U.S. Copyright Office, Section 512 Study Roundtable

Opening Remarks
Karyn A. Temple, Register of Copyrights and Director, U.S.
Copyright Office
Nat’l and int’l changes since 2016 roundtable—looking for
updates.  [Congrats on her first official
event as Register!]  Tale of two cities:
very different perspectives on how DMCA is working/not working—have those perspectives
changed on the voluntary or caselaw or int’l side? 
CO: Regan Smith, general counsel
Brad Greenberg
Kevin Amer
Kimberly Isbell
Maria Strong
SESSION 1: Domestic Developments          
Erich C. Carey National Music Publishers’ Association: BMG
v. Cox is important: opportunity for successful importance of plain language
where service enabled repeat infringement on massive scale. But music community
hasn’t changed its mind about DMCA: that was an extreme situation with millions
of notices sent and $8 million in fees. Not feasible for enforcement—heavy burden
for major publishers and individual creators. Enforcement system is gamed to
confuse notice senders.  Rigged system.
DMCA was supposed to help development of fledgling internet; service providers
and © owners would cooperate to deal w/infringement. Has helped to create some
of most powerful companies, but onus still on © owners to police. Building has
been built; time for the scaffolding to come down. Look internationally.
Ken Hatfield Artist Rights Caucus of Local 802 of the
American Federation of Musicians: Unfair loophole that allows profit from mass
infringement. Litigation alone won’t solve the problems with the safe harbors.
At odds with Congressional intent: neither active cooperation w/platforms nor
STMs have materialized. Reform is needed to restore rights/livelihood of
musicians.
Mike Lemon Internet Association: over 40 of the world’s
leading companies.  DMCA works in encouraging
creation and dissemination. 
Mickey Osterreicher National Press Photographers Association:
recent study estimates that more than 2.5 billion works are stolen every day,
23% in the US. A takedown notice is the only alternative photographers have.
But notices are encumbered by Lenz fair use considerations [the horror],
counterclaims, and counterclaim nightmares. New EU obligations for OSPs should
inform our conversations.
Jennifer Pariser Motion Picture Association of America: if
you were wondering if anything has changed in 2 years, these intros let you
know. Cases in the last few years about repeat infringers are promising but
infringement continues to devastate the industry. [See The
Sky Is Rising
for some actual numbers.]  Takedowns
have marched on w/o red flag notice or representative lists.
Meredith Rose Public Knowledge: vast and delicately balanced
body of copyright law; 512 is just a part. We must reckon w/broadband, 512, and
SCt’s Packingham decision recognizing a 1A interest in being able to speak and
be spoken to online. 50 million Americans have only one broadband provider—accusations
shouldn’t be enough to cut them off of access. That affects knowledge standard
for secondary liability.
Aws Shemmeri ImageRights International, Inc.: LiveJournal
decision is a step in the right direction—scrutinize relationships ISPs have w/user
communities. Interactive/curated relationship w/users benefits them, leaving
out content generators. There’s still a circuit split and so case law alone won’t
resolve it.
Rasty Turek Pex: Technical challenges: rightsholders bear
the cost of takedowns. Even if there’s a tech solution, platforms push against
active measurements like crawling to ID content. As such, there’s a disbalance.
Platforms have to be more accountable.
Rebecca L. Tushnet, Organization for Transformative Works: The
case law tells us the same thing as the UC Berkeley
study of takedown practices
: There are many successful models out there,
and even very big sites like ours with very active creators and millions of
works can receive very few legitimate takedowns. Amazon’s Kindle Worlds, for
example, mostly receives anticompetitive takedowns from competing writers [reflecting
the difficulty of fighting back at the individual level, only one 512(f) case
of which I’m aware, Quill
Ink
, has been brought based on a Kindle Worlds takedown].  Generally, 512 and its implementation by
different platforms have encouraged an explosion of expression; by contrast,
rules written as if YouTube is the model would crush the alternatives and ensure
there was only YouTube.  
