Tag: U.S. Copyright Office

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Administrative Agency Commercialization Copyright Copyright Licensing Infringement Innovation Internet Legislation Supreme Court Uncategorized

Letter on FCC Set-Top Box Regulation Once Again Confuses the Issue

Washington, D.C. at nightLast week, a group of law professors wrote a letter to the acting Librarian of Congress in which they claim that the current FCC proposal to regulate cable video navigation systems does not deprive copyright owners of the exclusive rights guaranteed by the Copyright Act. The letter repeats arguments from response comments they  filed along with the Electronic Frontier Foundation (EFF), accusing the Copyright Office of misinterpreting the scope of copyright law and once again bringing up Sony v. Universal to insist that copyright owners are overstepping their bounds. Unfortunately, the IP professors’ recurring reliance on Sony is misplaced, as the 30-year-old case does not address the most significant and troubling copyright violations that will result from the FCC’s proposed rules.

In 1984, the Supreme Court in Sony held that recording television shows on a personal VCR was an act of “time-shifting” and therefor did not constitute copyright infringement. The court also ruled that contributory liability requires knowledge, and such knowledge will not be imputed to a defendant based solely on the characteristics or design of a distributed product if that product is “capable of substantial noninfringing uses.” But while this precedent remains good law today, it does not apply to the real concerns creators and copyright owners have with the FCC’s attempt to redistribute their works without authorization.

The FCC’s proposed rules would require pay-TV providers to send copyrighted, licensed TV programs to third parties, even if the transmission would violate the agreements that pay-TV providers carefully negotiated with copyright owners. A different group of IP scholars recently explained to the FCC that by forcing pay-TV providers to exceed the scope of their licenses, the proposed rules effectively create a zero-rate compulsory license and undermine the property rights of creators and copyright owners. The compulsory license would benefit third-party recipients of the TV programs who have no contractual relationship with either the copyright owners or pay-TV providers, depriving creators and copyright owners of the right to license their works on their own terms.

This unauthorized siphoning and redistribution of copyrighted works would occur well before the programming reaches the in-home navigational device, a fact that the authors of the recent letter to the Librarian of Congress either don’t understand, or choose to ignore. Creators and copyright owners are not attempting to “exert control over the market for video receivers,” as the letter suggests. The manufacture and distribution of innovative devices that allow consumers to access the programming to which they subscribe is something that copyright owners and creators embrace, and a thriving market for such devices already exists.

As more consumers resort to cord cutting, countless options have become available in terms of navigational devices and on-demand streaming services. Apple TV, Roku, Nexus Player and Amazon Fire Stick are just a few of the digital media players consumers can choose from, and more advanced devices are  always being released. But while the creative community supports the development of these devices, it is the circumvention of existing licenses and disregard for the rights of creators to control their works that has artists and copyright owners worried.

Sony has become a rallying cry for those arguing that copyright owners are attempting to control and stymie the development of new devices and technologies, but these critics neglect the substantial problems presented by the transmission of digital media that Sony couldn’t predict and does not address. In the era of the VCR, there was no Internet over which television was broadcast into the home. In 1984, once a VCR manufacturer sold a unit, they ceased to have any control over the use of the machine. Consumers could use VCRs to record television or play video cassettes as they pleased, and the manufacturer wouldn’t benefit from their activity either way.

The difference with the current navigation device manufacturers is that they will receive copyrighted TV programs to which they’ll have unbridled liberty to repackage and control before sending them to the in-home navigation device. The third-party device manufacturers will not only be able to tamper with the channel placement designed to protect viewer experience and brand value, they will also be able to insert their own advertising into the delivery of the content, reducing pay-tv ad revenue and the value of the license agreements that copyright owners negotiate with pay-TV providers. The FCC’s proposal isn’t really about navigational devices, it’s about the control of creative works and the building of services around TV programs that the FCC plans to distribute to third parties free of any obligation to the owners and creators of those programs.

The authors of the letter conflate two distinct issues, misleading influential decision makers that may not be as well versed in the intricacies of copyright law. By stubbornly comparing the copyright issues surrounding the FCC’s proposed rules to those considered by the Supreme Court in Sony, they craftily try to divert attention away from the real matter at hand: Not what consumers do with the creative works they access in the privacy of their own homes, but how those works are delivered to consumers’ homes in the first place.

