Thursday, March 13, 2014

House DMCA hearing part 1

House Judiciary DMCA Hearing. (Links on names go to testimony.)
Rep. Goodlatte: Unanticipated: volume of notices plus reappearance of content. Adequacy of notice is an issue. Fraudulent notices with little risk of penalty are also a problem, though a low percent. §512 was balanced among interests. Keep consensus model in mind.

Rep. Conyers: In 1998, there were few blogs; social media like Facebook and Twitter didn’t exist.  (RT: why I call the DMCA the Digital Fifteen Minutes Copyright Act.)  Some courts interpreting §512 have done so in ways more restrictive than we intended, imposing significant burdens on copyright owners to monitor the internet and specifically identify millions of infringing files.  Narrowly interpreted circumstances under which providers will be deemed to have red flag knowledge of infringement to take material down. Has also generated lots of litigation with new technologies like cyberlockers and P2P filesharing, which have facilitated infringement in a manner we in Congress didn’t fully envision when we enacted §512. Statute is therefore largely ineffective in combating massive amounts of infringement that occur using these technologies. We must decrease infringement.  Sites providing access to infringing copies continue to increase.  We must improve the process for identifying/handling repeat infringers.  Copies of the same works are reuploaded.  Result: whack-a-mole.  Should consider whether search engines can somehow prioritize results that don’t contain infringing material.  They’ve demoted search results in other contexts.  Resistance to doing that for copyright owners. The voluntary agreement among ISPs and large copyright owners is a good model, targeting P2P infringement of those big copyright owners’ works.

Sean O'Connor, University of Washington School of Law

§ 512 is at the intersection of artists, copyright owners, and internet providers.  Represents and a site that allows people to make multimedia collages to express themselves.  They were started by artists who respect copyright, but who also want to make content widely available.  One point: we’re often trying to divide the tech world from the content world, and with smaller artists and startups there’s often much overlap.  §512 was a solution in the 1990s.  But over time it’s had unintended consequences, accidentally fostering a culture of copyright contempt. 

Why? Because of the kind of advice given to clients—they should not be monitoring content for potential infringement. There’s no upside.  §512 allows it, but they get the safe harbor regardless. But there are downsides to monitoring—they might find red flags/actual knowledge of infringement, or awareness. Then they have to proactively takedown the content. Why should they look?  Not the intention, but unintended consequence. Lack of monitoring has led to the current situation; millions of takedowns is clearly unsustainable. 

Taking care of relentless repostings of clearly infringing works, not remixes/transformative uses.  That’s a large chunk that we could try to reduce.  Since people are told not to look, that’s emboldened bad actors to just repost.  Getting the volume down—won’t eradicate it, but if we could take care of whack-a-mole for nontransformative works we could help startups/artists.

Common carrier doctrine: we wanted access to the internet in the 1990s.  Those companies rightly were concerned that they’d be liable for things sent through their system.  Proposals: (1) there should be notice and staydown.  Voluntary among stakeholders to stop repostings and make tools available to smaller OSPs.  Google has good tools, Google Analytics (RT: I didn’t realize that analyzed infringement.)  Make Google give its tools to them?  If no agreement reached in reasonable times, amend DMCA to create duty to remove repostings, just as there’s a duty to terminate repeat infringements.  (2) Set congressional policy around willful blindness. 
(RT: From the perspective of a small ISP, this is a proposal designed to put us out of operation.  We can’t staff this, since we’re all volunteer and keeping busier than a one-armed paperhanger just keeping the site up most of the time; we can't scan the site with humans, and we can’t buy the tech.  Of course suppressing new/small sites is not a sad thing for some large copyright owners, but I think that’s a bad idea for the rest of us. I’m quite confused by why O’Connor believes that increasing duties for ISPs will help out small ISPs that, he correctly says, don’t have the resources/staff to invest in significant proactive compliance efforts.  He wants it to be easier to find "red flag" knowledge based on what ISP employees encounter as they go about their days--but who is to train them about how to recognize an infringement?  And without a takedown from a copyright owner, there's no counternotification, so the user who thinks she's got a valid fair use claim can't even counternotify, as many people who've run afoul of Content ID have discovered.)

Annemarie Bridy, University of Idaho College of Law: §512 has proven resilient in the face of internet evolution. No one doubts that there’s a lot of infringement, and that dedicated infringers can evade enforcement. But perfect enforcement is a chimera.  Fair and workable enforcement should be the goal, and §512 is doing that. Copyright owners and ISPs have automated systems; many ISPs hosting UGC provide simple to fill out forms for smaller copyright owners, which should be expanded.  P2P is more of a challenge, but that’s declining with legal alternatives growing.

§512 puts costs on both parties; enforcement must be collaborative if it is to be effective.  Music industry stumbled in the transition, but is now returning to secure footing.

Paul Doda, Global Litigation Counsel, Elsevier Inc.: Elsevier has large portfolio; can’t possibly search for all our content all over the internet, so focus on sites with the most Elsevier content. We face growing volume, need to repeat notices for same infringing works, and reuploads at fast speeds.  We had zero counternotifications because we take our DMCA obligations seriously: human verifies that full copy is uploaded. This makes it difficult to keep pace.  Sites that comply with takedowns continue to have hundreds of thousands of infringements per month.  4shared: 570 reuploads of one book. Uploaded: also hundreds of reuploads.  7-9 days until takedown takes effect; millions of users are able to download.  Elsevier also publishes confidential exams for nursing students. Sometimes stolen from schools and uploaded; have issued takedowns to little effect because some sites don’t honor takedowns or punish repeat infringers. This undermines the academic process/quality of nursing care. The system is breaking down.

