Copyright Office 512 Roundtable: Service provider response

Session 2: Notice-and-Takedown Process—Service Provider
Response and Counter-Notifications
 
Official description: Handling of and response to notices,
including timing and notices from high-volume senders; sending and handling of
counter-notifications; volume of notices and counter-notifications; costs and
burdens on large- and small-scale service providers; role of automation,
including filtering technologies; noncompliant notices and misuse of notice
process; rejection of notices; impact of takedowns on users and public;
protections for fair use; relevant empirical data; and other pertinent
issues. 
 
Claggett: ISP experience: Is it working effectively?
Automated notices?
 
Michael Weinberg Shapeways: High level concept works
reasonably well given the circumstances. Notice quality is highly variable,
which doesn’t track to the size of the content owner. People assume 512 notice
and takedown model for complaints unrelated to ©.
 
Claggett: Can you handle notice volume?
 
Weinberg: notices are bursty for us: week w/few and then
w/lot. That’s problematic from staff allocation standpoint.  But we can handle it.  As we see #s go up, need to build internal
tools.
 
Actual volume: just under 1000 notices last year; trend to
go significantly beyond that. One problem is that those notices tend to be an
IP grab bag.  Due to our our site’s
capacities: 3D printing.  Addit’l burden
of processing in ID’ing real complaint. 
Easy to forget that burden from 512 standpoint.
 
JC: would it be helpful to have a clear form that maybe said
“for copyright claims” on the top—would that aid you?
 
Weinberg: when we tried to update registration w/CO, took 4
months to find out what to do if we didn’t have a fax.  Structure of the form, connecting to back end
would have to involve over time; not clear there are mechanisms to evolve a
standardized form even if it was correct at the time it was deployed.  On the flip side, if data about notice
process became more public, that could be worth the process.
 
Rebecca Tushnet Organization for Transformative Works
The over 600,000 registered creators on our site who’ve
posted over 2 million works, and our small all volunteer coding and legal
teams, appreciate the opportunity to participate.  Most ISPs are like us, Wikimedia, Internet
Archive: we receive relatively few notices, they’re generally illegitimate
attempts to assert rights over titles or fair uses, we hand review each one, no
capacity to build filters that are unnecessary anyway.
 
JC: Might it make sense for big sites?
 
RT: not here to say that. What I learned from comparing UMG,
Sony, and Warner’s comments with those of other copyright owners advocating for
increased duties for ISPs: I learned that the best filtering system is the one
you’re not using.  UMG says Content ID is
60% effective, Sony says it missed millions of infringements.  The other content companies, like the book
publishers, are sure that Content ID must be fantastic and therefore should be
applied to the entire internet. But the biggest users of Content ID think it’s
full of holes. There’s always something more to demand: like Angelica Schuyler,
they will never be satisfied. 
 
Brianna Schofield University of California-Berkeley School
of  Law: Tremendous diversity in how
service providers interact w/the notice system. 
DMCA classic: intake manageable by hand. Varying degrees of quality of
notices. 
 
Another group gets a large influx of notices; not the
predominant thing for most ISPs. 
DMCA-auto: reacted to influx by developing automated systems to process.
DMCA-Plus: beyond the requirements of the statutes.  Any reaction should take account of this
diversity.
 
Claggett: could you do percentages?
 
Schofield: we surveyed a small #, but tried to have a representative
sample of broader ecosystem.
 
DMCA classic is dominant by far.
 
Claggett: does this suggest that different policies need to
be made depending on type of ISP?
 
Schofield: Instead, system is self-managing and reacting to
needs of platforms. Hard to draw lines from policymakers’ perspective to
arbitrarily putting any of them in buckets. Some service providers you might
expect to get lots of notices are actually service providers that aren’t
getting that many notices and don’t need automated processing.
 
Kevin Rupy USTelecom: Broadband service providers, large,
small and everything in between.  Small
rural providers with a couple thousand lines to “traditional” huge broadband
providers like Verizon. Generally speaking, the safe harbor provisions are functioning
as intended. However, we do have issues w/getting §512(c) notices when acting
as mere conduit under §512(a); clear under statute and caselaw that those
notices aren’t valid.  Multiple notices
don’t render someone a repeat infringer; we believe that termination under
appropriate circumstances should be narrowly construed and subject to some type
of judicial oversight. Congress, this administration, and our main regulator
the FCC view broadband employment/adoption as a principal goal. So termination
needs to be for real reasons.
 
