Tag: Arts & Entertainment Advocacy Clinic

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Copyright

Artist Roundtable Presented by the Mason Sports & Entertainment Law Association and the Arts & Entertainment Advocacy Clinic

The following post comes from Austin Shaffer, a 2L at Scalia Law and a Research Assistant at CPIP.

the word "copyright" typed on a typewriterBy Austin Shaffer

On April 6th, the Mason Sports & Entertainment Law Association, in conjunction with the Arts & Entertainment Advocacy Clinic, hosted its Artist Roundtable event. Moderated by Professor Sandra Aistars of Scalia Law, the panel featured musician and producer David Lowery, filmmaker and photographer Stacey Marbrey, and author and director David Newhoff. To kick off the event, Prof. Aistars invited each of the panelists to introduce themselves and highlight any ongoing projects.

About the Panelists

Stacey Marbrey is an award-winning film director, producer, and internationally recognized editorial photographer and has programmed numerous film festivals. Previously, she acted as Program Director for an international film exchange under the auspices of the U.S. Department of State in concert with both the President’s Committee on the Arts and Humanities and the American Film Institute.

David Lowery is an American guitarist, vocalist, songwriter, mathematician, and activist. He is the founder of alternative rock band Camper Van Beethoven and co-founder of the traditional rock band Cracker. Throughout his career in the music industry, Mr. Lowery has worked in nearly every role imaginable, from both the business and music perspectives. Recently, he worked on a small project with limited online CD sales to experiment with a new revenue stream and business model. Mr. Lowery frequently posts at the popular blog “The Trichordist.”

David Newhoff is a writer and copyright advocate. He recently finished his first book, Who Invented Oscar Wilde? The Photograph at the Center of Modern American Copyright. He lives in New York’s Hudson River Valley, where he is currently working on his next book. Mr. Newhoff also writes the popular copyright blog “The Illusion of More.”

How do creative roles intersect with legal issues? What can lawyers do a better job of understanding when engaging with creators?

Mr. Lowery highlighted the importance of the intersection between the arts and legal roles. Unfortunately, he noted, there is a stigma in the artistic community regarding the use of legal action. He commented that, while you should generally attempt to resolve disputes internally, you cannot be afraid to use the legal system to enforce your rights. Even the legally savvy artists can misjudge the scope of the rights to which they are entitled. Mr. Lowery emphasized the need to provide artists with an “intervention”: register your works with the Copyright Office, guarantee your revenue streams with the Mechanical Licensing Collective, and enforce your rights.

On a similar note, Mr. Newhoff echoed the notion that some artists do not fully appreciate the scope of their rights and––perhaps more importantly—their obligations. It is not uncommon, he explained, for creators to assume that their publisher will handle all the legal responsibilities that go into creating a work (i.e., clearing photographs, obtaining permission to publish interviews, etc.). That assumption, however, leaves the author subject to potential liability for copyright infringement. Rather than taking that risk, Mr. Newhoff argued, creators should be proactive in fulfilling their legal obligations. 

Commenting on Mr. Newhoff’s observations, Ms. Marbrey remarked that, in many cases, creators wear many different hats and serve in various roles throughout the course of creating a work. Particularly in the film industry, it can be difficult for creators to keep their various duties and obligations separated and organized. Ms. Marbrey argued that this is one problem that lawyers can help to solve. By taking the time to understand the numerous roles in which a single creator may serve, lawyers can help to ensure that creators are getting maximum value out of their efforts.

The Stigma Against Contracts

The panelists each made unique observations on the use of contracts and how their respective industries tend to perceive them. Prof. Aistars pointed out a concerning trend: creators tend to have a negative view towards contracts and consequently refrain from using them. She commented that, in general, no one wants to be the person to involve lawyers in otherwise “friendly deals.”

The panelists shared stories from their careers that demonstrated this stigma. Ms. Marbrey, for example, worked on a collaborative project involving multiple SAG actors. The parties declined to set up a contractual framework to properly address various SAG-AFTRA requirements for actors. Consequently, the production was later paused to renegotiate deals with the actors after the film was already completed. Due to this misstep, the release of the project was delayed.

