Tuesday, May 03, 2016

Copyright Office 512 Roundtable: Scope and Impact of Safe Harbors

Scope and Impact of Safe Harbors
 
Official description: Scope of entities and activities covered by safe harbors; incentives (and disincentives) for creators, copyright owners, online providers, investors, and users; impact on licensing activities; effectiveness of remedies, including ability to proceed in federal court in case of disputed notice or misrepresentation; economic impact on creators, copyright owners, service providers and copyrighted works; relevant empirical data; and other pertinent issues.
 
KTC: Purpose to protect innocent service providers: is that what DMCA protects now?  Definition correct, too broad, too narrow?
 
Lisa Willmer, Getty Images: scope is too broad: supposed to be true tech services providing the pipes behind the scenes. Now it’s those engaged in storage and display who bear no costs or responsibility while content draws users to their sites and generates ad revenue. Different cost structure than other legit content companies who compensate creators.
 
Jeff Walker, Sony Music: Broad safe haven for non-passive entertainment platforms to offer content to consumers. I negotiate w/legit platforms as well as partners who use the safe harbor, and we have Hobson’s choice to accept less than fair value or go to broken notice and takedown. Most DSPs we approach to say they need a license, they say they aren’t interested; when we start to send takedowns, they are willing to negotiate, but they will offer only small amounts. Our business shrunk 50% since the advent of the DMCA while platforms continue to grow.
 
KTC: If you think that the covered service providers are too broad, is the issue that the statute is too broad in its definition or is it courts too broadly interpret who should qualify?
 
Matthew Schruers, Computer & Communications Industry Association: Not sure where “innocence” resides in 512.  Service providers that comply w/the statute receive its protections.  Statute was intentionally broad. Congress didn’t intend to lock in only 1998 service providers and structures.  Two clear specific categories: (a) and then (b)-(e): broad understanding and expectation that services would grow. Broadband under (a), and virtually every other kind—info location tools, info residing online at user direction which encompasses many other platforms; that was intentional broad scope.  Not useful to try to circumscribe; not in statute; economically destructive b/c it prevents change from 1998 configurations. This is our largest service exporter, trillions in commerce every year.
 
Ellen Schrantz, Internet Association: Statute and courts must keep it broad to avoid favoring incumbents over new companies. Most of our companies didn’t exist in 1998 or even 5 years ago.  Investors, VCs are unwilling to boost new services in uncertain regulatory environment. It’s been proven that one of the best way to stop infringement is to grow the legal licensed market.  That reduces piracy and should be encouraged.
 
Maria Schneider, musician: Safe harbor is a privilege, not a right.  When they created the DMCA, nobody conceived that a company like Google’s empire would become the most powerful asset in the world.  Odd that this is built on abuse of copyright.  Yet they guard their IP like Fort Knox.  YT grew by influencing user behavior. Infringers are allowed to monetize illegal content; there are no checkpoints; allowed to put up full albums which isn’t fair use. Blind eye to obvious infringement. Offering to pay atty’s fees; misleading users on fair use. Demonizing and intimidating musicians… the list goes on.
 
Natalie Madaj, National Music Publishers’ Association: Much to broad: they’re content distributors not service providers: Soundcloud and YT use DMCA as a weapon to negotiate below market rates. I handle licensing, and in licensing negotiations we have a choice to accept low rates or continue to police; mostly we take that small amount of money to members’ ultimate detriment.
 
Troy Dow, Disney: purposely broad, but also designed to distinguish good actors from bad within broad categories; courts have misapplied the standards to include people who do more than hosting to manipulating and creating distribution channels for content.  Cases where 9th Cir. applied (a) to a hosting service in the form of a Usenet service, hosting material for 14 days.  Ellison.  Netcom held that Usenet services could be held accountable, but courts now apply (a) to Usenet, so no notice and takedown. In each bucket, courts have applied it to wrong ISPs.
 
