative works
online is likelier to provide greater benefits in the long run.
To achieve that, we would look to modernizing the copyright
system to make licensing information more available and easily
accessible to ease the speed with which a willing buyer can
find a willing seller and license those works.
Mr. Stanton. Any other witness who would like to answer
that same question?
Ms. Carrington. Yes, thank you. I would also like to answer
that question.
Mr. Stanton. Please.
Ms. Carrington. So, I think it is very important that OSPs
come to the table and engage in the kind of cooperation that
Congress intended. To your question about innovation and new
businesses, it is important to remember that no one is
expecting that a small OSP or a new fledgling platform is going
to implement the same level of an anti-piracy program as, say,
Google. Our expectations are that the scale of an OSP's anti-
piracy program is commensurate with the level of infringement
and piracy on their site, so that is definitely not going to be
a barrier to entry. It is the price to play. Creators are being
hurt by piracy, and OSPs absolutely have a responsibility to do
something about that.
Mr. Stanton. Thank you very much. Any other witness like to
answer the same question, impact on small businesses and what
can be changed to improve that?
Mr. Band. If I may, I would just add that it is important
to recognize that if this hearing were held 10 years ago, we
would be having a very different conversation. At that point
you would be having a lot of the large content providers, the
motion picture studios and so forth, bringing their concerns
and talking about how the service providers are not addressing
their needs and the threats they are under. Now, because a lot
of the problems of the large providers have been addressed
through things like Content ID, the problem is different. It
has evolved, and it is a more targeted issue, obviously
something that we need to come up with a solution to, but it is
important to recognize that the problem has evolved. It is, in
many ways, a much narrower problem, in its own way, it is a
harder problem to address because it is easier to figure out
how to work with motion picture studios and harder to figure
out how to address the enormous variety of individual artists.
Mr. Stanton. I thank you very much. I will yield back the
rest of my time, and now will turn to Congresswoman Mucarsel-
Powell. Congresswoman, 5 minutes?
Ms. Mucarsel-Powell. Yeah. Thank you, Mr. Chair, and thank
you, the witnesses, again, for coming. I represent South
Florida, Florida's 26th District, and Miami is home to some of
the biggest Latino creators in the industry. I wanted to shift
a little bit and ask you, maybe starting with Ms. Kibby then
Mr. Sedlik, some people have mentioned that they would like the
United States to move towards a notice and stay down approach
where OSPs must make efforts to take down infringing material
and prevent similar infringement in the future or open
themselves to liability. So, do you know of other countries
that have effectively implemented such a system that we should
look at as a model?
Ms. Kibby. I will let Mr. Sedlik take that question.
Ms. Mucarsel-Powell. Okay.
Mr. Sedlik. We have to be very careful with notice and stay
down, but at the same time, we need to find a solution. When I
put my work up, it comes down within a few days and then it
comes right back up, and there needs to be a solution to that.
I can't keep up with this whack-a-mole type of [inaudible]. So,
what needs to happen is a notice and stay down procedure that
does not stifle free speech and does not stifle fair use. It is
important to recognize that my work itself is free speech. My
photographs are free speech. The infringement that is occurring
is inhibiting and chilling my ability to exercise my right to
free speech, so it is a two-way street.
Ms. Mucarsel-Powell. Does any other witness have any
information on models that have worked in other countries that
we can look at moving forward?
Ms. Rose. Yes. So, I think the closest approximation right
now is the European Union implemented or passed a new copyright
directive recently. The states, individual member states, are
still in the process of implementing the copyright directive
into their individual laws. So, we actually have a very
interesting situation right now where we essentially have a lot
of sort of test runs of a lot of these potential or proposed
changes to copyright law. That will take a few years for those
implementations to happen, and then there will be inevitably
legal challenges to various aspects of it. In this case, the
U.S. has the benefit of being able to observe what happens in
the wild as these proposals move forward over the next several
years.
