Copyright Office 512 Roundtable: Voluntary Measures and Industry Agreements

Official description: Voluntary alternatives to and
modifications of statutory notice-and-takedown process; best practices;
collaborative efforts of content owners, service providers and others to address
online infringement, including availability of programs to smaller service
providers and creators; cooperation in identifying infringers; graduated
response programs to address infringement; efforts to delist or downgrade
infringing materials within online search results; participation of third-party
providers, such as advertisers and payment processors, in voluntary
arrangements; overall effectiveness of voluntary arrangements; educational
outreach; government role in encouraging private solutions; and other pertinent
Kimberly Isbell: Let’s start with voluntary measures that
are helpful.  If so, what are their
characteristics that could be replicated?
Jonathan Band, Library Copyright Alliance: Voluntary
measures taken by a payment processor: for a long time.  Victoria Espinel asked them to get together
for standards/best practices.  Cooperated
w/int’l anticounterfeiting coalition; working well.  The most significant feature: it was
developed by payment processors.  Came
together w/best practices; responsive to their needs but also to reach
consensus w/in the industry instead of trying to work across industries.
KI: how important was IPEC’s involvement? Necessary or not?
Band: Payment processors were all doing this already; it’s a
highly concentrated industry and there’s competitive pressure. Helpful to have
IPEC in the final steps but lots was b/c they were already doing it.
Troy Dow, Disney: Voluntary measures are a bright spot.  A number of them, in our comments w/MPAA.
Principles for UGC—has worked for setting standards. What allowed success was
that we had collaborative sessions; multilateral b/t creators, platform
providers.  Started by putting aside
difficult legal questions about what the law required and set a goal of UGC
environment promoting legitimate creation but also prevented infringement.  Then we tackled some problems.  Included tech solutions; included
understanding about © owners’ behavior. 
Included an agreement that this wasn’t just a one time set of principles
but an ongoing relationship.
KI: what circumstances encouraged the players to get
Dow: Underlying framework of DMCA; everyone was unsure what
the law would say. Litigation was a potential route. Legislation was a
potential route. Prospect of losing a lawsuit on both sides brought the parties
KTC: does the legal framework remain sufficient to encourage
continued development of voluntary agreements?
Dow: many issues in yesterday’s panels have a lot to do
w/that. Narrow construction of DMCA shifts balance away from shared
responsibility to rightsholders; that does push away from environment of
Michael Petricone, Consumer Technology Association: Legit
services making it easy for consumers to do the right thing—piracy dropped.
British record industry: overall use of pirate sites had dropped a bunch; UK
predicts will continue. Spotify has been shown to reduce piracy where it
KI: yet the content owners are telling us it’s still a
problem. Possibility: (1) not enough legit services; (2) legit services aren’t
enough; (3) we will never eradicate piracy.
Petricone: eradicating piracy online is impossible; the key
is to reduce that as far as you can. Voluntary measures and presenting users
w/wide variety of legit and appropriately priced content.  There are real numbers here and they show a
great success in decreasing piracy and increasing access to content.
KTC: do you think that on the content side, content owners
are focusing their approach on developing legit content, or is that still a
distribution challenge online?
Petricone: 1998, there was a period of transition, to be
expected for any new tech; increasingly embracing the internet.
Casey Rae, Future of Music Coalition: 512(i) encourages
KTC: why wasn’t it effective?
Rae: it really wasn’t tried. Rightsholders assumed they’d
pursue their rights as they had done previously.  Grokster: record labels were interested in
achieving favorable legal precedent. ISPs faced legit difficulty in identifying
works.  Things change.  Ongoing relationship: Credit card best
practices; ad exchange best practices; separate copyright notice system.  All came from different situations; gov’t has
role to create environment, but doesn’t need to legislate anything as long as
info is presented from rightsholders to ISPs. But we need to know accessibility
and affordability of tech for small & medium enterprises.  Need to continue to evaluate developing tech.
Maria Schneider, Musician: a young musician has 45 million
plays on Spotify; never gotten a check more than $60.  It is not working.  Troy’s solution: Disney found a way to come
to the table, but for musicians individually there are no solutions. Content ID
isn’t available to me.
Jennifer Pariser, Motion Picture Association of America:
Endorses Dow’s optimism about voluntary agreements as partial solutions.  All of them are flawed in that they only have
some players and they can only be somewhat effective. More successful = players
have incentive to come to table. They face liability if they don’t. Copyright
Alert system = ISPs enjoy immunity if they cooperate w/us in a piracy solution,
whereas other solutions, like domain name registries, have been more difficult
to work w/ b/c they don’t face liability.
