Thursday, May 05, 2016

In which I sue Amazon again

In FTC v. Amazon, the initial opinion was heavily, albeit badly, redacted.  With the able assistance of Paul Alan Levy from Public Citizen, MediaPost and I have moved to unseal the opinion and the documents on which it's based, on the ground that the public's First Amendment interest in access to judicial proceedings outweighs whatever embarrassment the facts might cause Amazon.  Here's our motion to intervene and motion to unseal.

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

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


Image from web announcement of promotion

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

Wednesday, May 04, 2016

CFP: IP + Race, at Boston College


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

 

Tuesday, May 03, 2016

Copyright Office 512 Roundtable: Open Mic

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

Copyright Office 512 Roundtable: Future of 512

(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.
 
\
 

Copyright Office 512 Roundtable: Voluntary Measures and Industry Agreements

Official description: Voluntary alternatives to and modifications of statutory notice-and-takedown process; best practices; collaborative efforts of content owners, service providers and others to address online infringement, including availability of programs to smaller service providers and creators; cooperation in identifying infringers; graduated response programs to address infringement; efforts to delist or downgrade infringing materials within online search results; participation of third-party providers, such as advertisers and payment processors, in voluntary arrangements; overall effectiveness of voluntary arrangements; educational outreach; government role in encouraging private solutions; and other pertinent issues.
 
Kimberly Isbell: Let’s start with voluntary measures that are helpful.  If so, what are their characteristics that could be replicated?
 
Jonathan Band, Library Copyright Alliance: Voluntary measures taken by a payment processor: for a long time.  Victoria Espinel asked them to get together for standards/best practices.  Cooperated w/int’l anticounterfeiting coalition; working well.  The most significant feature: it was developed by payment processors.  Came together w/best practices; responsive to their needs but also to reach consensus w/in the industry instead of trying to work across industries.
 
KI: how important was IPEC’s involvement? Necessary or not?
 
Band: Payment processors were all doing this already; it’s a highly concentrated industry and there’s competitive pressure. Helpful to have IPEC in the final steps but lots was b/c they were already doing it.
 
Troy Dow, Disney: Voluntary measures are a bright spot.  A number of them, in our comments w/MPAA. Principles for UGC—has worked for setting standards. What allowed success was that we had collaborative sessions; multilateral b/t creators, platform providers.  Started by putting aside difficult legal questions about what the law required and set a goal of UGC environment promoting legitimate creation but also prevented infringement.  Then we tackled some problems.  Included tech solutions; included understanding about © owners’ behavior.  Included an agreement that this wasn’t just a one time set of principles but an ongoing relationship.
 
KI: what circumstances encouraged the players to get together?
 
Dow: Underlying framework of DMCA; everyone was unsure what the law would say. Litigation was a potential route. Legislation was a potential route. Prospect of losing a lawsuit on both sides brought the parties together. 
 
KTC: does the legal framework remain sufficient to encourage continued development of voluntary agreements?
 
Dow: many issues in yesterday’s panels have a lot to do w/that. Narrow construction of DMCA shifts balance away from shared responsibility to rightsholders; that does push away from environment of cooperation.
 
Michael Petricone, Consumer Technology Association: Legit services making it easy for consumers to do the right thing—piracy dropped. British record industry: overall use of pirate sites had dropped a bunch; UK predicts will continue. Spotify has been shown to reduce piracy where it opens. 
 
KI: yet the content owners are telling us it’s still a problem. Possibility: (1) not enough legit services; (2) legit services aren’t enough; (3) we will never eradicate piracy.
 
Petricone: eradicating piracy online is impossible; the key is to reduce that as far as you can. Voluntary measures and presenting users w/wide variety of legit and appropriately priced content.  There are real numbers here and they show a great success in decreasing piracy and increasing access to content.
 
KTC: do you think that on the content side, content owners are focusing their approach on developing legit content, or is that still a distribution challenge online?
 