What to do without stifling creativity?  Filtering.  Collaboration with UGC sites = success. Scribd is a good example of targeted filtering in good faith: fingerprinting containing unique characteristics of books; uploads are checked.  Only captures matches, and users are notified so they can dispute rejection. We need more collaboration in the publishing industry.  Urge Congress to bring together stakeholders; without oversight, not enough incentives for collaboration. Notwithstanding voluntary measures, some sites will drag their feet. If they refuse to consider measures adopted by peer companies, remedies from Congress may be necessary. 

Katherine Oyama, Senior Copyright Policy Counsel, Google Inc.: Never a better time for creativity online.  (1) Tech sector has been the engine of US economic growth and job creation—new markets and billions for the content industry, and this has only been possible because of the DMCA foundation.  (2) DMCA strikes the right balance in promoting innovation and protecting rights owners.  Internet providers not being held liable for every post by users is an essential feature on which the entire internet relies.  More than 1 million YouTube creators earn revenue; Google has sent $1 billion to the music industry in the past few years. This is just the beginning for the market for digital entertainment.  DMCA helped enable this economic success by creating legal certainty, allowing investment in new services. Only copyright owners know what they own and where they want their works to appear.  Cooperation allows for innovation and encourages investment.  FB, Twitter, Pinterest are enabled by this.  Google has made takedown easier and faster than any other online platform, and despite increase in volume of notices our average turnaround time is less than 6 hours for search results. Even now, notices are far less than 1% of what we index.

There are abuses. Attempts to censor criticism, attack competitor, gain political advantage are rare but problematic.  DMCA allows new systems to generate revenue: Content ID allows rightsholders to choose in advance what to do with UGC, and all the major record labels/studios use it; most choose to monetize instead of take down. We are also working on highlighting more legal content—prominent links to buying a show/movie instantly or buy movie tickets when you google it.

Most effective way to combat rogue sites is to attack their sources of revenue. We’ve expelled 76,000 sites, mostly through our own detection, over the past few years.

We should encourage other countries to adopt DMCA systems via our trade agreements.  (Heh.)

Maria Schneider, Composer and Member of the Recording Academy’s New York Chapter Board: Personal experiences with notice and takedown—an independent musician.  Grateful for fanbase and critical acclaim, but livelihood threatened by illegal distribution. DMCA is upside down because uploads happen in matter of seconds, but takedowns take hours, mostly unsuccessful. Burden isn’t on those breaking the law; no consequences for big data businesses that profit from unauthorized content, but big losses for artists.  Loves internet distribution/fan funding, but struggles against internet sites offering music illegally: album available on numerous filesharing sites.  $200,000 of savings/years of work needed for releasing album. Takedowns are frustrating/depressing.  Her responsibility to police the internet on a daily basis. Whack-a-mole.  Need fix. (1) Creators should be able to prevent unauthorized uploading before infringement. It’s technically possible, as YouTube already does it. Every artist should be entitled to register their music, just like the Do Not Call list. Filtering can be used to monetize or protect content. (2) Takedown should be more balanced. Most fans probably don’t intend harm, but just need to click box. She needs to prepare a notice, spending hours learning unique rules. Should be more streamlined process. ISPs should be required to educate users to help them understand what can be uploaded. If they had to be instructed, system would be more efficient.  (Yes, I’m sure it would be tons more efficient for Google to walk me through the law before each blog post I make goes live.  Or maybe she only wants that to happen with AV works.  Also, let’s (not) hope that we can get our allies to adopt the same rules …)  (3) Takedown should mean staydown. Most of her time is now spent fighting infringement, not making music. Disincentive to create. Simple changes would make great strides in fixing broken system.

Paul Sieminski, General Counsel, Automattic Inc.: Small company, big impact. Wordpress: anyone can create and publish in minutes. Powers large media properties, small sites, law firm homepages, family blogs—more than 48 million sites, 13 billion pageviews/month.  230 employees, one lawyer.

DMCA provides important protections to us, and works reasonably well. Troubling rise in misuse of process. Egregious: fraudulently misrepresent content ownership to get rid of disagreements.  Articles trying to remove content critical of a business’s products.  Etc.  We do our best to review notices, which takes resources away from other important pieces of our business. Suppresses legitimate free expression and erodes trust in our copyright system. Piracy is a real issue, but we see abuses by those who submit as well. Powerful and easy to use weapon: notice that must be honored at risk of liability; safest thing to do is comply with no questions asked. Puts full burden on users, who are often small independent musicians and amateur publishers. Often lack sophistication/resources to fight back. And there are no real deterrents to misuse, unlike statutory damages. Thus most abuses result in successful takedowns with no repercussions.  Only §512(f) is a remedy; we’ve joined with users to bring suits that are expensive, time-consuming, and unlikely to result in significant monetary redress.

Internet has many fabulous affordances.  Innovative tools allow anyone to publish, or even organize a democratic grassroots overthrow of an oppressive regime.  For the most part, the law has worked, but we should be mindful of how it can be used to suppress the freedom of expression it’s supposed to foster.  Keep us and our communities of creators in mind as you think about reform.

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