Copyright Office 512 Roundtable: Open Mic

Official description: Panelists from previous sessions and
observers may sign up at the roundtable to comment on topics discussed during
earlier panels or raise and discuss other pertinent issues.
 
David Green, NBC Universal: what should the Office do at the
end of the process? Don’t undertake a rewrite of 512. Everyone here would
change parts or a lot of it but even if the Office came back with a wonderful
rewrite, that would be a bloodbath. 
Trench warfare of congressional activity = little progress. Should be a
driver for progress through face to face discussions. Content owners and ISPs
have very different views, but we can still reach a compromise that’s
reasonable and fair and can involve w/time. 
Can and should encourage dialogue; have Congress members do the
same.  Isolated announcements from a
single internet company that it’s fixed the problem are bad. Also do best
practices, and education prominently displayed around uploads; descriptions of
fair use that everyone can use.
 
JC: how do you get people to the table?  Key stakeholders and smaller players?
 
Green: doesn’t get made in a big room like this.  Where stakeholders understand the problems
and goals: UCG principles.  With search:
“get together and see if you can make progress, then come back to me” (ideally
said by chair of Judiciary Committee) can put a thumb on the scales and
encourage cooperation.
 
Todd Dubler (sp?), Recording Academy: remarkable that you’ve
heard from entire creative community that they can’t use the system effectively
to keep their work from being infringed. 
Two worlds: work with us; they stick their fingers in their ears and
reject voluntary agreements.  Hoops for
issuing notice; very little that uploaders have to do to upload; education or
formality would be appropriate there. Finding some way to distinguish between
good notices and bad notices.  Find way
to designate STMs.   Original intent
behind red flag knowledge should be reinstated. Takedown should mean staydown:
when you’ve notified the service that it’s infringing and you have the tech to
track, you should be able to keep it from going back up.  Stacked URLs are clearly outside the intent
of the DMCA even if there are difficulties.
 
Joshua Lamel, Re:Create: Testifying in California. Re:Create
had nothing to do with the public comments, but they were from over 89,000
people, not people who were paid to testify but who chose to be here. Important
for California that these proceedings be livestreamed. This is something about
the future of the internet; people care passionately and can’t afford to be
here today. Consumer and artist community have interests.
 
Andrew Bridges: Continued massive confusion between 512(a)
and other types of ISPs.  ISPs and
sites—sites are (c) and (d), very different from (a) service providers. That
distinction kept getting eclipsed. 
Google and YT, both of which have prevailed in expensive litigation;
obsession w/them distorts (c) law in general. There is a wide variety of
service providers in any category that could be injured by policies developed
for Googles.  Discussion of good
actors/bad actors is demonization that is counterproductive. Focus should be on
behaviors, activities, legal criteria. “Come to the table” goes both
ways—refusal of many important and prominent (c) holders and agents to work
collaboratively w/ISPs, including reputable companies. UGC best practices—Veoh
was one of the participants, and it was sued into bankruptcy even as it won
major victories under DMCA; limitation of voluntary agreements.  Absence of citizen interest in voluntary
agreements—payment processor agreements weren’t made w/merchant participants;
sites get blackballed by ad networks until you make a record label happy. No
due process. That’s a problem w/voluntary agreements w/o public. Real abuse of
DMCA notice gamed for monetary purposes. Perfect 10 sends repeatedly bad
notices, faxing them late at night before a holiday weekend on plain paper with
no letterhead etc. Hoping that the ISP would lose the notices. Rightscorp sent
100s of 1000s of false notices w/o being able to determine that the account
holder assigned to an IP address was an infringer or even that there was an
infringer.  Finally, KTC’s Claggett
question about effect on legitimate content: I hope the focus isn’t on content
but lawful activity and free expression. Many policies have substantial effects
on legit activities and free expression, especially in 512(a), where
consequences of termination can be life-shattering.  There only way to get back on is to use rogue
services/fake—that’s counterproductive.
 
Allan Adler, AAP: Nature of commerce to come up w/new
business models, but whatever else you do, please don’t indulge blaming the
victim. Condescension, misdirection, anachronistic. May have had some
legitimacy in 2006, not 2016. House Judiciary hearing in 2013: rise of
innovative business models: content delivery models in the internet age. Rapid
but no impact on rampant online infringement. Look around us, how we and our
children are now accessing motion pictures and music—can’t doubt that new
business models have been a success. 
Even if we hadn’t, the suggestion to fight theft w/new business models
is pernicious. Individuals who earn their livings through art and plaintively
explained their plight b/c of inadequacies of 512, shouldn’t be told to invent
new business models along w/creative works simply to sustain a living by
creating art.
 