The panelists concluded that, while it may force some uncomfortable conversations at the onset of a project, creators should become more liberal with their use of contracts. Doing so allows for a mutual understanding between all parties before any time is invested into the creative process.

Current Trends to Watch in Copyright Law

This portion of the discussion offered a unique insight into the development of copyright law from creators’ perspectives. While the conversation was wide-ranging, there were several common topics that the panelists found especially significant.

The panelists came to a consensus that the general agenda of weakening copyright law could cause devastating effects to the creative community. Mr. Newhoff pointed specifically to the ongoing work being done by the American Law Institute (ALI) on a potential Restatement of Copyright. He argued that broadly speaking, the academic world tends to take an anti-copyright law stance. The panelists agreed that this should generate concern from the creative community and that individual creators should strive to have their voices heard as this project continues.

In general, creators tend to have difficulties understanding the scope of fair use. Especially given the recent Supreme Court decision in Google v. Oracle, there is an element of amorphousness to the fair use doctrine. The panelists concurred that, without legal assistance, creators will likely continue to struggle in determining what constitutes fair use and what requires a license to use.

The event concluded with a discussion on how creators can adapt to and update with the digital age. As a threshold matter, Mr. Newhoff argued that it is hard to fit 20th-century copyright doctrine into the 21st-century landscape. Moving forward, some of the copyright laws may need to be updated (or at least monitored) to better facilitate the production of creative works. Optimistically, Ms. Marbrey noted that the “streaming takeover” is exciting for filmmakers. Although streaming can pose tricky and previously unconsidered issues surrounding copyright law, it offers a new way for creators to showcase their works and opens the door to innovative revenue streams.

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C-IP2 News

#GivingTuesday: A Message from CPIP on Giving Tuesday 2020

CPIP logo

As we enter the holiday season and look ahead to 2021, we hope that you will keep CPIP in mind as you plan your end-of-year giving. Your support is critical to ensuring that CPIP can continue to bring reason and balance to the academic debate on intellectual property (IP) by engaging academics, creators, and innovators in a scholarly dialogue. Through our programs, events, network of scholars, and in-house staff, we have made great strides, but there is more work to be done. CPIP is an academic center and receives neither government funding nor funding from George Mason University, and it is only through the private support of our partners and sponsors that we can fulfill our mission.

To donate to CPIP, please visit: https://cip2.gmu.edu/donate-to-cpip/

You can also support CPIP by:

Your contributions help CPIP:

  • Host conferences, roundtables, fellowship meetings, symposia and colloquia, the WIPO Summer School on Intellectual Property, and many other programs that promote an ongoing dialogue on the importance of IP rights

  • Continue to build and maintain a community of research scholars and innovation industry stakeholders in the U.S.

  • Produce and support the production of a variety of cutting-edge research, scholarly articles, and policy materials that explore the value of IP and contribute to better-informed policy

  • Employ an in-house staff of directors and communications specialists who work tirelessly to plan and execute CPIP programs and events

  • Maintain and grow an international network of scholars, lawyers, and other professionals dedicated to the scholarly analysis of IP

Looking ahead to CPIP’s ninth year of operation, we are proud to be a leading academic voice in the discussion of IP rights and the technological, commercial, and creative innovation they facilitate. We have an exciting lineup of programs and events planned for 2021 as well as research and policy work agendas that will focus on key IP issues. The generosity of our partners and supporters is essential to CPIP’s success, and we thank you in advance for your support.

Categories
Copyright

Arts & Entertainment Advocacy Clinic Students File Amicus Brief in Brammer v. Violent Hues

a gavel lying on a desk in front of booksBy Rachelle Mortimer & Grant Ossler*

The Arts & Entertainment Advocacy Clinic at Antonin Scalia Law School recently filed an amicus brief in the Brammer v. Violent Hues case that is on appeal in the Fourth Circuit. The Clinic provides a unique opportunity for students interested in intellectual property and entertainment law. Each semester, students participating in the Clinic are able to gain practical experience working with clients and industry professionals on various projects related to copyright law and policy.

One organization that the Clinic often works with is Washington Area Lawyers for the Arts (WALA), which helps to provide legal services for local artists through volunteer attorneys who take on cases pro bono or at a reduced rate. By working with WALA to hold legal intake Clinics and take on pro bono cases, Clinic students are able to understand how copyright law affects individual artists. It is this understanding that led the Clinic to file the amicus brief in order to protect the rights of artists and prevent a dangerous expansion of the fair use defense to infringement.