KI: we’ve heard that the trend in the course is to interpret
safe harbors more broadly. Have you seen an effect on the prevalence of
voluntary initiatives?
Pariser: hard to say there’s a one to one correlation, but
for sure when great cases (for us) come out, ISPs have more enthusiasm for
voluntary initiatives. Hopefully BMG v. Cox will help the Copyright Alert
system, whereas limited liability for payment processors pulled in the other
direction.  Entities have their own
reasons to do things. Ad networks: they don’t want their clients associated
with garbage sites. But court decisions finding that an operator has no
liability are bad days for voluntary initiatives.  [And what makes you come to the table on good
days for you?]
JC: Cox is not in Copyright Alert system?
Pariser: yes.
KTC: what role do you see for gov’t?  Response to Petrichone?
Pariser: content industry has done more and more and more to
make content available. Windows are closing. 
Enormous amounts of content available legally, and yet piracy is huge,
b/c people still want something for nothing so we need more than licensing.
What gov’t can do: courts are different from © Office; the Office could
designate specific things as STMs. Part of the problem w/getting sites to adopt
STMs is that there’s no agreement on them. 
Sound of one hand clapping. If we say Audible Magic is a great solution
and get no buyin, it goes nowhere.
JC: Parsing definition of STM: what’s meant by the use of
“open, fair and voluntary”?
Pariser: something not like Content ID: available to the
public, perhaps at a price.
JC: licensable tech?
Pariser: yes—you can’t be too small or too big, as long as
you make the right kind of content.
Mary Rasenberger, Authors Guild: Voluntary measures are good
if they work; problem w/ones to date is that they don’t work for individual
creators.  Part of the problem is that
individual creators have been left out of best practices, voluntary measures,
industry agreements; don’t have ability to negotiate w/ISPs.  Authors are left with notice and takedown
& its shortcomings.  There is growing
book piracy. Complaints up 600% in the last 5 years; no affordable service for
authors to use. Examples w/Google’s Content Verification—you can’t do it as an
individual. Copyright Alert doesn’t work; 6 strikes is too much. Voluntary efforts
by advertisers aren’t working either—our authors have Google Alerts set up and
get dozens a day; they click and they get ads for sites they’ve just visited.
Individual complains to payment processors—your notice just gets lost; they
only want to deal w/ trusted senders. Individuals should be part of the
negotiation.  STM: the tech exists, and
if creators were part of that negotiation, there could be potential for great
JC: Scribd?
Rasenberger: it works, but it’s not readily available to
authors. We’d like to see industry adopt something like BookID on a wide basis,
including ISPs. In a way authors could readily avail themselves of. Most
creators simply lack the resources to spend on additional tech or to hire
services to assist them.
JC: why not available to individual authors?
Rasenberger: they’d have to be part of the service, which
they’re not. [I’m not sure that’s true.]
KTC: are you saying the fingerprints that filter is not
something that individual authors have participated in?
Rasenberger: yes, and then the ISP doesn’t want to filter.
They’ll take down in response to notice but not filter in advance.
Victoria Sheckler, Recording Industry Association of America:
Voluntary initiatives can be helpful, but everyone has to get in the game for
it to work. Varying degrees of success. Has to be in backdrop of working legal
system.  BPI’s reduction of piracy:
different legal regime, used differently, creating significant reason for
reduction in piracy not applicable here.
KTC: In terms of the difference, pirate sites?
Sheckler: our comment suggests court orders had significant
impact on piracy.
KI: are there particular characteristics shared by
successful initiatives?
Sheckler: building trust, skin in the game, regular
Lui Simpson, Association of American Publishers: Successful
for those who can afford to be part of the measures—too expensive, not w/in
reach of smaller rightsholder. Should be some push from gov’t to make these
measures far more effective.  They become
successful b/c there’s interest in engagement. 
Pushing parties together about what might work: that’s needed.  Petricone puts onus on rightsholder to solve
a problem they didn’t create.
RT, OTW: Interested in the claim that “everyone has to get
in the game”—but what does that mean? 
Big website does not mean big notices. 
Our website receives 100 million visits/week and gets fewer notices than
there are people from the Copyright Office here.  Wikipedia is orders of magnitude bigger and
reports similar numbers, most of them flawed. 
We’ve heard a lot about sites that ignore DMCA notices (overseas sites,
SciHub): making such sites double plus illegal, since on the facts as stated
they already are vulnerable to liability under current law, is not costless; it
hurts the rest of us trying to do the right thing.  We have experience with a government mandate
to use filtering technology: Sabam v. Scarlet case in Belgium: injunction
overturned because Audible Magic didn’t work as promised.
