Section 512 roundtable, open mic

Open mic
Janis Pilch, Rutgers U: domestically it seems obvious that
litigation on 512 can’t change the systemic problem of infringement and the
impossibility for most rightsholders to litigate. 512 sets up a permanent
conflict b/t service providers and rightsholders.  Illusion of balance. Need to amend to create
a balance that favors rightsowners. 
Second, internationally, the same conflict plays out.  EU Directive makes platforms more responsible
versus rich tech companies fighting laws constraining their profits.  Those companies are using dominant economic
position, made possible in part by 512, to distort public perception of law through
misinformation and through academics & civil society organizations, paid or
otherwise motivated.  Also those groups
hacked … somebody?  USCO site was
compromised in 2016 when written comments on 512 were due.
Q: do you contend that anyone was precluded from filing
Pilch: no. But 92,000 comments were bots.  We see South African reform heavily influenced
by US tech interests but presented as creator focused.  
Kupferschmidt: The problem isn’t that © owners shoulder most
of the burden, it’s that they have very little to show for doing so, b/c the
material goes back up online. Whackamole. 
The result of the burden placed on the creative community is that we
aren’t achieving the balance Congress intended. 
On fraudulent notices: what we are doing to educate creators—Copyright Alliance
website has FAQs and does presentations across the country.  [Unfortunately, and this really applies to
all parts of this problem as well as many others, it’s really hard to deal with
bad faith uses by trying to educate the ignorant; it tends to misdiagnose the
problem.]  If you’re worried about
paucity of challenges, support the small claims copyright act—it would be a lot
less expensive in that context.  On red
flag knowledge: no ISP could come up with one example that was red flag knowledge
that wasn’t actual knowledge.  Proves our
point.  Not sure it was intended to be
narrow.  [Obviously I think that’s wrong—among
other things, I think my example of getting told about a full copy creates a
reason to investigate, but it’s not actual knowledge until I check and see if
the report is accurate.]  Small
businesses can’t afford to do this, Fourth Estate requires registration.
Q: opinion doesn’t mention 512. [And you don’t need a
registration to send a notice!]
Rasenberger: one writer spends 50% of her time dealing with
piracy; most give up. Mean author income is $20,000/year for fulltime authors;
they don’t have the resources to fight.  There’s an absence of creators here b/c this
was billed as an update on the case law and most creators don’t know the law
well.  Step back and decide whether we
want to protect © as a country; if we do, we need to amend 512. This is about
who bears responsibility and risk; big ISPs have drained money out of the
content industries.  The balance isn’t
working.  We need no other proof than the
transfer of wealth that’s already happened. The EU has the courage to take it
on; we can too.  512(j) isn’t used b/c
the relief is so narrow and b/c of the uncertainty over its application given
what courts have done with other sections.
Google’s site demotion has been helpful to authors to do
massive takedowns, but it doesn’t address the problem when the users know the
name of the site and can just type it in.
Pariser: we may never get to STMs, but we should know
factually what’s out there—that could help move the conversation so we won’t be
discussing whether filtering tech exists in the abstract.  In the reply comment notice, CO asked are
there any neutral principles? Our answer 2 ½ years ago was: look to notices.
There’s a huge amount of notices, not dropping, and it can’t possibly be the
case that the system is working, because if it were, piracy would be dropping,
which would lead to fewer notices. Now notices are dropping, and we have changed our minds about what counts as
evidence.  Notices are dropping not
because piracy is dropping but because © owners have notice sending fatigue,
and b/c Google’s demotion system has led © owners to focus on sending notices
for top of search.  Piracy landscape is
shifting from p2p to streaming and other forms of piracy, resulting in fewer
notices. Torrents can generate 10s of 10,000s of noticeable links for a particular
work, and you can send those notices if you have the resources. As piracy
shifts to streaming, that will be 10, 20, 30 links b/c a site is doing all the
aggregating for you. 
Q: does that make the notice system easier to enforce
against streams?