Will Buckley: Need for transparency in this process.  US Copyright Office received 90,000
submissions day before closing day. Generated by Fight for the Future,
mysteriously financed company that flooded your servers w/same message.  Disturbing: end run—we’re not really talking
about free speech. This is about property. Free speech that’s often used in
this discussion that takes it sideways. 
As far as false DMCA notices: there are very small percentages, less
than 5%, and very few have ever gone to court. That’s not a real issue. Yes,
ratcheted up over time, b/c of companies like Rightscorp, but I was at UCLA
last year w/ the House Judiciary Committee. Talked to Goodlatte about staydown:
he said we don’t want what happened w/SOPA to happen again. He meant a literal
cyberattack that scared the heck out of the people in Congress.  It’s important to have bloodbaths, rules and
laws that work.  [Rules and laws that
create bloodbaths?]
 
RT, OTW: Who’s the game-changing musician of our generation,
asked in the last panel? I offer you the queen, Beyonce, who just reinvented
the music video.  I offer you a man who
wrote a hip-hop musical about Alexander Hamilton: Lin-Manuel Miranda, who has
embraced online engagement, embraced online annotation of his lyrics on Genius,
which wouldn’t exist without 512; he embraced YouTube and Tumblr and gifs, you
might say NON-STOP.  We will continue to
have our geniuses; they will just be different.
 
Emphasize that, even accepting without question that piracy
is a problem, “do something” is not a policy. 
Nor is “staydown” b/c even a trivial change in a bit changes the
fingerprint of a simple staydown filter. 
The specific things suggested in the past two days—Content ID and Book
ID and Audible Magic—overblock and underblock, and the biggest users of Content
ID can’t say enough bad things about it—they suggest keyword blocking and other
measures to supplement it.   In Sony,
UMG, Warner’s comments, Content ID doesn’t work well, so they conclude that everyone
should have to use it. 
 
Worse, the proposed changes have no connection to
suppressing the worst offenders—those overseas and rogue sites that do nothing
to comply right now.  So you’ll be
crippling US-compliant sites and not even getting the benefit sought.
 
JC: what if it worked? 
[That is, it wasn’t only 60% effective?]
 
RT: Well, it works (at least at the 60% level, according to
the big companies) because it cost $50 million, which the rest of us can’t
afford to build.
 
JC: What if it worked and was free?
 
RT: The way it differs is by catching things even when they
differ.  Then it would catch a lot of
fair uses.  Testimony: catches 20 seconds
of quotation in a 40 minute film.  YT can
have that as a business model, and we do talk to Google about fair use, but as
a mandate it would be a huge free expression problem.
 
A separate problem with staydown—don’t assume that all works
are like studio films: Digital Media Licensing Ass’n at 5: “If images are
distributed by multiple representatives, or licensed on a non-exclusive basis,
it can be nearly impossible to distinguish an infringing use from a licensed
use.”  That’s ten times more true if the
ISP is in charge, meaning that properly licensed uses will be taken down both
to the detriment of the copyright owner and the licensed user.  Also: Yahoo’s comment recounts its experience
w/takedowns related to tobacco ads: some clearly fair, some maybe not: staydown
would prevent that kind of analysis.
 
Finally: You have not heard unanimity from the entire
creative community.  I represent 600,000
creators who feel very differently.  Ask
you to remember also the incredible transformative works community building
skills particularly among women and underrepresented minorities—I encourage you
to read our submission to PTO/NTIA
green paper
, and see if you can do it without crying at some of the stories
of how transformative works transformed these women’s lives, their careers, and
their futures.
 
Pariser: What the © office might do: MPAA hopes © office
issues a report giving guidance on the proper interpretation of 512 to the
judiciary, similar to making available paper. 
These reports are enormously helpful to the judiciary in understanding
the proper way to interpret, even if they don’t always follow the
guidance.  For STMs, legislative history:  Committee would accept ad hoc groups as long
as the process was open, fair. Could mean that the door is open to anyone who
wants to come in; that would make it redundant w/earlier use of “open” to
describe standards bodies. Another way is that the record would be open.  In either case, © office could sponsor a
procedure that was both.
 
Sarah Hows: Spent 4 years training to be an actor and 1 year
trying to make it on the stage. What stood out to me is the difference b/t pro
creators and someone engaging in creative activities, which is amazing; not
everyone can be a pro artist.  It takes a
lot of investment to be a pro artist. 
It’s very different to try to make money than to make art. 
 
[Fortunately, transformative works communities can help
develop those very skills.]
 
Maria Schneider: my last recording won a Grammy, cost over $200,000,
took years to write the music; year in studio recording, editing, mixing,
preparing beautiful work to stand out. 
When I say it cost $200,000 I didn’t include my time writing music,
producing, $80,000 from my savings.  So
it’s pushing $300,000. When I find links to this on Google, that’s why I talk
about Google. I have embraced the internet like no artist has embraced the
internet; first artist to win Grammy from selling just on internet; worked
w/ArtistShare to document and know every fan; I put up video content
documenting throughout the year the making of the recording. When someone puts
my videos/scores up on Limetorrent and I can’t find a way to take it down, it
hurts me financially. In 1993, before anyone knew who I was, I sold 25,000
records; now that I have 5 Grammys I’ve sold 8000 copies of my current
album.  It’s so accepted that Spotify
offers no money b/c they’re competing with free.  Like offering me 45% of my own 401(k). This
is my asset, my life.

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