Nancy Wolff Digital Media Licensing Association : Tech is
there for reverse image search, but there’s no risk of massive litigation b/c
licensors are small and can’t afford litigation so they won’t come to the
table.  Multiple options for legit licensing
of images, but it’s very easy to infringe. 
Small claims court might help.  No
voluntary measures there b/c no reason to talk.
Greg Barnes, DiMA: (1) I share the optimism about voluntary
measures; allows different people to come to the table and avoids one size fits
all approach that would doom us. (2) Gov’t role: important role in bringing
people to table as objective facilitator, but shouldn’t put thumb on scale to
achieve a certain outcome.  On licensing:
Petricone’s point about ability to have licensed content out there decreasing
piracy is hard to deny. So many different studies [Australia, anyone?] show
this.  There are still problems in
licensing musical performances, mechanical licensing—broken for decades, and
Office knows this.  Online video
services’ ability to stream video has been hindered based on relationship
between studios and DVDs.  Lots of work
to do, but industry agreements allow us to talk about this and reduce demand.
John Garry, Pearson Education: Experience negotiating—tech
for websites that can screen in advance—none of the voluntary aspects deal
w/outlaw sites, and they’re a tremendous problem w/ no incentive to use
voluntary measures. Effective: website that came to AAP early on and wanted
that part of this business model; they wanted a business relationship.  Another experience: negotiating w/a large
website that looked DMCA-invulnerable; found a chink in their armor so they
negotiated to become a legit business. Every great fortune is founded on a
great crime. Nice relationship going forward. Voluntary is great when you can
get it, but the outlaws are a real problem.
Melvin Gibbs, Content Creators Coalition: Garry’s
right.  That period of transition has
become a permanent state for us.  We’ve
explored voluntary compliance.  The
parties are siloed and not speaking. ISPs have been lax in codifying standards
for accepting notice. True market failure. We want gov’t to facilitate.
Thomas Kennedy, American Society of Media Photographers:
Simson & Wolff are right. There are organizations that need to talk with
individual creators, and that’s not happening b/c there’s not sufficient
incentives. Voluntary measures can’t do that.
Kerry Sheehan, Public Knowledge: done right, voluntary
measures can ensure protection for speech and allow competition/avoid barriers
to entry. But we shouldn’t just talk about this as rights owners and ISPs.  It’s the 
world of internet users. These agreements need to be voluntary, not the
result of coercion, threats of new gov’t enforcement measures.  Need to be from open process, also public
interest voices. We haven’t seen public interest participation and these
agreements can be unfair to users and smaller providers. If filtering is being
proposed as STM, that’s especially important. 
A more traditional open standards body would be more appropriate.
KTC: considering the public interest: how do we do that?
Sheehan: greater transparency, greater inclusion of groups
who speak on behalf of public interest.
KI: what are the problems? Unavailability to smaller content
owners. Other issues w/existing voluntary measures? Do you see a way to fix or
improve those shortcomings and what would that look like?
Jonathan Band: Definitely preferable to coerced measures.  HEOA: coercive measure. Wrongly assumed that
campus infringement rates were higher than elsewhere but that turned out not to
be true.  Legitimate study that tries to
understand the notice system and people are criticizing it b/c it’s based on a
JC: Is it a bad law? 
Band: mandated education is a bad thing. No one’s ever been
able to show that infringement causes huge substitution; the amount is subject
to debate. I’m not convinced that requiring people to watch an online video is
really going to change behavior.  Rather,
what changes behavior is the fact that the old world where there were creators
distributors and users has become meaningless—every user can be a creator; they
become more sensitive to the complexity of © and its boundaries.  When you make your own videos, you understand
what you’re creating and what you’re using as building blocks, as all creators
do.  The act of creation allows you to
recognize what you owe and what you don’t. 
Educate users about the rights of others? No, educate them about their
own rights, which comes naturally.
Terry Hart, Copyright Alliance : Not a concern about any
particular measure, but more data is always important. Copyright Alert system:
overview of # of notices; very helpful. More recently, we had the PTO best
practices in sending notices proceeding. 
Written comments suggested it has been effective. Worth looking at how
well it’s worked. 
Rae: Inclusivity is the key need. Look at earlier agreements
later codified, like mechanical royalties, or streaming royalties for music
that were blessed by Congress. That’s stood since 2000, though it has lots of
failures. And it’s inclusive of all those eligible to receive royalties.
KI: on multistakeholder process: we heard some people
basically saying there were too many cooks. 
Is there a way to balance inclusion with getting so big that it becomes
unwieldy and you can’t reach consensus?