Working with local attorneys from Protorae Law, students from the Clinic drafted portions of the amicus brief to explain how the U.S. District Court for the Eastern District of Virginia eviscerated the meaning and analysis of fair use under the Copyright Act.

Case Background

In 2016, the owner of defendant Violent Hues found a photograph online, copied it, cropped it, and posted it on a website that his organization created for its annual film festival. The photo in question was first posted to the photographer’s personal website, as well as to several online image-sharing websites. Violent Hues created the website to guide festival goers and provide information about the local area for filmmakers and festival attendees.

The owner of Violent Hues claimed he did not see a copyright notice on the photo when he used it, believing the photo was “a publicly available photograph.” Plaintiff Russell Brammer sent a demand letter, and upon receipt of the letter, Violent Hues removed the photo from its website. Brammer brought suit against Violent Hues claiming two causes of action: (1) copyright infringement under 17 U.S.C. § 504(b), and (2) removal and alteration of copyright management information under 17 U.S.C. § 1202.

District Court Decision

Brammer did not respond to arguments regarding count two, therefore the district court considered that claim abandoned. The district court granted summary judgment in favor of Violent Hues on count one, deeming the use of the photo was fair use per the Copyright Act. Fair use is codified in the Copyright Act and guides us through four factors of consideration when conducting an analysis to determine whether a use is a fair use. These factors are:

(1) The purpose and character of the use, including whether such use is of a commercial nature …; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C.§ 107.

Unfortunately, the district court eviscerated any meaning to fair use under copyright law. In its examination of purpose and character, the district court determined Violent Hues’ use was “transformative in function and purpose” because Violent Hues’ use of the photo was informational: “to provide festival attendees with information regarding the local area.” The district court distinguished this from Brammer’s use, which was “promotional and expressive.” Additionally, the district court determined the use was non-commercial because the photo was not used for advertising or to generate revenue. Regrettably, this is as far as the transformative analysis went.

In the district court’s analysis of the second factor, fair use weighed in favor of Violent Hues again because the photo was factual in nature and “fair use is more likely to be found in factual works than in fictional works.” The district court acknowledged that Brammer incorporated creative elements in his photo (e.g., lighting and shutter speed), but ultimately held that because it was a “factual depiction of a real-world location,” it was purely factual content. The district court determined this without regard to creativity, though. The photo itself is a time-lapse photo of the Adams Morgan neighborhood of Washington, D.C.

In examining the third factor of fair use, the district court determined that Violent Hues did not use any more of the photo than was necessary, and therefore this factor substantiality weighed in favor of Violent Hues. Keep in mind, though, that the photo in question was merely cropped.

Lastly, the district court concluded that because there was no evidence that Violent Hues’ use had any effect on the potential market for the photo, the fourth factor also weighed in favor of Violent Hues. To support its decision, the district court stated: “The Court’s task is to determine whether the defendant’s use of the plaintiff’s works would materially impair the marketability of the works and whether it would act as a market substitute.” The district court arrived at this decision despite Brammer testifying he had been compensated for the photo six times—two times after Violent Hues’ infringement.

And thus, we have summary judgment for Violent Hues under a non-comprehensive fair use analysis.

Amicus Brief Summary and Commentary

The purpose of the Clinic’s amicus brief is to assist the court with regard to a proper, comprehensive fair use analysis, and to prevent the possible harm that an overly broad interpretation of the fair use defense could bring.

In examining the first factor of fair use, “purpose and character”, the district court unfortunately dedicated approximately two sentences to the analysis of why Violent Hues’ use was transformative in “function and purpose.” The district court simply stated that because the use was “informational,” and not “expressive” like Brammer’s use, the use was thus transformative. The proper examination requires looking at whether the new use adds something new “with a further purpose or different character.” As Judge Leval stated in his seminal article, Toward a Fair Use Standard, a different purpose or character, constituting a transformative use, is one that “alter[s] the first with new expression, meaning, or message,” and “employs the quoted matter in a different manner or for a different purpose from the original, thus transforming it.”