It’s curious that after many rounds of back-and-forth comments discussing the FCC’s proposal, proponents of the rules still refuse to address this primary copyright concern that has been continuously raised by creators and copyright owners in corresponding comments, articles, and letters (see also here, here, here, and here). Perhaps the authors of the recent letter simply do not grasp the real implications of the FCC’s plan to seize and redistribute copyrighted content, but given their years of copyright law experience, that is unlikely. More probable is that they recognize the complications inherent in the proposal, but do not have a good answer to the questions raised by the proposal’s critics, so they choose instead to cloud the issue with a similar-sounding but separate issue. But if they truly want to make progress in the set-top box debate and clear the way for copyright compliant navigational devices, they’ll need to do more than fall back on the same, irrelevant arguments.

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Copyright Infringement Internet Uncategorized

Three Years Later, DMCA Still Just as Broken

By Matthew Barblan & Kevin Madigan

cameraIn 2013, CPIP published a policy brief by Professor Bruce Boyden exposing the DMCA notice and takedown system as outdated and in need of reform. The Failure of the DMCA Notice and Takedown System explained that while Section 512 of the DMCA was intended as a way for copyright owners and service providers to work together to fight infringement in the digital age, the notice and takedown system has been largely ineffective in managing the ever-increasing amount of piracy.

Three years later, the DMCA is still just as broken. Since we published the brief, courts have further diminished service providers’ responsibility to cooperate with copyright owners to detect and deter infringement, rendering the DMCA even more fruitless and desperately in need of retooling.

Boyden explained the fundamental problems with the system at the time, beginning with the fact that “despite all the notice, there is precious little takedown to show for it. Unless a site employs some sort of content filtering technology, the same content typically re-appears within hours after it is removed.” The notice and takedown system is particularly unsuited for the twenty-first century, where “infringement is persistent, ubiquitous, and gargantuan in scale. It is a problem that needs to be policed” with more than just takedown notices that don’t give copyright owners “a single day when the content is not available on the most heavily trafficked sites.”

Boyden noted that “even for the largest media companies with the most resources at their disposal, attempting to purge a site of even a fraction of the highest-value content is like trying to bail out an oil tanker with a thimble.” And Boyden pointed out that the courts hadn’t made the situation any better: “The DMCA’s unsuitability as a tool to manage chronic, persistent, and pervasive infringement is particularly apparent after recent decisions from the Second and Ninth Circuit that construed the duty of website owners very narrowly under Section 512.”

To further illustrate his point, Boyden collected data on takedown notices sent by MPAA companies and counter-notices received. Between March and August of 2013, MPAA companies sent takedown notices for over 25 million infringing URLs and received only 8 counter-notices in response. That’s a counter-notice rate of 0.000032%, suggesting that the astronomical volume of notices represents a likewise astronomical volume of infringement rather than overly-aggressive notice-sending.

Grand Totals. Infringing URLs: 25,235,151. URLs Sent to Websites: 13,238,860. URLs Sent to Search Engines: 11,996,291. Counter-Notices Received: 8.

Boyden concluded:

The impossibility of keeping up with new [infringing] uploads means that an online service provider can create a site aimed at and dedicated to hosting infringing copyrighted works, comply with every takedown notice, and still benefit from the safe harbor, as long as its intent remains hidden. If the site has enough users, any popular content removed will be supplanted by new copies almost immediately.

Sadly, three years later the “chronic, persistent, and pervasive” infringement that Boyden described continues, with stolen copyrighted works popping up on sites almost immediately after being taken down. Google Search—one product of one company—has receive nearly 90 million takedown notices this month alone. The situation has gotten so bad that last week a long list of artists, including Paul McCartney and Taylor Swift, signed a digital petition to bring attention to a broken DMCA system that allows companies like YouTube to benefit from infringement at the expense of songwriters and artists.

The artists’ main message: “The existing laws threaten the continued viability of songwriters and recording artists to survive from the creation of music.” They note that “the tech companies who benefit from the DMCA today were not the intended protectorate when it was signed into law nearly two decades ago,” and they ask Congress to “enact sensible reform that balances the interests of creators with the interests of the companies who exploit music for their financial enrichment.”