Joseph DiMona, Broadcast Music, Inc.: Safe harbor should be limited to innocent services; applied far too broadly. There’s always been a mere conduit exception in §111. But now websites claim and game the safe harbors. Shouldn’t be eligible if they actively induce entertainment content posting when they well know the rights aren’t held by users [isn’t that already outside the DMCA?]; require users to grant ISP license rights; license along with the users; failing to use commercially reasonable tech that’s available at decent prices; those should keep you off safe harbor island.  His opinion: look hard at definition of direct financial benefit in the modern world. What we see now: using entertainment content as giveaway for selling search, merchandise, data mining, other types of content.
 
Sarah Deutsch, Mayer Brown: Was intentionally broad to cover all kinds of ISPs, hosts, conduits, providers of facilities.  There was no discussion about passive or innocent ISPs. The definitions go to the functions of the ISP; how much control you had—hosts had duty to take down and immunity from good faith takedown.  512(l): failure to qualify for safe harbor doesn’t necessarily mean they’re liable for infringement.
 
Matthew Barblan, Center for the Protection of Intellectual Property: Important to keep in mind innocent ISPs and other purpose of DMCA, chief of which is creating online ecosystem where © owners can safely disseminate their works w/o fear of being stolen or infringed. We’ve heard from creative community that the second purpose is not being fulfilled. Blame is overly broad scope of the safe harbors.  Hard to imagine Congress intended this.  Ability of search engines to continue to index a site like Pirate Bay when there are millions of takedown notices; clearly targeted at infringement.  Senators explicitly recognized that there shouldn’t be a safe harbor for a site like that. Yet courts allow search engines to continue w/o fear of losing safe harbor. Sites that post UGC: courts have interpreted safe harbors so that even general awareness of 50-60% infringing content isn’t enough to lose the safe harbor—that leads to the inefficiencies of the DMCA.
 
Sandra Aistars, Arts and Entertainment Advocacy Clinic, George Mason University School of Law: Dow, DiMona, etc. are right.  Independent creators say the environment that currently exists for enforcement, whether created by courts or by parties involved, is leading to disincentive to create. Obligations of statute have been interpreted too narrowly.
 
Allan Adler, Association of American Publishers: Saw on previous panel that basically anyone can set up shop on the internet, and as long as they have a designated agent and a repeat infringer policy and respond to actual notifications, they qualify for the safe harbor. The problem with that is that there are sites that have active business models in which they invite users to upload attractive material, largely films, music, books.  So they can earn money through ads or subscriptions. And yet they still claim safe harbor protection. Congress should consider whether the ISP employs a business model or site structure that attacts infringing uploads and if so takes reasonable measures to prevent that. You should look to see whether it allows anonymous uploads. Whether they reward/incentivize popular infringing content. Whether they allow uploader to get links to publicly distribute. Whether they allow unlimited downloading by anonymous third parties unknown to the user.  Hotfile dealt with that, but Congress should do more.
 
KTC: A couple of people mentioned licensing.  In your view, does the DMCA regime negatively impact licensing? Ability to negotiate w/ISPs.
 
Willmer: yes.  Sites tell us to send takedowns, cutting short negotiations.  Win-win = still less than fair market value.
 
Walker: more licensing: in our conversations w/Apples & Spotifys their #1 complaint is that they’re competing w/free. They pay rates that allow us to create the content, while safe harbor reliant platforms contribute miniscule amounts of money to the business.  Whack a mole is now about all the different sites all entertainment platforms we have to have conversations w/one by one, frustrating from a commercial perspective, b/c they won’t pay enough to actually justify the use of the content. Made more from sale of vinyl than it made from sal
 
RT, OTW: Quick reminder: wanting to license doesn’t entitle you to license.  HathiTrust.  Statutory damages demands would otherwise have shut down the internet: that was the point of having a takedown procedure rather than requiring everyone to license.
 
JC: for fair use sites, I understand. What about a site that’s just loading up full length movies, books, sound recordings.
 
RT: I don’t think they’d survive under 512 any more than Grooveshark and Hotfiles did. You’d find the evidence of inducement in discovery.
 
JC: but what if they were complying really well with the DMCA?
 