JC: if someone doesn’t pay their bill, do they get service
terminated?
 
Rupy: Yes.
 
JC: so you do terminate subscribers for other reasons.
 
Rupy: Yes.
 
JC: Courts have said you don’t need a judicial determination
to be a repeat infringer, at least some courts. Assuming that’s the law, how
would a © owner communicate w/you about infringements repeating on your site?
 
Rupy: That’s happening in the marketplace, w/voluntary
mechanisms like CCI: content community and broadband providers identify and
address repeat infringement, or alleged repeat infringement.
 
Claggett: does it end in termination?
 
Rupy: depends on the nature of the escalation, it can.
 
JC: Your companies have agreed to take in notices and
consider them voluntarily, but you don’t want the notices served under §512(c).
 
Rupy: if it relates to hosting, which we do, sure.  Where you have challenges is §512(a)
conduit—there’s nothing for us to take down or remove!
 
JC: if someone becomes aware of P2P infringement on your
network, how do they notify you? Do you accept those?
 
Rupy: Judicial due process; civil actions.
 
JC: but if a © owner wants to notify you, how would they do
that outside of a judicial order?
 
Rupy: it would depend on the nature of the
infringement.  If hosting that content,
§512(c).
 
JC: instead of sending a notice, is there an acceptable
alternative that would communicate the P2P infringement issue?
 
Rupy: we can talk about that, but as we view the framework
currently, sending millions of notices to ISPs under §512(c) when they’re
acting under (a) is not how the DMCA is set up. That’s one reason ISPs are
working w/the content community for a voluntary framework for addressing repeat
infringement.
 
Claggett: you’re saying a notice is just an allegation of
infringement.  In your view, absent
adjudication of infringement, would you not consider it unproven allegation?
 
Rupy: yes.
 
Claggett: These millions of notices: what is causing this
phenomenon—just a difference of opinion on legal basis?  Is there any recourse in §512 to prevent
that?
 
Rupy: That’s an improper use of §512.
 
Claggett: is this barred by §512 or can you use §512(f) or
some other legal recourse?
 
Rupy: Can’t speak to that.
 
Claggett: Are specific stakeholders sending them?
 
Rupy: generally speaking, member companies have seen an
increase over the last few years. 
Different entities behind that; addressed in comments at broader level.
 
Claggett: ignore them?
 
Rupy: varies by provider and situation. Under some voluntary
frameworks, you may see those notices forwarded on to the individual
subscriber.  Even with the forwarding,
it’s an allegation of infringement.
 
Jennifer Pariser Motion Picture Association of America: 512
is best for ISPs of every size. Google can automate; small ISPs don’t spend
much; it’s a cost of doing business whether large or not. That’s where the
imbalance comes: relatively manageable cost of doing business v. creation side
is being killed by piracy and dealing w/great burdens from §512 to little
effect.
 
In terms of §512(a): CCI is not a voluntary organization;
it’s a contractually based organization with the MPAA, RIAA, and five largest
ISPs, but only those 5.  Others are
invited to be members but have chosen not to be.  Minimal effect of that program is only for
subscribers of those services; only deals w/P2P piracy; doesn’t end
w/termination.
 
Marcie Kaufman Ithaka/Artstor: we are stewards of content
licensed to us and provide it to libraries etc. Have a freemium access model
for users.  Sit between ISPs and users.
We have to issue our own takedown notices. But we have SharedShelf ISP service
model—content management for digital collections for institutions, integrated
w/licensed materials. They do their own screening of IP rights, and are
generally cautious b/c they’re academic institutions. Fills an important niche
allowing teaching materials to be integrated. 
 
Artstor couldn’t have created this w/o DMCA safe
harbor.  We don’t monitor it—it’s
password protected.  Needs to be
consideration of the service provider, size, etc. in any changes under
consideration.  We are the innovation the
safe harbors meant to protect and changes would really affect innovations like
us.
 