Petricone: 1998, there was a period of transition, to be expected for any new tech; increasingly embracing the internet.
 
Casey Rae, Future of Music Coalition: 512(i) encourages this. 
 
KTC: why wasn’t it effective?
 
Rae: it really wasn’t tried. Rightsholders assumed they’d pursue their rights as they had done previously.  Grokster: record labels were interested in achieving favorable legal precedent. ISPs faced legit difficulty in identifying works.  Things change.  Ongoing relationship: Credit card best practices; ad exchange best practices; separate copyright notice system.  All came from different situations; gov’t has role to create environment, but doesn’t need to legislate anything as long as info is presented from rightsholders to ISPs. But we need to know accessibility and affordability of tech for small & medium enterprises.  Need to continue to evaluate developing tech.
 
Maria Schneider, Musician: a young musician has 45 million plays on Spotify; never gotten a check more than $60.  It is not working.  Troy’s solution: Disney found a way to come to the table, but for musicians individually there are no solutions. Content ID isn’t available to me.
 
Jennifer Pariser, Motion Picture Association of America: Endorses Dow’s optimism about voluntary agreements as partial solutions.  All of them are flawed in that they only have some players and they can only be somewhat effective. More successful = players have incentive to come to table. They face liability if they don’t. Copyright Alert system = ISPs enjoy immunity if they cooperate w/us in a piracy solution, whereas other solutions, like domain name registries, have been more difficult to work w/ b/c they don’t face liability.
 
KI: we’ve heard that the trend in the course is to interpret safe harbors more broadly. Have you seen an effect on the prevalence of voluntary initiatives?
 
Pariser: hard to say there’s a one to one correlation, but for sure when great cases (for us) come out, ISPs have more enthusiasm for voluntary initiatives. Hopefully BMG v. Cox will help the Copyright Alert system, whereas limited liability for payment processors pulled in the other direction.  Entities have their own reasons to do things. Ad networks: they don’t want their clients associated with garbage sites. But court decisions finding that an operator has no liability are bad days for voluntary initiatives.  [And what makes you come to the table on good days for you?]
 
JC: Cox is not in Copyright Alert system?
 
Pariser: yes.
 
KTC: what role do you see for gov’t?  Response to Petrichone?
 
Pariser: content industry has done more and more and more to make content available. Windows are closing.  Enormous amounts of content available legally, and yet piracy is huge, b/c people still want something for nothing so we need more than licensing. What gov’t can do: courts are different from © Office; the Office could designate specific things as STMs. Part of the problem w/getting sites to adopt STMs is that there’s no agreement on them.  Sound of one hand clapping. If we say Audible Magic is a great solution and get no buyin, it goes nowhere.
 
JC: Parsing definition of STM: what’s meant by the use of “open, fair and voluntary”?
 
Pariser: something not like Content ID: available to the public, perhaps at a price.
 
JC: licensable tech?
 
Pariser: yes—you can’t be too small or too big, as long as you make the right kind of content.
 
Mary Rasenberger, Authors Guild: Voluntary measures are good if they work; problem w/ones to date is that they don’t work for individual creators.  Part of the problem is that individual creators have been left out of best practices, voluntary measures, industry agreements; don’t have ability to negotiate w/ISPs.  Authors are left with notice and takedown & its shortcomings.  There is growing book piracy. Complaints up 600% in the last 5 years; no affordable service for authors to use. Examples w/Google’s Content Verification—you can’t do it as an individual. Copyright Alert doesn’t work; 6 strikes is too much. Voluntary efforts by advertisers aren’t working either—our authors have Google Alerts set up and get dozens a day; they click and they get ads for sites they’ve just visited. Individual complains to payment processors—your notice just gets lost; they only want to deal w/ trusted senders. Individuals should be part of the negotiation.  STM: the tech exists, and if creators were part of that negotiation, there could be potential for great relief.
 
JC: Scribd?
 