Recognizing the growing frustration with the DMCA, the U.S. Copyright Office initiated a study earlier this year to examine whether the statute is fulfilling its purpose. We submitted comments to the Copyright Office on behalf of a group of copyright law scholars, noting that courts have disrupted the balance Congress sought to create when it enacted the DMCA. In particular, courts have eliminated any incentive for service providers to work with copyright owners to develop policies and procedures to prevent or curb piracy online. In just one example of how deeply courts have distorted congressional intent, under courts’ current interpretation of the DMCA, search engines can continue to index even obviously infringing sites like The Pirate Bay with no fear of potential of liability.

Adding insult to injury, courts have recently shifted the balance of power even further away from artists and towards service providers, making it easier than ever for companies to enable and profit from infringement while turning a blind eye—or even encouraging—piracy on their sites. In this month’s Capitol Records v. Vimeo decision, for example, the Second Circuit extended the DMCA safe harbor to Vimeo despite smoking-gun evidence that Vimeo employees encouraged users to post stolen works on their site and had viewed the illicit videos at issue in the suit. In a jaw-dropping opinion, the court let Vimeo off the hook simply because the evidence of Vimeo employees encouraging infringement wasn’t directly tied to the specific infringing videos that plaintiffs included in their suit.

CPIP’s Devlin Hartline explains:

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.

As courts continue to gut the DMCA, making it harder than ever for artists to protect their property and livelihoods, Congress would be wise to heed Bruce Boyden’s advice from three years ago: “It is long past time for a retooling of the notice and takedown regime.”

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Copyright Internet Legislation Uncategorized

Copyright Policy Should Be Based On Facts, Not Rhetoric

Here’s a brief excerpt of a post by Kevin Madigan & Devlin Hartline that was published on IPWatchdog.

After nearly twenty years with the DMCA, the Copyright Office has launched a new study to examine the impact and effectiveness of this system, and voices on both sides of the debate have filed comments expressing their views. For the most part, frustrated copyright owners report that the DMCA has not successfully stemmed the tide of online infringement, which is completely unsurprising to anyone who spends a few minutes online searching for copyrighted works. Unfortunately, some commentators are also pushing for changes that that would make things even more difficult for copyright owners.

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

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Copyright Internet Legislation Uncategorized

Separating Fact from Fiction in the Notice and Takedown Debate

By Kevin Madigan & Devlin Hartline

U.S. Capitol buidlingWith the Copyright Office undertaking a new study to evaluate the impact and effectiveness of the Section 512 safe harbor provisions, there’s been much discussion about how well the DMCA’s notice and takedown system is working for copyright owners, service providers, and users. While hearing from a variety of viewpoints can help foster a healthy discussion, it’s important to separate rigorous research efforts from overblown reports that offer incomplete data in support of dubious policy recommendations.

Falling into the latter category is Notice and Takedown in Everyday Practice, a recently-released study claiming to take an in-depth look at how well the notice and takedown system operates after nearly twenty years in practice. The study has garnered numerous headlines that repeat its conclusion that nearly 30% of all takedown requests are “questionable” and that echo its suggestions for statutory reforms that invariably disfavor copyright owners. But what the headlines don’t mention is that the study presents only a narrow and misleading assessment of the notice and takedown process that overstates its findings and fails to adequately support its broad policy recommendations.

Presumably released to coincide with the deadline for submitting comments to the Copyright Office on the state of Section 512, the authors claim to have produced “the broadest empirical analysis of the DMCA notice and takedown” system to date. They make bold pronouncements about how “the notice and takedown system . . . meets the goals it was intended to address” and “continues to provide an efficient method of enforcement in many circumstances.” But the goals identified by the authors are heavily skewed towards service providers and users at the expense of copyright owners, and the authors include no empirical analysis of whether the notice and takedown system is actually effective at combating widespread piracy.

The study reads more like propaganda than robust empiricism. It should be taken for what it is: A policy piece masquerading as an independent study. The authors’ narrow focus on one sliver of the notice and takedown process, with no analysis of the systemic results, leads to conclusions and recommendations that completely ignore the central issue of whether Section 512 fosters an online environment that adequately protects the rights of copyright owners. The authors conveniently ignore this part of the DMCA calculus and instead put forth a series of proposals that would systematically make it harder for copyright owners to protect their property rights.

