Off the record: Use of name in instruction card doesn’t suggest endorsement

Posted on May 5, 2016 by rtushnet
Martin v. Wendy’s International, Inc., 2016 WL 1730648, No.
15 C 6998 (N.D. Ill. May 2, 2016)
 
Johannes Martin alleged that Wendy’s and Guinness World
Records violated §43(a) and his Illinois right of publicity by using his
identity in a 2013 promotion. The court dismissed the complaint. Martin alleged
that he holds the world record for consecutive kicks of a footbag: 63,326
consecutive kicks without letting it hit the ground.
 
In August-September 2013, Wendy’s and Guinness ran a
promotion in which every Kid’s Meal sold at Wendy’s restaurants included one of
six Guinness-themed toys, including footbags.   A card included with the footbag toy showed a
picture of two people playing footbag (not Martin) and listed three records
below the picture:
1. The most kicks of a footbag in
five minutes is 1,019.
2. The most people playing footbag
in a circle at one time is 946.
3. The most consecutive footbag
kicks in 10 minutes by a pair is 1,415. (
It also said: “How many times in a row can you kick this
footbag without it hitting the ground? Back in 1997, Ted Martin1 made his world
record of 63,326 kicks in a little less than nine hours!” Then it provided
instructions, and concluded with, “What kind of family record can you set?”
 

Promotional poster



Image from web announcement of promotion

Martin argued that defendants violated his rights by printing
“Guinness World Records” on each footbag; using the term “record-breaking toys”
in promotional materials; and referring to him by name in the instruction card.
 

Instruction card
The Illinois Right of Publicity Act prohibits the “use [of]
an individual’s identity for commercial purposes during the individual’s
lifetime without having obtained previous written consent.” “Commercial
purpose” means “the public use or holding out of an individual’s identity (i)
on or in connection with the offering for sale or sale of a product,
merchandise, goods, or services; (ii) for purposes of advertising or promoting
products, merchandise, goods, or services; or (iii) for the purpose of
fundraising.”
 
The court found the claim time-barred; Martin learned about
the promotion no later than September 19, 2013, when he first called Wendy’s to
complain.  While the district court in Toney v. L’Oreal applied a five-year
statute of limitations, using Illinois’ five-year statute of limitations for
“an injury done to property” and for “all civil actions not otherwise provided
for.”  However, later cases haven’t
followed Toney.  The Illinois Appellate Court has held that
the law codified and completely supplanted the common-law right of publicity,
and it had a one-year statute of limitations.  
 
Martin argued that fraudulent concealment tolled the statute
of limitations, because when he contacted Wendy’s, they told him to talk to
Guinness. “After a number of conversations, Guinness faxed him a letter, dated
February 19, 2014, in which it stated that it had ‘agreed to deal with any
dispute arising in relation to the usage of materials that formed part of the
promotion’ and took the position that ‘the use of [plaintiff’s] name and record
as part of the Wendy’s promotion was factual in nature and no person would be
led to believe that such usage constituted an endorsement….’”  Through counsel, Martin sent a letter to
Guinness on March 26, 2014, reiterating his claim.  Guinness’ outside counsel responded that his
claim was meritless.  Martin tried again
with Wendy’s but received no reply until July 2, 2015, when Wendy’s sent a
letter asking him to “direct all further correspondence to Guinness World
Records only.”  There was no plausible
claim of fraudulent concealment in these facts. Denial of liability doesn’t
toll the statute of limitations, nor do unanswered calls and letters.
 
Lanham Act claims: The court first determined that Lexmark applied to all of §43(a), though
it still called the issue “standing” in defiance of the late Justice Scalia’s
dearest hopes.  Section 43(a) requires
“an injury to a commercial interest in sales or business reputation proximately
caused by the defendant’s misrepresentation.” Proximate cause is “economic or
reputational injury flowing directly from the deception wrought by the
defendant’s advertising; and…that occurs when deception of consumers causes
them to withhold trade from the plaintiff.”
 
Martin alleged that he was “in the process of getting a
footbag mass produced,” and that the promotion “diluted the market” for his
future product. He claimed to have a “verbal agreement with a footbag
distribution company for 10% of the gross sales of a mass-produced footbag…
patterned after the record-breaking footbag that [he] constructed and used to
break the footbag world record.” He still needed to approve and probably modify
the final design.  His injury was one to
his “commercial interest in his reputation,” he alleged, because people have
“seen an inferior footbag, which the defendants presented as endorsed by” him,
and he seeks to recover for the “loss of endorsement revenue.”   The court found these (pro se) allegations
sufficient to demonstrate that Martin had a protectable commercial interest in
his reputation or identity/endorsement revenue.
 
However, injury to his future sales of a footbag wasn’t
cognizable, because any injury was purely speculative.  Martin wasn’t in the footbag business yet,
and his business plans were not very concrete. 
“He has what can only be described as a preliminary ‘prototype,’ but he
has not settled on a merchantable model of which to launch production, and he
has no more than a ‘verbal agreement’ to participate in bringing any product to
market at all.” Thus, Martin’s standing was based on his commercial interest in
his identity as a footbag world record holder.
 
False advertising: Defendants allegedly falsely advertised
by calling their footbags “record-breaking” even though no one had used those
footbags to break any records.  Moreover,
though there are many footbag world records, Martin alleged that his was the
most prominent, so any use of the term “record-breaking” in connection with a
footbag is a reference to him as the “footbag world record-holder.” He alleged
that he used a footbag of his own making to set the footbag world record, and so
the use of the term “record-breaking” misled consumers as to the qualities of
the footbag.
 
Defendants argued that “record-breaking” in this context was
mere puffery, and the court agreed.  “[I]t
is not plausible that any consumer would rely on the term ‘record-breaking’ as
a statement about the nature or quality of the footbag,” because it was “a
vague or exaggerated claim of superiority.” 
Moreover, Martin didn’t plausibly allege that any consumer would be
misled by the use of the “record-breaking” term to think that defendants’
footbags had anything to do with him. There was no reference to plaintiff
anywhere in the promotion’s website announcement, on the in-store display, or
on the Kid’s Meal bag. It wasn’t reasonable to infer that mere use of the term
“record-breaking” anywhere near a reference to a footbag was “somehow enough to
trigger a signifying chain” that led to him. 
 
To the extent that “record-breaking” meant anything, it
seemed obvious from the materials that it related to the “Kids v. Parents”
theme of the promotion, which encouraged kids and their parents to use the
Kid’s Meal toys to compete with each other to set family records, or to try to
break world records reported by Guinness. For example, the web announcement
touted adding “a little record-breaking competition to family dining…. [E]ach
toy provides fun challenges and a chance for parents and kids to outdo each
other for the title of family’s best.” 
It said that customers would receive “an exclusive guide to records that
families can try to break, so mom or dad or brother or sister can set the
family record.” “Record-breaking toys” was also used on the in-store display
and the promotion-themed Kid’s Meal bag, but both also used the heading “Kids
v. Parents.”  It was therefore not
plausibly a reference to Martin or any past record-breaking performance.
 
False endorsement: Martin claimed that using “Guinness World
Records” on a footbag and using his name in the instructional card offered
along with the footbag misled consumers as to his endorsement.  Just as “record-breaking” wasn’t a reference
to him, neither was putting the term “Guinness World Records” on a footbag a
reference to him.
 
While the instruction card did explicitly refer to him,
likely confusion wasn’t plausible. Mere commercial use of a person’s name
doesn’t violate the Lanham Act; the use must suggest endorsement or
sponsorship.  “But the card does no more
than state the consecutive kicks record and name plaintiff as the
record-holder. There is no language directly or indirectly suggesting that
plaintiff endorsed defendants’ products, nor do the plaintiff’s name and record
appear in a context that might, by its nature, plausibly mislead consumers to
believe that plaintiff endorsed defendants’ products.”  The court contrasts Abdul-Jabbar v. Gen. Motors Corp., 85 F.3d 407 (9th Cir. 1996),
quoting that court’s statement that “use of celebrity endorsements in
television commercials is so well established by commercial custom that a jury
might find an implied endorsement.”  The lack of misleadingness
was especially clear because the card was only available to consumers after they
bought the Kids’ Meal. 
 
Although the use was promotional “in some sense,” it was
more similar to cases in which a person’s name or image was used “on a product
rather than in advertising for a product,” rather than a typical false
endorsement case.  “[M]erely using
Princess Diana’s image on an item such as a commemorative plate was no more
likely to deceive consumers as to the source of the plate than Andy Warhol’s
use of a Campbell’s soup can or Coca-Cola bottle in his paintings was likely to
deceive consumers as to the source of those paintings or as to whether there
was any association between Warhol and those companies.” Likewise, “the mere
use of plaintiff’s name and record in the instructions for a game defendants
distributed to Wendy’s Kid’s Meal customers, as an illustrative example of how
to play the game and with the intent that the customers would play that game
with their families,” wasn’t plausibly likely to confuse consumers about
endorsement, source, or association with the toys.

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CFP: IP + Race, at Boston College

Posted on May 4, 2016 by rtushnet

 

The IP + Race conference hosted by Boston College in April 2017, sponsored by  Anjali Vats, Deidre Keller, Amit Basole, and Jessica Silbey, is seeking participants.  They are expecting special musical guests for the conference as well – all IP and critical race related, of course.

 

 

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Copyright Office 512 Roundtable: Open Mic

Posted on May 3, 2016 by rtushnet
Official description: Panelists from previous sessions and
observers may sign up at the roundtable to comment on topics discussed during
earlier panels or raise and discuss other pertinent issues.
 
David Green, NBC Universal: what should the Office do at the
end of the process? Don’t undertake a rewrite of 512. Everyone here would
change parts or a lot of it but even if the Office came back with a wonderful
rewrite, that would be a bloodbath. 
Trench warfare of congressional activity = little progress. Should be a
driver for progress through face to face discussions. Content owners and ISPs
have very different views, but we can still reach a compromise that’s
reasonable and fair and can involve w/time. 
Can and should encourage dialogue; have Congress members do the
same.  Isolated announcements from a
single internet company that it’s fixed the problem are bad. Also do best
practices, and education prominently displayed around uploads; descriptions of
fair use that everyone can use.
 
JC: how do you get people to the table?  Key stakeholders and smaller players?
 
Green: doesn’t get made in a big room like this.  Where stakeholders understand the problems
and goals: UCG principles.  With search:
“get together and see if you can make progress, then come back to me” (ideally
said by chair of Judiciary Committee) can put a thumb on the scales and
encourage cooperation.
 
Todd Dubler (sp?), Recording Academy: remarkable that you’ve
heard from entire creative community that they can’t use the system effectively
to keep their work from being infringed. 
Two worlds: work with us; they stick their fingers in their ears and
reject voluntary agreements.  Hoops for
issuing notice; very little that uploaders have to do to upload; education or
formality would be appropriate there. Finding some way to distinguish between
good notices and bad notices.  Find way
to designate STMs.   Original intent
behind red flag knowledge should be reinstated. Takedown should mean staydown:
when you’ve notified the service that it’s infringing and you have the tech to
track, you should be able to keep it from going back up.  Stacked URLs are clearly outside the intent
of the DMCA even if there are difficulties.
 
Joshua Lamel, Re:Create: Testifying in California. Re:Create
had nothing to do with the public comments, but they were from over 89,000
people, not people who were paid to testify but who chose to be here. Important
for California that these proceedings be livestreamed. This is something about
the future of the internet; people care passionately and can’t afford to be
here today. Consumer and artist community have interests.
 
Andrew Bridges: Continued massive confusion between 512(a)
and other types of ISPs.  ISPs and
sites—sites are (c) and (d), very different from (a) service providers. That
distinction kept getting eclipsed. 
Google and YT, both of which have prevailed in expensive litigation;
obsession w/them distorts (c) law in general. There is a wide variety of
service providers in any category that could be injured by policies developed
for Googles.  Discussion of good
actors/bad actors is demonization that is counterproductive. Focus should be on
behaviors, activities, legal criteria. “Come to the table” goes both
ways—refusal of many important and prominent (c) holders and agents to work
collaboratively w/ISPs, including reputable companies. UGC best practices—Veoh
was one of the participants, and it was sued into bankruptcy even as it won
major victories under DMCA; limitation of voluntary agreements.  Absence of citizen interest in voluntary
agreements—payment processor agreements weren’t made w/merchant participants;
sites get blackballed by ad networks until you make a record label happy. No
due process. That’s a problem w/voluntary agreements w/o public. Real abuse of
DMCA notice gamed for monetary purposes. Perfect 10 sends repeatedly bad
notices, faxing them late at night before a holiday weekend on plain paper with
no letterhead etc. Hoping that the ISP would lose the notices. Rightscorp sent
100s of 1000s of false notices w/o being able to determine that the account
holder assigned to an IP address was an infringer or even that there was an
infringer.  Finally, KTC’s Claggett
question about effect on legitimate content: I hope the focus isn’t on content
but lawful activity and free expression. Many policies have substantial effects
on legit activities and free expression, especially in 512(a), where
consequences of termination can be life-shattering.  There only way to get back on is to use rogue
services/fake—that’s counterproductive.
 
Allan Adler, AAP: Nature of commerce to come up w/new
business models, but whatever else you do, please don’t indulge blaming the
victim. Condescension, misdirection, anachronistic. May have had some
legitimacy in 2006, not 2016. House Judiciary hearing in 2013: rise of
innovative business models: content delivery models in the internet age. Rapid
but no impact on rampant online infringement. Look around us, how we and our
children are now accessing motion pictures and music—can’t doubt that new
business models have been a success. 
Even if we hadn’t, the suggestion to fight theft w/new business models
is pernicious. Individuals who earn their livings through art and plaintively
explained their plight b/c of inadequacies of 512, shouldn’t be told to invent
new business models along w/creative works simply to sustain a living by
creating art.
 
Will Buckley: Need for transparency in this process.  US Copyright Office received 90,000
submissions day before closing day. Generated by Fight for the Future,
mysteriously financed company that flooded your servers w/same message.  Disturbing: end run—we’re not really talking
about free speech. This is about property. Free speech that’s often used in
this discussion that takes it sideways. 
As far as false DMCA notices: there are very small percentages, less
than 5%, and very few have ever gone to court. That’s not a real issue. Yes,
ratcheted up over time, b/c of companies like Rightscorp, but I was at UCLA
last year w/ the House Judiciary Committee. Talked to Goodlatte about staydown:
he said we don’t want what happened w/SOPA to happen again. He meant a literal
cyberattack that scared the heck out of the people in Congress.  It’s important to have bloodbaths, rules and
laws that work.  [Rules and laws that
create bloodbaths?]
 
RT, OTW: Who’s the game-changing musician of our generation,
asked in the last panel? I offer you the queen, Beyonce, who just reinvented
the music video.  I offer you a man who
wrote a hip-hop musical about Alexander Hamilton: Lin-Manuel Miranda, who has
embraced online engagement, embraced online annotation of his lyrics on Genius,
which wouldn’t exist without 512; he embraced YouTube and Tumblr and gifs, you
might say NON-STOP.  We will continue to
have our geniuses; they will just be different.
 
Emphasize that, even accepting without question that piracy
is a problem, “do something” is not a policy. 
Nor is “staydown” b/c even a trivial change in a bit changes the
fingerprint of a simple staydown filter. 
The specific things suggested in the past two days—Content ID and Book
ID and Audible Magic—overblock and underblock, and the biggest users of Content
ID can’t say enough bad things about it—they suggest keyword blocking and other
measures to supplement it.   In Sony,
UMG, Warner’s comments, Content ID doesn’t work well, so they conclude that everyone
should have to use it. 
 
Worse, the proposed changes have no connection to
suppressing the worst offenders—those overseas and rogue sites that do nothing
to comply right now.  So you’ll be
crippling US-compliant sites and not even getting the benefit sought.
 
JC: what if it worked? 
[That is, it wasn’t only 60% effective?]
 
RT: Well, it works (at least at the 60% level, according to
the big companies) because it cost $50 million, which the rest of us can’t
afford to build.
 
JC: What if it worked and was free?
 
RT: The way it differs is by catching things even when they
differ.  Then it would catch a lot of
fair uses.  Testimony: catches 20 seconds
of quotation in a 40 minute film.  YT can
have that as a business model, and we do talk to Google about fair use, but as
a mandate it would be a huge free expression problem.
 
A separate problem with staydown—don’t assume that all works
are like studio films: Digital Media Licensing Ass’n at 5: “If images are
distributed by multiple representatives, or licensed on a non-exclusive basis,
it can be nearly impossible to distinguish an infringing use from a licensed
use.”  That’s ten times more true if the
ISP is in charge, meaning that properly licensed uses will be taken down both
to the detriment of the copyright owner and the licensed user.  Also: Yahoo’s comment recounts its experience
w/takedowns related to tobacco ads: some clearly fair, some maybe not: staydown
would prevent that kind of analysis.
 
Finally: You have not heard unanimity from the entire
creative community.  I represent 600,000
creators who feel very differently.  Ask
you to remember also the incredible transformative works community building
skills particularly among women and underrepresented minorities—I encourage you
to read our submission to PTO/NTIA
green paper, and see if you can do it without crying at some of the stories
of how transformative works transformed these women’s lives, their careers, and
their futures.
 
Pariser: What the © office might do: MPAA hopes © office
issues a report giving guidance on the proper interpretation of 512 to the
judiciary, similar to making available paper. 
These reports are enormously helpful to the judiciary in understanding
the proper way to interpret, even if they don’t always follow the
guidance.  For STMs, legislative history:  Committee would accept ad hoc groups as long
as the process was open, fair. Could mean that the door is open to anyone who
wants to come in; that would make it redundant w/earlier use of “open” to
describe standards bodies. Another way is that the record would be open.  In either case, © office could sponsor a
procedure that was both.
 
Sarah Hows: Spent 4 years training to be an actor and 1 year
trying to make it on the stage. What stood out to me is the difference b/t pro
creators and someone engaging in creative activities, which is amazing; not
everyone can be a pro artist.  It takes a
lot of investment to be a pro artist. 
It’s very different to try to make money than to make art. 
 
[Fortunately, transformative works communities can help
develop those very skills.]
 