Andrew Bridges Fenwick & West LLP: DMCA works well for
ISPs; nobody’s happy with it, and that’s the sign of a good law.  Four points of concern, three of which can be
solved by education. (1) Broad misunderstanding that the safe harbor has
replaced the substantive standards of © infringement, or that the DMCA gives ©
rights to creators. It simply limits remedies. Before you reach safe harbor,
you have to be otherwise liable.  Rampant
confusion about that.  (2) Rampant
confusion about role of §512(a) conduit provider and notices to them using
§512(c).  (3) A number of abuses; DMCA
used by business model itself, a monetization strategy and litigation strategy,
rather than a framework to encourage collaboration.  (4) Needs litigation to fix: pervasive
problem of extreme statutory damages. 
Once that’s done, many other complex questions become easier to solve.
Kerry Sheehan Public Knowledge: Tempting to see future of
§512 as being solely about ISPs and content creators, but also about internet
users as a whole—increased risk of liability means increased risk of takedown
of protected expression online.  [And they
are content creators too!]
 
Jay Rosenthal ESL Music/ESL Music Publishing: Contrasting
those who get the notices and those who send them. It’s great that it’s ok on
the ISP side. On the content owner side, it’s an incredible drain, and smaller
© owners have stopped using it.  Burden
on ISPs, but there’s got to be a shift in this burden in policing the
internet.  If we both feel pain, that
would be the right balance.  But since
they’re saying it’s working relatively well and we’re saying it’s not, that should
push © policy towards us.
 
Damon DiMarco Author [Authors’ Guild]: One of only two
independent © holders here. [I beg to disagree: what are AO3 users, chopped
liver? I’ve sent takedown notices.] 
Written five books. Google alert. 
Forty alerts in April: pirated instances.  DMCA is toothless.  I spend the majority of my time running after
people stealing from me.  Panamanian
companies, overseas companies.  I should
have an attorney, but I can’t afford one. 
Independent artist’s POV: complete debacle. Don’t have an answer, but
you need to know what the ecosystem is like. Stratified against independent
producers of content.
 
Claggett: Types of improper notices—targeting legitimate
content that have negative effects on free expression.
 
Hillary Johnson Author: What DiMarco said.  Major book published 20 years—most infringed,
plagiarized book of the 20th century. 
Most egregious: a FB user who’s published my book on his FB page three times
over in 10 years. Started by sending takedown notices to FB; took about three
days to satisfy FB’s demands to prove that I was the author who owned the
©.  I live on Social Security and a
$500/hour lawyer presented 75 instances of © infringement. FB told this guy to
C&D; I never saw the letter; he stopped for two months, but w/a lot of
profanity, anger, hostility.  It stopped
for a while but since then he’s posting material that appeared elsewhere on
other people’s websites.  He’s now
plagiarizing instead of posting verbatim. My book has been utterly devalued;
efforts to protect it have been futile.
 
JC: when you sent a takedown notice to FB, do they respond?
What do they demand?
 
Johnson: 2011-2013 I was sending notices to FB. They sent a
form back asking for proof.
 
Thomas Kennedy American Society of Media Photographers: Incredibly
asymmetrical. No collaboration w/individuals.
 
Mickey Osterreicher National Press Photographers
Association: Haves and have-nots have completely different view of how this is
working.  Fair use has become a
sword—courts have difficulty deciding fair use, so that’s problematic.
 
Marc Ostrow Law Offices of Marc D. Ostrow: Silent majority:
represents a lot of individual songwriters and recording artists and small
businesses. There are lots of people who never bother to send notices any more
to the YT and FB of the world.  Very few
counternotices are even served because the person whose content was taken down
will just repost it quickly.  Statutory
damages aren’t that high when you consider the cost of prosecuting litigation
to trial. I’ve had people get angry at takedowns b/c they say they’re fans.
 
JC: in your view people don’t use counternotice process,
just repost.
 
Ostrow: in my universe of small publishers, yes. The one
counternotice I’m aware of involved a small classical publisher—a university
concert posted the entire performance, and the composer didn’t like the
performance, and posting an entire work w/o transformation is not fair use;
they claimed it was fair use.
 
JC: did you sue?
 
Ostrow: No, b/c of cost/benefit analysis. 
 
JC: did the content come down?
 
Ostrow: yes, it did, but in other circumstances it’s just
reposted.
 
Claggett: want to focus on improper notices that are
improper for free speech.
 