Ms. Mucarsel-Powell. Thank you, Ms. Rose. Before we close
down, one last question. I know that other nations have
actually implemented systems that place more responsibility for
negative externalities on service providers, and some advocates
for service providers have argued that this inhibits
investigation, and that the U.S.'s more relaxed system allows
it to maintain its position as a leading Nation in technology.
Do you have any evidence that would support this?
Mr. Schruers. I think, if I may, this is Matt Schruers,
representing a number of those industry constituents, I think
the fact that the U.S. technology industry is the envy of the
world and digital exports are one of our fastest-growing export
sectors is illustrative of the fact that we have struck the
right balance, that we got it right, which is not to say that
there are not problems. I think we have talked about
challenges, but among all the other alternatives, this is the
best path forward. While we still have challenges to deal with,
no one else has managed to do it better. I would note that the
Copyright Office, for example, does not recommend implementing
the highly controversial system that Europe is looking at it in
part because they simply haven't figured out how to say if you
have a stay down obligation, if a work is taken down for an
infringing use today, but it is the subject of a lawful use
tomorrow, how does one thread that needle? There is no good
explanation for that, at least that I have heard, and certainly
I haven't seen any European member states come up with that. I
would say we have managed to strike the right balance.
Ms. Mucarsel-Powell. Yeah. Thank you, Mr. Schruers. Look, I
think we have to protect people, artists like Ms. Kibby, that
have to continuously work through a system where she can't even
talk to someone directly. She must go through this process on
Twitter or whatever other platforms she is using. We need to
find solutions and I think that it is important to look at what
is working in other places and what we can really study here so
that we can bring that balance, so thank you. Thank you to all
the witnesses. I yield back my time.
Mr. Stanton. Thank you very much, Congresswoman. I see no
further Members here to ask additional questions, so this
concludes today's hearings. We thank all our outstanding
witnesses for participating.
Without objection, all Members of the Committee have 5
legislative days to submit additional written questions for the
witnesses or additional materials for the record.
Without objection, this hearing is adjourned. Thank you,
everybody.
[Whereupon, at 2:29 p.m., the Committee was adjourned.]
QUESTIONS AND ANSWERS FOR THE RECORD
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
RESPONSES OF PROFESSOR JEFFREY SEDLIK TO CONGRESSMAN STANTON'S
QUESTIONS FOR THE RECORD
1. Section 512 was enacted in 1998, more than 20 years ago.
It took the Copyright Office more than 5 years to write the
report on section 512. It seems to me that although technology
certainly does move fast, solutions to the problems at hand are
coming slowly. My question for all of the witnesses is: If
Congress and stakeholders do not come back to the table and
work together on ways to modernize and section 512 and find
solutions to the issues we have discussed here today, what will
happen to the Internet and to the stakeholders that use section
512?
Witnesses representing Online Service Providers ( OSPs) at
the hearing claimed that the DMCA is working as intended, and
that nothing is broken. Most OSPs continue to ignore the very
real problems with section 512 because their business models
rely in great measure on their exploitation of infringing
material uploaded by their users. Most OSPs are unwilling to
participate in any process that may disrupt that business
model, or prevent them from continuing to profit handsomely
from rampant piracy and from the infringement that they
continue to facilitate on their platforms, with impunity.
Section 512(i) and other provisions of the DMCA are
currently structured in a way that encourages collaboration
among stakeholders only in the event that copyright owners and
service providers agree that a problem exists and requires a
remedy. But OSPs continue consistently deny and downplay the
scale of piracy and infringement occurring on their platforms,
and claim that all is well, and that everything is working just
as Congress intended when drafting the DMCA. OSPs are well
aware that the loopholes and ambiguity in section 512 play
heavily in their favor. OSPs have every incentive to maintain
the status quo by discouraging and delaying efforts to
collaborate on standards, and by opposing statutory and
regulatory revisions that might limit their ability to continue
profiting from the rampant infringement occurring on their
platforms, and thereby tilt the scales of the online
marketplace into equilibrium.
