PTO/NTIA: notice and takedown

Improving the Operation of the Notice and Takedown System

Moderator: John Morris, Associate Administrator and Director of Internet Policy, NTIA

Voluntary agreement among wireless companies will be announced today re: cellphone unlocking.

We will not be talking about fundamental changes to notice and takedown, but instead take 512 as it is and see if there are areas where we can improve its implementation.

What areas might be fodder for multistakeholder consultations?

Panelists:

Victoria Sheckler, Recording Industry Association of America

In 1998, our industry was physical.  Today, nearly 2/3 of our revenues are from digital sources. Over 500 authorized services worldwide. We are working hard to create new services to give consumers engagement with music, drive new tech, and create partnerships/licensing everywhere.  Our work is being impacted by online infringement.  In 1998, less than 30% of Americans had access, less than 3% broadband. Today, 70% have access to broadband. Any file can be infinitely populated all over. Any file taken down can immediately come up over and over again. Katy Perry’s “War,” they’ve sent over 300 takedown notices for the same site to Google.  38 million requests to Google in the past couple of years, as well as millions to website operators themselves. Current system is outdated, simply isn’t working. Opportunity to address it through volunteer initiatives.

Options: (1) role of search.  Google has said that it doesn’t want search results to direct users to results that violate copyright law.  Promotion of authorized services.  Other possibilities, like icons to identify authorized services.

(2) Address whack a mole problem.  We send millions of notices on the same tracks and they continue to pop up. Unnecessary and undue burden on website operators and content community.

(3) Repeat infringers: inconsistent implementation. What’s a reasonable approach for repeat offenders?

Fred von Lohmann, Google

Most important thing for cooperation on notice and takedown is to focus on what’s been working.  Transparency and cooperation.  Transparency around notices—who’s sending them, for what—and also trusted copyright removal program (TCRP), which many in the room know about. RIAA is one of the members.  Stemmed from Google’s recognition that many notices were being submitted by a small number of submitters, such as RIAA, Microsoft, etc. Many were reliable, high-accuracy submitters, and we thought we could do better with such sophisticated, accurate entities.  Didn’t want to delay them with processing notices from nonsophisticated submitters, of which there are a lot that are incomplete or abusive. 

Today, TCRP members submit 95% of all removal notices, and in the last 30 days we’ve processed millions of such notices.  That’s been done with consultation with large submitters. This has also improved accuracy/accountability of notice and takedown industry. There are now many independent takedown vendors that search the internet and prepare takedown notices on their behalf and submit them to Google and other ISPs. Some are poorly behaved; sending takedowns that were inaccurate without copyright owners’ knowledge. Transparency report has allowed rightsholders to police their own vendors. Vendor community also likes it because it allows the accurate ones to get credit for it.

Transparency report also lets users inform us of errors, by looking for their own websites.  24 million/month, we don’t catch all errors; the public helps as well. We ejected 2 members from TCRP last year for persistent, repeated failure to submit accurate notices. Above and beyond what DMCA requires; the only way we can punish misuse is by having this extra program; they can still submit DMCA notices.  Would love to hear about similar efforts that have worked, rather than rehash of stale debates.

Corynne McSherry, Electronic Frontier Foundation

Considering the interests of users/small participants is really important. DMCA safe harbors have been tremendously beneficial overall.

Sees improper takedowns all the time, from home videos of dancing babies to lectures by significant academics, to entire YT channels of news reporting, and that’s just her docket right now. When these happen, they call the legitimacy of the whole process into question. Content owners and ISPs say they don’t want these either, precisely because of the legitimacy issue. So why don’t we create a set of meaningful best practices for fair use? Building in strategies to flag potential fair uses—obvious fair uses, which are a subset of fair uses but do indeed exist.  Avoiding takedowns based solely on keywords, as happened to Cory Doctorow’s book Homeland which was targeted for mass takedowns based on ownership of the TV show.  Another alternative: ADR. Counternotice isn’t really good enough for people targeted by improper takedowns—a way to request quick review.

Service providers can also do a lot.  Simple things: forwarding DMCA notices to users.  Many times people contact her and say they’ve gotten a takedown; hard to figure out not just who sent it but even whether it was a compliant notice.  Can’t negotiate Content ID process, which is hard to figure out.  Make it hard to shut down an entire account by sending a flurry of notices. Trusted users with an extra opportunity to appeal.

