AIPLA COPYRIGHT LAW COMMITTEE HEARING SUMMARY Hearing title Committee

AIPLA COPYRIGHT LAW COMMITTEE
HEARING SUMMARY
Hearing title
Section 512 of Title 17
Committee
House of Representatives Committee on the Judiciary
Subcommittee on Courts, Intellectual Property, and the Internet
Date
3-13-14
Prepared by
Alan T. Harrison (McCormick, Paulding & Huber)
Opening Remarks
and Committee
Members’ Concerns
• By SubCommittee Chair, Rep COBLE (R-NC): 512 takedown
procedures are a burden on independent artists; alleged abuses of
DMCA takedown equated to abusive patent “troll” litigation;
welcomes gent from NY
• Rep NADLER (from NY): sec 512 integral aspect of internet business,
limits liability of ISPs; balances concerns of ISPs and rightsowners;
intended to protect rights-holders who would otherwise not have
embraced internet, protect ISPs from liability for user misconduct;
15 years after DMCA, new tech has changed internet raised new
problems not foreseen by drafters of 512; on-line infringement
skyrocketed; Google received more than 230 million takedown
notices in 2013; DMCA takedown procedures impose “financial and
practical nightmare” on artists and ISPs alike; “Whack A Mole”
analogy for repeat infringers -> query sufficiency of 512(c)(3) list
procedure ?; abusive notices considered a small percentage of total
requests (est. only 3% of Google’s reported 230 million takedown
requests received);
• Committee Chair Rep GOODLATTE (R-VA): three concerns to be
addressed in this hearing (1) whack-a-mole problem; (2) fair use / 1st
Amendment concerns; (3) DMCA trolling. 512 drafted to achieve
consensus balance of stakeholders’ interests.
• Rep CONYERS (D-MI): welcome witnesses; focus on ISP liability; focus
on 512 as immunizing ISP from liability “as long as they don’t derive
financial benefit from infringing activity”; key factors to consider:
many concerns that inspired enactment in 1998 remain of concern
(implication: not resolved by statute); blogs, social media new
developments since enactment; have courts interpreted 512 in a
manner more restrictive than intended, overburdening copyright
owners to monitor internet and specifically identify each of millions
of infringing files?; have courts too narrowly interpreted
circumstances where ISPs have duty to takedown material?; does
512 adequately address cyberlockers and PtP sharing? – these were
not anticipated at enactment; statute is ineffective in combating
infringement via PtP or cyberlockers; continual increase in number of
sites providing access to infringing material. Need to consider
improvements to process for identifying infringers. Under status
quo, rights holders are “forced” “into a never-ending cycle of
takedown requests.” Can search engines be legislated to prioritize
non-infringing materials?
• In Q&A period,
• Rep CHABOT queried the viability of free market solutions.
• Rep CHU proposed that DMCA is ineffective for small creators, and
pointedly asked Oyama why does Google continue to give illicit
websites top search billing when users look for movies? Rep CHU
further inquired why does Google not tailor search algorithm to
better exclude sites with heavy DMCA notice load?
• Rep CONYERS focused on challenges faced by rights-holders to
combat infringement.
• Rep FARENTHOLD asking about free market solutions to make
legitimate copying easier; search engines enabling infringement –
should search engines consider voluntary rating system for websites
in order to avert legislative mandates; queries whether small players
can have the resources to implement copyright lookups or
fingerprinting as used by scribd?
• Rep. DEUTCH contends that independent artists lack the resources
to take advantage of the balance properly struck between interests
of rights-holders and technology companies. Inquires whether
DMCA safe harbor should be curtailed for obvious bad actors.
• Rep MARINO refers to “nightmares” of small content creators
• Rep RICHMOND urges that industry should avert Congressional
action; points the finger at Google Search Autocomplete as enticing
users to search for infringing content. Queries what would Google
advise small content creators seeking to protect their works?
