Section 512 Roundtable part two

Sofia Castillo
Association of American Publishers: still bad.
Stephen Carlisle Nova
Southeastern University: has one client, a small music publisher, and can’t
keep stuff down.  Red flag knowledge
should come from having a full song + album cover on YouTube.
Caleb Donaldson
Google: DMCA is balanced and supports $6 billion of YT ad revenue to music
industry alone, along with 17 million Americans selling their creativity
online.
Kenneth L. Doroshow
Recording Industry Association of America: Not good enough. Motherless: evident
problems w/takedown practice didn’t preclude safe harbor.
Douglas T. Hudson Etsy:
2 million microbusinesses & creators not fully represented in these
discussions.  Have seen dramatic increase
in false takedowns, phishing and scamming, and other abuses.  Have seen false counternotices.  Need more teeth in antifraud, including
512(f). Should simplify DMCA for microbusinesses w/small library of materials.
Prefilters don’t work for everyone. When you deal in physical goods, creative
services that don’t match digital content, it’s not a viable solution; 512’s
flexibility allows all creative endeavors, not just digital audio/video
Keith Kupferschmid
Copyright Alliance: mass © infringement is regular and ISPs are routinely
shielded from liability. 2 years: more of the same; red flag has been written
out of the statute. Repeat infringer decisions are no panacea. Fourth Estate
compounds the problem by adding a registration requirement to the DMCA notice
requirements.  New limits on WHOIS
database = we are worse off than two years ago.
Arthur Levy
Association of Independent Music Publishers: Whack a mole is still a
problem.  Lack resources to enforce
rights=DMCA offers no remedy. Should seek legislative rebalancing.
Peter Midgley Brigham
Young University: we’re content owners and a big ISP for our students/faculty;
administrative burdens and uncertainty following Cox and Grande are
problematic.
Sasha Moss R Street
Institute: DMCA is better than the alternatives.
Mary Rasenberger      Authors Guild: Ebook piracy is big.  512 isn’t incentivizing cooperation and
notice and takedown is ludicrous. Authors’ main issue is that we can’t address
ebook piracy sites—hide behind 512. 
Switch burden to ISPs as EU Directive does.
Amer: repeat
infringer policies: general Q: to what extent have recent decisions affected or
clarified the state of the law?
Midgley: we want
clarity on what that policy should be. We do our best to forward the notice to
the user, but we can’t always do it given the dynamic nature of our network.
Students get a scary legal notice & show up in my office denying any
knowledge. Now the question is: what’s my obligation?  I could start having hearings but I don’t
know what burden I bear as an ISP.
Amer: elaborate more
on the notices. P2P?
Midgley: We get
notices styled as (c) but they’re really (a)—this is content that flowed through
our network but we have no way of verifying whether it was actually there since
we don’t store the content, as per 512(a)’s requirements. We can refer it to
our Honor Code department and allow a student to dispute.
Smith: you take them
as data indicative of infringement.
Midgley: we have, but
we don’t know what’s an adequate repeat infringer policy. We’re doing what we
think is reasonable and hoping we’re eligible for the safe harbor.
Amer: would you favor
more specificity?  One size fits all has
come in for criticism.
Midgley: 512(e) for
educational institutions is basically worthless; he’d like clarifications.
Isbell: does your
university either post a policy or get back to rightholders after a complaint?
Midgley: it’s posted
online and visible to students and public. We have Higher Education Opportunity
Act, which has © specific provisions and we send out an annual notice to every
member of the community making them aware of the policy etc. 
Band: libraries are
another kind of ISP—the place where many people get internet access is the
library. It’s very important to recognize that the standards for Verizon &
Cox are not the right standards necessarily for policy across the board.  We don’t see a need for statutory amendment;
we think the language as is provides enough flexibility with “appropriate
circumstances.”  Internet access has a
constitutional dimension but also a practical concern—30-40% of the population
has broadband only at the public library because there is a lot of poverty/lack
of coverage in America. Access to the internet goes beyond the 1A to the
ability to function in society. You can’t apply to Medicaid/meet work
requirements unless you file routinely online. That assumes you have access!
Smith: should
libraries educate about copyright?  You
have to repeatedly infringe to risk termination.
Band: libraries take
education seriously, particularly in higher ed. 
When we’re balancing issues on terminating internet access, it goes
beyond “the First Amendment” to life, liberty and the pursuit of happiness.
Isbell: Does LCA view
the fact that libraries provide the physical facilities to access the internet
as making them 512(a) ISPs?
Band: yes.
Greenberg: do you
still think ISPs are applying a higher standard than the law requires? Last
time, ISPs were saying that repeat infringer means adjudicated infringer and
Cox said otherwise.