Rae: target the problem to be solved. If looking at
repopulation of infringing links, limit to UGC sites, not search (though search
is related to that).  Array of tech
vendors so you can understand what they do. 
Small artists included is absolutely important, and same w/developer
community, who’s theoretically the builders of platforms for us.
Schneider: what we don’t do in this country. We don’t allow
people to make money through illegal activity largely through initimidation.
That’s racketeering. For  me, that’s what
YouTube does. With these data lords [nice!] of unimaginable size, represented
by att’ys and lobbyists that are siphoning my assets.  All the large studios in NY have closed; you
can’t record a large film score in NY any more. All over the world—old men tell
me how under Communism they listened to jazz and it gave them hope.  This is a culture of literature, of music,
that we want. This isn’t about you protecting a large business making money no
matter what. Do we want a culture owned by one company? I don’t. Voluntary
measures, best practices like fingerprinting required by every company;
standardized takedowns; no required agreement to TOS; checkpoints educationally
on upload for photography, for music, for everything framed by the Copyright
Office; videos that people have to listen too so they don’t have to watch YT’s
copyright basics video. Muppets!  Fair
use is jiggling around and you can’t read it. 
It’s ridiculous. A ratings system for everyone that does a takedown or
counternotice. Forces people to have accountability for takedowns and
counternotices.  Everyone should agree to
it. It’s common sense to anyone who doesn’t have a hidden agenda.
Janice Pilch, Rutgers University Libraries: HEOA, regardless
of who pushed it, it is perceived to have improved the P2P situation in
universities. May seem onerous and rigid but appears to have had an
effect.  How could that be bad? Education
is important as a viable approach to changing behaviors.  There’s tremendous confusion on right or
wrongness of infringement in the context of viral social media messaging that’s
anti musician, anti copyright, anti publisher, anti human. Pushed by the
industries who benefit most from infringement, translates directly into cash
for them. Users benefit from infringement and they have various motives.
Sometimes they’re innocent b/c they don’t know or are confused by social
messaging; there’s no standard for national copyright education and people
never learn.  Students commonly never
have heard of copyright or fair use. 
Industry-driven social messaging tells them that infringements is a good
thing; contrary to basic social instincts and norms to respect others’ works.
Education could be stronger. For the public it doesn’t exist in good
forms.  But we need to kill the business
model of infringement first.
KTC: are there studies about effects of education on user
behavior?  Social messaging that’s
Pilch: HEOA requires universities to review effectiveness of
plans to combat unauthorized distribution. I haven’t read the reports, but they
exist.  On social media, on the basis of
personal experience, I see it on blogs and listservs.  We’ve heard of bullying people who object to
their works being used, and of people who agree—you get a string of
communication beating someone up for liking © or wanting their work taken down.
Can’t cite specifics.
Pariser: Not enough voluntary agreements—incentive to come
to the table. On the educational piece: you’re hearing two different streams of
ideas around education—one is we need it/another that the current info
sucks.  Copyright Office could create
more educational materials for consumers. Becoming creator is not its own
education; in her experience, when you tell a middle school student that her
selfie is © they don’t understand the plight of the © industry because they want
to give it away for nothing [the horror!] and that doesn’t convey the message
we want to convey.
Rasenberger: Voluntary measures can’t be the whole solution
b/c they don’t address criminal pirate sites, the source of a great deal of
book piracy. They move around the web and are mostly situated abroad.  Mandated TPMs through 512(i): it would be
important for the process to be mandated; given that the burden is on
rightsholders, there’s little incentive for ISPs to come to the table. The
gov’t has a role in convening these kinds of standards creation in
multiindustry processes that are open, fair, and voluntary.  BookID works only with Scribd; a mandated
process could force other service providers to also adopt it.
Education could help w/some users. Authors tell us,
particularly in genre field, that fans tell them that they only read books for
free—they have no shame. Free books are so readily available. Need teeth for
penalties, just as with speed limits—you need to give tickets to pirates
Sheckler: In terms of user interest—users are first and
foremost in our minds.  That user wants
to interact w/our content and we want to teach them the right way.  PK and CDT were invited to work with us on
the CCI initiative.  We work regularly
through CCI on education for K-12.  I
find it surprising for Band to say it’s coercion to follow the law or petition
for a change in a law.
Simpson: participation has to be broad and inclusive.
Payment processor negotiated: rights holders invited were limited, not inclusive.
We do face a problem of overinclusion w/o expertise, so it needs to be a
balance. Preconsultation measure allowing those to voice their concerns. Need
to compel people to
Rebecca Tushnet, Organization for Transformative Works
Back to the Q: What are the problems?  Content ID: well known problems with
overblocking fair uses and falsely claiming revenues owed to others, recited
extensively in comments and also routinely reported to us by our creators,
including the internationally recognized artist I mentioned yesterday.
