Tag: notice-and-staydown

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Copyright

Senate IP Subcommittee Hearing on DMCA Exposes Notice-and-Takedown Problems for Artists and Authors

The following post comes from Yumi Oda, an LLM Candidate at Scalia Law and a Research Assistant at CPIP.

U.S. Capitol buildingBy Yumi Oda

On June 2, the Senate Subcommittee on Intellectual Property held a virtual online hearing entitled Is the DMCA’s Notice-and-Takedown System Working in the 21st Century? The hearing focused on the effectiveness of the Section 512 notice-and-takedown system under the Digital Millennium Copyright Act (DMCA). In what he described as “the longest opening statement” he had ever made, Chairman Thom Tillis (R-NC) first acknowledged the pressing issues of police brutality against African American communities and the COVID-19 crisis. He also emphasized the urgency of the hearing’s agenda considering creators’ ever-increasing dependency on the internet ecosystem during the pandemic. Notably, the deep sorrow over racial injustice and pledge of solidarity was shared among and acknowledged by each panelist throughout the hearing.

The panelists included: Don Henley, Musician and Songwriter; Jonathan Berroya, Interim President and CEO of Internet Association; Douglas Preston, President of The Authors Guild; David Hansen, Associate University Librarian and Lead Copyright & Information Policy Officer of Duke University; Abigail Rives, IP Counsel of Engine; Kerry Muzzey, Independent Classical & Film Composer of Kirbyko Music LLC; Meredith Rose, Policy Counsel of Public Knowledge; and Jeff Sedlik, President of Sedlik Photography. These panelists represented content creators and users of all sizes, highlighting the different types of stakeholders who are impacted by Section 512.

Originally seen as a compromise between copyright owners and online service providers (OSPs), Section 512 limits OSPs’ liability for copyright infringement in exchange for their reasonable efforts to police online piracy, including the duty to remove pirated content promptly once notified. However, as the recent Section 512 report by U.S. Copyright Office concluded, the notice-and-takedown system “is not achieving the balance Congress originally intended.” As such, this was the third hearing of a year-long review of the DMCA, which was expected to offer more practical—and potentially more divisive—insight into the notice-and-takedown system as compared to the first two hearings that were more academic in nature.

Senator Tillis stressed the issue of scale, which was highlighted in the first hearing this past February where CPIP’s Sandra Aistars and Mark Schultz both testified. There, Professor Rebecca Tushnet of Harvard Law School argued that small and medium entities typically only receive a small number of takedown notices, and an additional mandate could drive them out of business and increase market concentration. To conclude his opening statement, Senator Tillis maintained that the current system is badly failing both content creators and users, potentially requiring an entirely new system to tackle online piracy. To this end, he noted that he and Senator Patrick Leahy (D-VT) sent a letter to the Copyright Office asking for its input on how to best design an anti-piracy takedown system.

On the first panel, Eagles member Mr. Henley and bestselling author and journalist Mr. Preston spoke on behalf of creators, asking for DMCA reform and advocating for a notice-and-staydown system. Mr. Henley described how he was compelled to testify for the sake of millions of people working in the music industry whose voices are unheard, stating: “I come here out of a sense of duty and obligation to those artists, those creators who paved the road for me and my contemporaries, and for those who will travel this road after us.” He further vowed not to be silenced by what he conceived as a targeted attack by “Big Tech,” referring to a Washington Post op-ed that was published a couple of days before the hearing.

Describing it as “a relic of a MySpace era in a TikTok world,” Mr. Henley testified that the DMCA is outdated, patently unfair for music creators, and has been abused by “Big Tech” for over 20 years. In particular, he blamed large digital platforms for turning a blind eye to online piracy in the hopes of keeping traffic and ad income, hiding behind the Section 512 safe harbor protections, paying license fees well below the market price, and failing to share the fair burden of policing (despite having such capability) at the cost of the creative community. Mr. Henley emphasized the need for equitable compensation to be awarded to creators amid the pandemic because digital platforms will be the only reliable sources of income for music creators for some time.

Mr. Preston echoed Mr. Henley’s frustration over the one-sided system. Remembering the traumatic, sickening feeling of first encountering a book piracy website that listed his whole life’s work, Mr. Preston described how the current notice-and-takedown system leaves many creators in “enraging and disheartening” situations with no solution, analogous to “being mugged every single day.” Especially, Mr. Preston explained how he came to give up on filing notices after seeing the same pirated content promptly and repeatedly resurfacing under a different URL. He noted that rampant piracy has led to a 42% decrease in full-time U.S. authors’ writing income in the last decade, making it almost impossible for anyone to make a living writing books.

In contrast, Mr. Berroya, representing internet companies, and Mr. Hansen, representing research libraries and universities, claimed that the DMCA is working just fine. Mr. Berroya contended that the DMCA works as Congress intended, and the Copyright Office’s Section 512 report was inconsistent with his professional experiences. He alleged that the notice-and-takedown system allows copyright owners (whom he believed should be responsible for policing their own works) to take down their content quickly, incentivizes users’ creation and distribution, and encourages tech companies to develop tools beyond DMCA compliance, resulting in the present “golden age of content creation.” He emphasized that the DMCA merely sets a floor, not a ceiling, leaving potential room for further cooperation between creators and digital platforms.

Similarly, Mr. Hansen argued that Section 512 generally works as designed. To facilitate distribution of educational and research content, he would favor a system where content stays online unless a clear showing of infringement is made. He requested Congress to consider the “unintentional consequences” of revising Section 512, hoping that academia would not be an “afterthought” for them.

Mr. Berroya was in the hot seat most frequently on the first panel. His position supporting the status quo directly contradicted the shared, inherent belief that the DMCA should be revised, drawing questions from Senator Tillis, Ranking Member Christopher Coons (D-DE), and Senator Richard Blumenthal (D-CT). His argument largely and repeatedly relied on the potential for old fashioned dialogue, but some Senators were evidently not convinced in light of the other witnesses’ testimonies.

On the second panel, Mr. Muzzey and Mr. Sedlik represented independent artists making a living by creating and licensing their works. While recognizing the effectiveness of YouTube’s Content ID, to which he said he was “very lucky” to have access, Mr. Muzzey described how the DMCA is like “a tiny David” facing “tech Goliaths.” Specifically, in response to each takedown notice for 110,000 infringing videos located on YouTube, he received a counternotice claiming fair use incorrectly “100% of the time,” at which point he is given 10 days to file a lawsuit or the content is reinstated. This means, for a one-person, small business owner like Mr. Muzzey, the DMCA practically offers “no remedy.”