Meanwhile, small creators and copyright holders complain
that loopholes, ambiguity, and other shortcomings of section
512 are facilitating and perpetuating infringement and other
abuses of their creative works, devaluing those works and
impeding or even destroying their businesses. OSPs persistently
leverage the inadequacies of section 512 to frustrate rights
holders' desperate attempts to protect their creative works
against infringement on OSP platforms. Facing widespread repeat
infringement, cumbersome takedown forms on OSP websites, and
tactics employed by OSP DMCA agents to discourage rightsholders
from completing the takedown process, many creators find that
attempting to enforce their rights under the current section
512 is a hopelessly useless endeavor.
After decades under the section 512, we have a system under
which one stakeholder group (the OSPs) thrives while claiming
that all is well, while the other stakeholder group (creators
and copyright owners) suffer horribly, persistently complain of
serious, ongoing problems endangering their businesses. This is
not a sign of a balanced system. This is not a system working
as intended. By carefully structuring their business models to
exploit the loopholes and weaknesses of the DMCA, the OSPs have
built empires, monetizing infringing content without fear of
liability, and enjoying rapid and explosive growth. OSPs are
among the most wealthy and powerful companies on earth.
Meanwhile, creators and copyright owners struggle desperately
to survive in a marketplace where infringement of their works
is the rule, not the exception.
The loopholes in the DMCA must be closed. Ambiguity must be
resolved. All stakeholders must be held accountable for their
inaction. The development of a clearly articulated intent to
adopt a balanced system, weighing the equities and interest of
all stakeholders, is a good starting point.
The community of visual artists has been and continues to
be devastated by the massive scope of online infringement, and
is already seated at the table with Congress, eager to
cooperate with OSPs to remedy the proven inadequacies of
section 512. Unfortunately, OSPs continue to insist that all is
well, and refuse to take their seats at the table and roll up
their sleeves to collaborate on developing and implementing
corrective measures to achieve a more balanced, effective
system.
In refusing to recognize the well documented points of
failure in section 512, OSPs are filling their coffers while
destroying the livelihoods of small creators and discouraging
the progress of the arts envisioned by Congress in article I,
section 8, Clause 8, of our Constitution.
The community of visual artists has been and continues to
be devastated by the massive scope of online infringement, and
stands ready to cooperate with OSPs to propagate systems ``to
detect and deal with infringements that take place in the
digital networked environment'' as intended by Congress.
2. One of the concerns that I have heard about changing
section 512 are the barriers to entry for new businesses.
Uncertainty due to changes in the law and not being able to
afford litigation on copyright infringement can cause new and
smaller businesses to not compete altogether. What are some
ways that these concerns can be alleviated if section 512 is in
fact changed?
Concerns that revisions to section 512 will create barriers
to entry for new businesses are biased, misplaced, and
misguided. These concerns focus solely on OSPs, ignoring
existing, long term, formidable barriers to entry for small
creators whose survival depends directly on revenue from
licensing their copyrights for authorized uses on the internet,
and who are unable to sustain their businesses due to rampant
infringement by OSPs, who infringe with impunity due to
unresolved loopholes and ambiguity in the section 512.
Under the current section 512, OSPs enjoy unfettered access
to copyrighted creative works, exploiting those works to
attract users in order to ultimately generate advertising
revenue, while knowing or having reason to know that the
majority of the works uploaded to their platforms are
infringing material. OSPs profit unfairly by exploiting
copyright protected works on a massive scale, without the
knowledge or permission of the copyright holders, while hiding
in the safe harbor of section 512, in a manner never envisioned
by Congress.
When entering the marketplace, new, small OSPs have access
to technologies that would, if implemented, reduce, and nearly
eliminate infringement on their platforms. These new OSPs need
not develop new technology for this purpose. The technology has
been available for decades, it is readily available, at low
cost, for integration in any OSP platform. The integration of
these technologies is a small price to pay for OSPs, who build
their businesses on the backs of creators and copyright owners
while offering little or no compensation.