[citation: Testimony of Stephen Worth, United States
Copyright Office Section 512 Study, Public Roundtable, May 13, 2016, at 248,
http://bit.ly/2IkiER5
(“[W]ith Kindle Direct publishing, authors routinely try to climb to the top
spot in their category … by issuing bogus notices against higher ranking
titles. And this for us actually accounts for more than half of the takedown
notices that we receive.”).]
[AO3 is the 316th most popular US website,
according to Alexa.]
Brian Willen   Wilson
Sonsini Goodrich & Rosati: DMCA works and continues to work. Basic bargain
is the right one. Fosters cooperation: real obligations on platforms but main
burden is on © owners who have the most knowledge of their works and benefit
from them.  Motherless case in 9th
Circuit: example of getting it right. Real sites that are home to original
works thrive, while piratical sites mainly encouraging/inducing infringement
have faced consequences.
Mr. Winterton NetChoice: DMCA applies obligations to
least-cost avoider.  Don’t have to be
aware of all © content; a cottage industry of monitoring services helps with
this.  512 has empowered platforms for
artists and all Americans to express themselves. W/o 512 we would get lock in for
major services.  Europe’s Art. 13: must
know every piece of © content in existence. Protect American innovators,
artists and platforms: lead in opposing these efforts.  US should work to incorporate 512 in trade
agreements to protect free speech and creativity.
Smith: Pariser mentioned repeat infringer. Are Cox &
Grande & Motherless right?
Pariser: the first two were correctly decided as far as they
went for repeat infringers.  Contributory
liability/jury instruction part of Cox they have an issue w/.  Why are these bright spots? B/c a court said
the DMCA means what it says, and that hasn’t happened before b/c courts have
not required a representative list or applied red flag notice. Repeat infringer
= must act on multiple notices for the same user, ending in terminations.  Motherless: mixed bag.  We take issue w/ the notion that any kind of
policy that a service can dream up is ok—written, unwritten [this was a one-man
ISP, by the way]—most troubling part is that the operator doesn’t need to keep
track of the notices.  He used his
memory.  The good news is that he
actually terminated 2000 individuals. 
RT: Motherless is important b/c it deals w/ the incredible
variety of sites out there. This is a one-man shop; if he has a server failure
& loses all his records, he shouldn’t lose all DMCA cases in the
future.  Flexibility in what is required is
important.  Even big sites like AO3
receive very few DMCA notices—there is a big variety of sites out there and not
just in the small/long tail segment of the market.
Smith: is there a bare minimum on a repeat infringer policy?
Willen: the courts have focused on strikes; that creates a
clustering. For repeat infringer policies, you want to get bad users off the
site but you also want to educate users who are fans v. pirates. Flexible
policies can use first/even second strike as vehicle for educating users.  You can also be attentive to consequences of
loss of broadband v. loss of access to a site.
Carey: Industry perspective: Uphill battle getting these
cases off the ground to reverse engineer an ISP’s own infringer policy.
Requires massive discovery and tech knowledge. 
[Note how this implicitly treats a subset of ISPs as the full set of
those who have and need DMCA policies: even if it’s true that the cases that
get to discovery are complicated—in significant part because small sites and
even big ones like Veoh buckle under litigation costs—that doesn’t mean that he’s
diagnosed a problem with the structure of 512 or that an alternative would be
better for the system.] You’re lucky to be able to litigate.
Smith: so should the burden be on the © owner?
Carey: No. 
Smith: does the newer case law shift the burden on repeat
infringers?
Carey: no, just a proper balance according to what the
statute intended. If these circumstances (Cox and Grande) weren’t failure to
enforce repeat infringer policies, nothing would be. 
Hatfield: IANAL, but having different standards for an ISP
individually run sounds reasonable, but not if it’s applied to the giants. [Note
that a small ISP can have a big footprint, like our all-volunteer site.] Solutions
should be focused on upload filters—make sure all music has IRC codes.  Cloudflare gives complete anonymity to users.