RT: then they wouldn’t be behaving in the way described by the content owners complaining.  YT starts out not clear about its business model—the first video is a guy at the zoo. The fact that people use it in various ways, including for infringement, at one point in time doesn’t mean that’s what it stays.  Business model emerges; shouldn’t be shut down b/c it was used for a lot of infringement at one time, and Congress very clearly wanted to ensure that would happen.
 
Schruers: Hypos for real cases that haven’t been brought and the sites haven’t been exonerated under the DMCA aren’t good examples. Viacom is a case in which their own people were uploading Viacom works to the YT site, so it’s not a great example of a case that should have come out the other way.
 
Is licensing even germane to a 512 conversation? Maybe, but need to consider that.
 
Schneider: Independent musicians can’t play this game. I wasn’t accepted into Content ID.  Bad to call YT a legit company, and all you have to do is type in “no infringement intended,” drivel the same as Fred von L’s copyright basics video which is completely inaccurate assessment of fair use—constant intentional misleading of people on this site.  I’m going to tell composers not to try this. 80% of songwriters in Nashville have quit.
 
Walker: had similar experiences w/sites that use DMCA as a weapon to avoid licensing entirely.  Q why you don’t just sue about disagreeing with DMCA interpretation. Our goal is to license, not to sue; Congress wasn’t trying to encourage litigation.  [Congress also wasn’t trying to get it so you didn’t have to sue if you thought someone was violating the law.]
 
Adrienne Fields, Artists Rights Society: Cheaper than you can purchase from legit publishers—publishers used to license large print runs, but now on demand b/c can’t compete with Etsy and eBay’s on demand models. Those sites offer items on any type of media. Can have work printed on canvas, aluminum, any size, shipped directly from Eastern Europe or China; sites protect user privacy. If you’re lucky enough to search and find actual address, the user ignores you b/c they don’t have the same concerns as legit business owners—hobbyists or career infringers b/c they know they can hide behind ISP claiming safe harbor. In the real world, when a demand letter is sent, often we get settlements or licenses after the fact. When it comes to infringement online, almost never get settlement/license after the fact.
 
Sarah Feingold, Etsy, Inc.: 1.6 million active sellers on Etsy, 86% women, most with home based businesses. Q about licensing: what she sees handling takedown notices; sometimes sellers are na├»ve and might think something is ok and the other party thinks its infringement; notices can get communication and licensing started. Don’t put everyone into the same bucket. Small businesses can flourish b/c of the DMCA.
 
KTC: content ID/voluntary licensing: does Etsy have any plans to allow licensing to take place in that way?
 
Feingold: DMCA is a floor, not a ceiling. Content ID cost $50 million; we use technology and have a dedicated team and work w/rights holders. But Content ID is really expensive and burdensome and we’re still small.
 
Dow: Hotfile lost that case on vicarious liability b/c they didn’t have repeat infringer policy; they adopted a policy after that. If you fast forward that to the point they did—court went on to discuss narrow focus on identifying specific infringement; single links to infringing files w/o removing files. We have sites that cause significant trouble; sent 35,000 on Avengers to one single site and it didn’t work.  That was a site designed to ensure persistent availability of content.  That impacts licensing discussions. 
 
KTC: does DMCA affect willingness to license?
 
Dow: people have looked to pirate sites to decrease willingness to pay.
 
DiMona: rare things have value; they eliminate scarcity, which can’t help but hurt the value. [Which is why bottled water failed as a business model and still can’t charge as much as soda.]
 
Barnum: Copyright owners have always had to negotiate compared to the black market.  Black market is now the #1 streaming service in the world, not just Russian cyberlocker.  When you go to a service that wants to legit license your content, price will be based on amount v. getting it free on YT. Until we resolve that, there will be serious problems w/licensing. [But we should all impose Content ID on the internet.]
 
Aistars: People who use work to illustrate online publication know there’s no effective remedy and no reason to negotiate a license. At best the artist sends a DMCA license. That’s a lost licensing opportunity.  Middle-class artists: we had a conversation w/a photog who said they weren’t sure of that b/c most photogs don’t make it into the middle class. Filmmaker whose film came out on Netflix, iTunes, in app purchases—ironically, as soon as it was out there, it began to be available for free on illegitimate sites.  Ironically, the ads served on her work were for Netflix—but they’re being undercut by those sites.
 