Mr. Sedlik is another artist who has had to spend countless, unproductive hours submitting takedown notices. He explained the dilemma he constantly faces: He needs to enforce his copyrights to maintain their values, but these lost hours leave him less time to create new works. Noting that the the presence of innumerable takedown notices by no means indicates success, Mr. Sedlik proposed several possible revisions to the DMCA.

On the other side of the table was Ms. Rives in support of startups and Ms. Rose on behalf of Public Knowledge. Ms. Rives contended that Section 512 is generally working well, without which many online platforms would not have existed. Referencing points made by Professor Tushnet, she argued that revising the DMCA, even slightly, would “shift the ground underneath today’s startups.” For example, she contended that imposing a duty to monitor, such as with filtering tools, would be ineffective or too costly for most startups.

Ms. Rose shifted the discussion by listing three situations where the current notice-and-takedown system puts users’ freedom of speech at risk, namely, bad DMCA takedown notices, problematic algorithmic enforcement, and most importantly, the inappropriateness of letting a private third party remove someone’s access to broadband without due process. Siding with the status quo, she warned that “asking for greater power and fewer safeguards is akin to discarding a tank and asking for a nuke.”

At the conclusion of the hearing, Senator Tillis reiterated the need to recognize the scale of infringement, and he promised to seek a path forward that would let copyright owners flag clearly infringing content so that it stays down—but without causing an undue burden on businesses and individual users.

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Copyright Uncategorized

Librarians’ Contradictory Letter Reveals an Alarming Ignorance of the Copyright System

U.S. Capitol buidlingOn December 14th, a group of librarians sent a letter to Congress explaining why they believe the Copyright Office should remain under the control of the Library of Congress. Written by University of Virginia Library’s Brandon Butler, the letter is a self-contradicting and uninformed response to recent recommendations on reform of the Copyright Office offered by leading members of the House Judiciary Committee. While the lawmakers’ report proposes overdue, sensible reforms to the framework of a department in need of modernization, the librarians’ letter favors a one-sided approach to reform and reveals a gross misunderstanding of how copyright law and the Copyright Office ensure public access to creative works.

The Letter Embraces the Very Conflict It Claims to Reject

The letter begins by criticizing another recent letter to Congress from former Registers of Copyright Ralph Oman and Marybeth Peters in which they question the recent firing of Register of Copyright Maria Pallante and discuss the urgent need for an independent Copyright Office. Butler takes issue with the former Registers’ suggestion that the Library of Congress and the Copyright Office have different priorities and distinguishable missions, insisting that if any tensions exist, they are a result of bias at the Copyright Office. Alleging that the former Registers and the Copyright Office are “on the side of authors and media companies,” Butler proclaims that libraries “in all their richness and complexity” truly serve the interest of all. It’s a nice-sounding theory, but unfortunately it’s completely inaccurate and soon contradicted by a palpable disregard for the rights of authors and creators.

Claiming that librarians and the Library of Congress don’t subscribe to the theory of an adverse dichotomy between authors and the public, the letter then reinforces this theory by suggesting the scales should be tipped in favor of the public. In one paragraph, Butler endorses the “important balance between the short-term, private interests of authors and intermediaries, and the long-term interests of the public.” Curiously, just after he lauds this “important balance,” it is abruptly discarded as a reflection of “a narrow conception” and “inimical” priorities that cause an unproductive tension between the Office and the Library of Congress. Soon after describing libraries as the “fulcrum” upon which the balance of copyright and the public interest rests, the letter declares that “[we] reject this false dichotomy between copyright and the public interest.”

Regardless of this hollow denunciation, it’s clear that Butler believes there is a conflict between the interests of authors and the interests of the public, as he preaches to it throughout the letter. After paying lip service to rising above tensions between copyright and the public interest, Butler distinctly pushes for a system that values libraries over creators and the rights in their works. Describing the “crucial parts” of the copyright system embraced by libraries and librarians, the letter lists “fair use, first sale, interlibrary loan,” and claims that “without them libraries as we know them in this country could not exist.” One might argue that more crucial to the existence of libraries are the creative works that line their stacks, but this reality doesn’t seem worth mentioning. In fact, Butler asserts that copyright law has a “fundamentally public-serving character,” contrary to the letter’s earlier emphasis on serving copyright owners, authors, and the public equally. After praising the balance, then rejecting it, the letter unequivocally elevates the importance of the access libraries provide over the contributions and rights of creators.

The Letter Fails to Take into Account a Complex Creative Economy Based on Property Rights

James Madison observed in Federalist No. 43 that “the public good fully coincides . . . with the claims of individuals.” The Founders of our country recognized that creative economies are built upon the property rights of authors and artists, and as CPIP’s recent policy brief on creative markets explains, they “had the foresight to recognize that the public ultimately benefits when this protection is secured by law.” Promoting the public interest by recognizing the importance of individual interests was a theory drawn from Adam Smith and his seminal The Wealth of Nations. In it, Smith explained that concerted efforts to benefit the public are often less effective—and less helpful to society—than uncoordinated individual efforts to pursue private interests, and that society benefits the most when individuals are empowered to create valuable goods and services by pursuing their own interests.

Embodying these principles, copyright empowers authors and creators to pursue their own private interests by granting them exclusive property rights in their works. These same property rights support creative industries and provide significant benefits by playing a key role in facilitating the myriad transactions that contribute to a vibrant creative economy grounded in free market principles. Among other things, these property rights enable the division of labor, encourage product differentiation and competition, and spur investments in the development and distribution of creative works. Copyright not only incentivizes the creation of works, but also the commercialization of these works through further development, marketing, and distribution.

Copyright’s intricate ecosystems are based on incentives that ensure the continued creation and distribution of original works of authorship, yet the librarians’ letter doesn’t seem to appreciate their significance or how they function. Butler dedicates much of the letter to emphasizing the importance of public access to copyrighted works, but access is only the final step in a complex system of investment, commercialization, and distribution of creative works. The librarians claim to “understand that copyright is a complex ecosystem,” but nothing in the letter validates this assertion. The only part of the creative economy they deem worth discussing is the end result of access, with all other imperative stages either not realized or ignored.