Cost of litigation–$1500 to $3000 for a takedown, while litigation is up to $2
million. It’s virtually impossible for musicians to do it. Prime earning time
for new music is 18 months, but cases are slower than that.  512 implemented/interpreted in ways that
create fertile ground for dragging cases out. 
[Of course all of that precedent came from P-favorable rulings that made
it impossible to resolve these cases early.]
Rose: 512 applies to broadband and platforms, and those have
very different stakes.  We don’t often
say that ISPs are our friends at PK, but it’s US policy to increase access to
internet.  To eject someone from their
only broadband network is a very serious issue, and Packingham recognizes the
profound First Amendment interest just in access to social media.
Amer: 512(a) and (c) have differences. Pre-Cox, we heard
from 512(a) ISPs that their practice was to reject notices under (c); Cox obviously
casts some doubt on that practice. Does anyone have a sense of which practices
have changed in light of Cox/other cases?
[Nobody knows.] Carey says there’s general sense that
practices have changed, and Charter case is currently being litigated/litigation
against others is ongoing. Is it effective means of enforcement/repeat
infringer policies? Still figuring this out.
Isbell: Rose says Packingham indicates 1A interest in
access. Do you see terminations pursuant to a repeat infringer policy as being
state action?
Rose: not state action directly. But you must in order to
avail yourself of a safe harbor. As a practical matter it becomes equivalent
b/c the potential damages are so big. There’s some gradation.
Greenberg: voluntary measures negotiated in the shadow of 512?
Rose: policy concerns there. 
Packingham: sex offender registry, and still not good enough to cut him
off of social media access entirely.
RT: NYT v. Sullivan: the scope of the rights the state
enables have 1A implications b/c the judiciary is a state actor.
Pariser: an appropriate repeat infringer policy takes
account of the statutory command that termination should be in “appropriate”
circumstances—you can take into account the nature of the service. Policies can
vary provided that they are actual policies. 
First Amendment: repeat infringer obligation doesn’t implicate 1A
concerns b/c there is no state action; unlike in Packingham, though there are
some rural areas w/a single provider [50 million people!], in general termination
from one ISP isn’t a death knell.
Smith: LJ v. Mavrix case. 
Shemmeri: Prior to that appeal, there wasn’t a lot of
success against non-pirate-oriented ISPs. This decision, on the heels of BWP
where some users were deemed independent contractors—this case rightly held
that editorial posts/staff uploading their own material have an intricate
relationship w/users in which they’re curating the content, seeing that it’s
favorable/profitable on their end.  Sites
are profiting from the content and there is some review, so it’s natural not to
give 512 protections. [Note collapse of vicarious and contributory liability: exactly
the problem, where you get one from column A and one from column B and that’s
enough.]
Willen: any pre-upload moderation should not take you out of
512(c): Motherless helpfully clarified that pre-upload review and moderation to
look for illegal material, material that doesn’t fit w/in the service. 
Smith: would it make a difference if they screened only for
cute cat videos/banned only cute cat videos?
Willen: it shouldn’t. We know from 230 that Congress wanted
and encouraged OSPs to remove inappropriate content.  The idea that services that are doing exactly
what 230 encourages should lose 512 protection isn’t good for society, for users,
for copyright owners.
Amer: Mavrix’s standard: if the ISP’s activities were narrowly
directed at enhancing accessibility of the posts, that’s still at the direction
of the users.  Is there any room for
curation w/in that standard?  Kicking out
cat videos.
Willen: there is and there has to be room for curation.  Viacom case: the use of related/suggested
videos. That’s a form of curation/moderation—you like this, you may like that.
More broadly, every service now does some form of “curation”—what we mean is
some effort to help users sort through a mass of UGC and find things they like.
The idea that you shouldn’t be able to do that and have safe harbor protection
means we get a bunch of junky, useless sites [the 230 point is really strong
here].