• Rep COLLINS at 2:20 provides an unlicensed public performance of a
classic Earl Scruggs banjo piece, and inquires of Prof. Bridy whether it
is reasonable for content owners to bear costs of detecting
infringement and enforcing copyrights; but how is this fair for small
creators who own only one piece of content?
• Rep JEFFRIES queried whether Prof. Bridy agreed that Copyright Act
should secure to creators a fair return on the produce of their
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creative labor. Further q what is the definition of “red flag
knowledge” that would vitiate the DMCA safe harbor.
• Rep. POE as a former Texas judge analogizes copyright infringers to
car thieves and outlaws: “It’s just bad.” Highlights the oddity of
relying on private remedies to suppress felonious activity. To Ms.
Oyama: “Is there a way that you can do this with your … algorithms
… to make sure that the bad guys aren’t at the top of the page?”
• Rep. CICILLINE proposes, in view of improved detection technology,
modifying 512(c) to impose a requirement for safe harbor that ISP
has made good faith effort to prevent reposting of infringing
content. Why is all the burden of enforcement being put on the
victim of the crime, rather than the enablers of the crime? Urges
Google to work on preventing re-uploading. Cautions that if
Congressional action is required to remedy deficiencies of DMCA, it
may be an over-swing of the pendulum.
• Rep. LOFGREN notes the foundational nature of DMCA safe harbor
to modern internet, cautions against harming the status quo. Points
out that Google owns all the files on Youtube and queries whether it
is technologically trivial for infringers to avoid Content ID screening
on hosted data. Re-addresses the issue of DMCA takedown abuse
for censorship; queries should there be a statutory sanction for
DMCA trolling?
• Rep. ISSA q regarding 1990s classroom use of unlicensed
reproductions of substantial portions of copyright work; contrast to
modern use of Google to detect infringement. Q to Ms. Schneider
whether internet makes infringement more visible as well as more
prevalent?
Sean O’Connor
Professor of. Law,
U.Wash. School of
Law
• 512 is at the intersection of artists, copyright owners, technology
entrepreneurs. Two exemplary clients: Rhizome.org; Kolidr.com.
Both companies founded by artists who respect copyright and want
to make content widely available.
• There is no upside for an ISP who monitors for potentially infringing
content; if they start looking at any of the content posted by users,
they may develop actual notice or awareness of infringement
incurring a duty to takedown even in the absence of DMCA notice
from rights-holders.
• Need a way to take care of relentless repostings of clearly infringing
copies, where there is “not even a pretext of transformative use.”
• DMCA encourages counsel to ISPs not to police their users’ content.
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• Suggests that safe harbor be curtailed for websites that have a policy
against monitoring content – i.e. affirmatively require websites to
monitor their content.
• Re: Rep NADLER q on red flags: again raises the idea of willful
blindness and urges a statutory standard for that. Responsive to
Oyama comment on staydown, believes the technology already is
strong enough to recognize “here is the entire [work].”
• Re: Rep GOODLATTE q on measuring efficacy of DMCA takedown: do
artists feel that they can get their material taken down permanently?
• Re: Rep GOODLATTE q on appropriate penalties for abuse of DMCA
takedown: current statute is adequate to dissuade abuse.
• Re: Rep JEFFRIES q on red flag knowledge, propounds that this
doctrine has not been adequately developed, but indeed has been
inappropriately narrowed to require specific knowledge of specific
instances of infringement, thereby permitting willful blindness of
infringement to sustain the DMCA safe harbor.
• Re: Rep. CICILLINE q about burden of enforcement, suggests that
ISPs should automatically refer uploaders to Copyright Clearance
Center, Harry Fox, etc.
Annemarie Bridy
Professor of Law,
U. Idaho College of
Law
• Two points about 512: First, it is sound policy and balance of
interests that has well served copyright owners, users, and ISPs.
Second, has proven resilient in face of evolving culture and
technology.
• Perfect enforcement technologically and legally infeasible. 512 has
scaled well to provide “fair and workable enforcement” of copyrights
amid the volume of content offered by ISPs. Automation has aided
in cutting costs. Implicitly, this is an advantage to big content
providers, while smaller players don’t benefit.