To its credit, the study acknowledges many of its own limitations. For example, the authors recognize that the “dominance of Google notices in our dataset limits our ability to draw broader conclusions about the notice ecosystem.” Indeed, over 99.992% of the individual requests in the dataset for the takedown study were directed at Google, with 99.8% of that dataset directed at Google Search in particular. Of course, search engines do not include user-generated content—the links Google provides are links that Google itself collects and publishes. There are no third parties to alert about the takedowns since Google is taking down its own content. Likewise, removing links from Google Search does not actually remove the linked-to content from the internet.

The authors correctly admit that “the characteristics of these notices cannot be extrapolated to the entire world of notice sending.” A more thorough quantitative study would include data on sites that host user-generated content, like YouTube and Facebook. As it stands, the study gives us some interesting data on one search engine, but even that data is limited to a sample size of 1,826 requests out of 108 million over a six-month period in mid-2013. And it’s not even clear how these samples were randomized since the authors admittedly created “tranches” to ensure the notices collected were “of great substantive interest,” but they provide no details about how they created these tranches.

Despite explicitly acknowledging that the study’s data is not generalizable, the authors nonetheless rely on it to make numerous policy suggestions that would affect the entire notice and takedown system and that would tilt the deck further in favor of infringement and against copyright owners. They even identify some of their suggestions as explicitly reflecting “Public Knowledge’s suggestion,” which is a far cry from a reasoned academic approach. The authors do note that “any changes should take into account the interests of . . . small- and medium-sized copyright holders,” but this is mere lip service. Their proposals would hurt copyright owners of all shapes and sizes.

The authors justify their policy proposals by pointing to the “mistaken and abusive takedown demands” that they allegedly uncover in the study. These so-called “questionable” notices are the supposed proof that the entire notice and takedown system needs fixing. A closer look at these “questionable” notices shows that they’re not nearly so questionable. The authors claim that 4.2% of the notices surveyed (about 77 notices) are “fundamentally flawed because they targeted content that clearly did not match the identified infringed work.” This figure includes obvious mismatches, where the titles aren’t even the same. But it also includes ambiguous notices, such as where the underlying work does not match the title or where the underlying page changes over time.

The bulk of the so-called “questionable” notices comes from those notices that raise “questions about compliance with the statutory requirements” (15.4%, about 281 notices) or raise “potential fair use defenses” (7.3%, about 133 notices). As to the statutory requirements issue, the authors argue that these notices make it difficult for Google to locate the material to take down. This claim is severely undercut by the fact that, as they acknowledge in a footnote, Google complies with 97.5% of takedown notices overall. Moreover, it wades into the murky waters of whether copyright owners can send service providers a “representative list” of infringing works. Turning to the complaint about potential fair uses, the authors argue that copyright owners are not adequately considering “mashups, remixes, or covers.” But none of these uses are inherently fair, and there’s no reason to think that the notices were sent in bad faith just because someone might be able to make a fair use argument.

The authors claim that their “recommendations for statutory reforms are relatively modest,” but that supposed modesty is absent from their broad list of suggestions. Of course, everything they suggest increases the burdens and liabilities of copyright owners while lowering the burdens and liabilities of users, service providers, and infringers. Having overplayed the data on “questionable” notices, the authors reveal their true biases. And it’s important to keep in mind that they make these broad suggestions that would affect everyone in the notice and takedown system after explicitly acknowledging that their data “cannot be extrapolated to the entire world of notice sending.” Indeed, the study contains no empirical data on sites that host user-generated content, so there’s nothing whatsoever to support any changes for such sites.

The study concludes that the increased use of automated systems to identify infringing works online has resulted in the need for better mechanisms to verify the accuracy of takedown requests, including human review. But the data is limited to small surveys with secret questions and a tiny fraction of notices sent to one search engine. The authors offer no analysis of the potential costs of implementing their recommendations, nor do they consider how it might affect the ability of copyright owners to police piracy. Furthermore, data presented later in the study suggests that increased human review might have little effect on the accuracy of takedown notices. Not only do the authors fail to address the larger problem of whether the DMCA adequately addresses online piracy, their suggestions aren’t even likely to address the narrower problem of inaccurate notices that they want to fix.