Maria Schneider: my last recording won a Grammy, cost over $200,000,
took years to write the music; year in studio recording, editing, mixing,
preparing beautiful work to stand out. 
When I say it cost $200,000 I didn’t include my time writing music,
producing, $80,000 from my savings.  So
it’s pushing $300,000. When I find links to this on Google, that’s why I talk
about Google. I have embraced the internet like no artist has embraced the
internet; first artist to win Grammy from selling just on internet; worked
w/ArtistShare to document and know every fan; I put up video content
documenting throughout the year the making of the recording. When someone puts
my videos/scores up on Limetorrent and I can’t find a way to take it down, it
hurts me financially. In 1993, before anyone knew who I was, I sold 25,000
records; now that I have 5 Grammys I’ve sold 8000 copies of my current
album.  It’s so accepted that Spotify
offers no money b/c they’re competing with free.  Like offering me 45% of my own 401(k). This
is my asset, my life.

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Copyright Office 512 Roundtable: Future of 512

Posted on May 3, 2016 by rtushnet
(In homage to Jonathan Zittrain, I am giving this panel the nickname, The Future of the Internet and How To Stop It)
 
Official description: General trends, including notice
volume and other relevant empirical data; scalability and future viability of
section 512 notice-and-takedown system; relevant technological developments;
impact of international models and norms; overall balance (or imbalance) of
system with respect to copyright owners, service providers, and consumers;
whether system is fulfilling Congress’ intended objectives; suggested
improvements, including “notice-and-staydown” and enhanced protections against
misuse of takedown process; interests of users and the general public; and
other pertinent issues.  
 
Jonathan Band, Amazon: the DMCA is a workable compromise;
512 balances rightsholders, service providers, users; no amendments are
necessary. It will continue to work, barring something unexpected.
 
Matthew Barblan, Center for the Protection of Intellectual
Property: Works really well for ISPs and horribly for creative community. If
this continues it won’t work really well for anyone. We’ve seen disruption of
creative industries. ISPs should keep in mind that the reason why the internet
is so popular is that it’s a great tool for disseminating creative content made
by our industries.  [Excuse me?]  Creative economy will be a shadow of what it
was.
 
William Buckley, FarePlay, Inc.: Heart of the problem is the
law is clearly broken; designed to make a simplified process for websites who
made an error in posting © material; could remove it w/o need for lawsuit.  Intention was for creators to have
streamlined way to get content removed. 
Problem was it was written improperly. Doesn’t refer to a specific piece
of content, leading to whack a mole situation, and that’s the genesis of these
takedown notices.  We have so many now
b/c the system doesn’t work.  Automated
notices = higher numbers. But the core is a broken law that fails to fulfill
its purpose.
 
Stephen Carlisle, Nova Southeastern University: My primary
gig is fair use.  Evaluating it for
professors, staff, library [poor professors!]. 
I’m hemmed in by what courts say it is now.  We see this push to expand where courts are
currently. Every fair use case has to be judged on its facts. No bright line
rules.  Authors’ Guild denial of
cert—mirror image copy is transformative; 
6th and 11th circuit say that a mirror image copy
isn’t transformative. [?  I note that
Univ. of Ga. didn’t argue that its copies were transformative.]  Berkeley study: 7-8% of notice were possible
fair uses—remixes, mashups, and covers. 
But covers need to be licensed, as do remixes.  I did a Westlaw search on remix and mashup
and couldn’t find a single case of a mashup or remix being found to be fair
use.  Fair use isn’t extended there by
courts and there’s a push further.  Guy
in California now has $1 million in funding to make a Star Trek movie w/no
permission from Paramount.
 
Alisa Coleman, ABKCO Music & Records: Broken: need
notice and staydown.
 
Andy Deutch, Internet Commerce Coalition: Imagine a world
w/o DMCA—stunted.  ISP groups that make
this possible could not exist w/o 512. 
Problems w/infringement exist, but creative community’s woes aren’t due
to 512 or even infringement; economic problems have affected all creative
trades. 512 encouraged enormous investment, new mechanisms for curbing infringement,
spread of broadband.
 
JC: the Q is, if we continue this way, what will we be
looking at? Is notice and takedown scaleable? 
[Is the United States scaleable? Interesting question in 1790; not a
particularly predictable one. Prediction is hard, especially about the
future.  I refuse to make predictions
five years out, much less twenty.]
 
Deutch: world of creators is variable.  They have different needs & problems.
Impossible to do everything for everyone. Same is true on the other side—10s of
thousands of designated agents. 
 
Sarah Feingold, Etsy, Inc.: Free speech—we need the internet
as it is, doing pretty well.
 
KTC: Some fear in your comments that you’d be subject to
increasing volume.  Are you concerned
that without change you might be inundated w/notices?
 
Feingold: Etsy has scaled, and so has our DMCA
function.  We’d scale and always treat it
as a floor and not a ceiling.
 
Greenberg: has the DMCA aged well and will continue to age
well? What I hear is that it’s perfect or that it’s a second-best and any
tinkering will upset parties.
 
Feingold: working as it is. Would want to see proposed
changes before further comment.
 
Kathy Garmezy, Directors Guild of America: Independent
directors—if DMCA continues, assume there are no protections and find alternative
ways to make up revenue.  Everybody we’ve
talked to has ended up turning away from 512 as unworkable.  Not a lawyer, but her sense that staydown
would make a huge difference for creators. Not all content on the internet is
equal. Pro content created by people who want to earn a living should be
treated differently versus other content.
 
Bruce Joseph, Wiley Rein LLP: Section 512(a), conduit
function—that both retrospectively and prospectively is working right and the
balance will continue to be right 20 years from now. Despite calls for change,
based on my preliminary review, there is very little if anything asking for
change in 512(a).  Led to massive
investment and it’s the only way we’ll continue to see massive investment by
service providers that create huge new opportunities in the economy as a whole
and content providers.  Commerce,
education, information, politics—it’s all there, and wouldn’t have happened
without 512(a). If any change is necessary, it’s time to eliminate the idea
that internet access could be terminated as a condition of the safe harbor.
 
Thomas Kennedy, American Society of Media Photographers:
Concerns w/512 going forward.  Our
members are approaching market failure, and adjustments are needed.  Tech changes have changed things for photogs;
small claims alternative would be step in the right direction.  Big problem is that DMCA isn’t contributing
to necessary dialog b/t OSPs and creative community, and the way they reap
enormous benefits from creation that aren’t shared.
 
David Korzenik, Miller Korzenik Sommers Rayman LLP largely
representing news organizations: Parallel to right to be forgotten in Europe—as
worry about privacy increases, takedown notices increase. Companies like Google
and other search operators are faced w/1000s of takedown requests to evaluate.
Even if they try to balance these, a lot of this “censorship” occurs outside
public view so we don’t know what’s lost. 512 is generally good, but shouldn’t
create presumptions against speakers, burdens against new forms of fair
use/conversation/interaction – may be untested in courts but need to be
assisted.  Good thing about 512 and
American law generally is that we favor new tech rather than taxing them as
they do in Europe. Continue in vein of Sony
Betamax and 512: no presumptions against legitimate speech.
 
Dina LaPolt, LaPolt Law, PC: No, it’s not sustainable.  We’re all miserable. Two separate communities
that desperately need each other and nobody’s listening. Fix things a
little.  Staydown.  Keep it down while we figure out in a small
claims type of way whether it’s supposed to be down.  ISP has responsibility to keep track of that
file. If someone makes a counterclaim, we should have more than 10 days to work
it out, during which it should stay down. Maybe 60 days. Why force my clients
to force a lawsuit against you, b/c they will? 
[He made me do it!] We could work it out in friendly arbitration to see
if the staydown will persist.  To figure
out whether it should be fair use before my clients make a case for stealing
doesn’t seem an amicable way to fix the system. [Accusations of stealing, OTOH,
are friendly-like.]
 
JC: are you suggesting that all other identical files should
be kept down too during this period of decisionmaking?
 
LaPolt: yes and no. Music community is not great
w/metadata.  I’m saying if I make a claim
and there’s a specific file, they should keep that metadata and notify me if
someone puts it back up.  Result:
coexistence for healthy community.
 
Michael Michaud, Channel Awesome, Inc.: My company makes
content on YT and has a website that attracts millions.  Staydown—but to put the burden onto websites
is the same burden, now on us.  Harms
small websites that don’t have resources. Viewers are the ones who determine
whether content succeeds.  YT has started
careers, and a lot of people rely on fair use to get out there, such as Justin
Bieber. This isn’t defended enough. There are lots of examples of abuse of
takedowns.  We had four notices last
year, all wrong.  We lost an entire month
of revenue b/c of a claim that had to stay down 10 days even though they
dropped they claim.  They can block you,
take your money, or block your monetization for 20 seconds of video in a 40
minute video.
 
JC: are you agreeing to those terms when you upload?
 
Michaud: YT doesn’t set these terms.
 
JC: but that’s not the law [it’s just what you seem to want
to turn into the law.]
 
Michaud: they can do a global block w/o even using the DMCA.
 
Christopher Mohr, Software and Information Industry
Association: If things stay the same, we are not calling at this time for
amendments to the statute. It is under strain. 
In the coming months, as court cases come down, there are areas that can
and should be clarified—see our comments. 
Our hope is that we can see greater growth in positives such as
voluntary agreements.
 
Mickey Osterreicher, National Press Photographers
Association: sides are talking past each other. Haves speak of reasonable
profits and cost of doing business; have-nots say corporate greed.  Pernicious theft of work.  One side says fair use is a defense, the
other says it’s a condition precedent. Creators big and small say
shortcomings/unintended consequences of 512 should be addressed.  Basis for © is promotion of progress of
science and useful arts, if 512 doesn’t help secure exclusive rights of authors
to allow them fair compensation, we may see the demise of useful and creative
works as they continue to be misappropriated. Turning blind eye to infringement
has created imbalance in online ecosystem. 
[This is why the Avengers movie is going to have such an unprecedentedly
small global take, I imagine.]
 
Janice Pilch, Rutgers University Libraries [comments are her
own, not views or official position of Rutgers or any library association]:
Absent legislative change, the situation will continue to deteriorate for
creative people benefiting from their own work. 
Since 1998, the internet has become something other than what Congress
intended—thrives on illegal commerce. Black market is bad; 512 rewards
disrespect for moral/material interests of others. Supported by safe harbors
and not open/democratic; closed system w/unfair advantage to itself. Needs to
change or society will be worse off. Social issues are as important as internet
itself.
 
Kevin Rupy USTelecom: $1.4 trillion investment in broadband
in the US. $78 billion in one year.  As
Joseph noted, that investment is in part based on 512(a).
 
Van Armen, Ass’n of Amer. Independent Music: From our
perspective, DMCA has problems.  What
happens if things don’t change? Our members are very concerned about control of
their works. They want a market for the fruits of their labor.  As we see things now, we’re afraid that if
things aren’t changed, there won’t be adequate compensation in the future.
 
June Besek, Kernochan Center for Law, Media and the Arts,
Columbia Law School: Fact is that 512 will not persist; there will be judicial
change even if there’s no legislative change. If past predicts future, that’s
concerning, b/c courts have often placed emphasis on allowing service providers
to flourish and grow, and less on rightsholders’ interests. Reading
representative list out of statute, defining red flag knowledge narrowly,
etc.  Service providers continue to base
businesses on infringement. 512(h) has limited effect b/c you have to file a
John Doe lawsuit. No liability even when their own contractors post; they have
to consider fair use before filing. Not all these decisions were bad, but
balance hasn’t been achieved. Shouldn’t assume that decisions will be
better/different if we go on the way we are. 
ISPs will continue to pay a lot of $ to respond to takedown notices, and
© owners will spend a lot of $ to file notices. 
And © owners will lose a lot of $ because materials will be up.  [#notallisps]
 
JC: you’re suggesting that narrow interpretations could be
avoided—how could courts reverse that trend? Is that likely?
 
Besek: doesn’t see SCt case in future; evolution could occur
over time.
 
KTC: what is the goal? 
Less piracy? More content in the world? 
What would be a measure of success under DMCA now or in future?
 
Band: look at the objectives in 512: thriving internet?  Do you have a thriving creative
environment?  Goes back to the facts that
Petricone cited. That’s what we should look at. 
The © Act isn’t about protecting particular business models, but about
promoting progress.
 
KI: if we decide those are the metrics, how do we measure
them?  Sheer number?  US compared to other countries?  Historically? What’s our benchmark?
 
Band: US and int’l success—all kinds of metrics, though some
things are more difficult to measure.  As
Feingold was saying, all of us are creating works all the time; the number of
photos created every day is over a billion. 
No Q re: absolute number.  Q of
quality—that’s more difficult and complicated. 
Doesn’t seem to be any shortage of high quality content either, and
there are distribution models—open access publishing, completely different
business model.
 
Barblan: if service providers were incentivized to do more
to remove a link, we could arrive at a place where most popular streaming
website in the world isn’t a substitute for music you’d have to buy. [He means
YT.] Encouraging the production of pro quality content that people can make a
living at as pro artists; this difference matters. If you go on YT and listen
to someone playing a cover, that’s entertaining but not the same as a pro
quality album that cost several hundred thousand dollars to record. Encourage
people to be able to make a living as artists. It’s tough to see how to measure
that; shouldn’t just measure amount of works out there. Overall ability of
pirated content—if we see #s like that continue to increase and anything is
available to free, we’ll see market disruptions that make it hard for people to
make a living.
 
Buckley: It’s about money. What’s the value of broadband
without content?  Band said there was no
proof that piracy cut revenue of record business 60% and photography and
literature.  In spirit of full
disclosure, I’ve circulated a petition that requests a staydown provision to go
along w/takedown. We’re not asking for a new law. Hollywood makes 30% fewer
movies than a decade ago, 60% fewer “nuanced” movies. Instead, event films
demand a premium price to go see films in HD and 3D. That’s one way film
industry had a successful year.  My
petition discusses author who filed 570 takedown notices for one book & one
site, and he was never able to succeed. Balancing compensation for artists w/
tremendous wealth generated for tech sector ot we’ll lose our rich heritage.
 
Carlisle: Promote progress—we should ask ourselves: is 512
promoting the progress of useful arts. Shrinking songwriters in Nashville.  We are killing an entire generation of
creative artists:  we’ll never hear b/c
we can’t sustain a living. I asked: who is the game changing musician of our
generation: Kurt Cobain, Jimi Hendrix, Prince. The best answer he had was
Eminem, 20 years old.  [LIN MANUEL
MIRANDA, anyone?]  I’ll take Prince over
Justin Bieber.
 
Greenberg: What makes income driven artists going forward?
 
Carlisle: shrinking revenue pool. Touring sold records, in
the old days.  Now records are loss
leaders for tours. Touring is very expensive.
 
Coleman: goals should be to protect copyright owners and
switch the current balance to favor songwriters etc.  W/o cover songs, the music publishing
industry wouldn’t exist. People want to make tribute versions whether on the
internet or a CD.  We need to protect
right to monetize cover versions.
 
Deutsh: Don’t overlook enormous new opportunities created
for artists.  Viral hits—make money and
earn a living in ways that could never have occurred in the pre internet era.
Even on the creative side, there are winners from the system that’s evolved.
Other industries have also had to roll with the punches, but by no means is the
internet the sole villain.
 
JC: are we evolving into a society w/o investment in up and
coming artists, b/c that’s been the model for a long time. We’re hearing
there’s not enough money in the current ecosystem to invest in many new
artists. Is that a social loss?
 
Deutsh: remains to be proved. Stock market capitalization of
these cos. remains high. They continue to be profitable. Can’t compare to
1980s, but then 1950s was different too. Big bands died. Change in what
consumers want to hear/watch is a feature of the American cultural landscape.
People who want and need to create will continue to come to the fore; many more
people are now doing that b/c they can get their works out to others.  Mixed future: large entertainment cos. and
music publishers, all providing capital and facilitating distribution.  Alongside, new artistse who become viral
sensations; that’s new and cumulative rather than subtractive.
 
Feingold: I don’t see desctruction of artistic communities;
I see the opposite, millions of sellers on Etsy with $293 million dollars of
sales, 80% of whom are women, many working from home—wouldn’t have brought
products to market without lower barriers to entry, enabled by DMCA. Use Etsy
to pay bills.
 
Joseph: SCt made clear that © exists to promote the progress
of science.  Golan v. Holder; refers
broadly to the creation and spread of knowledge and learning. Sen. Hatch said
the same thing.  SCt has emphasized that
the ultimate goal of © is the public interest, not the author’s private
interest. Sony teaches us that the
monopoly privileges are neither unlimited nor primarily designed to provide a
special private benefit; rather it’s a means to achieve an important public
purpose.  Inducing dissemination post-creation
is an appropriate means to promote science. 
Your goal at the Office is to consider what’s best for the public in
creation and spread of knowledge and learning. Those are the touchstones for
evaluating what you might do to the internet.
 
Kennedy: © is about the ability to focus and master craft,
serving the public interest. Reducing that capacity of artists and scientists
to have the ability to focus, you’re diminishing what the public can ultimately
get.
 
Korzenik: public interest is important; © systems around the
world balance interests of authors, distributors, and readers.  France is author driven.  Our system is distributor driven. People who
care about public interest in this country are librarians.  Everyone conveys sense that internet is place
of chaos and destruction. There’s another side in Europe, Russia, China—an
incredible tool for policing and social control and censorship. Whether
privately through notice and takedown or publicly. Internet reveals many
things—sexual abuse that existed but we now see; police abuse likewise; © abuse
that existed in the print world that we now know.  Be mindful of the power of this tool to
police; its controls need to be moderated so that new fair uses aren’t suppressed.
 
LaPolt: I don’t understand why my clients’ property should
be public interest.  There is a social
loss in the music community.  Until now,
the only companies that could put up risk money were record companies.  Publishers don’t give you money up
front.  But now record companies can’t
put up a new artist unless she gives up 25% of touring, sponsorships, etc.
That’s not sustainable. Simple fixes would enable us to get along.  Internet can be a valuable tool for some
independent artists, but we need to work together.
 