Michael Weinberg: think about 512 in context of not YouTube and not Google.  There’s a whole other universe of other ISPs like Shapeways using the space 512 creates. Shapeways users are pro designers selling their goods online. There isn’t a way they could to this w/o a service like Shapeways. If you want to print a nylon dress, you can either buy a ½ million dollar printer or go to a service like us. Takedown process would be nothing compared to the process you’d have to go through to clear rights if we didn’t have 512 protection—the kinds of guarantees you would have to give would be ridiculous. We are empowering designers worldwide.  One of the shocking things that happened at Shapeways: some designers infringe, and we forward to users—the percentage who reacted w/excitement and joy that there was finally someone they could talk to about a license was shockingly high. Facilitating licensing in an unpredictable ways.
 
Petricone: Tale of 2 Cities is continuing. Licensing and broad interpretation is to promote the progress of science & useful arts. Look at just about any area of entertainment industry, new content is growing at a tremendous rate. 3 million books in one year up from 250,000.  1700 films worldwide in 1995; now it’s 7000. Video game industry is blooming. Household spending on entertainment is increasing and content is exploding. Success of safe harbors should be determined on this basis.
 
KTC: contrasting that with what Schneider had to say: any distinction about who’s making it now. Fewer artists?  [No, but they might be making less b/c of competition.]
 
Petricone: DOL says 53,000 said primary occupation was musician, now 60,000; self employed musicians grew at faster rate—45% more independent musicians in 2014 than 2005.
 
Schwartz: acknowledge lower barriers to entry for independent and individual artists. W/our companies, there are millions of creators and artists that otherwise would not have access to national or global or even local markets w/o platforms that rely on 512. Would have needed backing from major players, but now don’t.  Incentives of DMCA-Plus voluntary measures: there’s a logical fallacy b/t those systems not being perfect and the fault of the DMCA. Since our companies filed companies, several have introduced/updated voluntary measures; they can do that b/c of DMCA provided certainty.  More fundamental point: wouldn’t exist w/o DMCA.
 
Schneider: Find me ten musicians who say they’re doing better now than 2000.  Music Answers campaign: musicians are desperate to shine a light on what’s going on. The studies—many musicians read that article and were shocked.  [Many people were shocked when their favored political candidate didn’t win. We’re cloistered people these days.]
 
KTC: counternotice process: appropriate? Does it protect against improper notice?
 
Weinberg: only works if it’s only ©.
 
Tushnet: Women and minority creators are often suspicious of how a big system will treat them. May decline to counternotify even when sure of fair use.  Our 600,000 creators are not disincentivized; they’re freed to find their audiences.
 
Schruers: Counternotices aren’t used, but that doesn’t mean that all those takedowns are ok. It’s important to recognize that there are complaints on rightsholders’ behalf. There are also user constituencies with serious concerns about being deterred from counternoticing, not to mention the cooling off procedure/delay in putback.
 
Schwartz: recent Urban study: counternotice problems; 1/3 notices improper in some groups.
 
Flaherty: we don’t get that many counternotices, but they are important for balance. Staying down for 10 days
 
Madaj: Shifts burden to file sue in federal court; that’s a big burden for artists. We receive bad counternotices.
 
Feingold: almost 7000 takedowns; 568 counternotices; the reason is that people are absolutely intimidated by the process—they write to us and say it’s David v. Goliath. Very important; we’re also seeing people claiming © and TM and we see that as abuse.
 
JC: what is intimidating?
 
Feingold: contact information, consent to sue—feel like they’ll be sued.
 
