Tuesday, May 03, 2016

Copyright Office 512 Roundtable: Technological Strategies and Solutions

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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