Mohr: In measuring success, there are two interests.  Interest in generating services, which has
succeeded. Another interest: purpose of copyright. Congress put copyright in to
unify state law; recognition of the benefits of an incentive for authors and
publishers to make useful things; public good coincides w/claims of
individuals. Eldred footnote: benefits of incentives of the profit motive.  It’s there where our membership sees the most
strain. We believe courts can sort that out, but 512 should restore incentives
lost through poorly considered decisions.
 
Osterreicher: We can all agree that images drive page
views.  Most of the photographers outside
(for Silver sentencing) don’t work for newspapers b/c there are fewer papers
w/smaller staffs. The only way to make a living is to go out and spend hours
waiting around for a few moments of chaos, trying to get a better picture than
others.  The only way they can then get $
is by licensing images. If there’s no way to protect licensing, at least get
them taken down when they’re misappropriated. If we’re all going to depend on
UGC—seeing is believing.  We’d like to
believe that news isn’t photoshopped. 
It’s a small microcosm of people that create images, but useful to show
how important it is to protect that work.
 
Pilch: Group of musicians was demonstrating outside
w/posters: takedown means staydown; Congress, fix the DMCA.  Goal should be that everyone flourishes, but
not based on theft, misappropriation, and involuntary exploitation, which
public policy has never endorsed—racketeering and trafficking in information. A
new form of oppression.  Not free speech.
Just economic abuse. Goal should be to end economic abuse and even out economic
rewards. Fewer takedown notices, fewer complaints, richer culture.
 
Van Armen: it’s in the public interest to motivate creators
to create new works. Imbalanced system w/no market = public is much
poorer.  If we were to adjust the DMCA
safe harbors, how do we know 20 years from now whether it was good? Whether
there are innovative digital services; we do need those. Some digital services
have been very good.  But we’re also
undermined, taking big hits. 
 
KTC: how do we develop a tweaked law or dialogue to see
these goals implemented?  We’ve heard
voluntary solutions; staydown; how other countries handle things but other
panels noted reduction in piracy given their new laws.
 
Besek: single most important thing would be
takedown/staydown.  Some objections are
well taken but there should be an opportunity to object if your content is
filtered out, just as it is w/notice and takedown. Could be different standards
for different classes of ISPs, at least for a certain period of time while
they’re a startup. Pessimistic about voluntary measures b/c there are business
models involving access to content, and b/c there are businesses that have good
faith but don’t see what’s in it for them even though it might help them to
reduce takedowns [which assumes that they get huge #s of takedowns].
 
Band: Amazon would oppose any statutory change. Voluntary
measures.  Deutsh: we live in a time of
rapid tech change; it’s stressful for everyone. We all have to reinvent
ourselves repeatedly.
 
Barblan: artists aren’t luddites; invested heavily in new
means of dissemination. When you make it easy to steal from them, reduce the $
they can use to develop new business models and new forms of art.  Some sort of staydown would be a really good
step in making it hard to steal from artists. 
Once a service provider is on notice that a work isn’t licensed, they
should bear the responsibility to avoid reappearance, whether through filtering
or changing the way content is uploaded. 
Incredibly technologically advanced industries can do autocomplete [um,
Google can do autocomplete—this is your scheduled reminder that Google is not
the internet!]—hard to believe they won’t be able to figure it out once you
shift the burden to them.
 
Buckley: w/o staydown, we don’t have an antipiracy law.
Grooveshark admitted in court that they had used the takedown provision as a
way to avoid prosecution.  Enabled them
to follow directions and repost. They had a server with a “Pez strategy.” Put
exact same piece of content over and over; they were caught b/c of internal
email sent to employees seeking songs. 
There should be penalties for false takedown claims. There has to be
recourse on both sides. No free pass to destroy someone else’s career. Has to
be balance.
 
Carlisle: speaking personally. If 512 worked, YT wouldn’t be
using it as a negotiating tactic.  You
take what we give you or we throw you into notice hell. Staydown levels the
playing field, so Spotify can’t compare its rates to YT.  Puts burden on policing the internet on the
YT and FB and others profiting from this content. It’s the only solution that
can work. Think if we didn’t have to process a billion notices a year—less bad
notices would be sent too.
 
Coleman: Urge you to think about innovation as a whole w/r/t
512.  We know what doesn’t work. We don’t
know what won’t work 5-10 years from now. No one would have thought we’d be
talking about it this way. Think about takedowns, staydowns, small claims, not
for the long term but perhaps for the short term. [I think this is perceptive
about our ability to predict.]
 
Deutch: it is in ISP’s interest to cooperate w/owners.  Those who thrive on infringement will
ultimately be caught—those who tried have lost. 
512 is not a shield, nor is Grooveshark typical of the 512 system.  No one says this is perfect, but changing
this would change the good balance Congress struck in 1998. © owners are the
best ones to ID material.
 
JC: once they’ve identified the content, assuming the
provider has access to fingerprint, why shouldn’t they screen for that.  They supply a hashtag [she means hash]—why
wouldn’t the ISP have duty to track that?
 
Deutch: Ultimately not their responsibility; Congress made
that decision.
 
JC: but after affirmative identification, ISP w/tech ability
should keep file down?
 
Deutch: it’s a big assumption, but they should talk about
it.
 
Feingold: staydown would be extraordinarily burdensome; also
I see so many abusive notices to squash free speech. Is the content still
infringing when it reappears? Those are technologically and legally difficult
questions.
 
KI: abusive notices: has Etsy received them?
 
Feingold: trying to take down competition, or someone is
saying something about them. I’ve seen takedown notices that should be
counternoticed.
 
Greenberg: are these free speech or unfair competition
issues?
 
Feingold: they’re both.
 
KTC: is the underlying content TM infringement or are people
trying to use TM improperly?
 
Feingold: using them together; both properly and improperly.
There’s no counternotice procedure. 
 
KTC: should there be TM DMCA?
 
Feingold: should be examined.
 
JC: do you have a repeat infringer policy? Could you share
it w/us? How does it work w/physical goods?
 
Feingold: we have human review; it’s very burdensome.  Nuts and bolts are confidential; we’ve seen
takedowns sent at 9 am, 10 am, 11 am and claim that therefore we have to
terminate the target’s account for repeat infringement.
 
KTC: Is it something unique to your particular atmosphere in
terms of abuse?  Are you seeing notices
from competitors b/c you have individual businesses in one website, who might
be incentivized to abuse the process that might not necessarily occur w/other
websites? [other websites that don’t host UGC?]
 
Feingold: we run the gamut—giant brands and people who were
best friends and then had a falling out and sent takedown notices against each
other.
 
Garmezy: staydown would make a huge difference.  Heard creators as collateral damage of
changing times; motion capture was created by directors, so we know the
internet is powerful, but creating is unique, special, ephemeral, and not
everyone can do it. Be guided by remembering creativity.
 
Van Armen: Small and medium sized businesses: it’s a real
burden to take something to federal court when a counternotification is
provided. For us, a big intervention that would help is small claims
process.  Standardized takedown notices
w/open standards would also reduce costs for small and medium sized businesses.
 
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Copyright Office 512 Roundtable: Voluntary Measures and Industry Agreements

Posted on May 3, 2016 by rtushnet
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
issues.
 
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
together?
 
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
together. 
 
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
cooperation.
 
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
opens. 
 
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
this. 
 
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
relief.
 
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
communication.
 
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
sample!
 
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
anti-©?
 
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
online.
 
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
removals.”]
 
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
volunteers.
 
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
excluded.
 
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
unilateral. 
 
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
ways.

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Copyright Office 512 Roundtable: Technological Strategies and Solutions

Posted on May 3, 2016 by rtushnet

 

Official description: Infringement monitoring tools and
services; automated sending of notices, including notice parameters; automated
processing of notices; role of human review; identification of works through
fingerprinting, hash identifiers, and other technologies; filtering, including
“staydown” capabilities; fair use considerations; identification and tracking
of repeat infringers; and other pertinent issues.

 

 

JC: what tech is potentially available to help notice
senders and responders?  How does it
relate to incentives provided under the law?
Interested in details, costs.

 

 

Sofia Castillo, Association of American Publishers: Many of
our members use tech to address piracy on a regular basis.

 

 

Jonathan Band, Library Copyright Alliance: our concern is
overnotice, overtakedown, and harm to fair use.

 

 

Michael Housley, Viacom: oversee our tech vendors, Content
ID; we’re constantly dealing w/vendors in marketplace

 

 

Sarah Howes, Copyright Alliance: don’t know anything about
tech, and that’s like the artists I represent.

 

 

David Kaplan, Warner Brothers Entertainment Inc.: Use tech
fingerprinting and scanning in enforcement.

 

 

Michael Petricone, Consumer Technology Association: 2200
innovative companies, many small businesses, many 512-reliant.

 

 

Eugene Mopsik, American Photographic Artists: photo artists,
routinely use various tech means to discover unauthorized use of images;
founding board member of Plus Coalition, created to help ID rights information
and connect rights holders w/market.

 

 

Casey Rae, Future of Music Coalition: Primarily interested
on artist side; accessibility and affordability of detection tech; intersection
w/data integrity w/identification tech.

 

 

Steven Rosenthal, McGraw-Hill Education: Oversee
antipiracy/anticounterfeiting program, work w/vendors who identify piracy and
further our content protection needs.

 

 

Mara Schneider, Musician: Here speaking as someone who sees
tech around me used to monetize content and make it easy for uploaders but I
don’t have access to for takedowns.

 

 

Brianna Schofield, University of California-Berkeley School
of Law: Research study looked into use of tech by notice senders and OSPs.

 

 

Matthew Schruers, Computer & Communications Industry
Association: Licensed distributors; intermediaries that provide tools for
users.

 

 

Lisa Shaftel, Graphic Artists Guild: Illustrator/educator of
graphic designers about business and © licensing and monetization and use of
tech to find infringing uses.

 

 

Victoria Sheckler, Recording Industry Association of
America: Work w/antipiracy dep’t.

 

 

Howie Singer, Warner Music Group: Chief technologist at
strategy group: evaluation of tech that can support or threaten music business.

 

 

Lisa Willmer, Getty Images: availability of image
recognition software and what mechanisms we don’t have to bring leverage on
ISPs to actually use that tech.

 

 

Nancy Wolff, Digital Media Licensing Association: Tech used
for purposes of licensing and image recognition that’s available and what can
be done to make it more useful.

 

 

Andy Deutsch, Internet Comms Coalition: transmit and host
content; interest in tech changes and cooperative efforts to develop best
practices for 512.

 

 

JC: Heard lots about challenges of system on both sides, in
terms of sending notices and volume of notices, some of which are not properly
prepared.  Is tech a big part of the
answer here?

 

 

Castillo: Yes, tech is a big part of the answer.  Partly b/c there is strong opposition to
legislative solutions.  Voluntary
agreements and best practices have their limitations; don’t include everybody.
Filtering, fingerprinting, watermarking is possible, even if not perfect; a
good start. They actually would provide more effectiveness rather than just
efficiency to notice and takedown. Scribd’s BookID fingerprinting system: an
algorithm that incorporates word count, word frequency, etc.  Matching content can’t be uploaded/is removed
from site.  Possibility of challenging
BookID based removals.  Good example of
places where we can start building on tech and tweaking filters so they
eventually become more accurate and fewer false positives. Tech-based solutions
are good b/c 512(m) prohibition wouldn’t apply if information comes from DMCA
notices/already provided by © owners.
This would be information ISPs already have.

 

 

JC: why did Scribd adopt that tech?

 

 

Castillo: Don’t know the history.  Where they get the info: references from ©
owners or authors; information from DMCA notices.  This would be a way to reduce their intake of
notices; once you have a filter the reuploading process, you get fewer notices
which is better for the ISP. [Yeah, right.
Of course, if you’re an ISP that didn’t get flooded with notices in the
past, developing fingerprinting is just
a cost.]

 

 

Band: The internet is vast; copyright owners can use tech to
find infringing material; tech includes Google. There’s a danger of using these
tech measures to get false positives. Filtering needs to be voluntary.

 

 

JC: you say tech has to play a role and you’re concerned
about inaccurate notices.  On a practical
level, how do you address that?  Given
that tech tools are necessary to this process, how do you address overnoticing
and overtakedown in a way that might actually work at scale?

 

 

Band: not possible—it’s an imperfect world.  Good faith belief that content is infringing;
software can’t have a good faith belief. We need to suspend our belief to some
extent.  Not sure there’s anything from a
policy perspective.

 

 

JC: could decrease errors, but errors inevitable?

 

 

Band: yes, we need to recognize that. We need to acknowledge
that instead of denying it.

 

 

KTC: In terms of tech, assessing fair use—is that actually
possible to use tech to comply w/court saying content owner must consider fair
use?  If it’s a tech that only captures
full length films or sound recordings plus some other factor?  Could it be completely automated and subjectively
in good faith?

 

 

Band: Besek brought this up w/r/t Lenz amended opinion; I won’t speculate about why the 9th
Circuit removed that line. At the very least, tech can be developed to consider
some of these factors. Whether that would necessarily in a given case be
sufficient, I don’t know. You’re not going to have a lot of cases like Lenz.
Rightsholders should build that screening into their system, and it might
result in errors once in a while.  If a
takedown is challenged, once in a while they might have to litigate that. Once
in a while, they may have to pay damages. Cost of doing business.

 

 

Housley: there are tech available today that correctly
deployed can be used to find, especially, unedited content.  Viacom gives a wide berth to fair use.  Focus will always be most damaging content,
which is full length. Existing tech helps us manage that. We’re selling tech
short if we don’t think we can come up w/something better than fingerprinting.
AI and machine learning: the sky’s the limit to ID content.  It may be that the original intent of the
DMCA to have ISPs and owners work together has been distorted; incentive to
fine tune tech is no longer there.

 

 

JC: are you familiar w/tech in market?  [Yes.] We heard about Content ID and
Scribd.  Are there third party vendors
who offer filtering as an outside vendor to sites who might be interested in
using tech?

 

 

Housley: yes, there are.

 

 

JC: are there any websites other than YT and Scribd that
have adopted staydown tech through custom or third party software?

 

 

Housley: there are Audible Magic sites—Facebook has started
to develop its own system. There is also Vobile.

 

 

JC: wants to know more about third party services and
fingerprinting.

 

 

KTC: how does that work in getting the needed info to create
the hashes or fingerprinting?

 

 

Housley: on the creator side, either they provide the tools
and we put it into the database, or we give the content to them. Creators can
get fingerprints in and deploy the tech on any site.

 

 

Howes: individual creators are very excited by the online
opportunities to control their work. We are seeing tech being developed by OSPs
that are helping individual creators, which gets to legislative intent. As
artists, we are very collaborative people.
Hamilton wasn’t made by one
man but by a team of people who came up w/solutions. Artists can build really
successful platforms; when it comes to piracy on other platforms, there needs
to be more access. Individual creators: still using reverse image searches and
Google alerts, which is ineffective. On top of that, have to ID every
individual contribution of their work.
Control is part of your ability to make a living.

 

 

JC: Is there anything in the market that individual creators
can use to search for content that’s affordable?

 

 

Howes: I don’t know.
There might be.  There are some
services Mopsik can talk about.  Many
individual artists are still new to this.
There are platforms created by artists trying to figure out more
collaborative ways to involve the creator, similar to Content ID: most
successful part of Content ID is that it asks the creator what to do w/the
infringement.

 

 

Kaplan: tech is part of the solution.  There are no silver bullets.  That shouldn’t be a reason to discount the
use of tech.  Tech will evolve over time
so that it’s increasingly accurate and less expensive. Things that may not have
seemed reasonable 5 years ago will.  Not
so much about software—use of tech is almost always mixed w/human review/setup.
Notice sending/scanning at scale; often human review results in errors. Tech
itself has a lower error rate.
Facilitating fair use: definitely; matches can be ID’d by duration
relative to overall length of work. YT developed w/content ID.  When we talked to YT first 7 years ago—it
worked to a limited extent, but needed a ruleset associated w/content about
leaving up v. taking down—we thought they were overblocking and taking down too
much that we’d leave down. We became comfortable we were giving fair use enough
of a berth.

 

 

JC: human component in setting parameters for software.  Talk more about that?  Human review at the other end when
flagged—how does that integrate?

 

 

Kaplan: Depending on what piece of online policy we’re
addressing.  Scanning in framing
content—there’s a universe of pirate sites, not the entire internet, so we use
human review to decide where to scan in the first place. Word matches, word
exclusion.  Google notice: run searches
and human reviews to see if it’s a link to a pirate site. Filtering: humans set
up what content to look for; duration of match before action is taken;
sometimes the action is “human review” if the match didn’t fall into certain
parameters.  Can decide based on whether
it’s Audio, video, both.  Can also do
rulesets around territorial restrictions.

 

 

JC: are they trained in fair use?

 

 

Kaplan: in our case, yes. For less than full
feature/episode, that’s [heavily ?].

 

 

KTC: Schofield’s study identified issues
w/misidentifications—do you share concerns about improper notices?  Are there ways  to reduce concerns?

 

 

Kaplan: there’s always potential for increased errors. It’s
usually the fault of the human.  Can
reduce errors w/tech.

 

 

Petricone: Tech is very exciting and promising. Content ID:
99.5% of music revenues are now made w/Content ID, 99.7% accuracy. New model of
revenue—Ben Affleck interview set to “Sound of Silence” went viral, drove the
song to the top 10 50 years after its release. Fan uploaded content accoutns
for 50% of music revenue on YT.

 

 

JC: not everyone is able to take advantage of Content
ID.  Can you speak about that?

 

 

Petricone: Not right now.

 

 

Mopsik: Tech for motion pictures, Excipio is a company that
also extends to ID unlicensed uses.
Service providers in image space who use their own fingerprinting
algorithm and then the list has to be evaluated by the rightsholder to
determine what’s licensed and what’s not. The missing link in the image space
is the ability to identify what is an actual licensed use and what’s not.
That’s something Plus Coalition has been working on for years; predicated on
ability to establish a persistent machine actionable identifier. W/o greater
penalty for removal from images, that link will never happen.  Plus has an identifier w/ the image, w/all
licensing info held in an updatable database.
If you’re able to make that link, then machine action can determine
authorization.  W/r/t fair use: photog
are not particularly knowledgeable about fair use; images are rarely used in
snippets, and that can have significant impacts on market over time.