Different genres: Scribd’s own website clearly explains the
two big problems with BookID: [Scribd’s bookID:
“BookID relies upon computer-readable text in digital documents.
Content scanned from paper sources may not contain computer-readable text data,
making those sources unsuitable for use as references. Similarly, digital
documents encoded with optical character recognition (OCR) technology may
contain garbled or partial computer- readable text data. This may be true
regardless of whether the document is readable to humans. These conditions make
it very difficult, if not impossible, to detect matches….
 [Note that this means that evasion is
trivially easy: all you need to do is insert things that people can’t see but
computers can.]
False Positives
The BookID database may contain reference samples from educational
textbooks and other works that contain long excerpts of classic literature,
religious texts, legal documents, and government publications that are
typically in the public domain. This can occasionally result in the removal of
uncopyrighted, authorized, or public domain material from Scribd.
… Unfortunately, the volume of reference samples and uploads to Scribd
prevent any sort of manual oversight or notification prior to effecting
Result is: overblocking: quotes from public domain materials
or even fair use quotes of another book: first uploader blocks subsequent users
of quotes; underblocking, just need to scan using OCR. The change could even be
something invisible to the naked eye, such as putting a nonbreakable space
( ) in place of a regular space, or adding random sentences and hiding
them with CSS. 
[More generally, a simple filter is trivially easy to evade:
easy to recode media in new file format and get different hash; algorithms to
spot minor edits would be difficult both in terms of programmer time and
expertise and computational resources. ]
If this check is actually supposed to work (that is, catch
these workarounds), you get into the realm of plagiarism detectors, which are a
fairly complicated technology. It would take us years to
develop our own plagiarism detector, especially given we’re part-time
How to fix?  No
perfect fix.  Easy appeal, nonthreatening
about piracy, walk people through: In some cases, Wikipedia’s fair use and
public domain guidelines for use of images would be good places to start:
useful for people who are highly motivated and willing to invest a fair amount
of time.
Not only is this education stuff really something that its
proponents imagine being imposed on the unwashed others, rather than on
themselves every time they seek to upload a photo to Facebook or send an email,
it’s also yet another mirage. We know people don’t read the terms and
conditions. We know they (we) just check the box.  [Copyright, which most people don’t care
about, won’t be the topic that changes their minds.  There are only a few effective ways of making
disclosures, and you can only do them once in a while or people tune those out
too.  Education sounds like having your
cake and taking it too, but it’s not that simple.  There are things you can do in particular circumstances
once the issue has become salient to people, like Wikipedia editors, but the
mandate being described as ideal would not be doing the work; what would be
doing the work is the associated filtering mandate.]
Nancy Wolff: can’t speak to voluntary measures in our area
b/c there aren’t any. Takedown doesn’t work. Harassment as a result of notices.
Copyright Office guidance on STMs would be good. Certain creators shouldn’t be
Wayne Josel, ASCAP: we spend time educating our licensee
base about what the law is. Easier to get people to recognize obligations to
take a license before engaging in bad behavior than to correct bad behavior
once it starts—better for us to speak to a guy who’s about to open a restaurant
than one who’s been playing music for 3-4 years.  Contra Band, opposite of respect takes place
when people create new content—the ease of creating overcomes their sensitivity
to others’ rights. [How dare these new creators find out what creating feels
like.]  User experience overrides
information; people don’t click on the terms of service; services want to make it
frictionless so you no longer have to warrant that you own what you
upload.  [I agree that it’s a problem,
but people ignore these!  You can try all
you want!  The reason the services want
frictionlessness is in part that while friction does deter uptake, it also
doesn’t actually leave the people who sit through the legalese with any greater
appreciation of the TOS.  So the benefits
don’t justify the costs in most cases.  If
friction worked in terms of having people internalize new rules, there’d be more of a reason to use it.]  The law should be required reading. 
Dow: the ones that work better are collaborative, not
Gibbs: public should be encouraged to think of themselves as
creators. Creation is built on other creation, which is why it’s in the
Constitution. People do need to be educated about their rights—not just fair
use, but you made it and it’s worth something. 
Sheehan: we should provide meaningful opportunities for
public input and transparency in CCI going forward.
KTC: education—what’s wrong w/education?
Sheehan: consider differences b/t ISPs, resources, user
community. One size fits all will  never
work—under and overinclusive, with unexpected consequences. Balanced content in
educational programs should respect users’ rights to reuse content in fair and legal

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