A: of course not!  Titles
still repopulate instantaneously. There are more streaming services and they
proliferate easily. Finally, look at money: tech services are paying billions,
and a rising tide is lifting all boats. 
But the fact is that’s not true. Tech companies are making vast amounts
of money, and becoming most profitable businesses, while content is shrinking
relative to what it has been. The industry is worth $1 billion on an adjusted
basis and it would have been worth $21 billion [if nothing else had changed but
we extrapolated growth from the highest-growth period of the industry and
people still bought records and didn’t play video games]. Without piracy, it would
be different.  ISPs are spending a tiny
fraction of revenue on takedowns, response to notices, etc. 
RIAA, Vicki Schekler [sp?]: Counternotices/notices to search
engines—our experience is quite different as shown in comments submitted in the
past.  96% takedown rate with Google, and
4% are those weren’t ever indexed. We send millions of notices annually.  Pariser mentioned the evolving nature of piracy,
and our members experience streamripping. 
Pirate sites circumvent DRM and then distribute the audio. Some of these
sites don’t have a static URL so there’s no deeplink notice to send.  We’re happy to see recording revenues
starting to rise again, but they’re nowhere near their peak in inflation
adjusted dollars.  [I wish Glynn Lunney
were here.]
Hatfield: Downward economic pressure that free access places
on the entire ecosystem for creating music. No one can compete with free,
especially not with our own music.  Eric
Priest: what happens when © owners can’t monetize works at consumer value
points—example of the music/movie industries in China—inability to monetize
copies of works harmed monetization opportunities for smaller producers; market
signals sent to producers are distorted; producers are disproportionately
exposed to peculiarities of markets/exploitation by intermediaries.  The dystopian future is unchecked piracy +
consolidated platforms, despite crocodile tears about startups. If & when a
winning platform reaches monopsony standards, it will have little reason to
maximize royalty payments.  If music is
devalued anywhere, it’s devalued everywhere. 
No musician now has more live gigs than they used to have. Famous acts
now charge opening acts for exposure rather than paying them. We thought we
were replacing greedy record company executives with the internet, but at least
they invested in us.  [Where is that $6
billion Google pays going?]  Now they
want to take a percentage of our tour money instead of giving us tour support.  Who wants a device devoid of access to interesting
content?  We want a fair percentage of
the revenues our works generate. 1998: music business was $15 billion; last
year it’s $9.8. Now the internet is a trillion dollar industry.  Pay us less than 6/1000 of a cent per spin,
and it’s less on YouTube.  [Really, read
Glynn Lunney on this issue.]
Goldman: statement that no one can compete with free was
contradicted by Polis who told us exactly what he does.  Has been confused about red flag discussion:
9th Circ. has cleanly held that third party notices can constitute
red flag knowledge: Shelter Capital, etc. 
There’s been a lot of FUD today about red flag knowledge.  Google and FB are not the internet! There’s a
whole lot of internet—the regulatory temptation is to think Google and FB need
correction so we should regulate the whole internet. Please don’t do that.  Finally, 230 relationship: 230 excludes IP,
but important to remember that it protects all kinds of curation and steps
about what to publish, what to prioritize, what metadata to show. That’s helped
sites understand what they can and can’t do. 
512: if it starts as third party content, it should stay as third party
content unless there’s evidence that the user no longer wants it up.  If the site makes the publication decision,
not the user, then the site should be responsible—Batzel—but 230 is a good model
for understanding what makes the transition from content submitted at the
direction of the user to content not being at the direction of the user.
Levy: Representative list/red flag precedents may mean that notice
has to ID the location. Lenz may also prevent the use of automated systems.