The district court failed to understand that Violent Hues’ use merely superseded Brammer’s. Violent Hues cropped the top and bottom of Brammer’s photo then posted it to its website with the purpose of showing the Adams Morgan neighborhood. A “wholesale taking” of the heart of the work, without adding additional value or meaning, is not transformative. The erroneous conclusion reached on this first factor destroys any meaning to transformative use and effectively erodes the exclusive rights held by copyright owners. To further illustrate this point, if the district court’s analysis is upheld, an author who writes a book regarding his life as president and his controversial pardon of a former political figure would have no recourse against a film producer who takes the author’s content verbatim and makes it into a movie. Why? Because the book is merely “informational,” while the film is “expressive” and thus transformative in function and purpose.

The district court’s opinion also addressed the role of “good faith” in a fair use defense and concluded that Violent Hues had acted in good faith when it found Brammer’s photo online because a copyright notice was not attached. This is not the law. Copyright protection under U.S. law is automatic from the moment of creation and notice need not be affixed to the published work for that protection to adhere. The good faith of alleged infringers is not frequently considered in fair use cases because “good faith” is not a statutory factor in the fair use analysis, and this has led to a lack of clear precedent on this point.

We proposed in our brief that if an alleged infringer acts in good faith, the court should neither weigh this factor for or against a finding of fair use. However, if an alleged infringer is shown to have acted in bad faith, using an artist’s work with the purpose of usurping the exclusive rights under 17 U.S.C. § 106, it should be weighed against a finding of fair use. Good faith should not weigh in favor of fair use because the purpose of the fair use defense is to protect First Amendment rights and allow limited uses of copyrighted works. On the other hand, bad faith should be weighed against a finding of fair use because trying to usurp an artist’s rights or using a work without paying for it does not align with the important purposes of the fair use defense.

Violent Hues did not act in good faith, but it also did not act in bad faith. Thus, the good faith factor should not have been considered at all in this case. A copyright notice is not required for a photograph to be protected. If the court allows Violent Hues’ lack of education on copyright law to be considered good faith, this would encourage internet users to remain ignorant of copyright law and infringe upon works more frequently. For these reasons, we asked the Fourth Circuit to clarify the role of the good faith factor in a fair use analysis.

The other factor our amicus brief addressed was the second factor of the fair use analysis. Digging into this factor, we asked that the court to clarify the analytical framework for evaluating the nature of the copyrighted work. In clarifying this framework, parties and other courts will be better able to determine when factual elements of copyrighted works are outweighed by the creative elements of such works. Brammer’s photo, specifically, is an appropriate vehicle for this since it combines creative and factual elements. Our brief articulates that a court can borrow from more familiar concepts of trademark’s nominative fair use and the defense of necessity to the tort of trespass on real property (noting that the prevailing theory of copyright is a property). Such theories provide for a defense on the basis of “necessity.”

In this analysis of necessity, one would believe that content in the factual lexicon would lean strongly toward a finding of fair use for the alleged infringer. However, where the use of the copyrighted work is not necessary to convey the same factual content, the motivation behind copyright law should be preserved—rewarding and protecting creativity. Brammer’s photo was a time-lapse photo of the Adams Morgan neighborhood; it was creative and depicted a factual setting. However, the mere fact that an original, creative work is factual does not imply that others may freely copy it.

The district court improperly analyzed this second factor in light of Violent Hues’ use of the photo, and not the intended use of the content creator, giving greater weight to the fact that the photo depicted a real-world location. We argued that this analysis “sanctions abuse of the fair use defense to appropriate copyrighted material so long as the user can claim that a factual element within the whole was the reason for their unauthorized appropriation.” The appropriate analysis centers on the concept of protecting creative elements while simultaneously not limiting the public’s use of facts. In the case at hand, Violent Hues’ use of Brammer’s photo to convey factual information about Adams Morgan was unnecessary because to convey the same message, and arguably in a more factual manner, Violent Hues could have driven to Adams Morgan to take its own snapshot of the neighborhood.