The barrier to entry is real, but it is faced by creators
unable to monetize their copyrighted works in an environment of
widespread, legalized infringement by OSPs and their users.
3. Just this morning the U.S. Copyright Office launched a
website dedicated to the Digital Millennium Copyright Act which
consolidates information and resources about various aspects of
the Act including section 512's safe harbors and notice-and-
takedown system. The Copyright Office found in its report that
education resources about notice-and takedown system may help
``alleviate certain imbalances in the section 512 framework by
reducing the number of inappropriate notices and counter-
claims.'' This is certainly a step in the right direction, but
what more can the Copyright Office do to restore these
imbalances?
Section 512(i) of the DMCA conditions OSP safe harbor
eligibility on not interfering with Standard Technical Measures
(``STMs'') that ``have been developed pursuant to a broad
consensus of copyright owners and service providers in an open,
fair, voluntary, multi-industry standards process.'' The
Copyright Office should be directed by Congress to more
aggressively encourage and facilitate collaboration by
stakeholders on the development of STMs, and to promote and
enable the development of networked, interoperable public and
private registries to provide OSPs and the public with ready
access to rights holder information necessary to identify
copyrighted works made available on the internet.
Toward those ends, in 2002, Register of Copyrights Marybeth
Peters urged the photography industry to facilitate a
consultative, multi-industry process to develop an STM for
visual works, for use by all industries and the public. Acting
on Register Peters' advice, the photography industry then
approached publishers, advertising agencies, design firms,
museums, libraries, OSPs, RROs, educational institutions, stock
photography agencies and others. In 2004, stakeholders and
groups from all of these industries formed the industry-
neutral, non-profit PLUS Coalition. I helped found the PLUS
Coalition and currently serve as President.
In an open, fair, voluntary, multi-industry process, with
intensive participation by over 1,500 representatives from all
of the above-described industries, and with input from OSPs
such as Microsoft, Yahoo and Google, the PLUS Coalition then
developed standards and guidelines supporting the use of
embedded rights metadata as an STM for visual works, in all
industries. The PLUS standards were then integrated within
other, pre-existing standards, and built into software and
tools employed by all industries and communities engaged in
creating, distributing, using, and preserving visual works.
The PLUS standards do not impose substantial costs or
burdens on service providers or their networks. Since 2006, the
PLUS standards, in combination with mature technology to embed
and read data in digital files, has been used by copyright
owners to identify and protect copyrighted visual works, and is
employed by users and intermediaries to identify rights holders
and rights information pertaining to visual works. For
reference, I provide four examples:
i. PLUS standards for embedded rights metadata are integrated
in the cross-industry IPTC Photo Metadata Standard, the global
standard for image metadata, used in all industries and user
communities as an STM to identify rights holders and rights
information for visual works, and to protect those works.
ii. PLUS standards field ``Licensor URL'' for embedded rights
metadata has been adopted by Google and integrated in Google
Images as an STM to allow users of Google Images to identify
rights holders and rights information for visual works, and
thus to protect those works.
iii. PLUS standards for embedded rights metadata are
integrated in Adobe applications utilized by more than 15
million users globally as an STM for visual works, to identify
rights holders and rights information and thus to protect those
works.
iv. PLUS standards for embedded rights metadata are
integrated in ExifTool, the primary tool employed to read and
write embedded image metadata for the purpose of identifying
rights holders and rights information as an STM for visual
works, and thus to protect those works.
Embedded metadata for photographs and other visual works is
a mature technology, broadly employed in and recognized by all
manner of devices for more than 30 years. By embedding rights
metadata in their works, visual artists provide all OSPs with a
means by which OSPs can employ automation to identify works,
authors, and rights information at any scale. OSPs can in turn
employ automation to Act on that information at scale, and to
make that information available to the public engaged in
accessing works distributed and displayed by OSPs, just as
Google has done by adopting a PLUS standards rights metadata
field for identifying rightsholders and rights information in
Google Images.