 

 

JC: do individual photographers have access to an affordable
service?

 

 

Mopsik: the fees are not significant. [Note: I originally misunderstood his comment.  He clarified: “The fees I was referencing are for the business services that track and identify copyright infringements for visual artists.  I am not on the board of any of those services nor do I have a business relationship with any of those services.  I am on the board of the PLUS Coalition – a non-profit established to simplify and facilitate the management and communications of image rights.  I receive no compensation from PLUS.  PLUS does not have an e-commerce component and its technology and resources are open source.”] They take 50% of any recovery. They have a legal services
component and pursue the infringement.

 

 

JC: they send a takedown notice?

 

 

Mopsik: they will. [No, they sue.]  Frequently, takedown procedure involves
chasing phantoms.  Or people takedown but
may have been using it for years. There’s a lot of attitude involved when you tell
them that there should be compensation.

 

 

Rae: Primarily we’re talking about ID tech, that’s
512(i).  Earlier, it wasn’t practical on
the service side to implement tech to do this. On the content side, they always
want new favorable legal precedent and damages.
We’re in a new place now. 512(i) encourages the creation of new standards.
But the method of deploying that is collaborative effort.  We have to get our processes dialed into
that. I’d like to see vendors, smaller rightsholders, ISPs in a body that can
provide recommendations not just once but on ongoing basis, given new tech
environments—virtual reality, etc.  Fair
use is interesting; my preference would be less focus on the entirety of a
work.  We can probably solve many
problems through process focused on practical implication.

 

 

JC: did you participate in Dep’t of Commerce process? [yes]
Where do things stand? Written comments expressed pessimism about ability to
get together and get standard tech measures.

 

 

Rae: optimistic, though Dep’t of Commerce process was more
of a cattle call. Better to focus on those who are representative of the
stakeholders, like the Copyright Alert process.

 

 

Rosenthal: burdens of developing tech: the same tech used to
ID infringement, like hash values and checksums, can be used to filter the
materials by sites and prevent whack a mole. It’s not new tech that needs to be
developed.  Intentional avoidance of tech
by ISPs to avoid claims of willful blindness in terms of not logging IP
addresses, so that DMCA notices are effectively rendered impotent.  Lots of frustrations when we try to enforce
our rights. Why can’t you use the same tech we’re using: IP address, hash
value.  Reinventing the wheel: tech is
out there.  We developed live streaming
filters that fingerprint and filter livestreaming TV and pay per view in real
time.  Some sites created their own tech
to do this.  Willingness is needed.

 

 

KTC: Unwillingness: Do you think there’s a disincentive in
512?

 

 

Rosenthal: in terms of logging IP addresses, Cox v. BMG
creates a disincentive to do so to avoid willful blindness. In terms of
non-filtering ISPs: many of these sites are run primarily by hosting and
distribution of content known to be infringing. If we cleaned up their site,
they’d lose the majority of their content/appeal.

 

 

Schneider: Obviously, there will be error. Machine learning:
translation on the internet learned so fast. If you compare it to the billions
of errors in people uploading things, it doesn’t compare. Tech should be used
in conjunction w/education. Automation w/o education: Content ID.  I should be accepted into Content ID as a
condition of safe harbor. Also being used for uploading and people think
they’re doing something good b/c it’s being monetized. But they’re also
catching my music, which isn’t being monetized and it’s hurting me, and fans
don’t realize that. It should say: this isn’t in our database of Content ID, so
if you don’t own it, don’t upload it.
Everyone’s complaining about erroneous takedowns and counternotices;
education is required.

 

 

JC: Why can’t you join Content ID?

 

 

Schneider: automated response gave me the impression I
wasn’t big enough.  They don’t say
why.  Secret terms.  They’ll send someone to talk to you, but Zoe
Keating was bullied into giving her whole catalog—all or nothing. Safe harbor
shouldn’t allow you to use these tools for their own gain.

 

 

KTC: On the notice side, popups appear to caution about
whether you took the picture. On the upload side, what cautions are used?

 

 

Schneider: this is the biggest educational thing.  Standardized requirements and questions for
all upload sites.  You have to sign
penalty of perjury on the notice side. Upload: ask under penalty of perjury if
you have permission, and warn about possibility of atty’s fees. Tell them what
isn’t fair use.  I’d love to see the
Copyright Office set the standard.  [I
wonder if she wants to go through this every time she sends an email with an
attachment, or an email long enough to contain song lyrics.]  Standardized: you have to accept Google’s TOC
and go through 46 steps. If you’re in a safe harbor, that should be a
privilege, not a right, have to adhere to standardized rules.

 

 

Schofield: In our research, we spoke to and heard rights
holders’ frustration w/dealing w/proliferation of infringing content online.
Automated tools are one way of dealing w/this to detect infringement. We ID a
number of best practices for refining those systems, minimizing mistakes. We
heard from rights holders who are already employing best practices, including
human cross checks and checking the sites that are targeted. These are good.
Tech strategies on OSP side: some are voluntarily implementing them; we see
good reasons for them to remain voluntary not least of which b/c huge amount of
the ecosystem doesn’t have the kind of volume of infringing content that would
justify imposing these systems.

 

 

JC: Smaller providers/w/o lots of infringement, ok, but if a
site is using filtering to place ads/for own economic purposes, should that be
available for rightsholders?  Websites,
sophisticated larger websites, use fingerprinting for their own purposes—to ID
content to place ads on it. If it’s already in use by a website, should it be
made available to people like Schneider. Should she be able to use Content ID
if they’re already using it and it’s available to other rightsholders?

 

 

Schofield: can’t comment on that specifically.  [Ad tech doesn’t “fingerprint” files in the
way that she thinks they do, I’m pretty sure. What would be the payoff?  Keyword use, sure.]  If a tool has been developed to combat
infringement, yes, it should be available to everyone.  We recommend trying to make systems broadly
available, with caveat re: using the same best practices.

 

 

KTC: There’s been a lot of focus on the #s of improper
notices.  You seem to support use of
automated systems despite finding a lot of improper notices?

 

 

Schofield: use of automation on the sender side is an
important part of the solution, but they can be refined.

 

 

Schruers: As I was listening, I was reminded that the
internet sector is occasionally criticized for technological solutionism: but
here we hear that our tech can be solution to all problems. Appreciate the
enthusiasm but we should understand the challenges.  DMCA Plus is expensive.  It doesn’t make everyone happy.  And it’s a tool of limited
applicability.  Only meaningfully applied
in 512(b) and (c), so half our DMCA actors aren’t within the scope of
that.  512(a) aren’t taking custody of
the content, and can’t filter unless they create a firewall. Nor are 512(d)
services hosting content, and don’t have a library to filter against. And of
course all that assumes a populated database and a contextual ruleset about
what you do when you find content in the DB. Clear in PTO process that there
are large entities on both sides and small entities on both sides. Small ISPs
face a real challenge in scaling up automation. Small ISPs have to be able to
take notices by fax, email, etc. Automating that is a serious challenge. If we
said “it has to be a webform,” that might be easier to automate, but I don’t
see that happening any time soon.

 

 

JC: different solutions for larger and smaller websites?
[Where does Wikipedia fall?]  Few notices
= manual; millions = different.

 

 

Schruers: that’s what we see today. Small ISPs will always
do manual takedowns, bundled w/other unrelated claims like defamation. Large
ISPs also handle that, but as smaller percentage; architecture assumes
sophisticated users.  [Remember, large
site isn’t the same thing as large number of notices: Wikipedia!]

 

 

JC: could set different standards for different classes.

 

 

Schruers: could do for 512(a), (b) etc. PTO process tried to
do that, and people didn’t seem happy w/it—heterogeneity on all sides.

 

 

KTC: Is there anything that can be done absent or with
legislation to encourage voluntary use by ISPs?

 

 

Schruers: if it’s legislation, it’s not voluntary; but there
are processes over time tailored to the constituents around the table.  Large notice senders can take advantage of
automated systems. In terms of access to DMCA Plus systems: privileged access
to the back end of a platform, allowing people to take down or claim
revenues–you will want the users of that system do reasonable things like
indemnify the platform for misrepresentations about what you own.  Stakeholders should have a demonstrated
course of legit use of the tools. If that isn’t there, use the DMCA.

 

 

KTC: I didn’t mean mandating use of a tech measure, but
maybe decreasing exposure to statutory damages if you filter.

 

 

Schruers: basic complaint from ISP is difficulty of
responding to messy, hand-coded notices; there’s already a lot of incentive to
reduce that burden, which is why they’re always looking for new tools like the
PTO process.

 

 

Greenberg: There are no STMs. But ISPs are concerned about
locking stuff into place. Neither will work, so what’s the solution to
encourage the use of tech measures by the ISPs?

 

 

Schruers: cost of responding to notices is encouragement,
especially since some will always have to be dealt w/by hand. That’s a
compelling motivation right there.  Allow
tech to evolve over time.  Acknowledge
broader marketplace: there isn’t going to be as much unlicensed if it’s
available licensed, with less aggressive windowing.

 

 

JC: so maintaining the fax # requirement incentivizes
Content ID?  I kid.

 

 

Shaftel: Should make it a violation for host to strip
metadata through upload; makes Plus system for images useless. Should be
voluntary licensing w/Pinterest, FB, YT—users aren’t compensating, and there
should be collective licensing. Adobe could create identifiers for software
users, which could also be used as part of Copyright Office registration.
Creator ID could facilitate electronic payment, voluntary transactions.  Tech is possible.  Visual creators are more likely to use this
if they know they’ll derive an income. We’d need to define commercial use in
the context of licensing as opposed to fair use. Getty has guidelines in its
web feature; definition would have to be approved by museums and libraries, b/c
we are mostly concerned about allowing them fair use. If users paid for
commercial use, they’d have safe harbor from DMCA takedown.

 

 

Sheckler: Tech does exist that is commercial, reasonable,
and reasonably price.  Audible Magic is
available at $1000/month for certain limitations. Key is thoughtful
implementation of filtering which isn’t just parameters of tech, but also rules
on top of that.  Content ID has a variety
of problems that could be addressed.
False positive issue: thoughtful implementation would address that;
Takedown Project study is inappropriate for thinking about fair use. Price of
admission—only applied to search; applied to a snapshot from 2013; it is
targeted sample.

 

 

JC: you mentioned thoughtful implementation.  Can you elaborate?

 

 

Sheckler: Review to see site is fit for scale notices.  We’re not going to search .pdf for music. And
Audible Magic you want to catch all/substantially all of the work.

 

 

Singer: It’s not always about tech but the business
processes that go along with it.  Stacked
URLs defeating takedowns: this isn’t a bug but a feature of sites designed to
be robust to individualized takedown notices. Get a prerelease song and never
publish the URL of the actual location but create 1000 references and publish
100/day.  Each day they issue takedowns
and the content is never removed.  Notice
and takedown individual URL system can never be effective when site works to
defeat the system.  “Pez dispenser” for
valuable content. Grooveshark.  [Why
isn’t this already illegal under the DMCA?]
Standards could be based on size or on how responsibly they deal w/that.
Warner and Viacom should be treated better than people who send bad notices. We
should look at bad actors: majority of our notices to 4squared are
repeats.  We can verify an account on
Twitter, so why not for takedowns?

 

 

JC: how common are the Pez dispeners sites?

 

 

Singer: We’ve found it in other cases than Grooveshark;
unlikely that a user upload was the source of the same song on the next day w/
a nearly identical URL.  [Why is that ok
under the current DMCA?]

 

 

JC: Is there a tech solution?

 

 

Singer: if there were notice and staydown that said this
song shouldn’t be available.

 

 

JC: anything w/o staydown?

 

 

Singer: not for those who are trying to undermine the
effectiveness of the process?

 

 

Willmer: there’s no content ID for images; the tech exists
but Google has chosen not to implement it; voluntary action isn’t enough.
Congress mandated use of STMs; that was key to striking a balance. The
definition of STMs was too narrow. There’s no tech that meets it so it’s
meaningless. Focus should not be on how the tech was developed but on what it
does and whether it’s available on reasonable terms. There is a way to check
images on upload to see if it’s registered.
Platforms educate users about perils of filing takedown notices: Are you
really sure about that? Even if it requires personal info? Imagine if they had
the same interest in educating users. What if it said when you uploaded a photo
in the database “this photo is protected by ©–please ensure that you have a
license or that it’s fair use,” with a guide to fair use.  [Um, if I took it, it’s also protected by
©–you mean something else, right? Or is © only for you guys?]  Sites that block crawlers should also not be
allowed immunity.  [So, no DMCA for
Facebook, eh?]

 

 

JC: Google?

 

 

Willmer: frustrating. We don’t have the clout to get Google
to provide what they’ve provided to other industries.

 

 

KTC: popup education: what is the cost of takedown steps?

 

 

Willmer: having content on the site benefits the site so
it’s clear that the incentives are for the content to be put on the site, not
to stay off if it’s not licensed.

 

 

KTC: is the lack of STMs just w/r/t images?

 

 

Willmer: I’m aware of none.

 

 

JC: I did see some references that metadata would be a STM.
Do you have an opinion on that?

 

 

Willmer: don’t think it meets the 512 definition. It’s a key
identifier of © ownership, and part of the problem is that the metadata is
often stripped, particularly when uploaded to large platforms. They take the
position that it increases the size of the file.

 

 

JC: any litigation over that?

 

 

Willmer: no litigation to my knowledge.

 

 

KTC: Is anyone aware of a STM that meets the 512 definition?

 

 

Scheckler [?]: CafePress case, but that was settled.  Didn’t say it was or wasn’t.

 

 

Wolfe: Google image search—we talked about wouldn’t it be
helpful if it said “images may be subject to ©” and they listened and left the
user experience the same way. Everything’s about the user experience, not a
healthy licensing market. Image recognition tech is only the beginning—the
amount of images online, and the requirements for sending a notice, are
inefficient and burdensome.  Really
hasn’t aged well.

 

 

Deutch: ISPs aren’t averse to tech. We want best practices.
Problem w/mandated tech measures that don’t start from negotiated process is
enormous variety of ISPs. Google is one, but there are 1000s of designated
agents. Some are not in a position to implement the fancier and perhaps more
promising tech.  They believe 1998
bargain was: © owners ID content they think is infringing and ISPs have to take
it down; that remains appropriate and filtering is not really workable.  Data is frequently atomized; can’t tell who
it belongs too. Large content users often encourage fans to post © materials;
impossible w/o invading privacy for ISPs to figure out what’s tolerated.  No magic bullet, but everything has to be
done in cooperation, as DMCA itself was.

 

 

JC: You say filtering can’t work, but YT uses it and we have
other sites that are clearly all unlicensed content. If © owner is sending
notice to a full length use, by definition they know it’s not licensed.  Why is filtering an impossibility in that
environment?

 

 

Deutch: that’s the job of suing the website: hotfile,
grokster, aimster, napster, scour have all gone down: whenever © owners have
really faced a rogue site, the effective way of dealing with that is a direct ©
lawsuit; if they’re doing what you say, they don’t have any claim to safe
harbor and  courts repeatedly said they
don’t.

 

 

JC: but DMCA did envision collaboration, and that hasn’t
happened as much as some would like. So we should have litigation?  That’s expensive for both sides.

 

 

Deutch: it’s difficult to filter consistent w/other values:
user privacy, undue burden on ISPs.
Nobody has yet spoken to a scalable tech for all ISPs—continue to let
tech develop.

 

 

KTC: Anything to be done short of mandating the adoption of
certain tech?

 

 

Mopsik: IPTC has a great study if you search for IPTC
metadata study: Chart that tells you which metadata is maintained/stripped on
upload to most popular social media sites.
Image Rights is one company that provides this service for photogs.

 

 

Schneider: in 2008 HEOA passed for universities, perceiving
that students were responsible for so much infringement.  NYU is using Audible Magic. They have to do
educational steps and report them.
People at universities say it’s working relatively well, not an
inordinate burden. I’m a big fan of a rating system for people who do
takedowns.  Rating creates accountability
and encourages education. Everyone is complaining about a purposeful lack of
education. Use the tech for education.

 

 

Schruers: Paradigmatic example given of easy infirngement
case was “full copy” but remember this very court in which we sit found that
full copies were fair use.

 

 

JC: what else can you use to draw a line for automation?

 

 

Schruers: which raises the question of whether that is a
good idea. Solutionist view of technology is not a panacea.

 

 

JC: so is every full-length use in need of review by a human
person? How is that plausible as a solution?

 

 

Schruers: It’s not a solution, but it’s the law.

 

 

JC: but you’re trying to solve a sea of infringement, and
we’re trying to solve that.

 

 

Schruers: can’t assume it’s inherently infringing.

 

 

JC: but they have to assume it to run an automated system,
even if there’s a remote possibility of an error.

 

 

Schruers: which is my broader point: there are built in
limitations to what we can reasonably automate, which is why we see differences
b/t DMCA-plus systems. Just b/c the entire internet hasn’t adopted DMCA-plus,
doesn’t mean there’s not extensive cooperation w/rightsholders, tailored to
particular platforms.

 

 

KTC: it has been difficult to develop STMs. Do you see any
path forward?

 

 

Schruers: mistaken premise that STMs are the only path
forward.

 

 

KTC: DMCA said it should be a possibility; to avoid that
becoming a nullity, could we do something to make it a reality.

 

 

Schruers: we’re on the path forward in different parts of
ecosystem. DMCA misassessed the probability of homogeneity, but shouldn’t
discount the robust variety we’re seeing in different spaces optimized for the
platforms we’re seeing.

 

 

Scheckler: There are reasonably priced techs available today
that would significantly reduce the volume of notices and counternotices.  W/r/t PTO process, I was heavily involved,
and while it had some helpful outcomes, it didn’t discuss STMs.  DMCA doesn’t say there can’t be flexibility.
They’re not coming to the table.

 

 

KTC: what would encourage them to come to the table or to
voluntarily employ some of this tech?

 

 

Scheckler: we stand ready to work w/you and Congress.