Finally, the district court’s determination that prior publication weighs in favor of a fair use is erroneous. As Patry on Fair Use provides: “The fact that a work is published does not mean that the scope of fair use is broader.” To state that publishing a copyrighted work broadens the scope of fair use renders the exclusive rights afforded to copyright owners null. Such a holding undermines the “special reward” of copyright protection and discourages creation of works—in stark contrast to the affirmative statements on copyright in the U.S. Constitution. Publication should be viewed as neutral until it can be considered under the fourth factor of the fair use analysis, wherein a court examines the impact of the alleged infringing use on the market for the copyrighted work. The district court’s simplistic approach to its analysis allows for parties to undermine the core purposes of copyright protection and, again, eviscerates a proper fair use analysis.

It is our hope that our amicus brief will help guide the Fourth Circuit as it assesses the extent of the fair use doctrine in the digital age. We are especially thankful to Antigone Peyton and David Johnson of Protorae Law, Terrica Carrington of the Copyright Alliance, and Professor Sandra Aistars of the Arts & Entertainment Advocacy Clinic for the opportunity to work on this important issue. To read our amicus brief, please click here.

*Rachelle Mortimer and Grant Ossler are students at Antonin Scalia Law School, where they study under Professor Sandra Aistars in the Arts & Entertainment Advocacy Clinic.

Categories
Copyright Uncategorized

WALA and Arts & Entertainment Advocacy Clinic Hosting Copyright Clinic and Panel

cameraScalia Law’s Arts & Entertainment Advocacy Clinic and Washington Area Lawyers for the Arts (WALA) are hosting a Copyright Clinic and Panel on the evening of Tuesday, November 1st, 2016, at the law school.

The event, which is free and open to the public, will give local artists, authors, and photographers the opportunity to join Arts & Entertainment Advocacy Clinic students and attorneys for a discussion on important copyright issues. The Clinic students and attorneys will answer questions on a range of issues, including the unauthorized use of photographs and the notice-and-takedown system under the Digital Millennium Copyright Act.

If you would like to attend the event, please register here: Copyright Panel Registration. The event will be held from 7 P.M. to 8:30 P.M. in Hazel Hall, Room 215, of the Arlington campus at George Mason University. For directions, see http://www.law.gmu.edu/about/directions.

We hope you will join us!

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Copyright Patent Law Trade Secrets Trademarks Uncategorized

Scalia Law Alums Help Arts & Entertainment Advocacy Clinic Draft Influential Amicus Brief

jennifer-atkins
Jennifer Atkins of Cloudigy Law

Last spring, the Arts & Entertainment Advocacy Clinic at Scalia Law School filed an amicus brief on behalf of intellectual property law scholars in the Fox News v. TVEyes copyright infringement case. Assisting the students on the project was practicing IP attorney and Scalia Law alum Jennifer Atkins, who volunteered her time—and the time of her firm, Cloudigy Law—to work closely with the Clinic to craft a professional and influential brief.

Cloudigy Law is a boutique intellectual property law firm located in Tysons Corner, Virginia, that was founded by Antigone Peyton, another Scalia Law alum. Expanding the firm’s reach into all areas of IP law, Antigone recruited other Scalia Law alums including Clyde Findley and Jennifer Atkins to build a “cloud-based” intellectual property and technology firm that stresses client communication and offers an innovative service model that big law firms can’t match. Cloudigy’s attorneys stay on top of current developments in IP law through their Decoding IP blog, which includes podcast discussions of the issues important to their clients.

As a result of its unique approach and dedication to the client, Cloudigy has grown to eleven attorneys and technologists who offer high quality strategic advice to help identify and protect IP and realize its value. The firm uses sophisticated enterprise collaboration technology to effectively share knowledge and deadlines within its litigation team and with its clients. Cloudigy values the relationships it has built with smaller clients, and it has adapted and responded to changes in the legal services market to suit their needs.

Jennifer got involved with the Arts & Entertainment Advocacy Clinic through her Scalia Law alumni connections, partnering with Clinic Director and CPIP Senior Scholar Sandra Aistars and meeting with students to discuss project strategy. Because of her background as an appellate clerk for the Honorable E. Grady Jolly at the United States Court of Appeals for the Fifth Circuit and her extensive appellate practice experience as a partner with Kirkland & Ellis, Jennifer was a perfect match for the Clinic—according to Professor Aistars, Jennifer was an “ideal and impressive partner.”