The PLUS Coalition is an example of a successful voluntary
initiative to create and broadly deploy an STM, allowing
creators and copyright owners to embed standardized copyright
management information within digital photographs, where that
metadata can be readily accessed and acted upon by online
service providers (OSPs) and the public.
Unfortunately, the PLUS Coalition is a rare example of a
successful STM initiative. Many well- intentioned efforts to
develop effective STMs never get past the conceptual stage due
to a lack of incentive and desire on the part of OSPs. Under
section 512, if an OSP doesn't like a proposed STM, it can
simply abandon an initiative or agreement and thereby claim
that the technology or system was not developed with a broad
consensus of service providers and is not a qualified STM under
section 512.
OSPs must come to the table and make a good faith effort to
collaborate on development and implementation of effective
STMs. By revising section 512 to ensure that OSP safe harbor
eligibility is premised on OSP participation in development of
STMs, more successful STMs will be developed, resulting in
widespread, significant improvements for all stakeholders.
As I wrote in my testimony, service providers need to be
encouraged to collaborate with creators and other stakeholder
groups to implement non-proprietary, opt-out and opt-in
registries, available for voluntary use by creators and rights
holders. OSPs should be required to check all uploaded works
against those registries prior to reproduction, storage, or
display. For visual works, image recognition technology is
readily available, scalable, highly accurate, and perfectly
suited for this task. In addition, OSPs should be required to
search embedded metadata to identify rightsholders and to
discover infringing works.
Embedded metadata and digital watermarks should also be
formally recognized as STMs, and service providers should be
required to maintain and preserve all metadata and digital
watermarks in all files uploaded to their platforms, as a
condition of safe harbor eligibility.
Finally, the Register of Copyrights should be granted the
authority to establish and maintain a public listing of
recognized STMs.
Lastly, a point of clarification. As noted in the Copyright
Office report on section 512, there has been nomulti-industry
process to develop a single, universal STM with the OSPs, for
application across a broad spectrum of content types. However,
such an STM is an impossibility, as technical differences
between the different types of content prevent the possibility
of creating a single STM that can be applied across all types
of content, STMs can and should be developed for each type of
content (musical works, motion pictures, books, etc.) as the
PLUS Coalition has done for photography and the visual arts.
4. What is the one change that you would like to see to
section 512 and why?
In my testimony, I detail twelve revisions to section 512
that will help to achieve a balanced, effective system, such as
revising and clarifying knowledge requirements, recognizing
meaningful STMs, and encouraging voluntary initiatives. All of
my proposed revisions will improve the DMCA, but most needed is
a provision updating the notice and takedown system to remedy
the widespread ``whack-a-mole'' issue, in which infringing
content is immediately reposted to OSP platforms immediately
after a previous infringement is removed by an OSP in response
to a DMCA takedown notice submitted by a copyright owner. The
next section 512 must provide for a notice and stay-down,
requiring that OSPs take action to prevent their users from
successfully reposting infringing content after it is removed
in response to a legitimate DMCA take down notice.
OSPs argue that implementing a notice and stay-down system
would be overly burdensome and ineffective. However, many of
these same companies and services have developed far more
sophisticated technologies to harvest our data, curate content
for us, and target us with advertisements. The burden should
not be on copyright owners and creators to monitor for
infringement. In all fairness, as OSPs profit from the
distribution and display of infringing content while benefiting
from safe harbor under section 512, OSPs should shoulder the
burden of policing and enforcing infringement on their
platforms.