Band: there’s lots of
different kinds of ISPs and they have different opinions. It seems to him that
an infringer is an infringer, not an alleged infringer, according to the plain
language of the statute, but courts do seem to be going in a different direction
and they have Article III authority.
Amer: What do you
want from us?
Band: Not congressional
intervention, as long as courts don’t start restricting “appropriate
circumstances” to allow libraries and universities to craft specific policies.
Amer: statute contemplates
that at some point repeat infringers will be terminated.  Take your point about the need for that to vary
depending on nature of ISP, especially given the importance of internet access,
but statute does seem to contemplate. Do any ISPs not need to comply?
Band: No, but what’s
appropriate for a public library/university may be different from what’s appropriate
from a large commercial provider.  [So
very tempted to try to get a notice sent to the CO’s public internet to make
that point, except that I don’t actually know where the kids are getting their
downloads these days.]
Castillo: Disagree
w/notion that it was difficult for Cox & Grande to implement a repeat
infringer policy. Cox had a policy & decided not to implement it; Grande
just decided to ignore notices.  It’s not
about difficulty levels.  ISP should
meaningfully & consistently enforce its own policy, whatever that policy is.  (Cox.) 
Grande: ISP should be keeping a log of repeat infringers to reasonably
implement a policy.  ISPs should prevent
terminated users from opening a new account using a different email address or
username. [This is one of the things where operating a website gives you a very
different perspective. It’s not that damn easy to prevent a terminated user from
resurfacing.  In fact it can be
impossible.]  512(i)(1) requires ISPs to
inform users/subscribers of a repeat infringer policy. The policy “anything
legal stays” doesn’t convey to users that there’s a potential for termination if
they repeatedly submit infringing content. Motherless was also wrong in
allowing personal judgment of operator, w/o a log, to satisfy the statute.  The Cox decision requiring meaningful and
consistent enforcement is more in line w/Congress’s intent to share
responsibility.
Midgley: Unlike Cox
or Grande, we do receive notices from subscriber that there is no infringement.
What do we do with conflicting info? Whose word are we supposed to take?  512 refers to system or network; we provide a
network and also provide a system, which is how the students access their
education.  Do we have to terminate both
of those? That’s an important distinction for us.  Nonprofits are notoriously risk averse.
Uncertainty makes it v. difficult for nonprofits to provide a robust
environment that we all depend on.
Donaldson: Cox & Motherless show judicial involvement in
appropriateness tailored to size of platform. This shows how it would be a bad
idea to write a single regulation for all. The size/resources available dictate
that repeat infringer policies have variation—even w/in Google’s 512(c)
products, of which there are many, we tailor policies to the purpose of the
platform.
Doroshow: Importance of repeat infringer policy: very
important, but just to make the point that there was a failure here, the rights
owners had to send millions of notice. Unreasonable up front burden on © owner.
Amer: how do you provide this information?
Doroshow: variable: we send DMCA notices to 512(a) and
512(c) providers.
Rasenberger: best practices could help for repeat infringer
policies and for red flag notice.
Moss: some possibility for CO to offer assistance to
rightsholders.
Smith: our public information office does answer 100,000s of
queries.
Kupferschmidt: Doesn’t disagree w/one size doesn’t fit all
for ISPs, but that’s also true for the creative community. Doesn’t work for the
notice system either. 
Q re human moderation.
Band: muddied the law—Mavrix went in a bad direction, Motherless
improved it. Treading in very dangerous area—the issue of moderation and what’s
appropriate goes way beyond copyright to what we want the internet to look
like.
Smith: 512(c) says ability to control.
Band: but you can’t condition eligibility on monitoring under
512(m): Congress in 1996 and 1998 wanted no monitoring requirement; encouraging
people to moderate content is good.
Amer: But you think Mavrix muddied things.
Band: yeah, there’s a spectrum. If you let most stuff
through, that doesn’t seem appropriate to call the ISP the publisher. If you
screen out 90%, then it starts to look more like a publisher.  Motherwell to some extent corrected the broad
suggestions of Mavrix but we don’t want to put platforms in the impossible
place where if they try to look at whether the stuff is appropriate they lose
the safe harbor.
Castillo: Motherless was “anything legal stays” screening.
The court found this still user-directed storage. The screening in LJ was
different – it was substantive.  [This is
a non sequitur.  Whether the content is
legal is substantive, it’s just smaller.] 
If the ISP is screening for substance but not for infringement, it may
lose the safe harbor.  We also disagree
w/512(m) interpretation—the intent was to protect privacy by preventing ISPs
from violating privacy laws when they were pursuing efforts to address
infringement, not to keep them from having any obligation to monitor.
Greenberg: Does that mean if you’re screening for child porn
and snuff films, do they lose safe harbor? If not, what do you mean?
