Category: Copyright Licensing

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Commercialization Copyright Copyright Licensing Copyright Theory High Tech Industry Internet Legislation Uncategorized

Taking a Whack at the DMCA: The Problem of Continuous Re-Posting

By Steven Tjoe

On Thursday March 13, the House Judiciary Committee held a hearing on the Digital Millennium Copyright Act’s (DMCA) notice and takedown system.  Among the witnesses testifying at the hearing was CPIP Fellow Professor Sean O’Connor (Washington University School of Law), who offered his insights on Section 512 from his unique position as a law professor, former musician, and counsel to web businesses.  Professor O’Connor observed that while the notice and takedown system may have operated effectively in the late 90s, today it no longer works for any of its intended beneficiaries.

Professor O’Connor traced the shared problems faced by websites and creators today to an unfortunate and unintended consequence of Section 512: the incentive for web businesses not to monitor content.  According to Professor O’Connor, this incentive has emboldened bad actors and fostered a culture of copyright contempt.  Under current law, web businesses (including the small, start-up web businesses Professor O’Connor counsels) are generally given an odd piece of advice by their attorneys: “don’t monitor the content on your site.”  The rationale is that there are serious potential downsides to monitoring content, but no upsides.  Monitoring content can expose web businesses to knowledge or awareness of infringement, and they risk losing their safe harbor under Section 512.  The end result is that web businesses don’t monitor (or even look), and as they turn a blind eye, bad actors are emboldened to upload and continuously re-post stolen works regardless of how many times they are taken down.

Professor O’Connor proposed two solutions to return some sanity to the process and encourage all parties involved to “do the right thing.”  His proposals target the most egregious cases: continuous re-posting of wholesale copies of creators’ works (not mash-ups, parodies, or excerpts, but infringing copies of the entire work).  Targeting these egregious cases makes sense given that the continuous re-posting of blatantly (really, inarguably) infringing wholesale copies accounts for the vast majority of takedown notices.

First, Professor O’Connor proposed a “notice and stay-down” system.  In such a system, once a business receives a takedown notice for a given work, it would monitor for re-posted copies of the same work (which it has already been notified is infringing) and take them down without having to receive additional notices for that work.  Ideally, web businesses should adopt voluntary best practices to monitor and immediately remove re-posted works.  Absent a voluntary adoption, Professor O’Connor believes that Congress should consider amending the DMCA to add an affirmative duty to monitor and remove re-posted infringing works.

This solution reflects the technological advances that have become a reality since the DMCA was passed in 1998.  Automated systems like the YouTube Content ID System (YouTube is owned by Google) can now effectively identify copyrighted works.  Adapting such technologies to identify works that have already been taken down under Section 512 and adding those works to a filter catalog would be one way to automate a notice and stay-down system to deter repeat offenders.  This would not only alleviate the cost (on both sides) of repeated takedowns for the same re-posted works, but would also systematically curb instances of blatant, wholesale copyright infringement.

Second, Professor O’Connor proposed revisiting and strengthening the DMCA’s red flag provisions by codifying a stronger version of the “willful blindness” doctrine that courts have narrowly interpreted.  Some courts have failed to find willful blindness even in cases involving very high volumes of infringing activity on a website.  In his written testimony, Professor O’Connor notes that “[t]he ‘don’t monitor’ advice and glamorization of a piracy culture means that many websites are in fact turning a blind eye to extensive infringement on their sites.”  By defining willful blindness to discourage today’s common “do not look” policy, we could combat the culture of copyright contempt that emboldens bad actors and repeat infringers.

Testimony by some of the other witnesses at the hearing corroborated the significant problems with the current notice and takedown system.  Paul F. Doda, Global Litigation Counsel for Elsevier (a premier publishing company), noted that despite rigorously issuing takedown notices, Elsevier encounters a growing number of copyright infringements each year.  The same literary works that are taken down are repeatedly re-uploaded on the same sites hundreds of times after being taken down.