In addition to the revisions enumerated in my testimony,
the counter notification procedure described under 512(g)(2)(C)
should be revised to provide the rights holder with 30 days to
file an action seeking a court order. The current statute
requires that copyright owners identify an attorney in the
applicable district, contact that attorney, retain that
attorney, secure information sufficient to determine venue and
other details required in a complaint, and file an action, all
within ten days of receipt of a counter notification, or the
OSP will replace that content within four days of the tenth
day, further damaging the copyright owner. After infringing
content is restored due to a counter notification, many OSPs
then refuse to accept further takedown notices from the
copyright owner for that same infringing material. The ten-day
requirement creates an untenable if not impossible burden for
both copyright owners and OSPs, and must be revised to
accommodate practical considerations.
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MS. KIBBY RESPONSE TO QUESTIONS
Congressman Greg Stanton
Statement:
More than 20 years ago, the policy makers who pioneered the
Internet Age worked together to craft Section 512 of the
Digital Millennium Copyright Act. Section 512 was created to
protect ``original works of authorship'' under copyright law by
providing safe harbors for online service providers. One of the
provisions of that law sought to balance a copyright owners'
ability to protect their works with the responsibility of an
online service provider to remove the content from a website.
Providers who comply with that provision - what is known as
"notice and take down" - can limit their liability.
All of us know, though, that since that law was passed, the
Internet has changed significantly, far beyond what any of us
could have imagined in the late 1990s. We use the Internet to
learn, to watch movies, TV and user-created content, to buy and
sell, to set the thermostat in our homes and so much more. With
this exciting growth have also come significant challenges for
copyright owners who have an inherent right and need to protect
their content.
One of the most prevalent forms of copyright infringement
is online streaming. In fact, illegal streaming now accounts
for 80 percent of digital piracy including illegally streamed
music, movies, and shows.The recent report by the Copyright
Office considered whether Section 512 is currently working for
all parties that use it. Their finding was that "the original
intended balance has been tilted askew" and that notice and
take down notices have not fixed or even weakened digital
piracy. The report also found that while online service
providers are generally satisfied with Section 512, artists and
content creators are not, and in my view, are justified in
feeling so.
We need to modernize Section 512 to meet the challenges of
the modern age. Congress must be mindful of the concerns on
both sides of this issue and realize that remedies will have to
be scalable to the issue in the Internet ecosystem. A solution
that works for a small business might not work for Facebook.
One fix will not solve every problem. Like many of my
colleagues and witnesses here today, I also believe that we
must strike the right balance between combating digital piracy
without stifling innovation or free speech. I appreciate the
testimony I have heard so far today and look forward to working
with Chair Nadler, Ranking Member Jordan, and stakeholders on
finding solutions that are sustainable and helpful to creators
and the platforms that host the content.
Questions:
For all witnesses:
Section 512 was enacted in 1998, more than 20
years ago. It took the Copyright Office more than 5 years to
write the report on Section 512. It seems to me that although
technology certainly does move fast, solutions to the problems
at hand are coming slowly. My question for all of the witnesses
is: If Congress and stakeholders do not come back to the table
and work together on ways to modernize and Section 512 and find
solutions to the issues we have discussed here today, what will
happen to the Internet and to the stakeholders that use Section
512?
The current application of section 512 has already cost so
many of my fellow creators their careers and their livelihoods.
In light of the additional harm COVID-19 has wrought on
creatives, if we don't address the shortcomings of 512 and,
more appropriately, its implementation, many more will have no
choice but to abandon their craft and the digital marketplace,
our culture, will suffer.
Of course, failing to correct section 512's deficiencies will
allow irresponsible companies to disadvantage and prosper at
the expense of other businesses--particularly smaller and newer
ones--that obtain the proper licenses and responsibly address
any infringing activity on their platforms. Edging out smaller
players through unethical and unfair means under the cover of
section 512 is a threat to growing and legitimate businesses,
to creators, and to the marketplace itself. We don't allow
brick and mortar businesses to be driven by illicit activity
and we can't allow the Internet to be either.
One of the concerns that I have heard about
changing Section 512 are the barriers to entry for new
businesses. Uncertainty due to changes in the law and not being
able to afford litigation on copyright infringement can cause
new and smaller businesses to not compete altogether. What are
some ways that these concerns can be alleviated if Section 512
is in fact changed?