The Librarians Are Oblivious to a Broken System

Ending with a plea to Congress not to interfere with the current “relationship” between the Library of Congress and the Copyright Office, the letter claims the Library is in the best position to lead a desperately needed modernization initiative at the Office. It’s a bold claim, given that the Library stood by as the Office’s infrastructure became embarrassingly outdated and underfunded over the past twenty years. Before her untimely ouster, Register Pallante provided Congress with a perspective on copyright review that included a detailed list of deficiencies within the Office in need of improvement. Specifically, Pallante cited the diminishing number of fulltime employees and inadequate budget that have made it all but impossible to support growth and development at the Copyright Office:

The Copyright Office budget is consistently in the neighborhood of $50 million, of which $30 million is derived from fees paid by customers for registration and other services. The Library’s overall budget for 2015 is approximately $630 million, inclusive of the Copyright Office. Without taking anything away from the important duties or funding deficiencies in the rest of the Library, the Copyright Office’s resources are inadequate to support the digital economy it serves.

Pallante’s report goes on to discuss the serious information technology (IT) problems facing the Office, and to question the Library’s plan to address IT concerns by exerting more control over the Office’s departments and decisionmaking. The former Register was wise to question a plan that would give more control to an organization that has consistently failed to value or support the Copyright Office and its mission.

Further demonstrating just how out of touch they are with the realities of the current copyright law landscape, an affiliated group of librarians recently professed their faith in the Digital Millennium Copyright Act (DMCA) safe harbor system that is undoubtedly failing creators, copyright owners, and the public. In comments submitted to the Copyright Office as part of its study on the effectiveness of Section 512 of the DMCA, the Library Copyright Alliance (LCA) makes the absurd claim that the “safe harbors are working exactly as the stakeholders and Congress intended.” But, just before this assertion, the comments accuse copyright owners of abusing the DMCA’s notice and takedown process, and suggest amendments to the DMCA are necessary “to curtail this abuse.” Not only are the LCA’s comments utterly contradictory, they ignore substantial evidence and testimony from dozens of interested parties that the DMCA needs to be reformed and updated.

As CPIP highlighted in a recent examination of the state of the DMCA, the notice and takedown system has been largely ineffective in managing the ever-increasing amount of piracy, and courts continue to diminish service providers’ responsibility to cooperate with copyright owners to detect and deter infringement. The constant game of whack-a-mole with websites offering infringing content continues, and platforms such as YouTube are teeming with unauthorized works. Artist, creators and copyright owners have loudly voiced their frustration with the current system and called for reforms that better respect their rights. In the face of such obvious evidence of a broken system, to claim the DMCA is working exactly as intended speaks volumes of the librarians’ inability to recognize the reality of the situation.

It’s Time for Change at the Copyright Office

The House Judiciary Committee’s proposal on copyright reform is a response to years of listening “to the views and concerns of stakeholders from all sides of the copyright debate,” and it identifies modernization efforts that address the concerns of these interested parties. Since 2013, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet has conducted 20 copyright review hearings on the current state of copyright law which included testimony from 100 witnesses. In addition to the hearings, Committee Chairman Bob Goodlatte and Ranking Member John Conyers brought a copyright listening tour to Nashville, Silicon Valley, and Los Angeles where a wide range of creators, innovators, technology professionals, and users of copyrighted works had the opportunity to tell the Committee directly what changes they believe are needed to ensure U.S. copyright law evolves with the digital age.

The resulting policy proposals reflect a broad acknowledgment by those who participated  in the review that the Copyright Office must be updated to keep up with the digital culture it serves. Two of the most important steps in this modernization effort identified by the Committee include requiring the Office to maintain an updated digital database and granting the Office autonomy with respect to the Library of Congress. If Brandon Butler and the signatories of his letter had their way, the Copyright Office would remain under control of an organization that has proven it is unable to help propel the Office into the 21st century. It’s not particularly surprising that librarians would want the Library of Congress to retain control over the Copyright Office, but an overwhelming majority of creators, copyright law experts, and lawmakers recognize that the Office needs to move forward, rather than remain trapped in the past.

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Copyright Copyright Licensing Copyright Theory Infringement International Law Internet Legislation Uncategorized WIPO

European Union Draws a Line on Infringing Hyperlinks

Cross-posted from the Mister Copyright blog.

a gavel lying on a table in front of booksLast week, the European Court of Justice—the judicial authority of the European Union—issued an anticipated decision in the Sanoma hyperlinking case, declaring that commercial linking with knowledge of unauthorized content constitutes copyright infringement. The opinion comes after years of similar cases in Europe stirred debate over whether linking to pirated works was a ‘communication to the public’ and therefore infringing, and provides a sensible test that protects the works of authors and creators while ensuring the internet remains a bastion of free speech.

Sanoma involved the popular Dutch news and gossip site GeenStijl, which ran an article in 2011 that included links to an Australian website where copyrighted Playboy magazine photos were made available. The photos were published on the Australian website without the consent of Sanoma, Playboy’s editor and copyright owner of the photos at issues, but taken down after the site was notified of their infringing nature. Despite similar notifications, GeenStijl refused to remove the hyperlinks and actually provided links to another website hosting the unauthorized photos after the Australian website took them down.

Sanoma brought a copyright infringement claim against GS Media, which operates the GeenStijl website, and the Supreme Court of the Netherlands sought a preliminary ruling from the European Court of Justice on whether hyperlinks represent the communication of a work to the public. According to an earlier EU directive, any communication to the public of works protected by copyright must be authorized by the copyright owner. Due to the ubiquity of links and hyperlinks on the Internet, a ruling classifying them as communications to the public would have major ramifications for anyone linking to unauthorized content.

In its judgment, the European Court of Justice found that the concept of ‘communication to the public’ requires individual assessment and laid out the following three factors that must be considered when determining whether a link or hyperlink qualifies.

1) The deliberate nature of the intervention – According to the Court, “the user makes an act of communication when it intervenes, in full knowledge of the consequences of its actions, in order to give access to a protected work to its customers.”
2) The concept of the ‘public’ covers an indeterminate number of potential viewers and implies a large number of people.
3) The profit-making nature of a communication to the public – The Court explains that when hyperlinks are posted for profit, “it may be expected that the person who posted such a link should carry out the checks necessary to ensure that the work concerned is not illegally published.”