Susan Cleary, Independent Film & Television Alliance

Small companies. We get financing by ensuring that our partners have exclusive rights around the world. Need a strong regime in place. Notice and takedown/notice and notice in other countries are one of the only tools that independent rightholders get to exercise, and it’s whack a mole. If you might not be able to get production financing together to produce The Hurt Locker, you don’t just lose revenues, you don’t get the film. Need more efficiency in notice and takedown.  Independent rightsholders don’t have the money to use expensive technology of vendors/major rightsholders.  (I thought the market could fix everything—I guess that only works for some people.)  Lack time, money, staff. Need legal framework to give ISPs the cover to do what they need to do.  Voluntary agreements need to be transparent, and we need the government because without the government certain people are left out.  We don’t get powers of attorney to litigate for our members; they’re on their own. Search engines need to step up and point to legitimate product. Need threat of gov’t action for people to act in good faith, transparent and inclusive manner.  (Competing narratives of what constitutes inclusion—fascinating from a rhetorical perspective.)

Troy Dow, The Walt Disney Company

Congress intended 512 to be much more than a regime in which people sent notices and they were responded to.  (??)  Increasing dissatisfaction with operation as effective tool.  Did intend it to be a framework to provide incentives for copyright owners and ISPs to work together and detect and deal with infringement. Tech provides a role in providing solutions and Congress intended for 512 to be a vehicle for working together. UGC is an example of where notice and takedown wasn’t up to the magnitude of infringement in UGC (hunh? I don’t think that acronym means what he thinks it means, which is one reason I don’t like the term).  Cooperative tech solutions—we’ve managed to take significant infringement issues and at least put them aside with the UGC principles endorsed by some service providers and copyright owners.

Christian Genetski, Entertainment Software Association

Increasingly our members are exclusively cloud-based. The balance the DMCA is aimed to strike are very important to our membership on both sides. Our trade association plays a vital role for our industry by sending many millions of DMCA notices per year; most of our members also have DMCA agents that receive and process notices as well, and we take both sides seriously. What’s important to us is getting past having all the voices talking past one another, exchanging rhetoric about what they don’t like. Look at data. There aren’t really black hats and white hats, but rather a spectrum. One site, we sent 22,000 URLs for infringing copies of the same game title (we had API access); another site we sent 10-20 notices a month, but they took a couple of weeks to process them. Lower burden, lower costs, but for DMCA’s aims of reducing illegitimate content, the first instance was better because of the rapidity of the takedown process.  Expose outliers.

David Snead, Internet Infrastructure Coalition

Internet infrastructure is made of 30,000 small to medium sized businesses.  Most infrastructure providers aren’t content providers like Disney, nor are they like Google with large resources to devote to understanding fair use. They know what the DMCA is but don’t know the nuances.  Consider the lack of significant resources.

Voluntary arrangements need to keep in mind that the people implementing them won’t have a lot of resources. 512 is a relatively plain statute. Relatively easy to understand. What’s happened is that providers have muddled it and made it more complicated than they need to be. Most important result: best practices so that small and medium sized businesses can understand what these notices say and respond appropriately.

Von Lohmann: Google has already taken many of those steps, such as demotion in ranking algorithm based on number of DMCA notices; we’re the only member of the search engine industry that has done that.  There are over 66,000 registered DMCA agents in the Copyright Office’s database. That’s not just big companies. As I understand the mission, it is multistakeholder discussion. To talk search doesn’t do justice to these small/medium businesses with a dog in this fight. Google is interested in having these discussions, and meets with copyright industry members on a regular basis w/r/t search and YouTube. For a multistakeholder discussion of best practices, though, we need to get some of those processes out in the open, get data, get transparency, so that the others can learn from those examples. A focus on search in this process would be counterproductive.

McSherry: Another missing voice: technologists. If we start mucking with search, for example, we need to know how that will affect search and searchers’ behavior.  Rightsholders + ISPs + EFF is insufficient. Related to that, transparency for the public is key to meaningful participation/comment.

Cleary: while we think it’s important that searches point to legitimate product, people think the internet is unlimited space but it’s not.  Be careful to understand that rightsholder has right not to make available/control distribution and distribution windows. Not every product has a legitimate space on the web. 