• Admitted that 512 does not work well for PtP but these are going
away as legal venues grow market share.
• Posits growth of legitimate internet content distribution as a metric
for efficacy of sec 512.
• Re: Rep GOODLATTE q on measuring efficacy of DMCA takedown:
again relies on growth of internet as a good metric.
• Re: Rep GOODLATTE q on appropriate penalties for abuse of DMCA
takedown: should be statutory damages for misuse of DMCA.
• Re: Rep COLLINS q about small creators, suggests that big ISPs might
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mitigate the cost of detecting infringement by streamlining the
DMCA notice forms.
• Re: Rep JEFFRIES q, stated that DMCA was meant to be supportive of
innovation. Re red flag knowledge, describes this as knowledge that
makes apparent specific instances of infringement.
Paul Doda
Global Litigation
Counsel, Elsevier Inc.
• Elsevier faces many challenges to its copyrights. Must focus on sites
that relentlessly infringe despite repeated notices. “It has truly
become impossible for Elsevier to keep pace.”
• Issued more than 240,000 takedown notices in 2013 with zero
counter-notices. Undertakes three step verification procedure
before sending takedown.
• DMCA ineffective to prevent internet distribution of stolen
certification exams, which jeopardize public safety by compromising
the integrity of health care provider licensure standards.
• Importance of collaboration between rights holders and ISPs – e.g.,
scribd, which has developed fingerprinting to identify infringing
works.
• Re: Rep GOODLATTE q on measuring efficacy of DMCA takedown: it
would be appropriate to have escalated response to repeated
takedown requests.
• Re: Rep GOODLATTE q on appropriate penalties for abuse of DMCA
takedown: spurious takedowns are exceedingly rare. Wants level
field for notice / counternotice abuses.
• Re: Rep CONYERS on burden for detecting infringement: agrees
initial effort of detection should be on the rights-holder, but urges
that content taken down once should stay down.
• Re: Rep CICILLINE, indicates that most re-uploaded content is done
by repeat infringers; so, strengthening DMCA penalties for
permitting repeat infringers, would diminish this problem.
Katherine Oyama
Senior Copyright
Policy Counsel,
Google Inc.
• Online services have generated new markets and billions of dollars in
revenue to content producers, only with the legal foundation
provided by DMCA; DMCA safe harbor is an essential footing for
every internet company in operation today.
• Legal distribution services exist only because they are sheltered from
statutory liability for the actions of a very few bad actors.
• DMCA takedown protects rights-holders while providing legal
certainty for ISPs. Appropriately places costs of enforcement on
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content producers who are best able to identify infringements of
their works.
• ISPs (especially Google) have worked hard to make DMCA effective
for rights-holders; boasting less than six hours response time.
• DMCA has been abused in attempts to censor criticism, attack
competitors.
• Re: Rep NADLER q on Whack-A-Mole problem: Oyama resistant to
staydown or pre-filter requirements; wants cost to stay on rightsholders, not hosts. Resistant to idea that rights owner should be
able to achieve by a single notice repeated takedowns of identical
content.
• Re: Rep GOODLATTE q on repeated takedowns for the same content:
every takedown request should be treated the same regardless of
what content is referenced or how many times?
• Re: Rep GOODLATTE q on appropriate penalties for abuse of DMCA
notice and takedown system: need to rely on transparent reporting
of who sends takedowns.
• Re: Rep CHABOT q on free market solutions: Youtube incents
content producers to monetize infringing content.
• Re: Rep CHU q about Google auto-suggest terms; dodges question,
puts blame on user search preferences, evades implication that
Google might censor the auto-suggest feature, suggests legitimate
(pay) sites should use SEO to lure users looking for free streaming
video; proposes Google Play as the desirable venue for rights-holders
to offer legitimate distribution of their works, asserts piracy costs
Google money, urges criminal prosecutions of the operators of
infringing sites.
• Re: Rep RICHMOND q about Google Search Autocomplete enticing
searches for infringing material – completely focuses on “words”
that can be filtered, completely dodges the representative’s q
whether Google could restructure the Autocomplete algorithm to
restrict enticing phrases.