This means publishers and songwriters are effectively prevented from protecting
their works and many have given up. [Why hasn’t the Lenz liability risk
deterred all those millions of automated notices to Google, including the 4%
that weren’t ever on Google?  Interesting
to hear from RIAA about what gives them such confidence to send so many notices
that don’t identify an infringing link on Google even after Lenz.] We’ve heard
that filtering works [and that it doesn’t]. We have a problem and the tools to
fix it, and we need to rebalance the DMCA with the EU Directive as a positive
roadmap to shift the burden of policing the internet from the © owner to the
Lavizzari: European countries don’t have anything to learn
from the US on human rights, especially economic/social rights and healthcare. [I
disagree in relevant part but appreciate his clear moral stance.] Our European
report: what has been done in the Directive is relatively little. What’s not
been done yet is implementation into national systems we’re trying to
harmonize.  New art. 17: understands the
concerns of tech companies & civil society organizations, but it’s also an
issue of harmonizing secondary liability law, which we don’t have b/c we don’t
have a common tort law. These are not perfect provisions, the result of very
complex lawmaking. Harmonization is driven by cultural politics—France, which
is not the most conservative gov’t in the union, negotiated the Directive
through its Ministry of Culture, not Economic Growth or Development.  That’s a significant difference from the US.
What motivated the Parliament majority was not the former art. 11/13 but the
new exceptions, which get significant play in the new Directive—educational exceptions
and text/data mining exceptions.  Read
the final Directive—what motivated Parliament in the overall approval was the
new rights that are being granted to authors and performers—the idea that the
Parliament is run by socialists/democrats and it’s suspected that the majority
will not be there at the next election. Platform regulation, data transparency,
etc. are coming in the next iteration. 
Wolff: Notice & takedown isn’t adequate; professionals
can’t spend their lives doing it. Need to stop infringement and encourage
licensing that works.  Discourages real
activity between content creators and ISPs. [Again, note who counts as “content
creators”—in this version, not the people using the sites!] Filtering works;
image recognition works. ISPs worry that they will lose protection if they do
too much—perhaps should clarify that they won’t.  And should define STMs better b/c TMs aren’t
done by broad consensus; they come out of different sectors that are familiar
with their own type of content. What works for music might not work for visual
Greenberg: does the statute allow industry specific STMs?
Wolff: unclear. Developed by broad consensus in multi-industry
standard process. That’s not how it has worked.
Q: couldn’t multi-industry just mean ISPs + visual artists
Wolff: possible but it hasn’t happened in 21 years.  DMCA has discouraged platforms. There could
be better content if there was more curation/working with content
creators.  [Also I would like Google to
give me a pony.]
Gellis: Q about the data from Sky is Rising: industry data; sources listed
in report.  These aren’t hypothetical,
idealized citizen creators; these are real people who need access to these
platforms.  Mavrix: she thinks this was a
wrong turn, given that the follow up decision moved away from it. Error was “at
the direction of” the users. That’s creating the universe. The platform may
then shrink the universe of what content is stored, but that doesn’t change
whether what remains was “at the direction” of the user.  What we see is a conflict developed b/t 230
and 512: fear of liability leads platforms to crack down on speech—widespread damage
from FOSTA/SESTA where large swathes of legal, lawful content were taken down.
Isbell: didn’t 230 already exempt criminal activity?
Gellis: why did they bother w/FOSTA when 230 already did the
job? Good question!  Some ISPs thought
that the unnecessary statutory change created enough uncertainty about the
immunity that platforms reacted by sealing off areas, e.g., Craigslists adult personals.  We should be very reluctant: small changes
have huge impacts on speech.  Finally, on
Mavrix: moderation in general shouldn’t disable 512. The idea seems to be ‘you’ve
seen the infringement’ but the same challenges that happen with any takedown
notice appear—was there ownership, was there fair use, was there authorization—LJ
moderators don’t have access to that information. For these protections to be
useful & valid they have to be robust & reliable.
Band: agree w/ EU colleague: he supports Medicare for
all.  (1) Don’t ignore the societal
context of access to the internet. (2) note that we are living through an
explosion of great content.  Netflix
& Amazon & podcasts—we’re overwhelmed with content.  Rightsholders complain about piracy, but they
also complain about how much competition there is from other musicians, photographers,
etc. The barriers to entry have lowered, and that’s not a bad thing, especially
from the CO’s perspective.  (3) Publisher’s
right: they claimed not to want to regulate facts, free expression, quotation
right, access to news. They did say that 4 words from a headline would be an
infringement. That’s terrible.  [Note that
they tried and failed on the same thing with databases; let’s not take our cues
from that—or let’s take our cues from the US treatment of the sui generis database
right, which is to say ignoring it out of embarrassment.]  EU Directive does have a couple of good
things: preservation right for cultural heritage organizations, and contract
overrides protecting exceptions from being removed by contract.