JC: is that maybe a judgment they wouldn’t win? [Extensive aside: Why isn’t that a question she asked of the notice submitters who didn’t sue after a counternotice, or after their notices were rejected, or after they sent a bunch of notices and saw a business model based on infringement?  It is absolutely true that, as we were told in the morning, most individuals don’t have the money to go through a lawsuit, but that affects lots of people on both sides of this issue.  Content owners say they rarely get counternotifications so there must be no problem with over-takedowns; but then they say it wasn’t worth it for them to sue when they actually got a counternotification even though it was still an infringement, so the existence of the counternotification isn’t evidence of a mistake or wrongdoing.  They shouldn’t have it both ways.  I’m sure the content companies do believe they’re in the right, just like many individuals who receive takedowns.  But it makes no sense to assume that the content companies are always right when there’s no counternotice and that they’re still always right when there is a counternotice.  Realistically, both the low levels of counternoticing and the low levels of lawsuits post-counternotice show only that litigation in the US is scary and expensive, not that most notices are accurate or that most counternotices are.  I just want to avoid the inconsistency that, to be fair, exists on both sides here w/r/t the relevance of lack of lawsuits—as Schruers said, it’s very hard to evaluate the merits of the unfiled lawsuit, but that also feeds into questions about due process and the function of a DMCA notice as an automatic injunction etc.]
 
Feingold: from my perspective—often I pray they counternotice, b/c there is clear fair use. People are intimidated by the entire process.
 
Dow: we receive counternotices and may have to sue—that affects our strategy of what to send. Perhaps © owners are reluctant to sue and uploaders are reluctant to counternotice, showing we have a balance.  [Interesting that he didn’t think that reflected a balance when it came to those rogue sites they haven’t sued on the front end.]
 
Barblan: secret, unverified survey in Urban—no real data.  Questionable counternotices. Narrow in what it looks at. Problematic in determination of what’s fair. Important not to draw policy conclusions from that study b/c there’s work to be done. [Instead, draw policy conclusions from the anecdotes of my artists.]
 
Aistars: small claims process might address this. Indiv. artists/creators could use it.

Monday, May 02, 2016

Copyright Office 512 Roundtable: Applicable Legal Standards

Applicable Legal Standards
 
Official description: Actual and “red flag” knowledge requirements; financial benefit/right to control test; willful blindness; repeat infringers; good-faith requirements and Lenz; misrepresentation; fair use; use of representative lists; availability of injunctive relief; use of subpoenas; role of “standard technical measures”; and other pertinent issues. 
 
JC: Most litigation over knowledge standard—actual and red flag. Have courts properly interpreted?  How so/why not? 
 
Bruce Joseph, Verizon: I was one of the five service provider negotiators; Allan Adler; Troy Dow was on Sen. Committee—no one else was in the room where it happened.  W/r/t knowledge, the courts have basically gotten it right. Intent of negotiators was that infringing content be identified specifically, and that also applies to red flag.  Red flag is a surrogate for actual knowledge: a subjective and objective component. You need actual knowledge of specific infringing material, and it follows from the structure of the statute it follows that what you need red flag knowledge of is specific infringing material, not the existence of infringing material generally.  Nothing suggests a general knowledge standard.
 
JC: red flag as surrogate.  But then you actual said it has to be of specific infringing material. Where in the statute does it say that?
 
Joseph: between no-monitoring provision and other structure of the statute, actual knowledge requires knowledge of specific infringing material. It follows that the surrogate for actual knowledge, red flag knowledge, also requires red flag knowledge of specific infringing material.  Two courts of appeals have agreed.
 
JC: then is there no difference between actual and red flag?
 
Joseph: One is actual knowledge; the other is knowledge of facts and circumstances from which an objective viewer would conclude they’re infringing. Those are meaningfully different.
 
Isbell: is there any import to the fact that actual knowledge refers to materials and activity and red flag refers to activity?
 
Joseph: doesn’t think that.
 
Kerry Sheehan, Public Knowledge: Congress made an explicit choice in 512(m) rejecting any duty to monitor and seek out facts b/c of impact of surveillance on public’s ability to engage w/each other openly. Short of that, general knowledge standard would have the same result.
 
JC: Red flag knowledge suggests that not necessarily you reached out to acquire, but facts became known to  you that suggest/indicate infringement. Isn’t there a difference between active monitoring and becoming aware?
 
