(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.