Applying these criteria to Sanoma, the Court found that because GS Media runs a commercial website that makes money from advertising, it is undisputed that they posted the hyperlinks for profit, and that it is also undisputed that Sanoma had not authorized the publication of the photos. It also found that because they were notified by Sanoma and continued to repost links after the original source website took down the content, GS Media was aware of the infringing nature of the photos and “cannot, therefore, rebut the presumption that it posted those links in full knowledge of the illegal nature of that publication.” The Court concluded that by posting the links, GS Media therefor effected a ‘communication to the public.’

The Court goes on to detail its desire to maintain a fair balance between the interest of copyright owners and authors and the protection of the interests and fundamental rights of Internet users, “in particular their freedom of expression and of information, as well as the general interest.” After providing the criteria for assessing whether a link qualifies as a communication to the public, the opinion emphasizes the important role hyperlinks play in the exchange and free flow of information over the internet, and clarifies that linking—even to unauthorized content—is not a communication to the public if there is no profit motive or knowledge of the infringing nature of the linked-to works. Even so, it’s important to note that not-for-profit hyperlinking may still be considered a communication to the public if the person posting the link knew or should have reasonably known that the content was posted without authorization.

Perhaps most surprising about the Court’s decree is the relative approval by both copyright owners and supporters of the rights of those posting links. While it speaks to the reasonable approach the Court has taken in determining what qualifies as a communication to the public, it may also represent a hesitation to condemn or praise the order due to a significant ambiguity. It’s not entirely clear who carries the evidentiary burden of proving whether an individual knew or should have reasonably known certain content was posted on the Internet without authorization. If copyright owners and authors are forced to prove a user knew or should have known content was unauthorized every time they attempt to remove links that can appear online incessantly, it could render the new directives ineffectual in protecting creative works.

Regardless of the uncertainly surrounding this burden of proof, the current test seems to strike a balance that holds commercial websites more accountable, while allowing for some flexibility for the general public. With debates over the effectiveness of notice and takedown intensifying in the United States, the EU’s decision on communications to the public should be recognized as workable approach to dealing with infringing hyperlinks. As the United States Copyright Office admits in its 2016 study on the making available right, jurisprudence in the US regarding offering access to content hosted elsewhere on the Internet through hyperlinking is less developed as some foreign jurisdictions. But the study acknowledges the progress made in the EU, and emphasizes the need to include ‘offers of access’ in the crucial making available right.

Despite semantic differences, the EU and the US are both moving towards systems that will impose greater accountability for posting links to unauthorized works. The EU’s directive makes clear that commercial hyperlinking to unauthorized content is indeed a communication to the public and therefor copyright infringement, while ensuring that the free flow of information through general public linking will not be threatened and the Internet will remain unbroken. It’s an approach that represents the greater goals of copyright law around the world, and other jurisdictions should follow the lead of the EU when crafting copyright policies that address the intricacies of the Internet.

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Copyright Copyright Licensing Copyright Theory Infringement Intellectual Property Theory Internet Reasonable Royalty Uncategorized

Despite What You Hear, Notice and Takedown is Failing Creators and Copyright Owners

cameraIn a recent op-ed in the LA Times, Professors Chris Sprigman and Mark Lemley praise the notice and takedown provisions of the Digital Millennium Copyright Act (DMCA) as “a bit of copyright law worth saving.” They argue that Section 512 of the DMCA continues to serve its purpose of balancing the rights of copyright owners and creators with those of Internet service providers (ISPs), while leaving both sides only “slightly disappointed.” Satisfying these two groups is indeed a difficult charge, but it’s simply disingenuous to suggest that creators and copyright owners are satisfied with a system so clearly in need of an overhaul.

As the Copyright Office embarks on its review of the DMCA, supporters and critics of the nearly twenty-year-old doctrine are weighing in on its effectiveness in addressing online infringement. Sprigman and Lemley claim that the “process has worked well for years,” and that the result of shifting more enforcement burden to ISPs “could be a broken Internet.” But for those creators and copyright owners who have their works resurface online just minutes after they are taken down, the Internet is already “broken.” The fact that piracy continues to intensify, despite incredible efforts to have infringing content taken down, shows that notice and takedown is largely ineffective.

As CPIP Senior Scholar Sean O’Connor testified before Congress, the notice and takedown system is not working for any of its intended beneficiaries. The constant game of whack-a-mole renders the system essentially futile for copyright owners and creators, and it creates significant burdens for ISPs that want to comply—especially small to mid-level companies that can’t afford compliance staff. Worse still, by shielding service providers from liability, the DMCA creates perverse incentives where there’s little downside to ignoring infringing content. In fact, reviewing content could lead to an ISP having knowledge of infringement and losing its safe harbor.

Now that the Copyright Office’s review is underway, it’s somewhat strange to see some supporters claim that all is well. But has anything actually changed since the Office announced its study?  Of course not. The whack-a-mole problem remains, and the knowledge standards are still interpreted broadly to disproportionately favor ISPs. When one side says the system is working and the other side says it’s broken, the truth is that the system is not working well for everyone. Sprigman and Lemley can claim that the DMCA is “worth saving” only by downplaying the true plight of creators and copyright owners.

A concrete example of this struggle comes from the comments filed by Universal Music Group (UMG) as part of the Copyright Office’s study. UMG describes the painstaking efforts devoted to protect just one artist’s creative work. In October of 2014, UMG and Big Machine Records launched a joint offensive to protect Taylor Swift’s “1989.” A staff of UMG employees dedicated 100% of their time and resources to manually search for infringements on YouTube, SoundCloud, and Tumblr, and through March of 2016, they had sent over 66,000 DMCA takedown notices. Despite their considerable efforts, over 500,000 links to the album were identified, and “1989” was illegally downloaded nearly 1.4 million times from torrent sites.

Of course, this type of effort would be impossible to replicate for any works other than those that attract such massive attention. For most artists, the burden of monitoring the Internet and sending takedown notices would fall entirely on their shoulders, with no guarantee of putting a stop to the theft of their works. Sprigman and Lemley ignore these problems, instead claiming that since copyright owners sent “more than 500 million takedown requests just to Google last year,” we know that the “system is a powerful tool against pirated content.” That would be great, if true, but the reality is that those notices barely made a dent.