Worse still, the study almost completely discards the ability of users to contest mistaken or abusive notices by filing counternotices. This is the solution that’s already built into the DMCA, yet the authors inexplicably dismiss it as ineffective and unused. Apart from providing limited answers from a few unidentified survey respondents, the authors offer no data on the frequency or effectiveness of counternotices. The study repeatedly criticizes the counternotice system as failing to offer “due process protection” to users, but that belief is grounded in the notion that a user that fails to send a counternotice has somehow been denied the chance. Moreover, it implies a constitutional right that is not at issue when two parties interact in the absence of government action. The same holds true for the authors’ repeated—and mistaken—invocation of “freedom of expression.”

More fundamentally, the study ignores the fact that the counternotice system is stacked against copyright owners. A user can simply file a counternotice and have the content in question reposted, and most service providers are willing to repost the content following a counternotice because they’re no longer on the hook should the content turn out to be infringing. The copyright owner, by contrast, then faces the choice of allowing the infringement to continue or filing an expensive lawsuit in federal court. The study makes it sound like users are rendered helpless because counternotices are too onerous, but the reality is that the system leaves copyright owners practically powerless to combat bad faith counternotices.

Pretty much everyone agrees that the notice and takedown system needs a tune up. The amount of infringing content available online today is immense. This rampant piracy has resulted in an incredible number of takedown notices being sent to service providers by copyright owners each day. Undoubtedly, the notice and takedown system should be updated to address these realities. And to the extent that some are abusing the system, they should be held accountable. But in considering changes to the entire system, we should not be persuaded by biased studies based on limited (and secret) datasets that provide little to no support for their ultimate conclusions and recommendations. While it may make for evocative headlines, it doesn’t make for good policy.

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Administrative Agency Copyright Uncategorized

A New Librarian of Congress and a New Copyright Office

By Sandra Aistars

U.S. Capitol buildingWith the Senate considering the confirmation of Dr. Carla Hayden as the next Librarian of Congress, I have joined thirteen other intellectual property law professors in an Open Letter suggesting that her confirmation should serve as an important reminder that the U.S. Copyright Office, a department within the Library of Congress, needs to be updated so that it can best serve the needs of the American people in the digital age.

As President Obama stated in his announcement of the nomination, “Dr. Hayden has devoted her career to modernizing libraries so that everyone can participate in today’s digital culture.” Indeed, I share Dr. Hayden’s enthusiasm for modernizing our libraries so that they can better promote and preserve our nation’s collective learning and culture for all to enjoy. This is especially important when it comes to the Library of Congress, the oldest and largest cultural institution in the United States.

However, it’s also important to provide the Copyright Office with the resources and authority it needs to perform its role as the nation’s leading expert on copyright law and a major facilitator of the marketplace for creative and scholarly works. Members of Congress and numerous stakeholders have been calling for modernization of the Copyright Office for years. They recognize that the Office faces significant structural challenges that limit its effectiveness in serving the American public. As the Office notes in its recent strategic plan, “there is no question that it must now modernize to meet current and future needs.”

Even though the Copyright Office and the Library of Congress have significantly different business needs, the Office is stuck using the Library’s information technology (IT) systems, which are not only antiquated, but were designed to serve a different purpose. A recent report by the Government Accountability Office finds that “serious weaknesses” in the Library’s IT systems are thwarting the Office’s ability to fulfill its mission in registering, recording, and depositing copyrighted works. The Office needs funding to improve these essential IT systems and to tailor them to its specific needs.

The legal structure of the Copyright Office should also be updated to best position it for success. There is currently no agency with independent, comprehensive rulemaking authority when it comes to copyright law. The Register of Copyrights can only establish regulations for administering the duties and functions of the Copyright Office, subject to approval by the Librarian of Congress. This inefficient structure burdens the Librarian with responsibilities that more appropriately should fall on the Register—the fully-vetted, leading expert in the Copyright Act.

Moreover, the Register of Copyrights is not appointed as a principal officer of the United States by the President. This means that should the Office take on additional duties like administering a small copyright claims court, the Register could not appoint and oversee the administrative law judges that would run this process. Likewise, the Register currently has no power over the three judges of the Copyright Royalty Board that determine the rates and terms of statutory copyright licenses. Congress has consistently assigned the Office more duties and relied upon its vast proficiency in copyright law, but the authority of the Register has not been updated accordingly.

