Rebecca Tushnet

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.]