Emphasizing the role of an amicus brief in litigation, Jennifer encouraged the students to assume perspectives different than those of the parties and to utilize effective writing techniques to produce an outstanding brief that would be useful to the court. As the students worked through drafts, Jennifer made valuable suggestions that helped them get at the underlying policy issues and flesh out a persuasive argument. Working alongside a seasoned professional through the amicus brief process was a truly invaluable experience for the Clinic students and something that they’ll draw on as they begin their legal careers. Jennifer also expressed her appreciation for the opportunity to guide the students through the process, saying it was a “great way for us to give back to our law school.”

As the Arts & Entertainment Advocacy Clinic begins another semester of work, connections with Scalia Law alums and IP professionals* will continue to provide the students with unique opportunities and to foster the mutually beneficial relationships that represent Scalia Law’s esteemed IP law program.

*Lawyers and IP professionals who would like the Clinic to weigh in on a pro-artist copyright case or who would like to explore other volunteer opportunities with the Arts & Entertainment Advocacy Clinic may contact Sandra Aistars at saistars@gmu.edu.

Categories
Copyright Internet Legislation Uncategorized

Middle Class Artists Want a DMCA System That Works

The following guest post comes from Rebecca Cusey, a second year law student at George Mason University School of Law.

By Rebecca Cusey

Rebecca_Cusey_HeadshotMason Law’s Arts & Entertainment Advocacy Clinic filed comments today with the U.S. Copyright Office detailing the frustrations and futilities experienced by everyday artists as they struggle with the DMCA system to protect their copyrights online.

Terrica Carrington and I wrote the comments on behalf of middle class artists, that group of creative professionals who invests in and lives off their art and yet does not have the kind of revenue stream or corporate backing of more well-known artists. These photographers, filmmakers, musicians, and other artists are squeezed between infringement that directly affects their ability to pay for things like a mortgage or orthodontics bill and the exorbitant cost of using the notice and takedown system to fight infringement.

Terrica and I spoke with four artists: Filmmaker Ellen Seidler, news photographer Yunghi Kim, musician Blake Morgan, audiovisual creator David Newhoff. These artists make works of value and have followings, and thus infringement. They make a profession of their art.

A middle class artist must do it all on her own – find infringement by hours of searching the web, compile lists of infringing posts on each site, navigate each site’s confusing DMCA notification system, and send takedown notification after takedown notification. And that’s all just sending the notifications. Monitoring to see if the infringing content has been removed or if it has simply been uploaded in another spot is a whole other job in itself.

The artists with whom we talked said it was not unusual in the least for a song, photograph, or film to be posted illegally in a thousand places, even tens of thousands of places. Finding infringement and sending notices took hundreds and thousands of hours, hours they could have spent taking photographs, making movies, or writing songs.

After all the time spent fighting infringement online, they felt the task was futile because the content simply reappeared, sometimes in a different place on the same site, other times because of counternotices filed with the ISP hosting the content claiming to have the right to post it.

These artists felt the notice and takedown system mandated by Section 512 of the Copyright Act was both all-consuming and futile, all-consuming because it ate hours upon hours and futile because it yielded little to no results. Ultimately, all of them decided to stop spending time trying to enforce their copyrights under the procedures of Section 512. It simply was not worth it.

Our comments were filed in response to a request by the U.S. Copyright Office for comments on the effectiveness of Section 512 in fighting infringement online. The Copyright Office wanted to know in particular if the provisions of Section 512 balanced the needs of ISPs to host content with the needs of copyright owners to control their work.

Middle class artists feel the balance is off and the scale tipped in favor of ISPs. These artists do not object to bearing some responsibility for protecting their copyrights online. They simply want a system that works.

To read our Section 512 comments, please click here.

Categories
Copyright Internet Legislation Uncategorized

Copyright Scholars: Courts Have Disrupted the DMCA’s Careful Balance of Interests

Washington, D.C. at nightThe U.S. Copyright Office is conducting a study of the safe harbors under Section 512 of the DMCA, and comments are due today. Working with Victor Morales and Danielle Ely from Mason Law’s Arts & Entertainment Advocacy Clinic, we drafted and submitted comments on behalf of several copyright law scholars. In our Section 512 comments, we look at one narrow issue that we believe is the primary reason the DMCA is not working as it should: the courts’ failure to properly apply the red flag knowledge standard. We argue that judicial interpretations of red flag knowledge have disrupted the careful balance of responsibilities Congress intended between copyright owners and service providers. Instead of requiring service providers to take action in the face of red flags, courts have allowed them to turn a blind eye and bury their heads in the sand.