Sheehan: Joseph was right: requires information about specific instances.
 
JC: Do you acknowledge a difference b/t becoming aware of facts and searching?
 
Sheehan: in practice there’d be little difference. The notice requirements are there for due process reasons. When you start undermining that, you get rid of due process.
 
JC: Red flag doesn’t require notice.
 
Sheehan: But it does require red flag knowledge of specific instances of infringement, and if you expand that then the due process goes by the wayside. 
 
JC: Case law suggests that if people running the services were interacting w/content they knew was infringing, that could be red flag knowledge.
 
Sheehan: and I’m talking about the dangers of expanding beyond that to general knowledge.
 
KTC: In your view is there ever an instance where a website that has almost exclusively infringing content would be able to provide that red flag knowledge in the absence of a specific notice?
 
Sheehan: hard to speak about a hypo, but there’s a policy reason why © owners bear the burden—they can best assess what’s infringing and what’s licensed. We generally put the burden of showing rights on a right holder in a private situation.
 
Mary Rasenberger, Authors Guild: 512 is a mess from a creator’s perspective. It doesn’t work.  It doesn’t work b/c it’s been turned into notice and takedown by the courts. Congress wanted to create incentives to cooperate.  Three different ways to acquire knowledge: actual knowledge; red flags; notice and takedown. The requirement to have knowledge of the specific location under red flags and actual knowledge is bad—clearly not what Congress intended—awareness, not knowledge of exactly where the apparent infringement is.  Turned three prong test into one.  Section (a) no longer has any separate meaning. Courts see statute as providing blanket immunity and also b/c of 512(m). There are some inconsistencies b/c of complexity; Congress needs to amend 512(m) to carve out (c) and (d) and to clarify that red flags doesn’t require knowledge of specific infringement. Notice and takedown doesn’t work, especially for individual creators.  Many ways it doesn’t work for service providers as well.  [Heh.]  Need to clarify what Congress meant to do.
 
KTC: can you give examples of what you would say something that would trigger red flag knowledge w/o specific knowledge? 
 
Rasenberger: if the service provider is notified many times about infringement of a specific work or set of © works, they should know those works are there and they need to bring them down before a notice.  YouTube v. Viacom is another good example—at the time, YT had clear evidence there was infringing content on the site; they estimated 75%-80% was © content w/o authorization. Massive infringement should trigger a responsibility under red flags or for financial benefit/right & ability to control.
 
David Jacoby, Sony Music Entertainment: Red flag knowledge isn’t specific knowledge: collapses two separate prongs. Incentivizes services to avoid learning of or acknowledging infringements so they can avoid implementing tech solutions. Congress intended cooperation to minimize/deal w/infringement. The opposite is occurring.  It’s indisputable that Congress wanted DMCA to apply to neutral, passive, innocent entities. Not businesses predicated on infringement like Grooveshark and MP3tunes.  Decisions have allowed businesses to convert our assets into theirs.  Recent MP3tunes JNOV—a lot of facts in which the jury found there to be clear red flag knowledge; the court, in imposing punitive damages, decided that the individual running the co. set up the entire service to infringe.  Despite knowing that Beatles content wasn’t approved for any digital distribution, and that his employees uploaded content, court still allowed safe harbor/no red flag knowledge for other Beatles songs.  Court decided as a matter of law there was no red flag knowledge, turning statute into pure notice and takedown which was specifically rejected.
 
512(m) has been misinterpreted: when service is informed there’s massive infringement going on, there should be some action required.  512(m) doesn’t prohibit action taken after you’re informed of such infringement.  Doesn’t absolve service.
 
Michael Petricone, Consumer Technology Association: Most of our members are small businesses, so we focus on young, scrappy, and hungry ones [Hah!].  512 has a great deal to do with the amazing generativity of the internet for businesses.  Knowledge changes would be easier for large existing business to handle than small businesses/startups.  Requires a level of resources that small companies don’t have.
 