Rasenberger: it works, but it’s not readily available to authors. We’d like to see industry adopt something like BookID on a wide basis, including ISPs. In a way authors could readily avail themselves of. Most creators simply lack the resources to spend on additional tech or to hire services to assist them.
 
JC: why not available to individual authors?
 
Rasenberger: they’d have to be part of the service, which they’re not. [I’m not sure that’s true.]
 
KTC: are you saying the fingerprints that filter is not something that individual authors have participated in?
 
Rasenberger: yes, and then the ISP doesn’t want to filter. They’ll take down in response to notice but not filter in advance.
 
Victoria Sheckler, Recording Industry Association of America: Voluntary initiatives can be helpful, but everyone has to get in the game for it to work. Varying degrees of success. Has to be in backdrop of working legal system.  BPI’s reduction of piracy: different legal regime, used differently, creating significant reason for reduction in piracy not applicable here.
 
KTC: In terms of the difference, pirate sites?
 
Sheckler: our comment suggests court orders had significant impact on piracy.
 
KI: are there particular characteristics shared by successful initiatives?
 
Sheckler: building trust, skin in the game, regular communication.
 
Lui Simpson, Association of American Publishers: Successful for those who can afford to be part of the measures—too expensive, not w/in reach of smaller rightsholder. Should be some push from gov’t to make these measures far more effective.  They become successful b/c there’s interest in engagement.  Pushing parties together about what might work: that’s needed.  Petricone puts onus on rightsholder to solve a problem they didn’t create.
 
RT, OTW: Interested in the claim that “everyone has to get in the game”—but what does that mean?  Big website does not mean big notices.  Our website receives 100 million visits/week and gets fewer notices than there are people from the Copyright Office here.  Wikipedia is orders of magnitude bigger and reports similar numbers, most of them flawed.  We’ve heard a lot about sites that ignore DMCA notices (overseas sites, SciHub): making such sites double plus illegal, since on the facts as stated they already are vulnerable to liability under current law, is not costless; it hurts the rest of us trying to do the right thing.  We have experience with a government mandate to use filtering technology: Sabam v. Scarlet case in Belgium: injunction overturned because Audible Magic didn’t work as promised.
 
Nancy Wolff Digital Media Licensing Association : Tech is there for reverse image search, but there’s no risk of massive litigation b/c licensors are small and can’t afford litigation so they won’t come to the table.  Multiple options for legit licensing of images, but it’s very easy to infringe.  Small claims court might help.  No voluntary measures there b/c no reason to talk.
 
Greg Barnes, DiMA: (1) I share the optimism about voluntary measures; allows different people to come to the table and avoids one size fits all approach that would doom us. (2) Gov’t role: important role in bringing people to table as objective facilitator, but shouldn’t put thumb on scale to achieve a certain outcome.  On licensing: Petricone’s point about ability to have licensed content out there decreasing piracy is hard to deny. So many different studies [Australia, anyone?] show this.  There are still problems in licensing musical performances, mechanical licensing—broken for decades, and Office knows this.  Online video services’ ability to stream video has been hindered based on relationship between studios and DVDs.  Lots of work to do, but industry agreements allow us to talk about this and reduce demand.
 
John Garry, Pearson Education: Experience negotiating—tech for websites that can screen in advance—none of the voluntary aspects deal w/outlaw sites, and they’re a tremendous problem w/ no incentive to use voluntary measures. Effective: website that came to AAP early on and wanted that part of this business model; they wanted a business relationship.  Another experience: negotiating w/a large website that looked DMCA-invulnerable; found a chink in their armor so they negotiated to become a legit business. Every great fortune is founded on a great crime. Nice relationship going forward. Voluntary is great when you can get it, but the outlaws are a real problem.
 
Melvin Gibbs, Content Creators Coalition: Garry’s right.  That period of transition has become a permanent state for us.  We’ve explored voluntary compliance.  The parties are siloed and not speaking. ISPs have been lax in codifying standards for accepting notice. True market failure. We want gov’t to facilitate.
 