 

 

Willmer: The best leverage Congress would have is to
condition immunity on coming to the table and being willing to implement
available tech. Congress wanted to keep the works from going up in the first
place rather than having them taken down. [Hunh?]

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Seen on the way to the Copyright Office hearings

Posted on May 3, 2016 by rtushnet

Check out the “O” in the Chinatown mural, to the right.  After the Hangover II case, does LV have a cause of action?

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Copyright Office 512 Roundtable: Scope and Impact of Safe Harbors

Posted on May 3, 2016 by rtushnet
Scope and Impact of Safe Harbors
 
Official description: Scope of entities and activities
covered by safe harbors; incentives (and disincentives) for creators, copyright
owners, online providers, investors, and users; impact on licensing activities;
effectiveness of remedies, including ability to proceed in federal court in
case of disputed notice or misrepresentation; economic impact on creators,
copyright owners, service providers and copyrighted works; relevant empirical
data; and other pertinent issues.
 
KTC: Purpose to protect innocent service providers: is that
what DMCA protects now?  Definition
correct, too broad, too narrow?
 
Lisa Willmer, Getty Images: scope is too broad: supposed to
be true tech services providing the pipes behind the scenes. Now it’s those
engaged in storage and display who bear no costs or responsibility while
content draws users to their sites and generates ad revenue. Different cost
structure than other legit content companies who compensate creators.
 
Jeff Walker, Sony Music: Broad safe haven for non-passive
entertainment platforms to offer content to consumers. I negotiate w/legit
platforms as well as partners who use the safe harbor, and we have Hobson’s
choice to accept less than fair value or go to broken notice and takedown. Most
DSPs we approach to say they need a license, they say they aren’t interested;
when we start to send takedowns, they are willing to negotiate, but they will
offer only small amounts. Our business shrunk 50% since the advent of the DMCA
while platforms continue to grow.
 
KTC: If you think that the covered service providers are too
broad, is the issue that the statute is too broad in its definition or is it
courts too broadly interpret who should qualify?
 
Matthew Schruers, Computer & Communications Industry
Association: Not sure where “innocence” resides in 512.  Service providers that comply w/the statute
receive its protections.  Statute was
intentionally broad. Congress didn’t intend to lock in only 1998 service
providers and structures.  Two clear
specific categories: (a) and then (b)-(e): broad understanding and expectation
that services would grow. Broadband under (a), and virtually every other
kind—info location tools, info residing online at user direction which
encompasses many other platforms; that was intentional broad scope.  Not useful to try to circumscribe; not in
statute; economically destructive b/c it prevents change from 1998
configurations. This is our largest service exporter, trillions in commerce
every year.
 
Ellen Schrantz, Internet Association: Statute and courts
must keep it broad to avoid favoring incumbents over new companies. Most of our
companies didn’t exist in 1998 or even 5 years ago.  Investors, VCs are unwilling to boost new
services in uncertain regulatory environment. It’s been proven that one of the
best way to stop infringement is to grow the legal licensed market.  That reduces piracy and should be encouraged.
 
Maria Schneider, musician: Safe harbor is a privilege, not a
right.  When they created the DMCA,
nobody conceived that a company like Google’s empire would become the most
powerful asset in the world.  Odd that
this is built on abuse of copyright.  Yet
they guard their IP like Fort Knox.  YT
grew by influencing user behavior. Infringers are allowed to monetize illegal
content; there are no checkpoints; allowed to put up full albums which isn’t
fair use. Blind eye to obvious infringement. Offering to pay atty’s fees;
misleading users on fair use. Demonizing and intimidating musicians… the list
goes on.
 
Natalie Madaj, National Music Publishers’ Association: Much
to broad: they’re content distributors not service providers: Soundcloud and YT
use DMCA as a weapon to negotiate below market rates. I handle licensing, and
in licensing negotiations we have a choice to accept low rates or continue to
police; mostly we take that small amount of money to members’ ultimate
detriment.
 
Troy Dow, Disney: purposely broad, but also designed to
distinguish good actors from bad within broad categories; courts have
misapplied the standards to include people who do more than hosting to
manipulating and creating distribution channels for content.  Cases where 9th Cir. applied (a)
to a hosting service in the form of a Usenet service, hosting material for 14
days.  Ellison.  Netcom held that Usenet services could
be held accountable, but courts now apply (a) to Usenet, so no notice and
takedown. In each bucket, courts have applied it to wrong ISPs.
 
Joseph DiMona, Broadcast Music, Inc.: Safe harbor should be
limited to innocent services; applied far too broadly. There’s always been a
mere conduit exception in §111. But now websites claim and game the safe
harbors. Shouldn’t be eligible if they actively induce entertainment content
posting when they well know the rights aren’t held by users [isn’t that already
outside the DMCA?]; require users to grant ISP license rights; license along
with the users; failing to use commercially reasonable tech that’s available at
decent prices; those should keep you off safe harbor island.  His opinion: look hard at definition of
direct financial benefit in the modern world. What we see now: using
entertainment content as giveaway for selling search, merchandise, data mining,
other types of content.
 
Sarah Deutsch, Mayer Brown: Was intentionally broad to cover
all kinds of ISPs, hosts, conduits, providers of facilities.  There was no discussion about passive or
innocent ISPs. The definitions go to the functions of the ISP; how much control
you had—hosts had duty to take down and immunity from good faith takedown.  512(l): failure to qualify for safe harbor
doesn’t necessarily mean they’re liable for infringement.
 
Matthew Barblan, Center for the Protection of Intellectual
Property: Important to keep in mind innocent ISPs and other purpose of DMCA,
chief of which is creating online ecosystem where © owners can safely disseminate
their works w/o fear of being stolen or infringed. We’ve heard from creative
community that the second purpose is not being fulfilled. Blame is overly broad
scope of the safe harbors.  Hard to
imagine Congress intended this.  Ability
of search engines to continue to index a site like Pirate Bay when there are
millions of takedown notices; clearly targeted at infringement.  Senators explicitly recognized that there
shouldn’t be a safe harbor for a site like that. Yet courts allow search
engines to continue w/o fear of losing safe harbor. Sites that post UGC: courts
have interpreted safe harbors so that even general awareness of 50-60%
infringing content isn’t enough to lose the safe harbor—that leads to the
inefficiencies of the DMCA.
 
Sandra Aistars, Arts and Entertainment Advocacy Clinic,
George Mason University School of Law: Dow, DiMona, etc. are right.  Independent creators say the environment that
currently exists for enforcement, whether created by courts or by parties
involved, is leading to disincentive to create. Obligations of statute have
been interpreted too narrowly.
 
Allan Adler, Association of American Publishers: Saw on
previous panel that basically anyone can set up shop on the internet, and as
long as they have a designated agent and a repeat infringer policy and respond
to actual notifications, they qualify for the safe harbor. The problem with
that is that there are sites that have active business models in which they
invite users to upload attractive material, largely films, music, books.  So they can earn money through ads or
subscriptions. And yet they still claim safe harbor protection. Congress should
consider whether the ISP employs a business model or site structure that
attacts infringing uploads and if so takes reasonable measures to prevent that.
You should look to see whether it allows anonymous uploads. Whether they
reward/incentivize popular infringing content. Whether they allow uploader to
get links to publicly distribute. Whether they allow unlimited downloading by
anonymous third parties unknown to the user. 
Hotfile dealt with that, but
Congress should do more.
 
KTC: A couple of people mentioned licensing.  In your view, does the DMCA regime negatively
impact licensing? Ability to negotiate w/ISPs.
 
Willmer: yes.  Sites
tell us to send takedowns, cutting short negotiations.  Win-win = still less than fair market value.
 
Walker: more licensing: in our conversations w/Apples &
Spotifys their #1 complaint is that they’re competing w/free. They pay rates
that allow us to create the content, while safe harbor reliant platforms
contribute miniscule amounts of money to the business.  Whack a mole is now about all the different
sites all entertainment platforms we have to have conversations w/one by one,
frustrating from a commercial perspective, b/c they won’t pay enough to
actually justify the use of the content. Made more from sale of vinyl than it
made from sal
 
RT, OTW: Quick reminder: wanting to license doesn’t entitle
you to license.  HathiTrust.  Statutory damages demands would otherwise
have shut down the internet: that was the point of having a takedown procedure
rather than requiring everyone to license.
 
JC: for fair use sites, I understand. What about a site
that’s just loading up full length movies, books, sound recordings.
 
RT: I don’t think they’d survive under 512 any more than
Grooveshark and Hotfiles did. You’d find the evidence of inducement in
discovery.
 
JC: but what if they were complying really well with the
DMCA?
 
RT: then they wouldn’t be behaving in the way described by
the content owners complaining.  YT
starts out not clear about its business model—the first video is a guy at the
zoo. The fact that people use it in various ways, including for infringement,
at one point in time doesn’t mean that’s what it stays.  Business model emerges; shouldn’t be shut
down b/c it was used for a lot of infringement at one time, and Congress very
clearly wanted to ensure that would happen.
 
Schruers: Hypos for real cases that haven’t been brought and
the sites haven’t been exonerated under the DMCA aren’t good examples. Viacom
is a case in which their own people were uploading Viacom works to the YT site,
so it’s not a great example of a case that should have come out the other way.
 
Is licensing even germane to a 512 conversation? Maybe, but
need to consider that.
 
Schneider: Independent musicians can’t play this game. I
wasn’t accepted into Content ID.  Bad to
call YT a legit company, and all you have to do is type in “no infringement
intended,” drivel the same as Fred von L’s copyright basics video which is
completely inaccurate assessment of fair use—constant intentional misleading of
people on this site.  I’m going to tell
composers not to try this. 80% of songwriters in Nashville have quit.
 
Walker: had similar experiences w/sites that use DMCA as a
weapon to avoid licensing entirely.  Q
why you don’t just sue about disagreeing with DMCA interpretation. Our goal is
to license, not to sue; Congress wasn’t trying to encourage litigation.  [Congress also wasn’t trying to get it so you
didn’t have to sue if you thought someone was violating the law.]
 
Adrienne Fields, Artists Rights Society: Cheaper than you
can purchase from legit publishers—publishers used to license large print runs,
but now on demand b/c can’t compete with Etsy and eBay’s on demand models.
Those sites offer items on any type of media. Can have work printed on canvas,
aluminum, any size, shipped directly from Eastern Europe or China; sites
protect user privacy. If you’re lucky enough to search and find actual address,
the user ignores you b/c they don’t have the same concerns as legit business
owners—hobbyists or career infringers b/c they know they can hide behind ISP
claiming safe harbor. In the real world, when a demand letter is sent, often we
get settlements or licenses after the fact. When it comes to infringement
online, almost never get settlement/license after the fact.
 
Sarah Feingold, Etsy, Inc.: 1.6 million active sellers on
Etsy, 86% women, most with home based businesses. Q about licensing: what she
sees handling takedown notices; sometimes sellers are naïve and might think
something is ok and the other party thinks its infringement; notices can get
communication and licensing started. Don’t put everyone into the same bucket.
Small businesses can flourish b/c of the DMCA.
 
KTC: content ID/voluntary licensing: does Etsy have any
plans to allow licensing to take place in that way?
 
Feingold: DMCA is a floor, not a ceiling. Content ID cost
$50 million; we use technology and have a dedicated team and work w/rights
holders. But Content ID is really expensive and burdensome and we’re still
small.
 
Dow: Hotfile lost that case on vicarious liability b/c they
didn’t have repeat infringer policy; they adopted a policy after that. If you
fast forward that to the point they did—court went on to discuss narrow focus
on identifying specific infringement; single links to infringing files w/o
removing files. We have sites that cause significant trouble; sent 35,000 on
Avengers to one single site and it didn’t work. 
That was a site designed to ensure persistent availability of
content.  That impacts licensing
discussions. 
 
KTC: does DMCA affect willingness to license?
 
Dow: people have looked to pirate sites to decrease
willingness to pay.
 
DiMona: rare things have value; they eliminate scarcity,
which can’t help but hurt the value. [Which is why bottled water failed as a
business model and still can’t charge as much as soda.]
 
Barnum: Copyright owners have always had to negotiate
compared to the black market.  Black
market is now the #1 streaming service in the world, not just Russian
cyberlocker.  When you go to a service
that wants to legit license your content, price will be based on amount v.
getting it free on YT. Until we resolve that, there will be serious problems
w/licensing. [But we should all impose Content ID on the internet.]
 
Aistars: People who use work to illustrate online
publication know there’s no effective remedy and no reason to negotiate a
license. At best the artist sends a DMCA license. That’s a lost licensing
opportunity.  Middle-class artists: we
had a conversation w/a photog who said they weren’t sure of that b/c most
photogs don’t make it into the middle class. Filmmaker whose film came out on
Netflix, iTunes, in app purchases—ironically, as soon as it was out there, it
began to be available for free on illegitimate sites.  Ironically, the ads served on her work were
for Netflix—but they’re being undercut by those sites.
 
Michael Weinberg: think about 512 in context of not YouTube
and not Google.  There’s a whole other
universe of other ISPs like Shapeways using the space 512 creates. Shapeways
users are pro designers selling their goods online. There isn’t a way they
could to this w/o a service like Shapeways. If you want to print a nylon dress,
you can either buy a ½ million dollar printer or go to a service like us.
Takedown process would be nothing compared to the process you’d have to go
through to clear rights if we didn’t have 512 protection—the kinds of
guarantees you would have to give would be ridiculous. We are empowering
designers worldwide.  One of the shocking
things that happened at Shapeways: some designers infringe, and we forward to
users—the percentage who reacted w/excitement and joy that there was finally
someone they could talk to about a license was shockingly high. Facilitating
licensing in an unpredictable ways.
 
Petricone: Tale of 2 Cities is continuing. Licensing and
broad interpretation is to promote the progress of science & useful arts.
Look at just about any area of entertainment industry, new content is growing
at a tremendous rate. 3 million books in one year up from 250,000.  1700 films worldwide in 1995; now it’s 7000.
Video game industry is blooming. Household spending on entertainment is
increasing and content is exploding. Success of safe harbors should be
determined on this basis.
 
KTC: contrasting that with what Schneider had to say: any
distinction about who’s making it now. Fewer artists?  [No, but they might be making less b/c of
competition.]
 
Petricone: DOL says 53,000 said primary occupation was
musician, now 60,000; self employed musicians grew at faster rate—45% more
independent musicians in 2014 than 2005.
 
Schwartz: acknowledge lower barriers to entry for
independent and individual artists. W/our companies, there are millions of
creators and artists that otherwise would not have access to national or global
or even local markets w/o platforms that rely on 512. Would have needed backing
from major players, but now don’t. 
Incentives of DMCA-Plus voluntary measures: there’s a logical fallacy
b/t those systems not being perfect and the fault of the DMCA. Since our
companies filed companies, several have introduced/updated voluntary measures;
they can do that b/c of DMCA provided certainty.  More fundamental point: wouldn’t exist w/o
DMCA.
 
Schneider: Find me ten musicians who say they’re doing
better now than 2000.  Music Answers
campaign: musicians are desperate to shine a light on what’s going on. The
studies—many musicians read that article and were shocked.  [Many people were shocked when their favored
political candidate didn’t win. We’re cloistered people these days.]
 
KTC: counternotice process: appropriate? Does it protect
against improper notice?
 
Weinberg: only works if it’s only ©.
 
Tushnet: Women and minority creators are often suspicious of
how a big system will treat them. May decline to counternotify even when sure
of fair use.  Our 600,000 creators are
not disincentivized; they’re freed to find their audiences.
 
Schruers: Counternotices aren’t used, but that doesn’t mean
that all those takedowns are ok. It’s important to recognize that there are
complaints on rightsholders’ behalf. There are also user constituencies with
serious concerns about being deterred from counternoticing, not to mention the
cooling off procedure/delay in putback.
 
Schwartz: recent Urban study: counternotice problems; 1/3
notices improper in some groups.
 
Flaherty: we don’t get that many counternotices, but they
are important for balance. Staying down for 10 days
 
Madaj: Shifts burden to file sue in federal court; that’s a
big burden for artists. We receive bad counternotices.
 
Feingold: almost 7000 takedowns; 568 counternotices; the
reason is that people are absolutely intimidated by the process—they write to
us and say it’s David v. Goliath. Very important; we’re also seeing people
claiming © and TM and we see that as abuse.
 
JC: what is intimidating?
 
Feingold: contact information, consent to sue—feel like
they’ll be sued.
 
JC: is that maybe a judgment they wouldn’t win? [Extensive
aside: Why isn’t that a question she asked of the notice submitters who didn’t sue after a counternotice, or after their
notices were rejected, or after they sent a bunch of notices and saw a business
model based on infringement?  It is absolutely
true that, as we were told in the morning, most individuals don’t have the
money to go through a lawsuit, but that affects lots of people on both sides of
this issue.  Content owners say they
rarely get counternotifications so there must be no problem with
over-takedowns; but then they say it wasn’t worth it for them to sue when they
actually got a counternotification even though it was still an infringement, so
the existence of the counternotification isn’t evidence of a mistake or
wrongdoing.  They shouldn’t have it both
ways.  I’m sure the content companies do
believe they’re in the right, just like many individuals who receive
takedowns.  But it makes no sense to
assume that the content companies are always right when there’s no
counternotice and that they’re still always right when there is a
counternotice.  Realistically, both the
low levels of counternoticing and the low levels of lawsuits post-counternotice
show only that litigation in the US is scary and expensive, not that most
notices are accurate or that most
counternotices are.  I just want to avoid
the inconsistency that, to be fair, exists on both sides here w/r/t the
relevance of lack of lawsuits—as Schruers said, it’s very hard to evaluate the
merits of the unfiled lawsuit, but that also feeds into questions about due
process and the function of a DMCA notice as an automatic injunction etc.]
 
Feingold: from my perspective—often I pray they
counternotice, b/c there is clear fair use. People are intimidated by the
entire process.
 
Dow: we receive counternotices and may have to sue—that
affects our strategy of what to send. Perhaps © owners are reluctant to sue and
uploaders are reluctant to counternotice, showing we have a balance.  [Interesting that he didn’t think that
reflected a balance when it came to those rogue sites they haven’t sued on the
front end.]
 
