Tag: safe harbor

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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.

Categories
Copyright International Law

Will the EU Finally Hold Internet Giants Accountable?

gold 3D copyright symbolOn July 5th, the European Parliament will vote on a draft of the Copyright Directive for the Digital Single Market that has major implications for the future of copyright law in the European Union and beyond. At the center of the debate is Article 13, a provision that would require online platforms that feature user-generated content to screen uploads for infringing material. It’s a measure that represents a significant update to standards of accountability in the digital age, and it’s one that’s now necessary to combat the continual devaluation of creative works and to ensure the survival of essential creative ecosystems.

In the weeks and months leading up to the vote, advocates for Article 13’s defeat have become increasingly vocal in their opposition to the proposal. An overwhelming amount of those attacking Article 13 have resorted to fear-mongering and misinformed hyperbole. Detractors’ claims include everything from the ridiculous—insisting Article 13 will outlaw memes—to the clichéd—that efforts to impose platform accountability amount to censorship and will “break the internet.”

Fixing Outdated Safe Harbors and the YouTube Value Gap

Chief among opponents’ complaints is that Article 13 would destroy the safe harbors that guarantee platforms will not be liable for infringing content uploaded without their knowledge. At the turn of the century, the Digital Millennium Copyright Act in the US and E-commerce Directive in Europe included safe harbor immunities as a way to encourage the development of the internet and the companies that were leading the way in online innovation. But these protections were never meant to be sweeping get-out-of-jail-free cards that encourage platforms to ignore infringing activity.

What’s become clear is that the immunities granted to tech giants through safe harbors haven’t properly incentivized them to stop profiting from illegal activity. These once-nurtured companies are now the most powerful and wealthy entities in the world, and business models based on the unauthorized distribution of protected works must be challenged.

Making matters worse is the fact that mechanisms meant to give creators and copyright owners a way to fight infringement have fallen short. Notice and takedown is an ineffective weapon against the incessant uploading of unauthorized content, and safe harbors allow online intermediaries to repeatedly turn a blind eye to—and profit from—massive amounts of copyright infringement occurring on their platforms.

The failure of procedures like notice and takedown are nowhere more apparent than on YouTube, where the futility of artists’ efforts to fight infringement has led to an inability to be fairly compensated for the exploitation of their works. When YouTube rose to prominence as the most popular streaming platform in the world—offering up free illegal streams of thousands of popular songs and movies—copyright owners quickly realized the law left them powerless to hold YouTube accountable for being a clearinghouse of stolen creative works.

This lack of control for creators combined with YouTube’s market dominance has created a “value gap” which leaves artists in a lose-lose predicament where they must choose between the meager compensation YouTube offers and nothing at all. Furthermore, legitimate streaming platforms are forced to compete with YouTube’s enormous and popular black market. Sadly, efforts similar to  the current campaign against the EU Copyright Directive have enabled this market dysfunction to persist for over a decade.

A Campaign of Misinformation

Despite the Copyright Directive’s effort to clarify safe harbor qualifications and correct a glaring inequality, opponents of Article 13 insist content filtering provisions will result in censorship and destroy the internet as we know it. It’s a campaign that is recycling the same scare tactics and wild assumptions that seem to arise whenever there is an attempt to inject accountability in cyberspace.

A recent article by a leading European IP law expert takes many of these accusations to task, pointing to language in Article 13 that ensures a balancing of rights and interests through the introduction of exceptions and limitations by Member States “irrespective of whether the value gap proposal is adopted or not.” Article 13 clarifies that systems to prevent misuse or undue limitations to the exercise of exceptions must be adopted by Member States to ensure fundamental rights and freedom of expression are not compromised. The inclusion of carve outs and provisions that empower Member States to prohibit any behavior approaching censorship renders these doomsday “end of the internet” allegations baseless.

Additionally, the article explains that the current legal framework developed by the Court of Justice of the European Union (CJEU) has already been moving towards addressing the value gap, and Article 13 “would not represent a dramatic shift from the way in which the law has developed up till now.” The article points out that safe harbor protections under Article 14 of the E-Commerce Directive are only available to passive service providers who act as true intermediaries, and that hosting services who make unauthorized communications to the pubic are already precluded from safe harbor immunity.

So why would organizations who support tech giants spread misinformation and falsehoods about the contents of Article 13 and its repercussions? Unfortunately, it’s a strategy they’ve employed again and again whenever there is an initiative to implement responsibility and accountability online. By taking a reasonable bill or legislative effort and painting it as an attack on fundamental rights and freedom of expression, they have been able to drum up hysteria and knee-jerk reactions from those who may not fully understand the issues. It’s a formula that has worked to defeat sensible reform in the past, but it must be called out for what it is.

Accountability and Respect for Creation

Artists and representatives of the creative industries have weighed in on the proposals, explaining that content filtering isn’t just about protecting their livelihoods, but ensuring that the next generation of creators can flourish in a system that values and respects their contributions. A recent article criticizing Article 13 complained that there is no incentive for the public to welcome the implementation of content filtering. But this argument misses the point. Increasing accountability for internet giants who profit from infringement is an opportunity for the public to show that it values creative works, artists, and those responsible for bringing creative content to consumers.

It’s also an opportunity for the public to hold accountable companies and organizations that routinely behave as if they are above the law. When it comes to issues of increased accountability for their actions, internet giants have been able to trick the public in the past with misinformation campaigns similar to the one being waged against the Copyright Directive, but there is a growing tide of frustration with these deceptive practices, and the public should wake up and demand change.

As the European Parliament goes to vote on the Copyright Directive, it’s essential that parliament members, stakeholders, and the public understand what’s at stake. Recent events around the world have challenged notions of what is expected from the tech giants that have become the gatekeepers of the digital age, and it’s past time that they face responsibility for enabling and profiting from the theft of creative works. The future of creativity depends on it.

Categories
Copyright Infringement Internet Uncategorized

Capitol Records v. Vimeo: Courts Should Stop Coddling Bad Actors in Copyright Cases

Here’s a brief excerpt of my new post that was published on IPWatchdog:

Here’s where we are after Capitol Records v. Vimeo: A service provider can encourage its users to infringe on a massive scale, and so long as the infringement it encourages isn’t the specific infringement it gets sued for, it wins on the safe harbor defense at summary judgment. This is so even if there’s copious evidence that its employees viewed and interacted with the specific infringing material at issue. No jury will ever get to weigh all of the evidence and decide whether the infringement is obvious. At the same time, any proactive steps taken by the service provider will potentially open it up to liability for having actual knowledge, so the incentive is to do as little as possible to proactively “detect and deal” with piracy. This is not at all what Congress intended. It lets bad faith service providers trample the rights of copyright owners with impunity.

To read the rest of this post, please visit IPWatchdog.