Von Lohmann: as Dow knows, there’s no safe harbor for “search engines,” but rather for entities that rely on the ability to provide links, and there are far more than just a few of those. If you want a multistakeholder discussion about improving notice and takedown, singling out search isn’t true to the Green Paper’s goals.

Q: say more about transparency.

Sheckler: Google has done a great job of letting us know how many notices it received. But we don’t know how it’s working—need more transparency on that.  (?)

McSherry: Google’s transparency reports have been tremendously helpful for understanding what is happening.  Need more transparency on rightsholders side, big and small. Hard to understand how to suggest improvements without a window into how rightsholders or their agents decide what to target. Would further the conversation with more information; we know it’s not perfect so just telling us that “we identify infringements” is insufficient. 

Genetski: one of the best ways to do that is incentivize transparency. Voluntary best practices that elevate the end result for both sides = greater willingness to share data. Verified rights owner program that removes/prevents anything from appearing in the first place, then rightsowners would be willing to share more information and insights, and even set a higher standard than the DMCA notice required, if the reward for that investment is commensurate.

Dow: UGC principles were based on that kind of approach. There is room for transparency on the side of notice recipients—often we don’t know what goes into things like driving specific results down the search results.

Von Lohmann: we need more transparency from a group absent from this panel: the enforcement vendors. We need to understand their cost structure, how they generate notices, and what checks they use for accuracy.

Cleary: we don’t want transparency to get lost in different technologies. Independent rightsholders were left behind when ISPs started blocking P2P and legit content was blocked. Tech neutrality is key.  Copyright can’t be a guise for preferring other copyright owners’ content or excluding us from access to the pipes.

Q: bad notices

Genetski: we don’t like to see bad notices; we set high standards in sending our notices; we have limited enforcement resources. Our experience has been in millions of notices we get almost no counternotices.  Those problems fit into a broader framework of problems; even if you solved those problems, you wouldn’t have solved the problem of providing meaningful and effective enforcement. (Also you wouldn’t have solved world hunger, so I guess you shouldn’t try.)

Snead: there needs to be a meaningful way for targets of takedown notices to communicate with sending entity. All too often there’s virtually no way to get in touch with outsourced notice providers. If you have someone who wants to get in touch with them and say “we have the right to do this” there’s no individual who is following the case; there’s no phone number; there’s no email address. There needs to be a way—rightsholders need to direct their vendors—to provide this information.

Von Lohmann: amen.

Q: do we need to have a different conversation for small providers and big providers?

Cleary: we should have breakout sessions, but any time you put the big guys in a room together you risk lack of transparency. We are small, but we produce 80% of the feature films and TV in the country. I want to be in that room.

McSherry: tends to agree. At the end of the day, meaningful outcome requires inclusive process. One thing we’ve learned is that internet users won’t stand for backroom deals. Need lots of participation by rightsholders, ISPs, technologists—this is too important to leave to lawyers. Also need to hear from international community. Many activists around the world rely on ISPs here for expression, and they should weigh in.

Cleary: we represent foreign rightsholders in the US, and they want more enforcement of their rights in the US, where there’s huge piracy of their works.

Snead: this shouldn’t be divided into big and small guys. What we see is that DMCA largely works for small guys, but needs tinkering on the edges. US is at the center of a lot of internet infrastructure. This benefits US business. Changes must take this into account or we’ll drive business away from the US.

Q: small standardizations?

Cleary: voluntary agreement by payment processors for handling complaints—wanted to standardize a form for every one.  It can be done.

Dow: streamlining/effectiveness is worth having, but that’s setting our sights too low. One vendor from one studio has 39 million notices, for 87 titles.  Those notices went primarily to 25 sites: 58,000 notices for each one, and all those titles still remain available on those sites. Huge problem of inefficiency/ineffectiveness that streamlining notices won’t solve.

Von Lohmann: big numbers alone don’t tell you anything you want to know.  As Genetski said, 22,000 notices can be effective if fast. What we have is a lack of knowledge because we have a lot of different ISPs doing different things. Sharing knowledge is useful.

Sheckler: the data are useful, but from where we sit, we’ve sent 2 million notices to Google and mpcrystal.com (sp?) and the music is available on that site the next hour. That’s the problem we face. We’d love to see someone who’s done differently—is music different?