Gratz: (1) MP3tunes case: a Q about what a real world
example of red flag knowledge; that case gives us one.  They knew that Beatles songs weren’t licensed
anywhere; that was red flag.  (2) Long v.
Facebook, a month ago: reflects the flexibility of courts taking into account the
different facts. 
Greenberg: how unique was that case to the facts? They said
5 days was expeditious, but FB was receiving over 100 notices from one user.
Gratz: FB was receiving a lot of different communications
from this user, and asked him which he wanted to deal w/first. That’s specific
but there may be other situations, including ones where 5 days is too long and
where that’s way too short, for example when there are layers of service providers. 
Castillo: definition of ISP is too broad.  It’s difficult to imagine any online service
the definition wouldn’t encompass, per one court. AAP has proposed including an
element of good faith into the definition of service provider for eligibility for
the safe harbor.  [Yay litigation costs!]
Carver: Snoop Dogg says 360 deals involve the labels taking
360% of everything!  He works w/Google’s Content
ID team & wants to give his experience. Across all Google products, we probably
receive more abusive notices in a week than everybody else in a year. If we
didn’t screen, Justin Bieber would be off YouTube.  One example from very recent history: Feb. 11
with “YouTube
”—small game creators got fraudulent takedowns. We were fooled
initially; we removed the videos/applied strikes. But once there was publicity
we saw the fraud. When one provider decided to automate its process, over ½ of its
notices were abusive.
Q: do you abide by them?
Carver: we try to detect and prevent them.  Another point about counternotices: 2% on YT
is copyright removal request instead of Content ID—between 1-2% of removal
requests get a counternotice. Small creators really are scared to counternotify
even when they think they’re in the right. Polis is not particularly common
among small creators in willingness to counternotify. But we also see some
counternotification problems; we review them even though the law doesn’t
require it.  If a takedown is from a
composition copyright owner, then your objection that you sang the song
yourself won’t work—we refuse to forward that counternotification, which is now
more than half of the counternotifications we receive. To spare rightsholders
from obvious misunderstandings of the process.

Vast majority of YT users never get a strike; the vast majority who get a
strike only get one strike. Of those who do go on to have 3 strikes, the vast
majority reach that point w/in 90 days of account creation. Two very different
groups: people who don’t understand much but want to do the right thing v.
those who are dedicated. Having one policy on repeat infringers doesn’t address
that separating equilibrium.  Reasonable in
the DMCA allows us flexibility.
Willen: The idea that we should redefine ISP to add good
faith is inconsistent w/ the law—Shelter Capital, Fung etc already disable
services that induce infringement from access to the safe harbor. 
Q: why not exclude all bad faith actors?
Willen: need to know what good faith is; opens the door to
something impossible to implement. The Q of whether a service acts in good or
bad faith can be answered through the way the courts are already applying the
Troncoso: adversarial content v. tech tone is bad—not a zero
sum game.  There’s a tremendous range of
diversity on the 512(c) side alone. We’ve heard about a few providers, but a
huge range of others could be threatened by sweeping changes. On the users: for
particular users the DMCA works/doesn’t work for particular reasons.  Prof. Tushnet has talked a lot about the fan
fiction community and how filters could be problematic for them; the same from
open source software developers.  Bear in
mind stakeholder diversity w/in categories.
RT: what counts as content stored at the direction of the user?
When I’m on the bus home and I pull the cord, the bus driver stops at my
direction even though she is the one hitting the brake and opening the door,
and she may even decide not to stop immediately depending on the conditions;
it’s still at the user’s direction when she does. 

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