JC: right now, what the providers say is that monitoring should be entirely on the © owner.  Why is that perceived as a balanced solution?  [‘Cause that’s how we deal with private rights in general?  We don’t ask them to monitor for defamation or trade secret theft or etc etc.] Congress wanted cooperation and shared goals and responsibilities. Could you be doing more to improve the ecosystem?
 
Petricone: tech companies are working in all kinds of ways w/content industry from Content ID to best practices.  Congress when it developed DMCA was prescient in dividing responsibilities.  Content owner must ID infringing because they’re the ones who know. Service provider must take it down. Largely worked; internet economy exploded. There’s more music and art being produced than ever before. Music industry is growing faster.
 
KTC: Given volumes of notices, is there a reason to recalibrate b/c of the changes in tech? No longer the same balance.
 
Petricone: in light of exponential growth of internet, 512 scaled well. The balance enabled by 512 has enabled that growth.  [Lots of notices b/c lots of internet!]  Every leading internet co. is in the US b/c we made a series of good decisions; wary of change.
 
Christopher Mohr, Software and Information Industry Association: In our view, this statute works best when there is cooperation. There are instances when tech folks and content providers have adopted voluntary standards to ameliorate ongoing infringement on their platforms. Where the statute gets out of whack is where incentives to cooperate are absent. That’s one of the flaws of red flag standard interpretation.  If you read it as suggested, it’s whack a mole.  That’s an odd construction for an exception to a regime of liability. It’s one the courts could fix, though that would take a while. You see the same incentives against cooperation ripple through other areas relating to knowledge—under the duty to terminate repeat infringers under 512(a).
 
JC: Comments suggested that there was little incentive to come up w/better solutions.  Interested in hearing more about that.
 
Marcie Kaufman Ithaka/Artstor: recent decisions weren’t compelled by statute or consistent w/legislative history. Rests on error of thinking ISP has no duty to investigate further once it becomes aware of facts or circumstances from which infringement is likely.  There’s a big middle ground b/t willful blindness and duty to monitor.
 
JC: under your proposal, once someone became aware of facts suggesting infringement, there’d be a duty to investigate?
 
Kaufman: yes. Many ISPs run reports of top ten hits. If you had a top ten hit that was “copy of XYZ,” there’s a duty to check further.  Some obligation to look further.
 
JC: 512(m)?
 
Kaufman: you don’t have to run that report of top ten hits.  But these are things service providers do regularly to increase their business.  If they are becoming aware through regular business dealings, obligation to investigate.  [Wouldn’t that be red flag knowledge of specific infringements?]  Maybe there is no obligation to run a report.  [Not clear to me whether she thought that was bad and there should be a duty to do so.]
 
KTC: How would they know what they needed to take down?  Would they have to filter content?  Is that appropriate?
 
Kaufman: Don’t want to speak to filtering—we’re not that size where we have the budget to implement a filter.
 
KTC: what would your standard require?
 
Kaufman: No, not every single ISP.  Filtering is a plausible goal for many to institute [but not us!] and there’s a difference b/t big players and small players.  The duty to investigate has to start somewhere.  If you are the service provider, it can’t be a pure lockbox. They are well aware of the content on their sites.  We don’t want to incentivize a pure lockbox of content.  [Quelle horreur!]  For larger, filtering is a way to go, but be careful w/smaller guys making that mandatory.
 
George Johnson, Geo Music Group: Petricone was talking about more music being created than ever, but there may be more music out there—but NSI did a study of music.  In 2000, 3-4,000 pro songwriters.  2015, 300-400 left, because of the internet.  Copyright Royalty Board set royalties too low, plus DMCA safe harbor.  Movie Downloaded: Sean Parker.  First thing that happened when DMCA passed: Napster!  Parker insisted on the safe harbor; Spotify, Google, Pandora, they’re all doing it.  Verizon sees it and does nothing. What Google does is know all the pirate sites and know they’re hiding behind safe harbor and they sell advertising. Jihadi videos—Youtubistan—all these horrible videos, and © infringement, and it’s a scam/con.  Fed gov’t must protect our private property not give it away. If it’s a pro ©, you know what it is—unauthorized, unlike a selfie or a video of a kid. You need to catch it.
 