Amer: Scalia’s Aereo dissent: isn’t it an administrable rule
to say that if someone is choosing the content, that will ordinarily tip them
into direct infringement?
Willen: distinguishes LJ: people are submitting things but
they don’t go live. The ultimate decision about what is posted is made by the platform.  That degree of ex ante selection makes you a
traditional publisher.  That does start
to put pressure on 512(c). But there’s a fundamental distinction b/t that and
sites that essentially let people mostly put stuff up that they want and then
performs sorting operations after that. 
At the same time, those services are increasingly saying we don’t want
terrorist content, porn, etc. whether or not they’re “legal.” The idea that making
those kinds of selections jeopardizes safe harbor is very very troubling.
Isbell: reading 512 in a way that negates 230 doesn’t make
sense. But Congress explicitly carved out IP from 230—so shouldn’t the approach
be different?
Willen: 230 is relevant even though it’s not applicable to
IP b/c it clearly says Congress gave ISPs a right to/encouraged them to remove
content b/c they find it objectionable whether or not it’s legal. 
Smith: can you reconcile that w/UMG’s statements about
active involvement in content selection?
Willen: there’s language in the cases that goes both ways,
but no case of which he’s aware holds that by making decisions about what’s
good/bad content you fall outside of 512(c). 
That interpretation is inconsistent w/incentives Congress tried to
provide in 230 and w/public policy generally. What kind of internet do we want?
Pariser: Objects to the notion that “a moderator curating
content implies no safe harbor” is bad for content.  Now all these sites that would otherwise have
been filtering content stop doing it—that’s not true! The reality is that
nobody is curating for copyright at this moment. They’re picking and choosing
content that they like & do not like for reasons of their own.  Porn/violence/low quality files, but
infringing content can stay until there’s a takedown notice. The notion that a
service provider would lose safe harbor seems entirely right if they
demonstrate that it is going into the content that is being supplied by users
& picking & choosing among those files, it should have the obligation
to go after infringing files.
Smith: where would you draw the line? Pre-posting or
post-posting?
Pariser: no distinction. If you choose to curate, that is
the moment you need to filter for infringing content. Disagree that you end up
w/ a lot of junky sites; you end up with a lot of sites w/filters that are
inexpensive. 
There is a continuum.
Amer: did Motherless get it right?  It would create bad incentives to say that a
site that decides to screen out the worst content loses the safe harbor. The
court distinguished Mavrix, which is much more focused on choosing the content.
Pariser: makes perfect sense given 512. Part of our position
is that the court started veering off the correct interpretation of 512(c) and
it should always have been the case that if a site demonstrates that it can control
its content, it should be filtering. Given that the law didn’t develop that
way, Motherless makes sense to distinguish b/t truly curated and more
pedestrian filtering for child porn.
Greenberg: say we have a new 512. Your position is filter
for anything = must filter for © too?
Pariser: demonstrates the ability of the site to filter.
Lemon: content moderation is a very difficult subject. Vast
majority of content moderation is fueled by users flagging objectionable
content, which is largely the way the DMCA also works. Platform’s resources may
be enough to give it proactive content moderation ability, but the idea that
they can take a child porn hash and that using it would thereby trigger a ©
filtering requirement is really problematic. 
If you can filter, then you must—then we have to fight over “can.”
Smith: Zazzle case: putting it on a physical product. Is
that different?  Line at a physical product?
Lemon: there are different legal implications if you
proactively take a © work and market it on a physical product.
Smith: is there a difference b/t that and marketing for
eyeballs?
Lemon: complicated—depends on volition/human involvement in
making decisions. Much of what platforms do is automated. Those processes don’t
always make the right/best calls; they’re not human, and humans also error. That’s
why we have a back and forth process with user, platform, and © claimant. We
need to take into account the sheer number of things posted—reddit, between 2016/2018,
had 625% increase in takedown notices. 
It’s a very quick ramp-up.
Greenberg: what about having thresholds for size/staff?