Sprigman and Lemley claim that the “genius of the DMCA” is that it “enables entertainment companies to turn piracy into legitimate revenue.” They give the example of “YouTube’s Content ID system,” which “gives copyright owners the opportunity to ‘claim’ their work and share in any advertising revenue rather than pull it off the site.” From the perspective of creators and copyright owners, the only “genius” of this system is that YouTube can legally present them with an unfair choice—suffer infringement and get nothing or monetize and get next to nothing.

While Sprigman and Lemley praise the “more than $1 billion” paid out by YouTube, the real question is how much more copyright owners and creators would have been paid in a properly functioning market. YouTube is consistently teeming with infringing videos—one recent report revealed that over 180 million infringing videos had been removed in 2014 alone. And the artists that YouTube’s largess supposedly benefits are loudly complaining about their exploitation. If Content ID is so great, why are so many creators and copyright owners upset with the arrangement? The monetization Google offers to copyright owners and artists is less than half of the royalties paid out by streaming services like Pandora, an amount that artists have denounced as already inequitable.

In her excellent piece on the fictions of the Content ID system, Grammy-winning artist Maria Schneider exposes Content ID as a way for Google to cash in by actually legitimizing and perpetuating piracy. She explains that a majority of creators that opt for monetization realize miserable percentages of ad revenue, and the continued illegal uploading of their music and content drives billions of users to YouTube’s platform. YouTube has turned the weakness of the DMCA into a system that exploits artists while offering embarrassingly lower royalty rates than what would be negotiated in a free market.

The current situation is untenable, and if change means “breaking” the Internet, then we should pull out the pickaxes and get to work. A system of notice and staydown, rather than just takedown, would help alleviate the constant and seemingly ineffectual vigilance required by the current system. By removing all copies of a protected work and blocking inevitable re-postings, ISPs would honor the original purpose of the DMCA while actually doing their part to earn the protection of the safe harbor provisions. Only by ensuring that targeted works do not resurface will ISPs respect the rights of those without whose content they would cease to exist.

How anyone can honestly say that the current notice and takedown system is working for copyright owners and creators is mystifying given the constant calls for reform from creators and the numerous critical comments filed with the Copyright Office. The incredible magnitude of takedown notices sent and the seemingly unstoppable reappearance of infringing works online are a clear signal that the system is completely failing those it was meant to protect. Creators and copyright owners deserve a better chance at protecting the fruits of their labors, and the DMCA needs to be changed so that it truly is a system “worth saving.”

Categories
Copyright Internet Uncategorized

Attacking the Notice-and-Staydown Straw Man

Ever since the U.S. Copyright Office announced its study of the DMCA last December, the notice-and-staydown issue has become a particularly hot topic. Critics of notice-and-staydown have turned up the volume, repeating the same vague assertions about freedom, censorship, innovation, and creativity that routinely pop up whenever someone proposes practical solutions to curb online infringement. Worse still, many critics don’t even take the time to look at what proponents of notice-and-staydown are suggesting, choosing instead to knock down an extremist straw man that doesn’t reflect anyone’s view of how the internet should function. A closer look at what proponents of notice-and-staydown are actually proposing reveals that the two sides aren’t nearly as far apart as critics would have us believe. This is particularly true when it comes to the issue of how well notice-and-staydown would accommodate fair use.

For example, Joshua Lamel’s recent piece at The Huffington Post claims that “innovation and creativity are still under attack” by the “entertainment industry’s intense and well-financed lobbying campaign” pushing for notice-and-staydown. Lamel argues that the “content filtering proposed by advocates of a ‘notice and staydown’ system . . . would severely limit new and emerging forms of creativity.” And his parade of horribles is rather dramatic: “Parents can forget posting videos of their kids dancing to music and candidates would not be able to post campaign speeches because of the music that plays in the background. Remix culture and fan fiction would likely disappear from our creative discourse.” Scary stuff, if true. But Lamel fails to cite a single source showing that artists, creators, and other proponents of notice-and-staydown are asking for anything close to this.

Similarly, Elliot Harmon of the Electronic Frontier Foundation (EFF) argues that “a few powerful lobbyists” are pushing for notice-and-staydown such that “once a takedown notice goes uncontested, the platform should have to filter and block any future uploads of the same allegedly infringing content.” Harmon also assumes the worst: “Under the filter-everything approach, legitimate uses of works wouldn’t get the reasonable consideration they deserve,” and “computers would still not be able to consider a work’s fair use status.” Like Lamel, Harmon claims that “certain powerful content owners seek to brush aside the importance of fair use,” but he doesn’t actually mention what these supposed evildoers have to say about notice-and-staydown.

Harmon’s suggestion that the reliance on uncontested takedown notices gives inadequate consideration to fair use is particularly strange as it directly contradicts the position taken by the EFF. Back in October of 2007, copyright owners (including CBS and Fox) and service providers (including Myspace and Veoh) promulgated a list of Principles for User Generated Content Services. These Principles recommend that service providers should use fingerprinting technology to enact notice-and-staydown, with the general caveat that fair use should be accommodated. Two weeks later, the EFF published its own list of Fair Use Principles for User Generated Video Content suggesting in detail how notice-and-staydown should respect fair use.

The EFF’s Fair Use Principles include the following:

The use of “filtering” technology should not be used to automatically remove, prevent the uploading of, or block access to content unless the filtering mechanism is able to verify that the content has previously been removed pursuant to an undisputed DMCA takedown notice or that there are “three strikes” against it:

1. the video track matches the video track of a copyrighted work submitted by a content owner;
2. the audio track matches the audio track of that same copyrighted work; and
3. nearly the entirety (e.g., 90% or more) of the challenged content is comprised of a single copyrighted work (i.e., a “ratio test”).

If filtering technologies are not reliably able to establish these “three strikes,” further human review by the content owner should be required before content is taken down or blocked.

Though not explicitly endorsing notice-and-staydown, the EFF thinks it’s entirely consistent with fair use so long as (1) the content at issue has already been subject to one uncontested takedown notice, or (2) the content at issue is at least a 90% match to a copyrighted work. And the funny thing is that supporters of notice-and-staydown today are actually advocating for what the EFF recognized to be reasonable over eight years ago.