From a more general standpoint, the sheer volume of takedown notices each year is staggering.  Katherine Oyama, Senior Copyright Policy Counsel at Google, testified that Google received 230 million takedown notices in 2013 alone (acting on 99% of those).  As instances of infringement continue to increase, the expense of locating, identifying, and then sending (or acting on) separate takedown notices for each infringing file has become increasingly significant and prohibitive, especially for creative up-starts and smaller web businesses.

From an artist’s standpoint, Maria Schneider (three-time GRAMMY-winning composer, conductor, and producer of jazz and classical music) testified to the real-world harm artists suffer despite the current “solutions” offered by Section 512.  Ms. Schneider described her experience with the notice and takedown system as an “endless whack-a-mole game” where, immediately after being taken down, her work reappears on the same sites she sent takedown notices to, offering her no relief from constant infringement.  She observed that independent artists are “hemorrhaging red ink” on their intellectual property.  Worse yet, policing the constant re-posting of stolen copies of their work is incredibly time-consuming and defers the ability of independent artists to focus on artistic endeavors, an effect Ms. Schneider fears will prove disastrous to young, aspiring artists and the future of the industry.

Simply put, it is time to update the notice and takedown system to reflect the realities of our digital age.

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Copyright Copyright Licensing High Tech Industry Internet Legislation Uncategorized

Improving the DMCA's Notice and Takedown System

In conjunction with today’s House Judiciary Committee hearing on the DMCA, CPIP Senior Scholar Prof. Mark Schultz published a critique of the notice and takedown system this morning on AEI’s TechPolicyDaily Blog.

In his critique, Prof. Schultz discusses CPIP’s policy brief by Prof. Bruce Boyden, which details the failures of the DMCA – despite the massive number of takedown notices sent, not a single day goes by when the infringing content is not readily available online. Prof. Schultz also highlights the written testimony of CPIP Fellow Prof. Sean O’Connor, a witness at today’s hearing, who proposes two simple, focused solutions – “notice and stay-down and codified “willful blindness” – to improve the notice and take-down process for all parties involved.

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Commercialization Copyright Copyright Licensing Legislation Supreme Court Uncategorized

Summary of Kirtsaeng v. John Wiley & Sons by Professor Chris Newman

Kirtsaeng v. John Wiley & Sons, U.S. Supreme Court, decided March 19, 2013

Chris Newman
Assistant Professor of Law
George Mason University School of Law

This is best described as a decision in which the Court felt compelled to choose between two readings of the Copyright Act, either of which led to unpalatable results.   One reading would eviscerate the exclusive importation right that Congress had sought to grant copyright owners.  The other would insert a huge loophole into the first-sale doctrine, which denies a copyright owner the right to control how people dispose of copies of protected works once they lawfully acquire ownership of them.   The argument was largely couched in the language of statutory interpretation, but at the end of the day the question was which horrible did more of the Justices fear more.  

The majority, in an opinion by Justice Breyer, chose to sacrifice the importation right.  This means that U.S. copyright owners may not rely on copyright law to aid them in segmenting the world market into domestic and foreign exclusive distribution zones.   Which is nice—at least in the short run—for U.S. consumers who want to buy cheap gray market imports.  It may turn out to be less nice in the long run for petitioner Kirtsaeng’s fellow citizens in Thailand, to whom U.S. textbook publishers may no longer be willing to sell books at prices that support arbitrage.  As Justice Kagan frankly acknowledged in concurrence, this is a suboptimal result that might have been avoided had the court taken a different route in an earlier case.  

The three dissenters would have opted to preserve the importation right, and in terms of straightforward textual interpretation, this commenter thinks Justice Ginsburg got the better of the argument.   What cost her the day was her inability to read the statute in a way that definitively closed the potential loophole in first sale doctrine, so as to dispel the spectre of permitting copyright owners to move all their manufacturing overseas and thereby gain the right to control all downstream distribution and display of copies even after they had been legally sold.   To be sure, this would indeed be an undesirable result, and Justice Ginsburg certainly did not believe it to be a correct or desirable application of copyright law.  But the only way she could avoid it while preserving the importation right was to argue that first sale doctrine is not really governed by the language in which it was codified in the statute.  Her solution makes sense as a matter of policy, but there was no way for the Court to adopt and make it stick in the context of this case, which would have left the spectre seemingly at large and triumphant.