• Re: Rep COLLINS q emphasizes Google’s work to streamline DMCA
takedown process (web forms) once infringement is detected, and
refers to specialist firms that focus on detecting infringement.
• Re: Rep JEFFRIES q on red flag knowledge, asserts the foundational
importance of safe harbor / actual knowledge requirement in order
to avert chilling effect of copyright on internet content distribution.
Again puts burden on artists to specifically indicate infringing
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content to be taken down. Indicates that putting the burden on
start-ups to avoid infringing the intellectual property of established
artists, would discourage investment in the internet economy.
• Re: Rep. LOFGREN q about Content ID: agrees with Rep’s assertion
that “re-encrypting” an infringing hosted file would automatically
defeat fingerprinting of the hosted file content.
Maria Schneider
GRAMMY Winning
Composer, Member
of Recording
Academy
• DMCA provides an upside-down world where there is no
consequence for infringers or for the big businesses who enable
them.
• DMCA makes it the responsibility of small players to police
infringement of their works at prohibitive effort and expense.
• It should be mandated that ISPs pre-scan uploads for fingerprints of
infringement; this is technologically feasible, and the same tech
currently is used to monetize content already uploaded.
• DMCA is not effective for small creators because it is not adequately
stream-lined; there should be a uniform process applicable across all
sites. Additionally, “Takedown Should Mean Stay Down.”
• ISPs owe their users an education what is legal to upload.
• DMCA falls short of Constitutional mandate to incent the Useful Arts.
• Re: Rep GOODLATTE q on appropriate penalties for abuse of DMCA
notice and takedown: not concerned with possibility that takedown
might be abused.
• Re: Rep CONYERS on burden for detecting infringement: praises
Youtube for streamlining takedown procedure; complains about
industry standard hoops for takedown; urges measures to deter
uploading of infringing content; complains about Youtube shaming
DMCA takedown noticers.
• Re: Rep CHABOT q on content providers’ perspective: believes young
creative are fearful that their performance value is diluted by overexposure via the internet.
• Re: Rep CICILLINE q on “stay down” – why do ISPs not provide
Content ID for everybody who files a valid DMCA takedown, not just
for “big companies?”
• Re: Rep ISSA q on expansion of infringement – contrasts older modes
of low-fi reproduction to modern perfect infringement of digital
copies.
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Paul Seminski
• Focus on misuse of DMCA against WordPress users.
General Counsel,
Automattic, Inc.
• DMCA safe harbor protects Automattic (WordPress operator) from
liability.
• Recently has seen burgeoning misuse of takedown notices by people
misrepresenting their ownership of copyright; companies seeking to
takedown adverse reviews of their products; or rights-holders
seeking to takedown things that appear to be fair use.
• DMCA abuse suppresses legitimate expression (chilling effect).
• Sees abuse of DMCA as growing trend.
• Protests burden imposed on legitimate users by DMCA takedown /
counter-notice procedures. No deterrents for abuse of DMCA
takedowns.
• Praises overall efficacy of DMCA, but cautions at its growing
potential for abuse.
• “Great imbalance of power between those that are sending the
notices and those that are receiving them.”
• Re: Rep GOODLATTE q on appropriate penalties for abuse of DMCA
notice and takedown system: should be statutory damages for
misuse of DMCA.
• Re: Rep. LOFGREN q about Content ID, points out first of all the
millions of dollars and massive engineering that Youtube devoted to
this; secondly, the fact that file fingerprint technology does not
address fair use or 1st Amdt concerns. Agrees that for a “small
handful” of censorious DMCA notices, financial penalties should be
levied against the noticers.
Notes
• Seems that “hosting” entities (Google, WordPress) see DMCA as
effective but prone to abuse; content providers (Elsevier, Schneider)
deem it ineffective and note the importance of technological
measures to adequately verify infringement; academics in their
spoken testimony split on efficacy and not concerned by potential
for abuse.
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