While Harmon never explicitly identifies the “powerful lobbyists” he accuses of wanting to trample on fair use, he does link to the Copyright Office’s recently-announced study of the DMCA and suggest that they can be found there. Reading through that announcement, I can only find three citations (in footnote 36) to people advocating for notice-and-staydown: (1) Professor Sean O’Connor of the University of Washington School of Law (and Senior Scholar at CPIP), (2) Paul Doda, Global Litigation Counsel at Elsevier, and (3) Maria Schneider, composer/conductor/producer. These three cites all point to testimonies given at the Section 512 of Title 17 hearing before the House Judiciary Committee in March of 2014, and they show that Harmon is attacking a straw man. In fact, all three of these advocates for notice-and-staydown seek a system that is entirely consistent with the EFF’s own Fair Use Principles.

Sean O’Connor seeks notice-and-staydown only for “reposted works,” that is, “ones that have already been taken down on notice” and that are “simply the original work reposted repeatedly by unauthorized persons.” His proposal only applies to works that “do not even purport to be transformative or non-infringing,” and he specifically excludes “mash-ups, remixes, covers, etc.” This not only comports with the EFF’s recommendations, it goes beyond them. Where the EFF would require either a previously uncontested notice or at least a 90% match, O’Connor thinks there should be both an uncontested notice and a 100% match.

The same is true for Paul Doda of Elsevier, who testifies that fingerprinting technology is “an appropriate and effective method to ensure that only copies that are complete or a substantially complete copy of a copyrighted work are prevented or removed by sites.” Doda explicitly notes that filtering is not suitable for “works that might require more detailed infringement analysis or ‘Fair Use’ analysis,” and he praises YouTube’s Content ID system “that can readily distinguish between complete copies of works and partial copies or clips.” Doda’s vision of notice-and-staydown is also more protective of fair use than the EFF’s Fair Use Principles. While the EFF suggests that a previously uncontested notice is sufficient, Doda instead only suggests that there be a substantial match.

Unlike O’Connor and Doda, Maria Schneider is not a lawyer. She’s instead a working musician, and her testimony reflects her own frustrations with the whack-a-mole problem under the DMCA’s current notice-and-takedown regime. As a solution, Schneider proposes that creators “should be able to prevent unauthorized uploading before infringement occurs,” and she points to YouTube’s Content ID as evidence that “it’s technically possible for companies to block unauthorized works.” While she doesn’t explicitly propose that there be a substantial match before content is filtered, Schneider gives the example of her “most recent album” being available “on numerous file sharing websites.” In other words, she’s concerned about verbatim copies of her works that aren’t possibly fair use, and nothing Schneider recommends contradicts the EFF’s own suggestions for accommodating fair use.

Lamel and Harmon paint a picture of powerful industry lobbyist boogeymen seeking an onerous system of notice-and-staydown that fails to adequately account for fair use, but neither produces any evidence to support their claims. Responses to the Copyright Office’s DMCA study are due on March 21st, and it will be interesting to see whether any of these supposed boogeymen really show up. There’s little doubt, though, that critics will continue attacking the notice-and-staydown straw man. And it’s really a shame, because advocates of notice-and-staydown are quite conscious of the importance of protecting fair use. This is easy to see, but first you have to look at what they’re really saying.

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Copyright Innovation Internet Uncategorized

Notice-and-Staydown and Google Search: The Whack-A-Mole Problem Continues Unabated

After my last post discussing the necessity for notice-and-staydown to help copyright owners with the never-ending game of whack-a-mole under the DMCA, I was asked to clarify how this would work for Google Search in particular. The purpose of my post was to express the need for something better and the hope that fingerprinting technologies offer. But, admittedly, I did not do a good job of separating out how notice-and-staydown would work for hosting platforms as compared to search engines. I think the whack-a-mole problem with hosting sites is indeed different than with search engines, and while fingerprinting may work well for the former, it’s probably ill-suited for the latter.

It’s clear enough how fingerprinting technologies can be applied to hosting platforms, and the simple fact is that they are already being deployed. YouTube uses its own proprietary technology, Content ID, while other platforms, such as Facebook and SoundCloud, use Audible Magic. These technologies create digital fingerprints of content that are then compared to user-uploaded content. When there’s a match, the copyright owner can choose to either allow, track, mute, monetize, or block the uploaded content.

There isn’t a lot of publicly-available information about how accurate these fingerprinting technologies are or how widely copyright owners utilize them. We do know from Google’s Katherine Oyama, who testified to Congress in early 2014, that “more than 4,000 partners” used Content ID at the time and that copyright owners had “‘claimed’ more than 200 million videos on YouTube” with the technology. She also acknowledged that “Content ID is not perfect, sometimes mistakenly ascribing ownership to the wrong content and sometimes failing to detect a match in a video.” Despite these imperfections, the scale of which she didn’t spell out, YouTube continues to offer Content ID to copyright owners.

Oyama also indicated that Content ID does not “work for a service provider that offers information location tools (like search engines and social networks) but does not possess copies of all the audio and video files that it links to.” This scenario is clearly different. When a site hosts content uploaded by its users, it can easily match those uploads to the content it’s already fingerprinted. When a site links to content that’s hosted elsewhere, it may not be possible to analyze that content in the same way. For example, the linked-to site could simply prevent automated crawling. Of course, not all sites block such crawling, but more would probably start doing so if fingerprinting were used in this way.

For Google Search, notice-and-staydown would likely not depend upon fingerprinting technology. Instead, the changes would come from: (1) delisting rogue sites, (2) promoting legitimate content, (3) improving auto-complete, and (4) ceasing to link to the very links that have already been taken down. These suggestions are not anything new, but it’s clear that Google has not done all it can to make them effective. This is not to say that improvements haven’t been made, and Google is to be commended for the work that it’s done so far. But it can and should do more.

Sticking with the example of The Hateful Eight from my prior post, it’s easy to see how Google Search promotes piracy. Using a fresh installation of Chrome so as not to skew the results, I need only type “watch hat” into Google Search before its auto-complete first suggests I search for “watch hateful 8 online.” After following this suggestion, the first seven results are links to obviously-infringing copies of the film. The first link points to the film at the watchmovie.ms site. A quick glance at that site’s homepage shows that it offers numerous (if not only) films that are still in theaters, including Spectre, Star Wars: The Force Awakens, Creed, and The Hateful Eight. In other words, Google’s first search result from its first suggested search term points me to an illicit copy of the film on a site that’s obviously dedicated to infringement.