 

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Commercialization Copyright Copyright Licensing Copyright Theory Uncategorized

Copyright Reform Through Private Ordering

Note:  This post was cross-posted at the CATO Unbound on 1/14/2013.  The January 2013 issue of CATO Unbound feature a debate on copyright reform, Opportunities for Copyright Reform This post responds to the discussion in that issue, but it also stands alone as a critique of copyright reform proposals that fail to understand how copyright’s nature as a property right allows for tremendous flexibility via private ordering

Derek Khanna’s lead essay, as well as his memo for the Republican Study Committee, urge libertarians and conservatives to rally around copyright reform as both good policy and good politics. While copyright law has its problems—like any statutory scheme, it is far from perfect—pursuing the “way forward” suggested by the lead essay is unlikely to yield policy or politics that are helpful or appealing to advocates of the free market.

If we embark on the path to copyright reform, where we end up very much depends on where we start. Given how the lead essay frames the discussion, it points us to a bad end. I addressed some of my general philosophical and policy disagreements with the RSC memo elsewhere. In this short response essay, I focus on the problems with the lead essay’s portrayal of copyright as “regulation.”

The lead essay describes copyright as a “government-imposed system of regulation.” I fear that this characterization confuses private ordering with government intervention. It proposes to put copyright on a path that likely would lead to more intervention.

In a superficial way, intellectual property rights may indeed seem to resemble the sort of economic regulations that provoke skepticism among free market advocates. For example, it appears that copyright prohibits the remix DJs discussed in the lead essay from freely employing their labor and selling the products of that labor.

The problem with the “regulation” label is that copyright law, in its broad strokes, does not tell anyone what he must and must not do.[1] Copyright only acts as a prohibition if a copyright owner chooses to use it that way. However, there is a vast diversity in how copyright owners actually choose to exercise their rights—they may sell copies at a fixed price, negotiate terms on a case-by-case basis, forgo payment entirely via a Creative Commons license, or simply choose to ignore or tolerate unlicensed uses. Or an owner may simply choose not to license at all. Fair use might override many of these choices, and, in any event, an unhappy potential buyer or user can always attempt to negotiate further.

Like other forms of property, copyright thus represents an invitation to a transaction and an opportunity to bargain. This opportunity for parties to transact and bargain is one of the key differences between property and regulation. A regulator has a duty to enforce the law—and if a regulator chooses not to enforce, then a court may order him to do so. Copyright owners need not enforce their rights, of course. Moreover, it is perfectly legitimate to offer a property owner money to forgo their right to enforce their copyrights; such commercial transactions are really the whole point of copyright. Make the same offer to a regulator, and you go to jail.

The distinction here between property and regulation ought to matter to conservatives and libertarians. We are rightly concerned that regulation impedes freedom. We typically embrace the exercise of property rights as furthering freedom. How we classify a copyright owner’s actions—regulation or property—makes a difference, particularly when they are stubbornly refusing to allow others to use their works in the way that others deem most prudent and efficient.

The rhetorical application of the “regulation” label tends to undermine support for the exercise of property rights. Advocates of free markets generally supported the rights of Susette Kelo and her neighbors when they resisted the city of New London taking of their property to give to another private party in the Kelo v. City of New London case. Nobody vilified Kelo and her neighbors as “regulators” for exercising their property rights, first by refusing to sell and then by fighting the city’s taking of their property. While Kelo’s opponents won anyway, their path certainly would have been even smoother if the city could have pulled the neat rhetorical trick of casting Kelo and her fellow plaintiffs as the bullying “regulators.”

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