Pariser: The Berkeley study doesn’t have anything to tell us
about the internet ecosystem outside of Google. The study looked at 1800
so-called improper notices w/in the confines of a limited period of time. 30%
of notices sent were improper, supposedly. 15% were some variety of technical
mistake; mismatch b/t Usher’s music and movie House of Usher—not suppression of
legitimate expression. That work shouldn’t have been there to begin w/.  Others pointed to more than 1 URL, making it
difficult for Google to know; that’s a problem for Google but not a huge problem.  7% in supposed fair use bucket.  They are way overgenerous in what might be
considered fair use—covers and ringtones are not fair use.  Even so, doesn’t say © owner lacked good
faith basis.
 
Google’s own statistics say less than 1%.  We won’t say there’s never been an improper
notice in the history of the world. Anecdotal. Microscopically small
percentage.
 
Schofield: Hosts of all sizes talked about notices targeting
noninfringing content. The problem there is that there’s a tendency to take
down content that the service providers do no matter what. Others have a
different risk tolerance profile, like WordPress.  Study 2: largely automated notices often
targeting problematic sites.  Large
rightsholders are focusing their efforts on big sites.  So we looked beyond large rightsholders
targeting those sites. So we pulled notices sent to Google Image search. Tended
to be individuals/small businesses. Different dynamic, with lots more issues of
expression: blogs, message board threads. 
15% targeting improper subject matter. 
Help us study!
 
Claggett: could you go back and determine whether those
procedurally bad ones were based on legitimate content?
 
A: it would be hard.
 
JC: which is more accurate, automated or human review?
 
A: depends on type of rights holder.  Image search: human attention wasn’t
necessarily a panacea. Largely unsophisticated actors in the system. 
 
Claggett: pro vendors typically had less inaccuracies than
the individual or small business owner notices—is that who they targeted or
their understanding of the law?
 
A: depending on how you count, 70% of Google Image notices
had problem; we set one particular person’s notices aside, leaving 37% with
problems in image search, and that’s about sophistication.
 
Claggett: does that suggest in preventing abuse there needs
to be a different solution depending on the type of notice sender if
individuals and smaller businesses—would higher damages make a different amount
of sense?
 
A: we recommend tailored solutions. By & large, for
automation there are best practices about refining these systems to minimize
errors. We’ve spoken with rights enforcement orgs that say there are mechanisms
to refine algorithms to limit mismatch. 
Some orgs weigh success on numbers, not on quality. Smaller senders:
educational efforts could be targeted to see what the process is about.
 
Rebecca Prince, Becky Boop: I’ve been subject of improper
notices based on my fair uses. First: DMCA strikes by competitors. I create
video on YT, which is one of the few platforms that gives you AdSense revenue,
mostly w/in the first few days. Competitors can lob four notices = account
termination; no recourse to reinstate your account. If this is how you make a
living, that’s very serious.  YT’s
Content ID system: I have the opposite problem, where I submit a
counternotification, and the company just sits and waits and then just submit a
new notice; they can keep your content down for months, which has a chilling
effect and changes the content you create.
 
Claggett: are they not complying w/putback?
 
Prince: material will be reinstated, but company will create
a new followup claim. It’s automated and so no one checks to see it’s a second
claim to keep your content down again.
 
JC: Content ID?
 
Prince: yes, segues into DMCA if you counternotify.
 
Jay Rosenthal: Cover versions of songs are not fair use as
Berkeley study says.  Small
percentages—stifling innovation argument should be made much more from the user
side. © takes the idea/expression distinction into account. If original © owner
wants to stop use of expression, they should be able to do so. © owner needs
remedy to stop someone from using expression.
 
RT: [I’m pretty sure there’s at least one PD film about the
House of Usher.] [For examples of problem notices, see the comments of: Engine,
Github, Redbubble, Matthew Neco’s discussion of Docstoc, Yahoo!, Automattic,
Siteground, SoundCloud, Internet Archive, Wikimedia.] Jon Penney’s study of
blogger and twitter takedowns: substantial minority percentage of plausible
fair uses, including criticism. 
 
This is situation not ISPs v. copyright owners or so-called
“content creators.”  Our users are
creators and © owners too; we assist them w/information about DMCA when someone
is selling copies of their works on Amazon; I’ve sent takedown requests
myself.  But they are mostly at risk of
invalid takedowns.  Mostly for critical
works.  When we ask for proof of
ownership, we do so b/c there are people who pretend to be HBO [Game of
Thrones], Warner [Harry Potter], and all sorts of others.  The things people complained about in the
last panel are the sorts of educational measures people have just been
advocating for here—when Google asks if it’s a picture of you, the reason
they’re asking is to try to figure out if you really have a copyright claim!
You can’t have it all.
 