Snead: we already have data that will help rightsholders and people who are targets take action: a very plain and simple statement under the DMCA that’s not designed to instill fear or confuse. That’s all that needs to be done to let people know their rights. Extraneous info serves to make people afraid and confused.

Genetski: There may be abuse of what’s in the notice, and improvements to be made, but von Lohmann points out that there’s less transparency at the ISP stage, in that other 66,000. Why is RIAA sending so many notices?  Are they being processed?  (Is the RIAA suing that site?)

Snead: if ISPs are employing content protection, above and beyond the DMCA, they need to offer it to all rightsholders. 

Q: whack a mole problem?

McSherry: best alternative is to provide convenient alternatives. You can’t win whack a mole. Invest resources more productively.

Snead: Provide as much information as you can to the notice recipients. Let’s get information on the scope of the whack a mole problem.

Dow: we long for the day in which the mole actually goes into the hole for some period; right now the mole doesn’t even retreat. Look for tech solutions that are beyond notice and takedown.

Snead: use metadata, fingerprinting, and put all of that to use to stop whack a mole and make sure content stays down.  The goal is reducing piracy so that legit services flourish, including with fair use.

Sheckler: this is a problem. We agree with the DMCA’s framework and goals. Let’s work on deterring infringement.

Q: who is missing from this panel? We’ve heard vendors, technologists, security researchers, int’l community.

Snead: independent ISPs.

Dow: small and large copyright owners.

Von Lohmann: small and medium OSPs—resource constrained.

McSherry: internet user communities, such as remix communities—creators themselves.

Q: how much do we need more factual foundation? Do the stakeholder already understand the issues?

Sheckler: we’d all benefit from additional data.

Genetski: the hard part is to avoid being unwieldy. Everyone needs to share analysis of their own data.  Challenging, not impossible. Particularly for vendors with confidentiality agreements—real constraints, but important voice. 

McSherry: we need to understand what innovation/expression is facilitated by current system to avoid collateral damage.

Snead: begin with what’s working, not with what’s not.

Cleary: agreed, because we don’t understand the search algorithms.

Q: Is there any entity doing a good thing you want to give a shout-out to?

Von Lohmann: Microsoft has publicly spoken about its strategies and practices as rightsholder, been useful and enlightening.

Snead: those outsourced vendors who (1) have an individual following a case, (2) working, monitored phone number, (3) don’t use a proprietary method of communication and ID by URL.

Dow: UGC principles as an example of using reasonable measures to prevent infringement in the first place.

Snead: largest ISPs have worked with us on the voluntary notice system to make sure all the boxes were checked off; we worked with Public Knowledge too. Results are encouraging/improving.

McSherry: Google’s transparency report—more should be following suit.  One other service provider: Automatic, aka Wordpress—they’re one of the few service providers to join a §512(f) lawsuit, and if more did that we’d see less takedown abuse.

Mark Cooper, Consumer Federation of America: How many search results were added during this period in which you got 24 million takedown requests?

Von Lohmann: there are more than a trillion pages on the web; despite the large number we receive, it is a trivially tiny, infinitesimal percentage of what we index.

Karen Russell, American Library Ass’n: Public schools, public libraries, universities are ISPs and have special interests to be considered.

Von Lohmann: there’s been very little study of the 66,000 registered copyright agents. What’s the breakdown? Many are content owners as well. Always assumed that 66,000 that register understates the number that rely on the DMCA; a large number don’t even know that they’re supposed to register but nonetheless maintain active notice and takedown practices.  For those of you listening: do register a copyright agent!

Joe Keeley, House Judiciary Committee: full copies v. less than full copies—latter more likely to be fair; possibly that takedown should work differently?

Von Lohmann: Content ID has the ability to do just that. Or if the audio track is different from video, another signal of remix. Those tools are becoming available. Imperfect proxy for full fair use test, but a lot can be done. Major content owners—movie studios—can be very responsible about using those tools to avoid targeting likely fair uses; those studios give credit and others should learn.

McSherry: while there’s no substitute for human review, tech can be used to flag for what’s likely fair use—saves time and energy.  Full copy of video and audio that’s been taken down before, that can easily match. But then identify and examine the relatively small but important percentage of uses that are more likely to be fair.

Cleary: be careful that you’re not dealing with a piece at a time posting, though.

Dow: tech can be used to flag more likely infringements and less likely ones—identify same file and make takedown more efficient.