I’ve never heard of watchmovie.ms, so I checked its WHOIS data. The site was registered on October 14th of last year, and Google’s Transparency Report indicates that it started receiving takedown notices for it just a few days later. To date, Google has received 568 requests to remove 724 infringing links to watchmovie.ms, but its search engine dutifully continues to crawl and index “about 39,000 results” at the site. And, for reasons I simply cannot fathom, Google prefers to send me to that pirate site rather than point me to Google Play (or to any number of other sites) where I can pre-order the film and “watch hateful 8 online” legally.

Making matters worse, at the bottom of the first page of search results for “watch hateful 8 online,” Google links to four DMCA takedown notices it received from copyright owners that resulted in five links being removed from the first page of results. These four notices, in turn, contain a combined total of 499 illicit links to The Hateful Eight that Google has already taken down. This truly boggles the mind. Google takes down five infringing links from one page of search results, consistent with the DMCA, but then it links to those five links along with 494 more such links. And these linked-to links are even better for infringers, since they’ve been vetted by Google as being worthy of taking down.

As the producer of The Hateful Eight, Richard Gladstein, relayed to The Hollywood Reporter, Google told him that it is “not in a position to decide what is legal and what is illegal online.” This is a cop out. In other venues, Google contends that it’s doing a lot to fight piracy. It submitted comments to the U.S. Intellectual Property Enforcement Coordinator this past October explaining how “changes made to [its] algorithm have been highly effective in demoting sites receiving a high number of takedown notices.” This shows that it is indeed in a position to determine what is “illegal online” and to take action against pirate sites. But simply demoting these sites is not enough—they should be delisted altogether.

Everyone knows that The Pirate Bay is a pirate site, yet Google indexes “about 914,000 results” from just one of its domains. As of today, Google has received 187,540 requests to remove 3,628,242 links to that domain, yet Google doesn’t choose to delist the site from its results. Nor does it even appear to be demoting it. The top three search results for “thepiratebay hateful 8” are links to infringing copies of the film on The Pirate Bay. It’s clear that these links are infringing, yet Google makes copyright owners continue playing whack-a-mole for even the most obvious infringements.

This isn’t how the DMCA is supposed to work. Congress even envisioned this whack-a-mole scenario with search engines when it wrote the DMCA. The legislative history provides: “If, however, an Internet site is obviously pirate, then seeing it may be all that is needed for the service provider [i.e., search engine or other information location tool] to encounter a ‘red flag.’ A provider proceeding in the face of such a ‘red flag’ must do so without the benefit of a safe harbor.” The Pirate Bay is “obviously pirate,” and Google knows as much even without the 3.6 million takedown notices it’s received. It knows the same thing about lots of pirate sites, including the other domain names contained in its list of greatest hits.

Google could be doing more to help copyright owners with the whack-a-mole problem, but so far, it’s only taken a few baby steps. And when defending its refusal to delist obvious pirate sites, Google contends that it’s defending freedom of speech:

[W]hole-site removal sends the wrong message to other countries by favoring over-inclusive private censorship over the rule of law. If the U.S. embraces such an overbroad approach to address domestic law violations (e.g., copyright), it will embolden other countries to seek similar whole-site removal remedies for violations of their laws (e.g., insults to the king, dissident political speech). This would jeopardize free speech principles, emerging services, and the free flow of information online globally and in contexts far removed from copyright.

Delisting The Pirate Bay from Google Search isn’t about favoring “censorship over the rule of law.” It’s about Google favoring the rule of law over blatant criminal infringement and doing its part to be a good citizen in the digital economy where it plays no small role. The comparison of the conduct of criminal infringers to the speech of political dissidents rings hollow, and delisting the most obvious and egregious sites does not threaten free speech. Google already claims to demote pirate sites, yet that doesn’t “jeopardize free speech principles.” Neither will delisting them. And as long as Google consciously decides to index known pirate sites with its search engine, the whack-a-mole problem will only continue unabated for copyright owners.

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Conferences Copyright Innovation Internet Uncategorized

Last Chance to Register for the Copyright and Technology NYC 2016 Conference

Tomorrow is the last chance to register for the Copyright and Technology NYC 2016 Conference. The conference will be held next Tuesday, January 19th, at New York University’s Kimmel Center.

In addition to Matthew Barblan and Devlin Hartline from CPIP, participants will come from the following organizations:

  • ASCAP
  • BMI
  • CBS
  • CCIA
  • Charter Communications
  • Cisco
  • Copyright Alliance
  • Copyright Clearance Center
  • Elsevier
  • Entertainment Software Assn.
  • Facebook
  • Getty Images
  • HBO
  • Imagem
  • NBA (National Basketball Association)
  • NMPA
  • RIAA
  • Scholastic
  • Sony Music Entertainment
  • SoundCloud
  • SoundExchange
  • Thomson Reuters
  • Time Warner
  • Twitter
  • U.S. Copyright Office
  • U.S. Patent and Trademark Office
  • UFC
  • Universal Music Group
  • Vevo
  • Viacom
  • Warner Music Group
  • Warner/Chappell Music

You can meet these people and many more!

To register for the conference, please click here.

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Copyright Innovation Internet Uncategorized

Endless Whack-A-Mole: Why Notice-and-Staydown Just Makes Sense

Producer Richard Gladstein knows all about piracy. As he recently wrote for The Hollywood Reporter, his latest film, The Hateful Eight, was “viewed illegally in excess of 1.3 million times since its initial theatrical release on Christmas Day.” Gladstein is not shy about pointing fingers and naming names. He pins the blame, in no small part, on Google and (its subsidiary) YouTube—the “first and third most trafficked websites on the internet.” While acknowledging that fair use is important, Gladstein argues that it has become “an extremely useful tool for those looking to distract from or ignore the real copyright infringement issue: piracy.” His point is that it’s simply not fair use when someone uploads an entire copyrighted work to the internet, and claims that service providers can’t tell when something is infringing are disingenuous.