Thomas Kennedy, American Society of Media Photographers: Simson & Wolff are right. There are organizations that need to talk with individual creators, and that’s not happening b/c there’s not sufficient incentives. Voluntary measures can’t do that.
 
Kerry Sheehan, Public Knowledge: done right, voluntary measures can ensure protection for speech and allow competition/avoid barriers to entry. But we shouldn’t just talk about this as rights owners and ISPs.  It’s the  world of internet users. These agreements need to be voluntary, not the result of coercion, threats of new gov’t enforcement measures.  Need to be from open process, also public interest voices. We haven’t seen public interest participation and these agreements can be unfair to users and smaller providers. If filtering is being proposed as STM, that’s especially important.  A more traditional open standards body would be more appropriate.
 
KTC: considering the public interest: how do we do that?
 
Sheehan: greater transparency, greater inclusion of groups who speak on behalf of public interest.
 
KI: what are the problems? Unavailability to smaller content owners. Other issues w/existing voluntary measures? Do you see a way to fix or improve those shortcomings and what would that look like?
 
Jonathan Band: Definitely preferable to coerced measures.  HEOA: coercive measure. Wrongly assumed that campus infringement rates were higher than elsewhere but that turned out not to be true.  Legitimate study that tries to understand the notice system and people are criticizing it b/c it’s based on a sample!
 
JC: Is it a bad law? 
 
Band: mandated education is a bad thing. No one’s ever been able to show that infringement causes huge substitution; the amount is subject to debate. I’m not convinced that requiring people to watch an online video is really going to change behavior.  Rather, what changes behavior is the fact that the old world where there were creators distributors and users has become meaningless—every user can be a creator; they become more sensitive to the complexity of © and its boundaries.  When you make your own videos, you understand what you’re creating and what you’re using as building blocks, as all creators do.  The act of creation allows you to recognize what you owe and what you don’t.  Educate users about the rights of others? No, educate them about their own rights, which comes naturally.
 
Terry Hart, Copyright Alliance : Not a concern about any particular measure, but more data is always important. Copyright Alert system: overview of # of notices; very helpful. More recently, we had the PTO best practices in sending notices proceeding.  Written comments suggested it has been effective. Worth looking at how well it’s worked. 
 
Rae: Inclusivity is the key need. Look at earlier agreements later codified, like mechanical royalties, or streaming royalties for music that were blessed by Congress. That’s stood since 2000, though it has lots of failures. And it’s inclusive of all those eligible to receive royalties.
 
KI: on multistakeholder process: we heard some people basically saying there were too many cooks.  Is there a way to balance inclusion with getting so big that it becomes unwieldy and you can’t reach consensus?
 
Rae: target the problem to be solved. If looking at repopulation of infringing links, limit to UGC sites, not search (though search is related to that).  Array of tech vendors so you can understand what they do.  Small artists included is absolutely important, and same w/developer community, who’s theoretically the builders of platforms for us.
 
Schneider: what we don’t do in this country. We don’t allow people to make money through illegal activity largely through initimidation. That’s racketeering. For  me, that’s what YouTube does. With these data lords [nice!] of unimaginable size, represented by att’ys and lobbyists that are siphoning my assets.  All the large studios in NY have closed; you can’t record a large film score in NY any more. All over the world—old men tell me how under Communism they listened to jazz and it gave them hope.  This is a culture of literature, of music, that we want. This isn’t about you protecting a large business making money no matter what. Do we want a culture owned by one company? I don’t. Voluntary measures, best practices like fingerprinting required by every company; standardized takedowns; no required agreement to TOS; checkpoints educationally on upload for photography, for music, for everything framed by the Copyright Office; videos that people have to listen too so they don’t have to watch YT’s copyright basics video. Muppets!  Fair use is jiggling around and you can’t read it.  It’s ridiculous. A ratings system for everyone that does a takedown or counternotice. Forces people to have accountability for takedowns and counternotices.  Everyone should agree to it. It’s common sense to anyone who doesn’t have a hidden agenda.
 