Barblan: secret, unverified survey in Urban—no real
data.  Questionable counternotices.
Narrow in what it looks at. Problematic in determination of what’s fair.
Important not to draw policy conclusions from that study b/c there’s work to be
done. [Instead, draw policy conclusions from the anecdotes of my artists.]
 
Aistars: small claims process might address this. Indiv.
artists/creators could use it.

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Copyright Office 512 Roundtable: Applicable Legal Standards

Posted on May 3, 2016 by rtushnet
Applicable Legal Standards
 
Official description: Actual and “red flag” knowledge
requirements; financial benefit/right to control test; willful blindness;
repeat infringers; good-faith requirements and Lenz; misrepresentation; fair use; use of representative lists;
availability of injunctive relief; use of subpoenas; role of “standard
technical measures”; and other pertinent issues. 
 
JC: Most litigation over knowledge standard—actual and red
flag. Have courts properly interpreted? 
How so/why not? 
 
Bruce Joseph, Verizon: I was one of the five service
provider negotiators; Allan Adler; Troy Dow was on Sen. Committee—no one else
was in the room where it happened.  W/r/t
knowledge, the courts have basically gotten it right. Intent of negotiators was
that infringing content be identified specifically, and that also applies to
red flag.  Red flag is a surrogate for
actual knowledge: a subjective and objective component. You need actual
knowledge of specific infringing material, and it follows from the structure of
the statute it follows that what you need red flag knowledge of is specific
infringing material, not the existence of infringing material generally.  Nothing suggests a general knowledge
standard.
 
JC: red flag as surrogate. 
But then you actual said it has to be of specific infringing material.
Where in the statute does it say that?
 
Joseph: between no-monitoring provision and other structure
of the statute, actual knowledge requires knowledge of specific infringing
material. It follows that the surrogate for actual knowledge, red flag
knowledge, also requires red flag knowledge of specific infringing
material.  Two courts of appeals have
agreed.
 
JC: then is there no difference between actual and red flag?
 
Joseph: One is actual knowledge; the other is knowledge of
facts and circumstances from which an objective viewer would conclude they’re
infringing. Those are meaningfully different.
 
Isbell: is there any import to the fact that actual
knowledge refers to materials and activity and red flag refers to activity?
 
Joseph: doesn’t think that.
 
Kerry Sheehan, Public Knowledge: Congress made an explicit
choice in 512(m) rejecting any duty to monitor and seek out facts b/c of impact
of surveillance on public’s ability to engage w/each other openly. Short of
that, general knowledge standard would have the same result.
 
JC: Red flag knowledge suggests that not necessarily you
reached out to acquire, but facts became known to  you that suggest/indicate infringement. Isn’t
there a difference between active monitoring and becoming aware?
 
Sheehan: Joseph was right: requires information about
specific instances.
 
JC: Do you acknowledge a difference b/t becoming aware of
facts and searching?
 
Sheehan: in practice there’d be little difference. The notice
requirements are there for due process reasons. When you start undermining
that, you get rid of due process.
 
JC: Red flag doesn’t require notice.
 
Sheehan: But it does require red flag knowledge of specific
instances of infringement, and if you expand that then the due process goes by
the wayside. 
 
JC: Case law suggests that if people running the services
were interacting w/content they knew was infringing, that could be red flag
knowledge.
 
Sheehan: and I’m talking about the dangers of expanding beyond
that to general knowledge.
 
KTC: In your view is there ever an instance where a website
that has almost exclusively infringing content would be able to provide that
red flag knowledge in the absence of a specific notice?
 
Sheehan: hard to speak about a hypo, but there’s a policy
reason why © owners bear the burden—they can best assess what’s infringing and
what’s licensed. We generally put the burden of showing rights on a right
holder in a private situation.
 
Mary Rasenberger, Authors Guild: 512 is a mess from a
creator’s perspective. It doesn’t work. 
It doesn’t work b/c it’s been turned into notice and takedown by the
courts. Congress wanted to create incentives to cooperate.  Three different ways to acquire knowledge:
actual knowledge; red flags; notice and takedown. The requirement to have
knowledge of the specific location under red flags and actual knowledge is
bad—clearly not what Congress intended—awareness, not knowledge of exactly
where the apparent infringement is. 
Turned three prong test into one. 
Section (a) no longer has any separate meaning. Courts see statute as
providing blanket immunity and also b/c of 512(m). There are some
inconsistencies b/c of complexity; Congress needs to amend 512(m) to carve out
(c) and (d) and to clarify that red flags doesn’t require knowledge of specific
infringement. Notice and takedown doesn’t work, especially for individual
creators.  Many ways it doesn’t work for
service providers as well.  [Heh.]  Need to clarify what Congress meant to do.
 
KTC: can you give examples of what you would say something
that would trigger red flag knowledge w/o specific knowledge? 
 
Rasenberger: if the service provider is notified many times
about infringement of a specific work or set of © works, they should know those
works are there and they need to bring them down before a notice.  YouTube v. Viacom is another good example—at
the time, YT had clear evidence there was infringing content on the site; they
estimated 75%-80% was © content w/o authorization. Massive infringement should
trigger a responsibility under red flags or for financial benefit/right &
ability to control.
 
David Jacoby, Sony Music Entertainment: Red flag knowledge
isn’t specific knowledge: collapses two separate prongs. Incentivizes services
to avoid learning of or acknowledging infringements so they can avoid
implementing tech solutions. Congress intended cooperation to minimize/deal
w/infringement. The opposite is occurring. 
It’s indisputable that Congress wanted DMCA to apply to neutral,
passive, innocent entities. Not businesses predicated on infringement like
Grooveshark and MP3tunes.  Decisions have
allowed businesses to convert our assets into theirs.  Recent MP3tunes JNOV—a lot of facts in which
the jury found there to be clear red flag knowledge; the court, in imposing
punitive damages, decided that the individual running the co. set up the entire
service to infringe.  Despite knowing
that Beatles content wasn’t approved for any digital distribution, and that his
employees uploaded content, court still allowed safe harbor/no red flag
knowledge for other Beatles songs.  Court
decided as a matter of law there was no red flag knowledge, turning statute
into pure notice and takedown which was specifically rejected.
 
512(m) has been misinterpreted: when service is informed
there’s massive infringement going on, there should be some action
required.  512(m) doesn’t prohibit action
taken after you’re informed of such infringement.  Doesn’t absolve service.
 
Michael Petricone, Consumer Technology Association: Most of
our members are small businesses, so we focus on young, scrappy, and hungry
ones [Hah!].  512 has a great deal to do
with the amazing generativity of the internet for businesses.  Knowledge changes would be easier for large
existing business to handle than small businesses/startups.  Requires a level of resources that small
companies don’t have.
 
JC: right now, what the providers say is that monitoring
should be entirely on the © owner.  Why
is that perceived as a balanced solution? 
[‘Cause that’s how we deal with private rights in general?  We don’t ask them to monitor for defamation
or trade secret theft or etc etc.] Congress wanted cooperation and shared goals
and responsibilities. Could you be doing more to improve the ecosystem?
 
Petricone: tech companies are working in all kinds of ways
w/content industry from Content ID to best practices.  Congress when it developed DMCA was prescient
in dividing responsibilities.  Content
owner must ID infringing because they’re the ones who know. Service provider
must take it down. Largely worked; internet economy exploded. There’s more
music and art being produced than ever before. Music industry is growing
faster.
 
KTC: Given volumes of notices, is there a reason to
recalibrate b/c of the changes in tech? No longer the same balance.
 
Petricone: in light of exponential growth of internet, 512
scaled well. The balance enabled by 512 has enabled that growth.  [Lots of notices b/c lots of internet!]  Every leading internet co. is in the US b/c
we made a series of good decisions; wary of change.
 
Christopher Mohr, Software and Information Industry
Association: In our view, this statute works best when there is cooperation.
There are instances when tech folks and content providers have adopted
voluntary standards to ameliorate ongoing infringement on their platforms.
Where the statute gets out of whack is where incentives to cooperate are
absent. That’s one of the flaws of red flag standard interpretation.  If you read it as suggested, it’s whack a
mole.  That’s an odd construction for an
exception to a regime of liability. It’s one the courts could fix, though that
would take a while. You see the same incentives against cooperation ripple
through other areas relating to knowledge—under the duty to terminate repeat infringers
under 512(a).
 
JC: Comments suggested that there was little incentive to
come up w/better solutions.  Interested
in hearing more about that.
 
Marcie Kaufman Ithaka/Artstor: recent decisions weren’t
compelled by statute or consistent w/legislative history. Rests on error of
thinking ISP has no duty to investigate further once it becomes aware of facts
or circumstances from which infringement is likely.  There’s a big middle ground b/t willful
blindness and duty to monitor.
 
JC: under your proposal, once someone became aware of facts
suggesting infringement, there’d be a duty to investigate?
 
Kaufman: yes. Many ISPs run reports of top ten hits. If you
had a top ten hit that was “copy of XYZ,” there’s a duty to check further.  Some obligation to look further.
 
JC: 512(m)?
 
Kaufman: you don’t have to run that report of top ten
hits.  But these are things service
providers do regularly to increase their business.  If they are becoming aware through regular
business dealings, obligation to investigate. 
[Wouldn’t that be red flag knowledge of specific infringements?]  Maybe there is no obligation to run a
report.  [Not clear to me whether she
thought that was bad and there should be a duty to do so.]
 
KTC: How would they know what they needed to take down?  Would they have to filter content?  Is that appropriate?
 
Kaufman: Don’t want to speak to filtering—we’re not that
size where we have the budget to implement a filter.
 
KTC: what would your standard require?
 
Kaufman: No, not every single ISP.  Filtering is a plausible goal for many to
institute [but not us!] and there’s a difference b/t big players and small
players.  The duty to investigate has to
start somewhere.  If you are the service
provider, it can’t be a pure lockbox. They are well aware of the content on
their sites.  We don’t want to
incentivize a pure lockbox of content. 
[Quelle horreur!]  For larger,
filtering is a way to go, but be careful w/smaller guys making that mandatory.
 
George Johnson, Geo Music Group: Petricone was talking about
more music being created than ever, but there may be more music out there—but
NSI did a study of music.  In 2000,
3-4,000 pro songwriters.  2015, 300-400
left, because of the internet.  Copyright
Royalty Board set royalties too low, plus DMCA safe harbor.  Movie Downloaded: Sean Parker.  First thing that happened when DMCA passed:
Napster!  Parker insisted on the safe
harbor; Spotify, Google, Pandora, they’re all doing it.  Verizon sees it and does nothing. What Google
does is know all the pirate sites and know they’re hiding behind safe harbor
and they sell advertising. Jihadi videos—Youtubistan—all these horrible videos,
and © infringement, and it’s a scam/con. 
Fed gov’t must protect our private property not give it away. If it’s a
pro ©, you know what it is—unauthorized, unlike a selfie or a video of a kid.
You need to catch it.
 
Terry Hart, Copyright Alliance: Nonprofit representing 1000s
of creators, individuals, and organizations across the spectrum of media.  Look at what Congress wrote 20 years ago, intent
was to get OSPs and © community to cooperate to address infringement. Courts’
interpretation has fallen short of that intent, specifically knowledge
provisions.  At the very least we have to
recognize that courts have interpreted red flag knowledge out of the
statute—what, if anything, is left after 2d and 9th Cir. that gives it any work
to do? You can semantically parse differences—2d Cir. says actual was
subjective and red flag objective knowledge, but in fact it leaves little left.  9th Cir. says in CCBill that you can’t really
tell that “stolen celeb pics” are infringing. 
Providers say: we don’t know for sure if the 101st is infringing after
100 notices.  Need to define it better
and figure out service providers’ obligation—some kind of investigation
depending on the type of OSP it is.
 
JC: if you don’t have a specific URL; service acquires some
sort of red flag knowledge: gets notices on a couple of Beatles songs, but has
other Beatles songs on the service. What’s the obligation at that point? How squared
w/512(m)?
 
Hart: Million dollar question. [At least.]  We shouldn’t be drawing bright lines. Depends
on facts/circumstances. 512(m) is not a blanket prohibition on requiring
investigation; some kind of obligation. Might be in business relationships
w/licensees—if they see music uploaded outside of partnership, they should ask.
 
KTC: in your view, would this impose a de facto obligation
to filter if courts didn’t require knowledge specific instances of
infringement? Or is there a middle ground?
 
Hart: can’t speak to filtering.  Tied into standard tech measures provisions.
We don’t have many standard tech measures, so that’s another thing that takes
the teeth out.  Contemplated by Congress
that it could be technological.
 
Jim Halpert, DLA Piper for Internet Commerce Coalition: I
suggested the use of the word “apparent,” and I believe it does have different
meaning than actual. In counseling companies about © risk, I have discussions
about what they’ll see and what measures they’ll put in place if for example
they’re moderating discussions.  Look out
for obvious infringement. At the same time, what we’re hearing is that a
blanket notice from a rights owner that doesn’t indicate what’s infringing
should be able to tag the service provider, giving it a monitoring
obligation.  Legislative history says
very specifically at the end of analysis of (c)(1)(C) says neither actual
knowledge nor red flag knowledge may be imputed from notice from a (c) owner
that doesn’t comply w/the DMCA notice standards.  If ISP is involved in looking at content on
its service, and encounters red flag knowledge, then it has an obligation to
take it down. But actual identification of material that’s infringing from
rights holder has an independent requirement making a list of works not enough;
(c)(3)(A)(iii): info reasonably sufficient to permit the service provider to
locate the material.  Protection is not a
protection for ISP, but it is protection for internet users.  SOPA was not very popular with internet
users. You need to think about how changes present privacy and monitoring
issues. Very clear that 512(m) says nothing conditions safe harbor on
monitoring except compliance w/STMs. Don’t try to shoehorn in an additional
monitoring obligation.  In terms of
general statement about rogue sites making money, major infringing sites
including Napster and Grooveshark are out of business; DMCA doesn’t protect
them. Notice and takedown provides extraordinary extrajudicial method to get
material removed from the internet without having to sue. From rightsholder
perspective, it’s not ideal, but additional ways to remove material.
Well-argued, well-briefed decisions in the two leading (c) courts of appeals
accurately interpret the law. Statute isn’t broken; it’s working and there’s
not room for shoehorning in monitoring obligations.
 
JC: information sufficient to locate the material—if I send
you a link to a page w/ten items, how specific do I need to be? Is there any
duty to look beyond an individual URL? 
[It really depends. If you send us a URL to a page that produces a
search result on our site, that page changes all the time, so no.  Other URLs, maybe that would be sufficient.]
 
Halpert: Could be.
 
JC: extrajudicial process—but that assumes there’s no
secondary liability. If there were secondary liability then © owners could take
action.  [That depends on what the site’s
doing, right?]
 
Halpert: let’s be clear where this isn’t working. It’s not
working b/c statute has successfully moved infringing activity off of US
servers; that needs to be addressed. A very good way to do that is to insist
that all free trade agreements included requirement to implement notice and
takedown—Korea, Australia regimes are working well.
 
Troy Dow, Disney: No reason to construe location to require
specific URL of file. Legis. history didn’t have file-specific URL in mind;
that goes to representative list issue. Need to look at what we’re trying to
achieve w/ red flag knowledge. Congress didn’t want to balance it by putting
all the duty on © owners to notify; AOL wanted that. Instead service providers
have obligation independent of notice to respond when obvious that infringement
is happening on their sites.  512(m) was
addressed in Senate Report: service provider has no obligation to seek out
infringement, but not qualify if it turned a blind eye to obvious infringement,
and provides examples of red flag knowledge—talks about well beyond item
specific knowledge, e.g., gains awareness by viewing a site that was clearly a
pirate site with sound recordings available for unauthorized downloads.  Exclude pirate directories from the safe
harbor: typically use words such as pirate, bootleg, and other slang making
their uses obvious.  Apparent from even a
brief and casual viewing that such a site would not be entitled to safe harbor.
Not required to make difficult judgments, but obvious pirate site may raise a
red flag simply when the ISP sees it. Purpose is to distinguish innocent and
not innocent ISPs.  Actual knowledge is a
good standard, but there was disagreement w/traditional constructive knowledge
standard—concern was that was too broad and malleable and uncertain. Decision:
something in between, which was red flag. 
Distinguish b/t true innocents and not. 
If so, required to respond appropriately.
 
KTC: The courts that disagreed have the benefit of legis.
history. Why weren’t they persuaded?
 
Dow: I have no idea. Wrong. 4th Cir. was right in ALS
Scan.  Service providers are free to make
decisions to take advantage of infringement so long as their knowledge level
doesn’t rise to actual knowledge—red flag is a nullity, and now you have to
show inducement or actual knowledge; inducement is dealt w/elsewhere in the
statute.
 
Joseph DiMona, Broadcast Music, Inc.: Secondary liability is
important to licensing performing rights. Dance hall cases: owner is liable,
not particular band or singer.  Judge
Posner recognized this in Aimster: individual file swappers are ignorant or
disdainful. Firms that facilitate their infringement are also liable.  Suing consumers: Timeconsuming and a teaspoon
solution to an ocean problem. That’s the issue w/streaming.  Vicarious/contributory infringement were both
expressly incorporated into the safe harbor. 
Vicarious: right and ability to control + direct financial benefit from
infringement. Cases have gone astray, holding that right and ability to control
infringement requires knowledge of specific works. Vicarious liability never
required knowledge; essentially eradicates vicarious liability.  Have to be basically a direct infringer;
makes no sense.  Contributory
infringement: awareness has to mean something different than knowledge in basic
statutory construction.  Infringing
activity meant something different than material—it’s a true limit on the safe
harbors.  Concept of willful blindness is
part of contrib. infringement. There’s even a court decision requiring willful
blindness to specific work; that’s a logical fallacy b/c you can’t be blind to
something you know about. Courts have gone off the rails to detriment of
creators who’ve suffered a tsunami of infringement. Statute is broken; has to
be rebalanced or tweaked. Regardless of what was in the mind of Congress at the
time, haven’t had the right constructions. 1 billion takedown notices isn’t
symptom of functioning statute.  Burden
totally on creators. 
 
JC: If courts had interpreted this differently, as you want,
would the statute be balanced? Is the problem that the statute is not well
conceived or interpreted? 
 