Haves and have-nots: those exist on both sides!  DMCA notice from big copyright owner—people
are scared to counternotify b/c if they consult a lawyer the lawyer has to tell
them about statutory damages.  One
woman’s videos have been shown in multiple curated shows at museums; still
thought long and hard about counternotice. 
Small creators do often decline to interact w/the legal system.  But please recognize that if you accept the
testimony that lots of people don’t bother to contest an abuse, that’s true for
people who receive notices too!
 
Counternotices: Digital Media Ass’n, submitted a study whose
questions assumed s512 wasn’t strong enough. 
Has an interesting non-statistical survey, 9% of those experienced
counternotices and also experienced invalid claims against them.
 
Michael Weinberg: I personally review every takedown. We get
plenty of facially legit requests. But we get takedown notices for all sorts of
stuff. The internet is big and people use a takedown option for everything. You
may code something as a technical error—weren’t willing to assert they were the
© owner—but what that means is that they didn’t actually have an ownership
interest.  If we try to structure the
complaint on the front end to avoid bad takedowns—taking the interest of
creators seriously both for senders and for recipients—we have to balance
burden on rightsholders sending notices and ability to avoid burdening our
creatives.  We get people who send
takedowns based on every use of a word they claim to own. 
 
Charlyn Zlotnik Photographer: 5 years ago I sent notices to
ISPs and didn’t receive replies.  YT
responded w/removals. Lately I’ve been going directly to people posting on
Flickr or Pinterest; it seems like the burden was always on photographers but
it’s out of hand now. There should be notices in real simple English—if you
scanned something from a book, don’t post it. All my older work in books is
being scanned in hi-res.
 
Perry Bashkoff WEA Digital & Revenue Development:
Practicality of utilizing toolsets given to content owners: encourage
decisionmakers to sit w/a content owner. 
Tools are good enough; manpower hours to protect works of artists and
talent is simply not manageable. 
Practical reality of discussion: YT Content ID owner #1—seeing what it
means to receive a counternotice saying “I bought this CD,” or “get lost”—we
get that all the time.
 
Sheehan: No matter whether you characterize these as
intentional or just mistakes, you get suppression of speech.  Every Single Word video series: edits films
down to every single word spoken by a character of color. Excellent critique of
racism in Hollywood; they received a DMCA takedown. What happens when content
is taken down w/out a large public uproar? 
Rightsholder rescinded a request.
 
JC: There is a counternotification procedure.
 
Sheehan: intimidating for users to swear—imbalance of
responsibility b/t notice senders and counternotice senders.  SCt has made very clear that fair use
includes expression, BTW.
 
JC: an unfair takedown notice—there is a procedure available
under the law.
 
Sheehan: it isn’t working—so maybe we need to refine notices
and make counternotification easier.
 
JC: education?  PK
could do more to educate posters.
 
Sheehan: could also do more to educate rightsholders about
proper notice. There are things to do to equalize burdens on rightsholders. Not
simply an educational issue but intimidation factor of having to swear under
penalty of perjury.
 
Schofield: if you extrapolate across the notices, that is
millions of improper notices.
 
Adrienne Fields, Artists Rights Standard: Incredibly
burdensome. Can’t reach a fraction of infringing uses on the internet. Notices
that I file are rejected for no apparent reason. If they want to take on that
role, they should be responsible for the infringing activity. Incentivized not to
remove b/c they like having traffic from works by big name artists.  Rejected where the artist’s name was included
on the video and thirty works appeared in the video. [All I want here is some
recognition of the parallels b/t the “why don’t you sue if they’re not
complying w/the DMCA?” question and the “why don’t you counternotify if the
notice is abusive?” question.]  When we
send notice to a conduit, it’s b/c we can’t find them any other way—they use
proxy services.
 
Michael Housley, Viacom: Even if we had all the notices
perfect and always sent them, piracy is growing. We need more than the notice
black hole.  Filtering, other tech
available now that can be used not just for antipiracy but for all sorts of
content identification. [That’s not terrifying from a civil liberties
perspective at all.]

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