Whether Section 512’s safe harbors are working as intended is a hotly contested issue. On the one hand, hundreds of artists and songwriters are calling for changes “to the antiquated DMCA which forces creators to police the entire internet for instances of theft, placing an undue burden on these artists and unfairly favoring technology companies and rogue pirate sites.” On the other hand, groups like the Internet Association, which includes tech giants such as Google and Facebook, claim that the safe harbors are “working effectively” since they “strike a balance between facilitating free speech and creativity while protecting the interests of copyright holders.” The Internet Association even claims that “the increasing number of notice and takedown requests” shows that the DMCA working.

Of course, it’s utter nonsense to suggest that the more takedown notices sent and processed, the more we know the DMCA is working. The point of the safe harbors, according to the Senate Report on the DMCA, is “to make digital networks safe places to disseminate and exploit copyrighted materials.” The proper metric of success is not the number of takedown notices sent; it’s whether the internet is a safe place for copyright owners to disseminate and exploit their works. The continuing availability of huge amounts of pirated works should tip us off that the safe harbors are not working as intended. If anything, the increasing need for takedown notices suggests that things are getting worse for copyright owners, not better. If the internet were becoming a safer place, the number of takedown notices should be decreasing. It’s not surprising that service providers enjoy the status quo, given that the burden of tracking down and identifying infringement doesn’t fall on them, but this is not the balance that Congress intended to strike.

Our comments to the Copyright Office run through the relevant legislative history to show what Congress really had in mind—and it wasn’t copyright owners doing all of the work in locating and identifying infringement online. Instead, as noted in the Senate Report, Congress sought 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 networked environment.” The red flag knowledge standard was a key leverage point to encourage service providers to participate in the effort to detect and eliminate infringement. Unfortunately, courts thus far have interpreted the standard so narrowly that, beyond acting on takedown notices, service providers have little incentive to work together with copyright owners to prevent piracy. Even in cases with the most crimson of flags, courts have failed to strip service providers of their safe harbor protection. Perversely, the current case law incentivizes service providers to actively avoid doing anything when they see red flags, lest they gain actual knowledge of infringement and jeopardize their safe harbors. This is exactly the opposite of what Congress intended.

The Second and Ninth Circuits have interpreted the red flag knowledge standard to require knowledge of specific infringing material before service providers can lose their safe harbors. While tech giants might think this is great, it’s terrible for authors and artists who need service providers to carry their share of the load in combating online piracy. Creators are left in a miserable position where they bear the entire burden of policing infringement across an immense range of services, effectively making it impossible to prevent the deluge of piracy of their works. The Second and Ninth Circuits believe red flag knowledge should require specificity because otherwise service providers wouldn’t know exactly what material to remove when faced with a red flag. We argue that Congress intended service providers with red flag knowledge of infringing activity in general to then bear the burden of locating and removing the specific infringing material. This is the balance of responsibilities that Congress had in mind when it crafted the red flag knowledge standard and differentiated it from the actual knowledge standard.

But all hope is not lost. The Second and Ninth Circuits are but two appellate courts, and there are many others that have yet to rule on the red flag knowledge issue. Moreover, the Supreme Court has never interpreted the safe harbors of the DMCA. We hope that our comments will help expose the underlying problem that hurts so many creators today who are stuck playing the DMCA’s whack-a-mole game when their very livelihoods are at stake. Congress intended the DMCA to be the cornerstone of a shared-responsibility approach to fighting online piracy. Unfortunately, it has become a shield that allows service providers to enable piracy on a massive scale without making any efforts to prevent it beyond acting on takedown notices. The fact that search engines can still index The Pirate Bay—an emblematic piracy site that even has the word “pirate” in its name—without concern of losing their safe harbor protection is a testament to how the courts have turned Congress’ intent on its head. We hope that the Copyright Office’s study will shed light on this important issue.

To read our Section 512 comments, please click here.