DiMona: yes to all. In hindsight, regret some of the choices
that led courts down a bad path. If more balanced result in current language,
the language on its face/intent at the time was balance in sharing
responsibility, if you become aware of rampant infringement, and you’re
inducing it, and you’re making money off of it, then the duty shifts to
you.  [Wouldn’t that already be true re:
inducement?]  At a minimum, monitoring
has to be required for certain things in entertainment area or for using
entertainment to sell other products.
 
Sarah Deutsch, Mayer Brown formerly at Verizon, DMCA
negotiator (you’re welcome!): This deal was struck by 10 people in a room
together. Congressional language—took the words we agreed to, whether we like
them now or not. They put the counternotice back in, protecting consumers. No
monitoring language was added in order to protect privacy: Congress was very
concerned that ISPs not monitor.  Notice
from the © owner is supposed to comply w/DMCA. Notice from other sources:
service provider is not required to make discriminating judgments b/c it’s not
in the best position to do so. Burdens were based on the functions the service
provider performed. Hosts can do more. 
We’ve spent millions of dollars dealing w/infringements, takedowns,
24-hour availability, notice forwarding—all these required substantial good
faith. Assume good faith.  Prof. Emerson,
when red flag comes from a source other than © owner, it has to be very bright
and wave very brightly indeed.
 
June Besek, Kernochan Center for Law, Media and the Arts,
Columbia Law School: Intended to be a balance, create an environment where tech
companies could thrive and © owners could put works out w/o unreasonable fear
of infringement. Not working today. 
Bottom line: content holders can’t get their stuff down.  W/r/t red flags: courts have construed it too
narrowly.  Viacom: vanishingly small
likelihood of red flag produced in discovery. 
Duty to investigate upon getting red flag knowledge, however obtained,
is not duty to monitor—monitoring is ongoing.
 
Jonathan Band, Library Copyright Alliance: I was one of the
people outside the room where it happened. Every word was negotiated, both
statutory and the report language. Negotiated w/SIAA (Mohr’s predecessor).  Yahoo! was a directory that hired surfers to
visit websites in those days. They were afraid that visiting a website = lose
safe harbor. Wanted it clear that they wouldn’t.  Agree w/Dow that the idea was to find
something in between actual and constructive knowledge.  Courts have gotten it right.  In terms of overall balance, it’s important
to have balance w/in 512, but to the extent that Congress got involved in
balancing, it was involved in the grand balance b/t 512 and 1201. At the end of
the day, 512 was there for the service providers, and 1201 was ultimately there
for the rightsholders. That was the legislative bargain. When you read the
various decisions, when they introduce the history, the cases explain these two
provisions.  Anti-circumvention and safe
harbor: bigger balance, even though you’re just looking at 512—these aren’t
totally separate provisions.
 
Todd Anten, Quinn Emanuel Urquhart & Sullivan LLP: Red
flag: (1) It would be disastrous to not consider our desire to encourage
service providers to remove things they don’t want such as porn, hate speech,
bullying; if you have expansive view of red flag knowledge, looking for other
TOS violations opens themselves up to potential liability b/c if they look and
say “it’s not hate speech” it might still be infringing. Reading red flag
standard expansively would lead to ISPs not looking at anything or
over-removing.  (2) There are many things
out there that are not infringing at all. Could be licensed, could be fair use.
To put service providers in position of making these calls would lead to
overcorrection w/r/t materials that aren’t infringing, and this is a bad
idea.  RIAA submitted an amicus brief in
Lenz said that fair use is notoriously troublesome to apply.  So when an ISP comes across a use of ©
material, © doesn’t mean infringing.  To
ask for searching for words, or categories, or filtering, that’s not reasonable
for the ISPs or for the posters of information who may be engaging in fair
use.  (3) Such an approach can also be
disastrous for small innovators; can’t always stand up against an unmeritorious
lawsuit on behalf of users—ultimately overcorrection makes more sense than
spending years and hundreds of thousands of dollars on a lawsuit.  The red flag is not supposed to do that—for
blatant infringement.
 
JC: investigating porn voluntarily: if they encounter
something, like a full Beatles track and they know there’s no license, would
that qualify as red flag? [Worth noting that these click workers doing content
review are almost certainly not Americans, not with the requisite cultural
knowledge—they are also not lawyers even if they are trained on the TOS.]
 
Anten: Movie posted from beginning to end w/watermark—that
could create a question of fact re red flag knowledge. But legislative history
shows, © material alone can’t be enough—has to be something else accompanying
the material.
 
JC: what if the person knew it wasn’t licensed—small website
won’t have a Beatles license.
 
Anten: If it’s you, that’s actual knowledge.
 
JC: obvious pirate sites?
 
Anten: 512(d)—but putting that aside, it’s one to say for
the Groovesharks of the world that’s massive, that’s different from YT’s
massive variation—can’t make individualized judgments.
 
KTC: what would give you comfort about infringement? If a
content owner sends a notice saying “I have not licensed any of my content to
appear on this website. Anything is infringing.” Is that red flag?
 
Anten: No. Information reasonably sufficient to permit the
service provider to locate the material, instead of making them search. Even if
someone sends that letter, it could still be a fair use or there could be other
licenses, especially if time has passed. Red flag knowledge addresses a narrow
circumstance where subjectively it can’t be anything but infringement.
 
Greenberg: why are creators better than ISPs in IDing fair
use?
 
Anten: The ISPs are in a terrible position—the poster is
probably in the best position.
 
Allan Adler, Association of American Publishers: You can
find anything you want in the legislative history, which is unsurprising b/c it
cames from 3 separate committees and negotiated conference reports. It’s not
uncommon in © history for Congress to have to go back and fix judicial mistakes
in interpreting Congress’ handiwork. 
Viacom and UMG: statutory construction where there was little statutory
construction done—neither court gave much attention to awareness, or facts or
circumstances, or infringing activity, or even the term about.  That’s all critical to meaning of red flag
and relation to actual knowledge. 
Ignored language of provisions they were construing; actual knowledge
refers to “the material or an activity using the material,” where red flag
refers to “infringing activity,” with no article at all. That’s not an
accident, whether from negotiators or from Congress. The decisions that
ultimately conflated these two in practical effect and created single notice
and takedown requirement can’t be squared with any version of congressional
intent.  Service providers have 512(m)
fetish. But again, most of the courts have echoed that representation w/o
looking carefully at its wording. Just says: nothing in this section shall
condition applicability of safe harbors on monitoring the service—which means
ongoing—or affirmatively seeking facts indicating infringing activity. Didn’t
say confirming or reacting to; affirmatively seeking isn’t the same thing as reacting
or confirming.  Based on overall
framework and leg. intent, Congress would have assumed that red flag would lead
to some reactive action on ISP’s part. 
How much is subject to debate, but that would be useful in helping us
recognize distinct standards rather than conflating them as the 2d and 9th Cir.
did.  Congress warned against willful
blindness to info that comes their way; Congress was looking at secondary
liability and looked at lots of areas of law, such as the flea market
cases.  Providing venue and opportunity,
but not intent, for illegal activity—that was on Congress’ mind in
understanding what it meant in 512(m). Didn’t mean there’d never be a
responsibility on the part of the ISP to look into the facts. Just didn’t
define quota for investigative activity.
 
JC: Another legal issue?
 
Kerry Sheehan: quickly, on repeat infringers: tendency to
assume that all ISPs are the same. Severe penalty to lose cloud storage, but
more draconian to lose internet access where people use that for homework, job
finding, doing jobs, even calling 911. 
So flexibility on what the penalty should be.
 
JC: should be able to terminate service for nonpayment
 
Sheehan: that’s for the providers.  Courts have been fairly flexible—just have to
adopt and reasonably implement termination in appropriate circumstances.
 
Samantha Schonfeld, Amplify Education Holding: Band said
Congress was concerned about creation of internet—we’ve come very far.
Mindfulness of the way that tech inextricably moves forward.  Don’t know what 2 decades from now will look
like. Tech has swung against rights holder; revisit legislation in less than 20
years.
 
Mary Rasenberger: right and ability to control/direct
financial benefit: Congress intended to adopt the common law, but the courts
have demanded more than the right and ability to remove infringing content or
discontinue service b/c of perceived conflict w/takedown requirement to use the
safe harbor. The problem is that the only way that ISPs can assert control over
infringing is precisely by blocking, takedown or discontinuing service.
[Really?] Congress should explain that that’s enough. That would sweep in
service providers profiting from piracy, forcing them to cooperate, as 512 was
intended to do. If someone falls out of this provision, they’d have to work w/©
holders through filtering or other automatic means. Burden of policing has to
be shared under 512.  Search services are
in the business of automated search. They know how to find infringing content.
They have the tools. Burden on rights holders, individual creators, upsets the
balance b/c they don’t have access to the same tools.
 
Joseph: Repeat infringement: Sheehan is right. Infringer
does not mean alleged or claimed infringer. 
Excellent article by Prof. Nimmer. 
Statute was very careful to distinguish b/t infringer and
alleged/claimed infringement.  In
addition, this standard is intentionally flexible: you really can say Congress
intended one of only 4 substantive changes made by Congress from the negotiated
text was “in appropriate circumstances”—Congress was concerned even then about
loss of service and it’s a greater concern now.
 
Jacoby: Congress has allowed services that don’t track
infringement to benefit from this so repeat infringer guidance would be good.
Vicarious liability: now courts require active participation, enough to be
direct or contributory liability, inconsistent w/statute. Storage at direction
of user: even if Congress wanted to cover access, access can’t mean the
permanent distribution of exact copies/downloading.  Responding to Anten: Grooveshark was still
able to take advantage of standard set by the courts for red flag knowledge
even though they lost the case on direct infringement and lack of a repeat
infringement policy.
 
Rebecca Prince: Fair use and the content creator’s
perspective. One example: you want to critique something—you want to use a
short clip. You can’t get permission. I know I’m operating w/o a license, and I
know it has to be fair use. Automated systems can preclude me from defending
myself. Content ID looks for match. Just b/c it’s © doesn’t mean it’s not fair
use. Even if I’m speaking over that clip, w/o taking Lenz into account, it’s
blocked world wide for 14-30 days. YT =largest outlet; limits your ability to
speak.
 
Petricone: DMCA succeeds b/c it doesn’t impose hard limits
on flexible tech. Sets a floor on which voluntary measures can be built. That’s
happening with © notice, Google search practices, advertiser best practices.
 
Ostrow: Small businesses/entrepreneurs: from my perspective,
the ones I represent—musicians, record labels, publishers—they have been
infringed to subsidize these other small businesses. The balance needs to be
restruck. Representative lists have been written out of the statute. Burden on
content creator to provide individual URLs, not in the statute but imposed by
many sites, is undue.
 
Mohr: One of the largest sources of frustration for our
members is repeated sending of notices to specific site for specific
work—1000/month to get a textbook down. There is as yet no case law upholding a
512(j) injunction. That’s an area that ought to be explored. Injunction would
have to be tailored to address concerns raised by ISPs.  Urge office to explore that to ameliorate
some of the problems.
 
Kaufman: Burden of proof on fair use—it isn’t; the burden
should be on the user.  Lenz shifts the
burden/distorts it.  [What about the
reasonable but wrong analysis? Lenz is pretty clear that that’s allowed.]  Traditionally, alleged infringer is the one
in possession of facts.  [Except on market
impact …]  I can’t do analysis on
that.  Only a counternotification can
tell me.  There is counternotification to
get a conversation started. Burden on rightsholder when they lack the info to
do that analysis is unfair.
 
Johnson: Yep.  Adler
is right too.  Flea market: ISPs are just
that, venue. If you are ISP, you know there’s a lot of infringement.  [Interesting contrast in this claim to
Berkeley study—there are lots  of ISPs in
the world, and very few of them are Google.] 
Might as well come to my house and steal my car from my driveway. Need a
© 911.  Who sponsored the DMCA?  Late Rep. Coble, friend of songwriters.  1996, 1997—suddenly he gets $1.2 million in
donations in 1998, then goes back to 
$200,000/year.
 
Hart: 9th Cir. was correct to reject calls to overturn
Rossi: subjective good faith standard, not higher objective standard would have
been an undue burden under 512(f). 
512(f) applies to notices and counternotices, so that would be rough on
them too and reduce the already small # of counternotices.
 
Halpert: BMG v. Cox case is wrong about repeat infringers;
that’s on appeal. We don’t want DMCA reopened; cases go both ways. Swap meets:
DMCA specifically adopts a different standard b/c treating internet that way
didn’t make sense. Legislative history is very clear that direct financial
benefit isn’t receiving a standard fee or a volume based fee; it’s akin to
aiding and abetting; otherwise all the internet would be vicariously liable.
Finally, Grooveshark is dead, regardless of the theory.
 
Dow: right and ability to control: disagree about vicarious
liability standard; even if so, courts in adding something more standard have
set the bar so high that they allow ISPs to provide site for infringing,
shifting burden entirely to content owners; even if decisions are made to shift
burden for ISP’s financial benefit, that’s just the DMCA, but it’s not where
the DMCA puts the burden.
 
DiMona: representative list: we were looking forward to that
as performing rights organization—10 million works.  Representative list of our catalog: then
they’d have to recognize that they were a music infringement website. Courts
have read that out of the law.  Right of
making available recognized in treaties; safe harbors affect that right by
impacting availability.
 
Deutsch: Representative list: when statute was drafted, it
was clear that identification of the © work was for a list on the site, not
representative works owned by the © owner. 
Injunctive relief has been there for 20 years; no cases brought; not the
ISP’s job to bring those cases; microcosm of entire balance of the DMCA. In
considering injunction, courts need to consider tech feasibility and
noninterference w/noninfringing material, and less restrictive means—good
balance.  Not wise to change the DMCA;
when service provider is acting as conduit, the only way we can cooperate is
block or filter, like foreign websites—these are even more important remedies
to avoid today.
 
Besek: Lenz case: It’s too bad that the amended opinion
omitted automated systems, but automated systems can still reasonably be used
by the rights holder.  It’s just that
there were no automated systems in that case. Use could be appropriate
depending on the parameters of how they’re set. 
There are cases where an automated system would do better than a human.
Ironic to impose human review requirement on rightholders when one principal
reason for 512 is that we couldn’t expect ISPs to do it given volume of
infringement and difficulty of judging fair use. [Actually, it was b/c of the
volume of the content on the internet, and presumably at some point the content
owner should be willing to give its position on fair use.]
 
Band: how can all these courts be so wrong? Well, they’re
right. They understand that © affects more people more directly in their lives
than any other part of the US code.
 
Anten: that the Groovesharks of the world have been killed
w/o needing change in red flag standard means there’s no need for change.
 
Adler: 512(m) needs to be reviewed b/c it distorts red
flag/willful blindness.  Lenz isn’t just
about fair use; rationale the court used was that fair use is one form of
authorization under the law. © owner has to consider that as well as other
limits and exceptions. That means information that clearly isn’t in © owner’s
possession, such as identity and status of alleged infringer, and intent and
purpose, must be assumed or investigated. Substantial compliance has also been
distorted in Perfect 10 v. ccBill and Hendrickson v. eBay.  Substantial compliance could occur w/three
elements; yet those cases decided there wasn’t substantial compliance even
though problems didn’t involve any of the three elements Congress
identified.  [Boy, those courts are
dumb.]

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Copyright Office 512 Roundtable: Service provider response

Posted on May 2, 2016 by rtushnet
Session 2: Notice-and-Takedown Process—Service Provider
Response and Counter-Notifications
 
Official description: Handling of and response to notices,
including timing and notices from high-volume senders; sending and handling of
counter-notifications; volume of notices and counter-notifications; costs and
burdens on large- and small-scale service providers; role of automation,
including filtering technologies; noncompliant notices and misuse of notice
process; rejection of notices; impact of takedowns on users and public;
protections for fair use; relevant empirical data; and other pertinent
issues. 
 
Claggett: ISP experience: Is it working effectively?
Automated notices?
 
Michael Weinberg Shapeways: High level concept works
reasonably well given the circumstances. Notice quality is highly variable,
which doesn’t track to the size of the content owner. People assume 512 notice
and takedown model for complaints unrelated to ©.
 
Claggett: Can you handle notice volume?
 
Weinberg: notices are bursty for us: week w/few and then
w/lot. That’s problematic from staff allocation standpoint.  But we can handle it.  As we see #s go up, need to build internal
tools.
 
Actual volume: just under 1000 notices last year; trend to
go significantly beyond that. One problem is that those notices tend to be an
IP grab bag.  Due to our our site’s
capacities: 3D printing.  Addit’l burden
of processing in ID’ing real complaint. 
Easy to forget that burden from 512 standpoint.
 
JC: would it be helpful to have a clear form that maybe said
“for copyright claims” on the top—would that aid you?
 
Weinberg: when we tried to update registration w/CO, took 4
months to find out what to do if we didn’t have a fax.  Structure of the form, connecting to back end
would have to involve over time; not clear there are mechanisms to evolve a
standardized form even if it was correct at the time it was deployed.  On the flip side, if data about notice
process became more public, that could be worth the process.
 
Rebecca Tushnet Organization for Transformative Works
The over 600,000 registered creators on our site who’ve
posted over 2 million works, and our small all volunteer coding and legal
teams, appreciate the opportunity to participate.  Most ISPs are like us, Wikimedia, Internet
Archive: we receive relatively few notices, they’re generally illegitimate
attempts to assert rights over titles or fair uses, we hand review each one, no
capacity to build filters that are unnecessary anyway.
 
JC: Might it make sense for big sites?
 
RT: not here to say that. What I learned from comparing UMG,
Sony, and Warner’s comments with those of other copyright owners advocating for
increased duties for ISPs: I learned that the best filtering system is the one
you’re not using.  UMG says Content ID is
60% effective, Sony says it missed millions of infringements.  The other content companies, like the book
publishers, are sure that Content ID must be fantastic and therefore should be
applied to the entire internet. But the biggest users of Content ID think it’s
full of holes. There’s always something more to demand: like Angelica Schuyler,
they will never be satisfied. 
 