Castillo: screening for illegal content was what Congress
could not have meant to discourage. If you’re screening for illegal content including
© infringement they shouldn’t lose their safe harbor.
Greenberg: but what if you’re only screening for porn/snuff
[not all of which is illegal]?
Castillo: that’s a closer question. 
Carlisle: to get songs heard, I put my songs on Reverb Nation.
I had to warrant that my songs were noninfringing.  A lot of problems w/red flag knowledge could
be solved w/looking at whether user claims to be the owner. [I wonder how many
websites Carlisle thinks don’t have this in their TOS already.]
Amer: doesn’t Google require people to affirm they have the
right to upload?
Donaldson: yes, it does.
Strong: what happens when people use ContentID—how do you
connect copyright owner and alleged infringer to take their dispute
offline? 
Donaldson: ContentID resolves 98% of disputes on YT;
Copyright Match allows smaller creators to find matches and file takedown
notices.  400,000 smaller creators;
continuing to expand eligibility. We’ve seen good results. Beyonce songs: a
demonstration that the label wants the songs on the platforms. They’re licensed
under ContentID. If Beyonce monetizes a fan upload, we’re happy to help with
that.
Smith: is it clear Beyonce opted to leave that up?
Donaldson: not easy for public to find out, but we have 1000
deals w/music groups, and the vast majority is licensed. There is a huge music
industry problem w/incomplete data: labels, collecting societies, etc. can’t or
won’t tell you the list of © they represent.
Levy: Content ID and Match rely on representative lists,
which is fine for publishers w/direct arrangements w/YT, which our independent
publishers/songwriters don’t have, so they can’t submit a representative list.
Donaldson: Content Match/ID doesn’t rely on a representative
list, but on ingesting the music itself.
Amer: Individual creators complained that Content ID wasn’t
available to them. Has that changed? [As I recall, G’s position was that it
wasn’t true then.]
Donaldson: growth of 3d party aggregators; Copyright Match
as better tailored to small creators.
Amer: why not Content ID?
Donaldson: it’s inordinately powerful & complicated.
Allows partners to specify threshold amounts they’re willing to allow use.  Even from our partners, we’ve seen a user who
isn’t experienced take down or wrongly monetize a broad swath.
Q: could you take it all down through Content ID instead of
monetizing?
Donaldson: yes.
Doroshow: if you screen for illegal content but not ©
infringement, what is the rule? Our position is that if the ability to screen is
there, then you have the obligation to do so. [Sigh.]  The availability of these tools exists—there are
other solutions than Content ID.
Greenberg: last time we did the Roundtable, you said $60
million investment in Content ID; now $100 million.  Is that right?
Donaldson: it was more than 60 million; he thinks that’s
accurate. 
Greenberg: he’s sure more has been developed [though we have
nothing specific on that, but ok], but what else has changed?
Donaldson: Content ID is not static; subject of major ongoing
investment.  $40 million over 3 years
seems like a reasonable number to him. Are they STMs?  No, not under the statute. They’re not in widespread
use. 
Hudson: Dealing w/long tail—small creators, nondigital
content—filtering is just not going to be comprehensive. So now how much
filtering will be enough? We’re moving the question but the uncertainty still
remains. That’s why flexibility of the current regime needs to be taken into
account. Changing to add a filtering requirement won’t solve the problem.
Amer: how do you respond to the argument that you could
filter entire works?  Why couldn’t filtering
tech capture full works?
Hudson: what if the full work is a quilt?  You’re thinking about digital content, but a
lot of the content shared/discussed isn’t digital. The picture may be digital,
but not the content. Inordinately complex once you get beyond a full copy of a
movie or an audio work, where tech work has been done. The point is that there’s
a huge long tail that is significant in volume and that the tech doesn’t work
on.
Greenberg: full image of a movie poster on a t-shirt—could it
be screened out?
Hudson: it depends on the tech. There are also issues with
things that are old and things that are new. 
A vintage T-shirt or poster; we’re not in a position to know what’s
correct.  [Also see 113(c) protecting use
of images incorporated into useful articles.] 
We don’t handle goods, don’t do drop shipping, don’t handle content—don’t
think Zazzle is relevant. We do have
repeat infringer/counterfeiting policies.
Kupferschmidt: filtering: perfect shouldn’t be enemy of
good. There’s a middle ground. There can be monitoring that can be done in a
way that takes into account different concerns & types of examples.  Full movie that isn’t licensed to anyone: if
you notify a platform that shouldn’t be up, that should never require a
takedown again [wants notice and staydown, but this time without any messy
congressional intervention].  Photo ID:
why don’t we ask the user whether they consider this fair use if they’re trying
to upload a photo with a watermark.  Sites
use CAPTCHA so they could ask you this.  [I
wonder how awesome he’d find this if applied to every post he made on FB.]