Janice Pilch, Rutgers University Libraries: HEOA, regardless of who pushed it, it is perceived to have improved the P2P situation in universities. May seem onerous and rigid but appears to have had an effect.  How could that be bad? Education is important as a viable approach to changing behaviors.  There’s tremendous confusion on right or wrongness of infringement in the context of viral social media messaging that’s anti musician, anti copyright, anti publisher, anti human. Pushed by the industries who benefit most from infringement, translates directly into cash for them. Users benefit from infringement and they have various motives. Sometimes they’re innocent b/c they don’t know or are confused by social messaging; there’s no standard for national copyright education and people never learn.  Students commonly never have heard of copyright or fair use.  Industry-driven social messaging tells them that infringements is a good thing; contrary to basic social instincts and norms to respect others’ works. Education could be stronger. For the public it doesn’t exist in good forms.  But we need to kill the business model of infringement first.
 
KTC: are there studies about effects of education on user behavior?  Social messaging that’s anti-©?
 
Pilch: HEOA requires universities to review effectiveness of plans to combat unauthorized distribution. I haven’t read the reports, but they exist.  On social media, on the basis of personal experience, I see it on blogs and listservs.  We’ve heard of bullying people who object to their works being used, and of people who agree—you get a string of communication beating someone up for liking © or wanting their work taken down. Can’t cite specifics.
 
Pariser: Not enough voluntary agreements—incentive to come to the table. On the educational piece: you’re hearing two different streams of ideas around education—one is we need it/another that the current info sucks.  Copyright Office could create more educational materials for consumers. Becoming creator is not its own education; in her experience, when you tell a middle school student that her selfie is © they don’t understand the plight of the © industry because they want to give it away for nothing [the horror!] and that doesn’t convey the message we want to convey.
 
Rasenberger: Voluntary measures can’t be the whole solution b/c they don’t address criminal pirate sites, the source of a great deal of book piracy. They move around the web and are mostly situated abroad.  Mandated TPMs through 512(i): it would be important for the process to be mandated; given that the burden is on rightsholders, there’s little incentive for ISPs to come to the table. The gov’t has a role in convening these kinds of standards creation in multiindustry processes that are open, fair, and voluntary.  BookID works only with Scribd; a mandated process could force other service providers to also adopt it.
 
Education could help w/some users. Authors tell us, particularly in genre field, that fans tell them that they only read books for free—they have no shame. Free books are so readily available. Need teeth for penalties, just as with speed limits—you need to give tickets to pirates online.
 
Sheckler: In terms of user interest—users are first and foremost in our minds.  That user wants to interact w/our content and we want to teach them the right way.  PK and CDT were invited to work with us on the CCI initiative.  We work regularly through CCI on education for K-12.  I find it surprising for Band to say it’s coercion to follow the law or petition for a change in a law.
 
Simpson: participation has to be broad and inclusive. Payment processor negotiated: rights holders invited were limited, not inclusive. We do face a problem of overinclusion w/o expertise, so it needs to be a balance. Preconsultation measure allowing those to voice their concerns. Need to compel people to
 
Rebecca Tushnet, Organization for Transformative Works
 
Back to the Q: What are the problems?  Content ID: well known problems with overblocking fair uses and falsely claiming revenues owed to others, recited extensively in comments and also routinely reported to us by our creators, including the internationally recognized artist I mentioned yesterday.
 
Different genres: Scribd’s own website clearly explains the two big problems with BookID: [Scribd’s bookID:
 
“BookID relies upon computer-readable text in digital documents. Content scanned from paper sources may not contain computer-readable text data, making those sources unsuitable for use as references. Similarly, digital documents encoded with optical character recognition (OCR) technology may contain garbled or partial computer- readable text data. This may be true regardless of whether the document is readable to humans. These conditions make it very difficult, if not impossible, to detect matches….  [Note that this means that evasion is trivially easy: all you need to do is insert things that people can’t see but computers can.]
 