Lemon: first, companies ramp up very quickly.  GDPR example: they get big quickly. All the
metrics are terrible.  Monthly users:
varies month to month.  More than 2
moderators: you’ll never hire the 3d. 
Winterton: Filters are not inexpensive. We were told that
internet sales tax programs would be cheap. That’s not true when you rely on it
for your business/have to integrate it into the rest of your systems. Also true
of filters. Larger platforms can and do make different efforts. 
Hatfield: the people is monetizing the content, not whether
it goes up or not.  YouTube has different
rules for different artists.  STMs: once
available, company can’t block—if Google has developed the technology, it can’t
be that expensive to implement it.
Carey: software costs are prohibitive to © owners, and we’re
also deprived of ability to send representative list, red flag is read out of
the statute, so we have to go URL by URL for each piece of content. 
Osterreicher: NMPA encourage musicians to put code in; we
encourage photographers to watermark; you should be able to recognize a watermark
on an image.
Smith: would a platform have an obligation to screen for
watermarks?
Osterreicher: at a minimum, yes.  Metadata often stripped out, but watermarks
are hard to do/should be obvious to anyone that someone owns it and who that
someone is.
Smith: are you encouraged about standards for photography?
Osterreicher: the tech is getting there, and hopefully will
not be able to separate the info.
Greenberg: how would the ISP know whether the use was
licensed? If it was my wedding, how would they know it was ok for me to upload
my wedding photos?
Osterreicher: that’s a problem, but the service should be
able to recognize there was a watermark.
RT: Specific child porn hash values from known images are
different from finding a watermark. New Zealand shooting gives us a tragic
example of how that generalized “ability” to filter has been vastly overstated.  If you want a law regulating Alphabet on
antitrust grounds and governing how YouTube can treat musicians, the Department
of Justice knows how to do that, but mandatory filtering is not the right legal
tool.  Our site will terminate users for
harassing other users and for engaging in commercial solicitation.  We get well under 10 DMCA notices per year
for millions of works.  We are not
curators; our users are curators.
Greenberg: a watermark as red flag?
RT: we don’t filter. So we wouldn’t see a watermark. And our
users might well put their own watermarks on their photos so that when their cosplay
pictures show up on Instagram they get the attribution—we shouldn’t have to go
to war against our users. And Google won’t sell us a filter.
[A dialogue on red flag knowledge.  I resisted the idea that you could get much guidance
from extreme examples, like harassthem.com/stolencelebritypics.com because that’s
not what most people are doing.  It may
be a very small set and hard to generalize.  And it’s natural that red flag knowledge is hard to generalize–for example, a full length movie on Dropbox is perfectly likely to be a legit backup of a purchased movie, which is what I do for my iTunes purchases because of bad past experiences.  A video that gets 10,000 hits in an hour might be a video of a recent police shooting.  It really depends on all the other facts & circumstances.]
Smith: has red flag knowledge been read out of the statute?
Lemon: no opinion.
Smith: if you can filter, should you filter?
Lemon: there’s a lot of collaborative work. Some of our
companies have won Oscars, Grammys, Golden Globes—our interests align in
important ways to figure out best practices. 
We don’t think our best practices should be the law for everyone b/c it
doesn’t make sense for different platforms.
Osterreicher: wedding photos—if you put a watermark on, and
it’s your image of someone else, there should be a standard that would trigger
further investigation.  [Can I make him
answer the angry user emails?] [And by the way, “find a watermark and an image
of a person” is a very different machine learning task than “match the hash value
for this entire image.”]
Turek: The technology is there: ContentID is not the state
of the art.  [He sells the
technology.]  There’s not much left—671 hours
of content uploaded to YT every minute, growing 100 hours a year.  Eventually, you have to find a way to deal
with it.  Once you engage in one kind of filtering,
you should be forced to look at the others. 
You can’t have innovation in isolation. 
Rights holders used nontechnical POV on measures, and picked the most obvious
ways, but you can’t get the state of the art w/o the backing from more than
rightsholders.