Band: Repositories may want some degree of moderation to
make sure they’re getting the right content. Should not lose your 512 safe
harbor for checking whether the content is appropriate for the site—SSRN for example
checks to see if it’s basically an academic paper. 
Amer: that sounds like volitional conduct.  [I don’t think he is familiar with
SSRN.]  If I were just to email you some
materials, and you post 100% of them, there’s an argument that you’re the one
who says yes or no. 
Band: 512(c) purposes: that’s at the direction of the
user.  [If I pull the string on the bus
for my stop and the bus driver opens the doors, I would say that’s still done
at my direction, even if the bus driver needed to push the button to open the
doors.]  Very different from traditional
publishing model.  They’re not choosing 1
out of 100 or 1 out of 1000. 
Rasenberger: Terms of service aren’t enough for affirming
that you have the right to post. Whenever you upload to any site, you should
have to say you own it, you licensed it, or you believe it’s fair use.  [Again, I encourage her to apply this to her
own internet use—and by the way, since we’re talking all 512 here, we’re
talking about her emails too.]
512 is really ineffective against bad actors.  [So we should break it for the good actors.]  ebookbike: founded Pirate Party in Canada,
principal members of Copyism religion—the sacrament is copying is a sacred duty.
Hides behind 512.  To upload content you
have to become a member, and most members are part of/related to the Piracy
Party.  Instructed on how to buy ebook,
strip out DRM, upload it, then return it. We’ve sent notices to the site, the
server provider [it switched servers], and to Google.  Can’t do anything but litigate, and
litigation costs too much. [It really sounds like 512 is not the problem.  Suppose there were an EU style law—you would
still have to litigate against his defiance.]
Isbell: do we really think Congress intended to cover those
sites?
Rasenberger: of course not, but Viacom/Youtube and Veoh make
it possible for the bad actors to be protected. It’s possible that we can win a
lawsuit, but that’s expensive.
Isbell: but is the answer to get rid of 512 for everyone?
Rasenberger: Best practices; Congress should clarify red
flag is not just knowledge of a specific infringing item at a specific location—knowledge
that your site is a place for piracy should take you out of 512. You should be
able to win that on summary judgment.
Amer: 512(f)?
Moss: Filters aren’t working the way people say: EU parliamentarian
had her own content taken down as infringing even though it was a public
speech. 

Levy: Lenz requires us to consider fair use before sending a takedown but doesn’t
say what that means.  A timebomb for
small publishers/ songwriters who may have massive amounts of infringing examples
out on the internet, to engage in a 4 point analysis before sending each notice
is very expensive.
Smith: do you interpret that case as imposing one size fits
all standard or does it matter who the © owner is?
Levy: the ruling doesn’t help us.
Greenberg: automation in making assessment? We heard some
sense that there’s room for automation.
Hudson: as intermediaries, we don’t have access to the
information that the users or the senders have. 
That’s why 512(f) enforceability is important for platforms to enable
users to express their own creative content while protecting other © owners.
Carlisle: for small creators, independent musicians, Lenz is
good news/bad news. Fair use is incredibly complex, and it’s burdensome to do
that analysis before sending a takedown when sophisticated companies profess
they have no idea whether something is red flag.  It’s easier to figure out something is
infringing than it is fair use.  [§107
says a fair use is not an infringement of copyright.]
Amer: isn’t that the premise of the statute, that the burden
is on the © owner to send the notice?
Carlisle: yes, and that’s unfair to make them monitor the entire
internet.
Smith: 512(f): if it’s complicated, then you shouldn’t have
a problem with an honest mistake.
Carlisle: material misrepresentation/ultimate standard is
not clear.  Lenz court struggled w/whether
Universal, a very sophisticated actor, was misrepresenting.
Smith: but for the little guy, isn’t “knowingly” very
helpful?
Carlisle: yes, but the creative person may know something
about copyright—musicians can get very aggressive about asserting © and
sometimes they’re right and sometimes they’re wrong. A lot of musicians hear
any similarity as infringement.
Castillo: takedowns of legal content by filtering: for those
cases we have the counternotice system that is working. [Citation needed.] That’s
not a reason to avoid filtering. [Also, filtering doesn’t actually give you
access to counternotice as currently set up.]
Band: Courts are very good at figuring out who’s a good guy
and who’s a bad guy; they tend to find ways to hold bad guys liable.
Rightsholders aren’t always as careful as they should be in selecting defendants
or misperceive who’s the bad guy (Google, HathiTrust).
Rasenbergers: good actors [with lots of money] can keep
pirate books off their sites. Amazon is pretty successful at keeping pirate
copies off their sites.

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