Gladstein questions why Google and YouTube pretend they are “unable to create and apply technical solutions to identify where illegal activity and copyright infringement are occurring and stop directing audiences toward them.” In his estimation, “Google and YouTube have the ability to create a vaccine that could eradicate the disease of content theft.” While Gladstein doesn’t mention the DMCA or its notice-and-takedown provisions specifically, I think what he has in mind is notice-and-staydown. That is, once a service provider is notified that the copyright owner has not authorized a given work to be uploaded to a given site, that service provider should not be able to maintain its safe harbor if it continues hosting or linking to the given work.

No small amount of ink has been spilled pointing out that the DMCA’s notice-and-takedown provisions have led to an endless game of whack-a-mole for copyright owners. Google’s own transparency report boasts how its search engine has received requests to take down over 63 million URLs in the past month alone. And it helpfully tells us that it’s received over 21 million such requests over the past four years for just one site: rapidgator.net. Google’s transparency doesn’t extend to how many times it’s been asked to remove the same work, nor does it tell us anything about takedown requests for YouTube. But there’s no reason to think those numbers aren’t equally as frustrating for copyright owners.

The question one should ask is why these numbers aren’t frustrating for Google and YouTube, as they have to deal with the deluge of notices. Apparently, they don’t mind at all. According to the testimony of Google’s Senior Copyright Policy Counsel, Katherine Oyama, the “DMCA’s shared responsibility approach works.” Oyama notes that Google has spent tens of millions of dollars creating the infrastructure necessary to efficiently respond to the increasing number of takedown notices it receives, but many (if not most) copyright owners don’t have those kinds of resources. For them, it’s daily battles of manually locating infringements across the entire internet and sending takedown notices. For Google, it’s mostly-automated responses to take down content that otherwise brings ad-based revenue.

These struggles hit individual authors and artists the hardest. As the U.S. Copyright Office noted in its recently-announced study of the DMCA, “[m]any smaller copyright owners . . . lack access to third-party services and sophisticated tools to monitor for infringing uses, which can be costly, and must instead rely on manual search and notification processes—an effort that has been likened to ‘trying to empty the ocean with a teaspoon.’” What makes the process so frustrating—and futile—is the fact that the same works get uploaded to the same platforms time and time again. And any time spent sending the same takedown notice to the same service provider is time that is not spent honing one’s craft and creating new works.

Gladstein is correct: Service providers like Google and YouTube could be doing more. And, somewhat ironically, doing more for copyright owners would actually mean that both sides end up doing less. The obvious solution to the whack-a-mole problem is notice-and-staydown—it just makes sense. There’s simply no reason why a copyright owner should have to keep telling a service provider the same thing over and over again.

Those who object to notice-and-staydown often point out that the DMCA process is susceptible to abuse. Indeed, there are some who send notices in bad faith, perhaps to silence unwanted criticism or commentary. But there’s no reason to think that such abuse is the rule and not the exception. Google’s own numbers show that it complied with 97% of notices in 2011 and 99% of notices in 2013. That’s still a potentially-significant amount of abuse from notice-senders, but it’s also certainly a ton of intentional abuse from infringers whose conduct generated the legitimate notices in the first place. And the vast majority of those infringers won’t get so much as a slap on the wrist.

Turning back to Gladstein’s theme, discussions about fair use or takedown abuse are beside the point. The simple fact is that garden-variety copyright infringement involves neither issue. As CPIP Senior Scholar Sean O’Connor testified to Congress, “for many artists and owners the majority of postings are simply straight-on non-transformative copies seeking to evade copyright.” It’s this simple piracy, where entire works are uploaded to the internet for all to take, that concerns copyright owners most. Gladstein cares about the 1.3 million illicit distributions and performances of The Hateful Eight that are obviously infringing, not the commentary of critics that would obviously be fair use. And takedown notices sent because of these illicit uploads are anything but abusive—the abusers are the infringers.

The technology to make notice-and-staydown work already exists. For example, Audible Magic and YouTube both have the technology to create digital fingerprints of copyrighted works. When users later upload these same works to the internet, the digital fingerprints can be matched so that the copyright owner can then control whether to allow, monetize, track, or block the upload altogether. This technology is a great start, but it’s only as good as its availability to copyright owners. The continued proliferation of infringing works on YouTube suggests that this technology isn’t being deployed properly. And Google has no comparable technology available for its search engine, leaving copyright owners with little choice but to continue playing endless whack-a-mole.

Fortunately, the tides have been turning, especially as the technology and content industries continue to merge. And strides are being made in the courts as well. For example, a Court of Appeal in Germany recently held that YouTube has the duty to both take down infringing content and to make sure that it stays down. A quick search of YouTube today shows that The Hateful Eight, which is still in theaters, is legitimately available for pre-order and is illicitly available to be streamed right now. One wonders why YouTube chooses to compete with itself, especially when it has the tool to prevent such unfair competition. Regardless, there is real hope that Gladstein’s call for a “vaccine that could eradicate the disease of content theft” will be just what the doctor ordered—and that “vaccine” is notice-and-staydown.

[Update: This post unintentionally generated confusion as to whether I think notice-and-staydown means that fingerprinting technologies should be used with search engines. I do not think that would work well. I explain how search engines could do more to help copyright owners with the whack-a-mole problem in this follow-up post.]

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Conferences Copyright Innovation Internet Uncategorized

Join Us at the Copyright and Technology NYC 2016 Conference on January 19

Co-produced by GiantSteps, the Copyright Society, and Musonomics, the Copyright and Technology NYC 2016 Conference will be held at New York University’s Kimmel Center on Tuesday, January 19th. CPIP is a proud Media Sponsor of the event.

The conference program is available here, and registration is still open here.

Jacqueline Charlesworth, General Counsel and Associate Register of Copyrights at the U.S. Copyright Office, will be the keynote speaker. The timing is very fortuitous, as the Copyright Office just last week announced a new study to evaluate the effectiveness of the DMCA’s safe harbor provisions in Section 512 of the Copyright Act. Among the issues to be studied are the “costs and burdens of the notice-and-takedown process” and “how successfully section 512 addresses online infringement.” These very issues will be discussed at the conference.

The conference panels will discuss topics including live streaming, notice-and-staydown, copyright management information, safe harbor eligibility, collective licensing, and mass digitization. CPIP’s Executive Director Matthew Barblan will moderate the panel on safe harbor eligibility, and CPIP’s Assistant Director Devlin Hartline will be a panelist discussing notice-and-staydown.

We hope you will join us for an exciting and intellectually rewarding event!