Willen: shade thrown at red flags is being thrown at Viacom.  Isn’t the specific/general distinction.  Subjective/objective is the line. Red flag:
the facts and circumstances would lead a reasonable person to find
infringement.  That’s not reading it out
of the statute.
Smith: what’s red flag w/o a notice?
Willen: every court that has looked at it has come to the same
conclusion: this is a narrow provision. It’s in the statute, it just doesn’t
happen very much. Legislative history: congresspeople said it means something
apparent from a brief and casual viewing. Subjective or objective knowledge
standard is in fact narrow—the main vehicle for removing content was never
meant to be unilateral ISP action, but cooperatively. And it reflects that
these determinations are very difficult, not like figuring out whether something
is child porn; requires knowledge that ISPs very rarely have. Having a
watermark doesn’t distinguish photos from others on the internet—[almost] every
photo on the internet has a © that belongs to someone, but that just starts the
inquiry.
Amer: what if a user has a username “PiratedSongs”: is that
even red flag knowledge because it’s not specific enough?
Willen: YT case has a huge factual record showing that a
number of clips like “leaked song” had actually been posted by © owners/their
agents as part of stealth/viral marketing. Concrete examples to show that some
video description is not a very good guide.
Smith: if the standard is objective, isn’t Stolen Sgt.
Pepper enough to investigate?
Willen: sure, if you find a full-length movie. But this
conversation isn’t about those examples, but rather about an attempt to say
that courts are getting it wrong when they say that red flag is narrow.  That view fundamentally ignores the reality
of what’s on these sites, almost all
of which is copyrighted.
Isbell: are you presupposing that YT doesn’t use its own
site?  If you type in Beyonce, a lot of
lyric videos, many of which aren’t put up by the record company.  [Isn’t that … covered by YT’s licenses?]  Pinterest uses a lot of images from other
sites.  Since I am likely to pin other
people’s sites and not my on why shouldn’t Pinterest know that?
Willen: YT is licensed at this point.  Some of these issues on bigger platforms have
been dealt with.  Pinterest generally (he
represents them): the other part of the equation is fair use.  Social bookmarking has a big fair use component.  Using thumbnails/versions can constitute fair
use.
Pariser: Goal keeps moving from content owners’ perspective.  Porn: the P says you should have known that
it was infringing b/c it was so well produced. 
Court disagrees. Court holds up professionally produced studio movie as
paradigmatic example of what would confer knowledge. But when a Marvel movie is
the subject, there’s some other reason it wouldn’t be sufficient notice, such
as lack of ID’ing a particular file.  YT
involved unlicensed, full length music videos for which the site didn’t get
specific URL notices. Have to understand that in the context of representative
list.  Zazzle: sent a catalog of photos
and the court said that wasn’t good notice.
Shammeri: we don’t discourage use of © notices in works.
ISPs w/human curation can retain red flag knowledge—celebrity/historical photos
where it’s obvious they don’t own © to an image in the 1970s or 80s.  That raises a red flag of very likely
infringing or not owned by the user. 
[Those are not the same things.]
RT: a brief note on repurposing sites: You don’t know what
your users will do.  Pinterest &
vaccine denial/political use of Instagram—be careful you don’t assume what
sites are for. 
Smith: but what about Isbell’s point that eventually you know?
RT: There are a bunch of different YouTubes.  [A better answer would be Mao’s purported
answer about the effects of the French Revolution: “too soon to tell.”  Instagram and Pinterest are still figuring
out what kind of sites they are, and having struggles with, e.g., political content and vaccine denial content, and the fact that Pinterest is a particular
kind of site for you doesn’t mean it’s the same site for anyone else.]
Representative list: we get a search string that’s
dynamically generated and looks different when we look at it. We get a claim
listing one photo that says the entire [X] fandom is infringing.  This is not one-sided as a problem.
Hatfield: ISRC codes are good.
Osterreicher: this is a tale of two takedowns. Plight of
individual creators.  [Including ours, BTW.]

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