Although I and the other signatories of the Open Letter do not all agree on every issue in copyright law, including where the Copyright Office should be positioned within our government, we do all agree that the Register of Copyrights should be a principal officer of the government. Only when the Register is appointed by the President and confirmed by the Senate will she have the authority and accountability appropriate to administer our nation’s copyright system.

The confirmation of Dr. Hayden as the new Librarian of Congress promises us the much-needed modernization of the Library of Congress, and it also provides us with the opportunity to reflect upon the needs of the Copyright Office. Both the Librarian and the Register play important roles in promoting and preserving our nation’s culture, but those roles are fundamentally different in nature. These two talented leaders should work closely with each other as partners, each possessing the authority and responsibility suitable for their differing areas of expertise.

The time to modernize the Copyright Office is now. Congress can ensure the continuing success of our copyright system by providing the Office with the resources and authority it needs to better serve us all in the digital age.

To read the full Open Letter, please click here.

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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.

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Copyright Uncategorized

March 18th Conference: A Copyright Office for the 21st Century

CPIP Senior Scholar and Director of Copyright Research & Policy Sandra Aistars will be speaking at a conference on Friday, March 18th, at the U.S. Capitol Visitor Center in Washington, D.C. The conference is entitled “A Copyright Office for the 21st Century.” Experts from industry, academia, and government will come together to discuss various options for modernizing the U.S. Copyright Office so that it can best serve all of its stakeholders–including the American public–in the digital age. The conference is co-hosted by the Duke Law School Center for Innovation Policy and the New York University Law School’s Engelberg Center on Innovation Law & Policy. (CPIP is not hosting this event; more information available at these links.)

Professor Aistars discusses many options for modernizing the U.S. Copyright Office in her recent law review article in the Columbia Journal of Law & the Arts:

Congress could pursue a variety of paths to improve upon the current state of affairs. Even if it does nothing else, before Congress engages in a legislative rewrite of the Copyright Act it should examine how the Copyright Office currently operates and is funded, and should ensure that it has all the necessary infrastructure and critical resources to serve the needs of the public in both administering the copyright law and facilitating the innumerable transactions the public wishes to undertake involving copyrighted works.

If Congress wishes to leave a lasting and meaningful legacy on the development of copyright law, it could also consider options that remove practical, structural and constitutional impediments to more efficient lawmaking and regulation in copyright. For instance, Congress could expand the authority and autonomy of the Copyright Office to afford greater rulemaking authority, and allow it to take on additional adjudicatory functions while leaving it in its current form as a department of the Library of Congress. Alternatively, Congress could act more boldly to create a new agency that is able to engage both authors and the public to nimbly address technically and substantively challenging copyright issues.

Other speakers include: Stuart Benjamin, Duke Law School; Troy Dow, Disney; Dave Green, Microsoft; Joseph Liu, Boston College Law School; Bill Raduchel, independent director and investor; Arti Rai, Duke Law School; Pam Samuelson, Berkeley Law School; Matt Schruers, Computer & Communications Industry Association and Georgetown Law School; and Chris Sprigman, New York University School of Law.

We hope to see you there!

What: A Copyright Office for the 21st Century
When: Friday, March 18, 2016, 8:15 AM – 1:00 PM
Where: U.S. Capitol Visitor Center, Room HVC-200, Washington, D.C.
How: To register, please email Anne Hassett or click here

Agenda

  • 8:15 Welcome
  • 8:30 – 9:15 What should a modern Copyright Office be doing compared to what it does now?
  • 9:15 – 10:15 Registration and recordation functions
  • 10:30 – 11:30 Regulatory and adjudicatory functions
  • 11:30 – 12:30 The structure of a modern Copyright Office
  • 12:30 – 1:00 Congressional views

The U.S. Capitol Visitor Center, the main entrance to the U.S. Capitol, is located beneath the East Front plaza of the U.S. Capitol at First Street and East Capitol Street.

For more information, please contact Stephen Merrill (stephen.merrill@law.duke.edu) or Anne Hassett (annemarie.hassett@nyu.edu).

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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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.]