Brianna Schofield University of California-Berkeley School
of  Law: Tremendous diversity in how
service providers interact w/the notice system. 
DMCA classic: intake manageable by hand. Varying degrees of quality of
notices. 
 
Another group gets a large influx of notices; not the
predominant thing for most ISPs. 
DMCA-auto: reacted to influx by developing automated systems to process.
DMCA-Plus: beyond the requirements of the statutes.  Any reaction should take account of this
diversity.
 
Claggett: could you do percentages?
 
Schofield: we surveyed a small #, but tried to have a representative
sample of broader ecosystem.
 
DMCA classic is dominant by far.
 
Claggett: does this suggest that different policies need to
be made depending on type of ISP?
 
Schofield: Instead, system is self-managing and reacting to
needs of platforms. Hard to draw lines from policymakers’ perspective to
arbitrarily putting any of them in buckets. Some service providers you might
expect to get lots of notices are actually service providers that aren’t
getting that many notices and don’t need automated processing.
 
Kevin Rupy USTelecom: Broadband service providers, large,
small and everything in between.  Small
rural providers with a couple thousand lines to “traditional” huge broadband
providers like Verizon. Generally speaking, the safe harbor provisions are functioning
as intended. However, we do have issues w/getting §512(c) notices when acting
as mere conduit under §512(a); clear under statute and caselaw that those
notices aren’t valid.  Multiple notices
don’t render someone a repeat infringer; we believe that termination under
appropriate circumstances should be narrowly construed and subject to some type
of judicial oversight. Congress, this administration, and our main regulator
the FCC view broadband employment/adoption as a principal goal. So termination
needs to be for real reasons.
 
JC: if someone doesn’t pay their bill, do they get service
terminated?
 
Rupy: Yes.
 
JC: so you do terminate subscribers for other reasons.
 
Rupy: Yes.
 
JC: Courts have said you don’t need a judicial determination
to be a repeat infringer, at least some courts. Assuming that’s the law, how
would a © owner communicate w/you about infringements repeating on your site?
 
Rupy: That’s happening in the marketplace, w/voluntary
mechanisms like CCI: content community and broadband providers identify and
address repeat infringement, or alleged repeat infringement.
 
Claggett: does it end in termination?
 
Rupy: depends on the nature of the escalation, it can.
 
JC: Your companies have agreed to take in notices and
consider them voluntarily, but you don’t want the notices served under §512(c).
 
Rupy: if it relates to hosting, which we do, sure.  Where you have challenges is §512(a)
conduit—there’s nothing for us to take down or remove!
 
JC: if someone becomes aware of P2P infringement on your
network, how do they notify you? Do you accept those?
 
Rupy: Judicial due process; civil actions.
 
JC: but if a © owner wants to notify you, how would they do
that outside of a judicial order?
 
Rupy: it would depend on the nature of the
infringement.  If hosting that content,
§512(c).
 
JC: instead of sending a notice, is there an acceptable
alternative that would communicate the P2P infringement issue?
 
Rupy: we can talk about that, but as we view the framework
currently, sending millions of notices to ISPs under §512(c) when they’re
acting under (a) is not how the DMCA is set up. That’s one reason ISPs are
working w/the content community for a voluntary framework for addressing repeat
infringement.
 
Claggett: you’re saying a notice is just an allegation of
infringement.  In your view, absent
adjudication of infringement, would you not consider it unproven allegation?
 
Rupy: yes.
 
Claggett: These millions of notices: what is causing this
phenomenon—just a difference of opinion on legal basis?  Is there any recourse in §512 to prevent
that?
 
Rupy: That’s an improper use of §512.
 
Claggett: is this barred by §512 or can you use §512(f) or
some other legal recourse?
 
Rupy: Can’t speak to that.
 
Claggett: Are specific stakeholders sending them?
 
Rupy: generally speaking, member companies have seen an
increase over the last few years. 
Different entities behind that; addressed in comments at broader level.
 
Claggett: ignore them?
 
Rupy: varies by provider and situation. Under some voluntary
frameworks, you may see those notices forwarded on to the individual
subscriber.  Even with the forwarding,
it’s an allegation of infringement.
 
Jennifer Pariser Motion Picture Association of America: 512
is best for ISPs of every size. Google can automate; small ISPs don’t spend
much; it’s a cost of doing business whether large or not. That’s where the
imbalance comes: relatively manageable cost of doing business v. creation side
is being killed by piracy and dealing w/great burdens from §512 to little
effect.
 
In terms of §512(a): CCI is not a voluntary organization;
it’s a contractually based organization with the MPAA, RIAA, and five largest
ISPs, but only those 5.  Others are
invited to be members but have chosen not to be.  Minimal effect of that program is only for
subscribers of those services; only deals w/P2P piracy; doesn’t end
w/termination.
 
Marcie Kaufman Ithaka/Artstor: we are stewards of content
licensed to us and provide it to libraries etc. Have a freemium access model
for users.  Sit between ISPs and users.
We have to issue our own takedown notices. But we have SharedShelf ISP service
model—content management for digital collections for institutions, integrated
w/licensed materials. They do their own screening of IP rights, and are
generally cautious b/c they’re academic institutions. Fills an important niche
allowing teaching materials to be integrated. 
 
Artstor couldn’t have created this w/o DMCA safe
harbor.  We don’t monitor it—it’s
password protected.  Needs to be
consideration of the service provider, size, etc. in any changes under
consideration.  We are the innovation the
safe harbors meant to protect and changes would really affect innovations like
us.
 
Andrew Bridges Fenwick & West LLP: DMCA works well for
ISPs; nobody’s happy with it, and that’s the sign of a good law.  Four points of concern, three of which can be
solved by education. (1) Broad misunderstanding that the safe harbor has
replaced the substantive standards of © infringement, or that the DMCA gives ©
rights to creators. It simply limits remedies. Before you reach safe harbor,
you have to be otherwise liable.  Rampant
confusion about that.  (2) Rampant
confusion about role of §512(a) conduit provider and notices to them using
§512(c).  (3) A number of abuses; DMCA
used by business model itself, a monetization strategy and litigation strategy,
rather than a framework to encourage collaboration.  (4) Needs litigation to fix: pervasive
problem of extreme statutory damages. 
Once that’s done, many other complex questions become easier to solve.
 
Kerry Sheehan Public Knowledge: Tempting to see future of
§512 as being solely about ISPs and content creators, but also about internet
users as a whole—increased risk of liability means increased risk of takedown
of protected expression online.  [And they
are content creators too!]
 
Jay Rosenthal ESL Music/ESL Music Publishing: Contrasting
those who get the notices and those who send them. It’s great that it’s ok on
the ISP side. On the content owner side, it’s an incredible drain, and smaller
© owners have stopped using it.  Burden
on ISPs, but there’s got to be a shift in this burden in policing the
internet.  If we both feel pain, that
would be the right balance.  But since
they’re saying it’s working relatively well and we’re saying it’s not, that should
push © policy towards us.
 
Damon DiMarco Author [Authors’ Guild]: One of only two
independent © holders here. [I beg to disagree: what are AO3 users, chopped
liver? I’ve sent takedown notices.] 
Written five books. Google alert. 
Forty alerts in April: pirated instances.  DMCA is toothless.  I spend the majority of my time running after
people stealing from me.  Panamanian
companies, overseas companies.  I should
have an attorney, but I can’t afford one. 
Independent artist’s POV: complete debacle. Don’t have an answer, but
you need to know what the ecosystem is like. Stratified against independent
producers of content.
 
Claggett: Types of improper notices—targeting legitimate
content that have negative effects on free expression.
 
Hillary Johnson Author: What DiMarco said.  Major book published 20 years—most infringed,
plagiarized book of the 20th century. 
Most egregious: a FB user who’s published my book on his FB page three times
over in 10 years. Started by sending takedown notices to FB; took about three
days to satisfy FB’s demands to prove that I was the author who owned the
©.  I live on Social Security and a
$500/hour lawyer presented 75 instances of © infringement. FB told this guy to
C&D; I never saw the letter; he stopped for two months, but w/a lot of
profanity, anger, hostility.  It stopped
for a while but since then he’s posting material that appeared elsewhere on
other people’s websites.  He’s now
plagiarizing instead of posting verbatim. My book has been utterly devalued;
efforts to protect it have been futile.
 
JC: when you sent a takedown notice to FB, do they respond?
What do they demand?
 
Johnson: 2011-2013 I was sending notices to FB. They sent a
form back asking for proof.
 
Thomas Kennedy American Society of Media Photographers: Incredibly
asymmetrical. No collaboration w/individuals.
 
Mickey Osterreicher National Press Photographers
Association: Haves and have-nots have completely different view of how this is
working.  Fair use has become a
sword—courts have difficulty deciding fair use, so that’s problematic.
 
Marc Ostrow Law Offices of Marc D. Ostrow: Silent majority:
represents a lot of individual songwriters and recording artists and small
businesses. There are lots of people who never bother to send notices any more
to the YT and FB of the world.  Very few
counternotices are even served because the person whose content was taken down
will just repost it quickly.  Statutory
damages aren’t that high when you consider the cost of prosecuting litigation
to trial. I’ve had people get angry at takedowns b/c they say they’re fans.
 
JC: in your view people don’t use counternotice process,
just repost.
 
Ostrow: in my universe of small publishers, yes. The one
counternotice I’m aware of involved a small classical publisher—a university
concert posted the entire performance, and the composer didn’t like the
performance, and posting an entire work w/o transformation is not fair use;
they claimed it was fair use.
 
JC: did you sue?
 
Ostrow: No, b/c of cost/benefit analysis. 
 
JC: did the content come down?
 
Ostrow: yes, it did, but in other circumstances it’s just
reposted.
 
Claggett: want to focus on improper notices that are
improper for free speech.
 
Pariser: The Berkeley study doesn’t have anything to tell us
about the internet ecosystem outside of Google. The study looked at 1800
so-called improper notices w/in the confines of a limited period of time. 30%
of notices sent were improper, supposedly. 15% were some variety of technical
mistake; mismatch b/t Usher’s music and movie House of Usher—not suppression of
legitimate expression. That work shouldn’t have been there to begin w/.  Others pointed to more than 1 URL, making it
difficult for Google to know; that’s a problem for Google but not a huge problem.  7% in supposed fair use bucket.  They are way overgenerous in what might be
considered fair use—covers and ringtones are not fair use.  Even so, doesn’t say © owner lacked good
faith basis.
 
Google’s own statistics say less than 1%.  We won’t say there’s never been an improper
notice in the history of the world. Anecdotal. Microscopically small
percentage.
 
Schofield: Hosts of all sizes talked about notices targeting
noninfringing content. The problem there is that there’s a tendency to take
down content that the service providers do no matter what. Others have a
different risk tolerance profile, like WordPress.  Study 2: largely automated notices often
targeting problematic sites.  Large
rightsholders are focusing their efforts on big sites.  So we looked beyond large rightsholders
targeting those sites. So we pulled notices sent to Google Image search. Tended
to be individuals/small businesses. Different dynamic, with lots more issues of
expression: blogs, message board threads. 
15% targeting improper subject matter. 
Help us study!
 
Claggett: could you go back and determine whether those
procedurally bad ones were based on legitimate content?
 
A: it would be hard.
 
JC: which is more accurate, automated or human review?
 
A: depends on type of rights holder.  Image search: human attention wasn’t
necessarily a panacea. Largely unsophisticated actors in the system. 
 
Claggett: pro vendors typically had less inaccuracies than
the individual or small business owner notices—is that who they targeted or
their understanding of the law?
 
A: depending on how you count, 70% of Google Image notices
had problem; we set one particular person’s notices aside, leaving 37% with
problems in image search, and that’s about sophistication.
 
Claggett: does that suggest in preventing abuse there needs
to be a different solution depending on the type of notice sender if
individuals and smaller businesses—would higher damages make a different amount
of sense?
 
A: we recommend tailored solutions. By & large, for
automation there are best practices about refining these systems to minimize
errors. We’ve spoken with rights enforcement orgs that say there are mechanisms
to refine algorithms to limit mismatch. 
Some orgs weigh success on numbers, not on quality. Smaller senders:
educational efforts could be targeted to see what the process is about.
 
Rebecca Prince, Becky Boop: I’ve been subject of improper
notices based on my fair uses. First: DMCA strikes by competitors. I create
video on YT, which is one of the few platforms that gives you AdSense revenue,
mostly w/in the first few days. Competitors can lob four notices = account
termination; no recourse to reinstate your account. If this is how you make a
living, that’s very serious.  YT’s
Content ID system: I have the opposite problem, where I submit a
counternotification, and the company just sits and waits and then just submit a
new notice; they can keep your content down for months, which has a chilling
effect and changes the content you create.
 
Claggett: are they not complying w/putback?
 
Prince: material will be reinstated, but company will create
a new followup claim. It’s automated and so no one checks to see it’s a second
claim to keep your content down again.
 
JC: Content ID?
 
Prince: yes, segues into DMCA if you counternotify.
 
Jay Rosenthal: Cover versions of songs are not fair use as
Berkeley study says.  Small
percentages—stifling innovation argument should be made much more from the user
side. © takes the idea/expression distinction into account. If original © owner
wants to stop use of expression, they should be able to do so. © owner needs
remedy to stop someone from using expression.
 
RT: [I’m pretty sure there’s at least one PD film about the
House of Usher.] [For examples of problem notices, see the comments of: Engine,
Github, Redbubble, Matthew Neco’s discussion of Docstoc, Yahoo!, Automattic,
Siteground, SoundCloud, Internet Archive, Wikimedia.] Jon Penney’s study of
blogger and twitter takedowns: substantial minority percentage of plausible
fair uses, including criticism. 
 
This is situation not ISPs v. copyright owners or so-called
“content creators.”  Our users are
creators and © owners too; we assist them w/information about DMCA when someone
is selling copies of their works on Amazon; I’ve sent takedown requests
myself.  But they are mostly at risk of
invalid takedowns.  Mostly for critical
works.  When we ask for proof of
ownership, we do so b/c there are people who pretend to be HBO [Game of
Thrones], Warner [Harry Potter], and all sorts of others.  The things people complained about in the
last panel are the sorts of educational measures people have just been
advocating for here—when Google asks if it’s a picture of you, the reason
they’re asking is to try to figure out if you really have a copyright claim!
You can’t have it all.
 
Haves and have-nots: those exist on both sides!  DMCA notice from big copyright owner—people
are scared to counternotify b/c if they consult a lawyer the lawyer has to tell
them about statutory damages.  One
woman’s videos have been shown in multiple curated shows at museums; still
thought long and hard about counternotice. 
Small creators do often decline to interact w/the legal system.  But please recognize that if you accept the
testimony that lots of people don’t bother to contest an abuse, that’s true for
people who receive notices too!
 
Counternotices: Digital Media Ass’n, submitted a study whose
questions assumed s512 wasn’t strong enough. 
Has an interesting non-statistical survey, 9% of those experienced
counternotices and also experienced invalid claims against them.
 
Michael Weinberg: I personally review every takedown. We get
plenty of facially legit requests. But we get takedown notices for all sorts of
stuff. The internet is big and people use a takedown option for everything. You
may code something as a technical error—weren’t willing to assert they were the
© owner—but what that means is that they didn’t actually have an ownership
interest.  If we try to structure the
complaint on the front end to avoid bad takedowns—taking the interest of
creators seriously both for senders and for recipients—we have to balance
burden on rightsholders sending notices and ability to avoid burdening our
creatives.  We get people who send
takedowns based on every use of a word they claim to own. 
 
Charlyn Zlotnik Photographer: 5 years ago I sent notices to
ISPs and didn’t receive replies.  YT
responded w/removals. Lately I’ve been going directly to people posting on
Flickr or Pinterest; it seems like the burden was always on photographers but
it’s out of hand now. There should be notices in real simple English—if you
scanned something from a book, don’t post it. All my older work in books is
being scanned in hi-res.
 
Perry Bashkoff WEA Digital & Revenue Development:
Practicality of utilizing toolsets given to content owners: encourage
decisionmakers to sit w/a content owner. 
Tools are good enough; manpower hours to protect works of artists and
talent is simply not manageable. 
Practical reality of discussion: YT Content ID owner #1—seeing what it
means to receive a counternotice saying “I bought this CD,” or “get lost”—we
get that all the time.
 
Sheehan: No matter whether you characterize these as
intentional or just mistakes, you get suppression of speech.  Every Single Word video series: edits films
down to every single word spoken by a character of color. Excellent critique of
racism in Hollywood; they received a DMCA takedown. What happens when content
is taken down w/out a large public uproar? 
Rightsholder rescinded a request.
 
JC: There is a counternotification procedure.
 
Sheehan: intimidating for users to swear—imbalance of
responsibility b/t notice senders and counternotice senders.  SCt has made very clear that fair use
includes expression, BTW.
 
JC: an unfair takedown notice—there is a procedure available
under the law.
 
Sheehan: it isn’t working—so maybe we need to refine notices
and make counternotification easier.
 
JC: education?  PK
could do more to educate posters.
 
Sheehan: could also do more to educate rightsholders about
proper notice. There are things to do to equalize burdens on rightsholders. Not
simply an educational issue but intimidation factor of having to swear under
penalty of perjury.
 
Schofield: if you extrapolate across the notices, that is
millions of improper notices.
 
Adrienne Fields, Artists Rights Standard: Incredibly
burdensome. Can’t reach a fraction of infringing uses on the internet. Notices
that I file are rejected for no apparent reason. If they want to take on that
role, they should be responsible for the infringing activity. Incentivized not to
remove b/c they like having traffic from works by big name artists.  Rejected where the artist’s name was included
on the video and thirty works appeared in the video. [All I want here is some
recognition of the parallels b/t the “why don’t you sue if they’re not
complying w/the DMCA?” question and the “why don’t you counternotify if the
notice is abusive?” question.]  When we
send notice to a conduit, it’s b/c we can’t find them any other way—they use
proxy services.
 
Michael Housley, Viacom: Even if we had all the notices
perfect and always sent them, piracy is growing. We need more than the notice
black hole.  Filtering, other tech
available now that can be used not just for antipiracy but for all sorts of
content identification. [That’s not terrifying from a civil liberties
perspective at all.]

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