False Positives
 
The BookID database may contain reference samples from educational textbooks and other works that contain long excerpts of classic literature, religious texts, legal documents, and government publications that are typically in the public domain. This can occasionally result in the removal of uncopyrighted, authorized, or public domain material from Scribd.
 
… Unfortunately, the volume of reference samples and uploads to Scribd prevent any sort of manual oversight or notification prior to effecting removals.”]
 
Result is: overblocking: quotes from public domain materials or even fair use quotes of another book: first uploader blocks subsequent users of quotes; underblocking, just need to scan using OCR. The change could even be something invisible to the naked eye, such as putting a nonbreakable space ( ) in place of a regular space, or adding random sentences and hiding them with CSS. 
 
[More generally, a simple filter is trivially easy to evade: easy to recode media in new file format and get different hash; algorithms to spot minor edits would be difficult both in terms of programmer time and expertise and computational resources. ]
 
If this check is actually supposed to work (that is, catch these workarounds), you get into the realm of plagiarism detectors, which are a fairly complicated technology. It would take us years to develop our own plagiarism detector, especially given we're part-time volunteers.
 
How to fix?  No perfect fix.  Easy appeal, nonthreatening about piracy, walk people through: In some cases, Wikipedia’s fair use and public domain guidelines for use of images would be good places to start: useful for people who are highly motivated and willing to invest a fair amount of time.
 
Not only is this education stuff really something that its proponents imagine being imposed on the unwashed others, rather than on themselves every time they seek to upload a photo to Facebook or send an email, it’s also yet another mirage. We know people don’t read the terms and conditions. We know they (we) just check the box.  [Copyright, which most people don’t care about, won’t be the topic that changes their minds.  There are only a few effective ways of making disclosures, and you can only do them once in a while or people tune those out too.  Education sounds like having your cake and taking it too, but it’s not that simple.  There are things you can do in particular circumstances once the issue has become salient to people, like Wikipedia editors, but the mandate being described as ideal would not be doing the work; what would be doing the work is the associated filtering mandate.]
 
Nancy Wolff: can’t speak to voluntary measures in our area b/c there aren’t any. Takedown doesn’t work. Harassment as a result of notices. Copyright Office guidance on STMs would be good. Certain creators shouldn’t be excluded.
 
Wayne Josel, ASCAP: we spend time educating our licensee base about what the law is. Easier to get people to recognize obligations to take a license before engaging in bad behavior than to correct bad behavior once it starts—better for us to speak to a guy who’s about to open a restaurant than one who’s been playing music for 3-4 years.  Contra Band, opposite of respect takes place when people create new content—the ease of creating overcomes their sensitivity to others’ rights. [How dare these new creators find out what creating feels like.]  User experience overrides information; people don’t click on the terms of service; services want to make it frictionless so you no longer have to warrant that you own what you upload.  [I agree that it’s a problem, but people ignore these!  You can try all you want!  The reason the services want frictionlessness is in part that while friction does deter uptake, it also doesn’t actually leave the people who sit through the legalese with any greater appreciation of the TOS.  So the benefits don’t justify the costs in most cases.  If friction worked in terms of having people internalize new rules, there’d be more of a reason to use it.]  The law should be required reading. 
 
Dow: the ones that work better are collaborative, not unilateral. 
 
Gibbs: public should be encouraged to think of themselves as creators. Creation is built on other creation, which is why it’s in the Constitution. People do need to be educated about their rights—not just fair use, but you made it and it’s worth something. 
 
Sheehan: we should provide meaningful opportunities for public input and transparency in CCI going forward.
 
KTC: education—what’s wrong w/education?
 
Sheehan: consider differences b/t ISPs, resources, user community. One size fits all will  never work—under and overinclusive, with unexpected consequences. Balanced content in educational programs should respect users’ rights to reuse content in fair and legal ways.