Section 512 was created more than 2 decades ago, in part to
help fledgling Internet businesses get their footing in a
nascent online environment. The law provided them significant
protections and now, today, many of those businesses are
multibillion-dollar international behemoths. They are raking in
money off content while creators of that content like me, are
barely making a living. The true risk in NOT addressing the
shortcomings of section 512 is to the millions of smaller
creators out there who struggle to make ends meet as they are
expected to comb the vast depths of the Internet to find the
infringements preventing them from making a return on their
investment.
In addition, the real risk to smaller businesses, and the
actual reason they may be unable to compete, is that an
ineffective section 512 gives an unfair competitive advantage
to companies that are able to offer infringing and unlicensed
works with impunity. A section 512 that worked as Congress
intended would not only stop the infringing activity through an
effective notice and STAYDOWN system, it would preclude many of
these illicit and undeserving businesses from qualifying for
the safe harbor in the first place, which would benefit smaller
businesses playing by the rules.
Just this morning the U.S. Copyright Office launched a
website dedicated to the Digital Millennium Copyright Act which
consolidates information and resources about various aspects of
the Act including Section 512's safe harbors and notice-and-
takedown system. The Copyright Office found in its report that
education resources about notice-and takedown system may help
``alleviate certain imbalances in the section 512 framework by
reducing the number of inappropriate notices and counter-
claims." This is certainly a step in the right direction, but
what more can the Copyright Office do to restore these
imbalances?
Education is an important component in establishing an
effective notice and takedown system, and the Copyright Office
is uniquely positioned to offer that. The Copyright Office
could also be instrumental in helping to establish standard
technical measures used to recognize and stop infringing
activity. Congress included these STMs in section 512 and
expected their implementation based on a broad consensus of
participants, but for two decades tech companies have refused
to come to the table to establish them. And why should they?
The current operation of Section 512 creates an imbalance that
benefits tech companies at the expense of creators.
Establishing STMs would increase their responsibilities and
interfere with those benefits. With prompting by Congress,
however, the Copyright Office could serve to bring the parties
together and finally establish, as intended, the STMs that
could help prevent the mass infringement now occurring online.
What is the one change that you would like to see
to Section 512 and why?
Ensure that, when infringing works are taken down, they do
not reappear. Works that are removed due to a takedown notice
are routinely--and often automatically and instantly--reposted.
There is no reason that a creator like myself should have to
send a repeat notice for the same work, on the same platform,
and often by the same user, ad infinitum. It's no wonder so
many of my colleagues have decided to give up--their jobs had
transformed from creating their art to searching for
infringements of it. Endlessly. That's not a livelihood, it's
debilitating and creative purgatory. It robs us of agency and
of focus. Takedown should effectively mean staydown. That is
what Congress intended and that is the only way section 512
will be successful.
Questions for the Record From Rep. Reschenthaler:
You identified Twitter as a platform that makes it
difficult for creators to effectively enforce their rights
through the notice-and-takedown process. Would you elaborate on
the problems associated with Twitter's copyright infringement
policies, and how you think they should be doing things
differently?
Twitter is an incredible platform with some brilliant
technical minds behind it that is very capable of doing more. I
wish there were more will and desire to address the key
problems regarding infringement that they are well aware of and
more than capable of entering into nitty-gritty dialogue about
how to fix.
Unfortunately, like so many other digital platforms, I know
both anecdotally from colleagues and from my own experience
that Twitter largely fails on both ends--notice and takedown.
The platform makes it difficult to figure out how to send
notices and then can take an eternity to remove an infringing
work. And then, of course, when a work is finally taken down,
it almost always pops right back up and we have to start all
over again. So, yes, on paper technically we have rights but,
under such an inoperative system, we effectively have none as
it pertains to effectuating a just outcome.
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