Terry Hart, Copyright Alliance: Nonprofit representing 1000s of creators, individuals, and organizations across the spectrum of media.  Look at what Congress wrote 20 years ago, intent was to get OSPs and © community to cooperate to address infringement. Courts’ interpretation has fallen short of that intent, specifically knowledge provisions.  At the very least we have to recognize that courts have interpreted red flag knowledge out of the statute—what, if anything, is left after 2d and 9th Cir. that gives it any work to do? You can semantically parse differences—2d Cir. says actual was subjective and red flag objective knowledge, but in fact it leaves little left.  9th Cir. says in CCBill that you can’t really tell that “stolen celeb pics” are infringing.  Providers say: we don’t know for sure if the 101st is infringing after 100 notices.  Need to define it better and figure out service providers’ obligation—some kind of investigation depending on the type of OSP it is.
 
JC: if you don’t have a specific URL; service acquires some sort of red flag knowledge: gets notices on a couple of Beatles songs, but has other Beatles songs on the service. What’s the obligation at that point? How squared w/512(m)?
 
Hart: Million dollar question. [At least.]  We shouldn’t be drawing bright lines. Depends on facts/circumstances. 512(m) is not a blanket prohibition on requiring investigation; some kind of obligation. Might be in business relationships w/licensees—if they see music uploaded outside of partnership, they should ask.
 
KTC: in your view, would this impose a de facto obligation to filter if courts didn’t require knowledge specific instances of infringement? Or is there a middle ground?
 
Hart: can’t speak to filtering.  Tied into standard tech measures provisions. We don’t have many standard tech measures, so that’s another thing that takes the teeth out.  Contemplated by Congress that it could be technological.
 
Jim Halpert, DLA Piper for Internet Commerce Coalition: I suggested the use of the word “apparent,” and I believe it does have different meaning than actual. In counseling companies about © risk, I have discussions about what they’ll see and what measures they’ll put in place if for example they’re moderating discussions.  Look out for obvious infringement. At the same time, what we’re hearing is that a blanket notice from a rights owner that doesn’t indicate what’s infringing should be able to tag the service provider, giving it a monitoring obligation.  Legislative history says very specifically at the end of analysis of (c)(1)(C) says neither actual knowledge nor red flag knowledge may be imputed from notice from a (c) owner that doesn’t comply w/the DMCA notice standards.  If ISP is involved in looking at content on its service, and encounters red flag knowledge, then it has an obligation to take it down. But actual identification of material that’s infringing from rights holder has an independent requirement making a list of works not enough; (c)(3)(A)(iii): info reasonably sufficient to permit the service provider to locate the material.  Protection is not a protection for ISP, but it is protection for internet users.  SOPA was not very popular with internet users. You need to think about how changes present privacy and monitoring issues. Very clear that 512(m) says nothing conditions safe harbor on monitoring except compliance w/STMs. Don’t try to shoehorn in an additional monitoring obligation.  In terms of general statement about rogue sites making money, major infringing sites including Napster and Grooveshark are out of business; DMCA doesn’t protect them. Notice and takedown provides extraordinary extrajudicial method to get material removed from the internet without having to sue. From rightsholder perspective, it’s not ideal, but additional ways to remove material. Well-argued, well-briefed decisions in the two leading (c) courts of appeals accurately interpret the law. Statute isn’t broken; it’s working and there’s not room for shoehorning in monitoring obligations.
 
JC: information sufficient to locate the material—if I send you a link to a page w/ten items, how specific do I need to be? Is there any duty to look beyond an individual URL?  [It really depends. If you send us a URL to a page that produces a search result on our site, that page changes all the time, so no.  Other URLs, maybe that would be sufficient.]
 
Halpert: Could be.
 
JC: extrajudicial process—but that assumes there’s no secondary liability. If there were secondary liability then © owners could take action.  [That depends on what the site’s doing, right?]
 
Halpert: let’s be clear where this isn’t working. It’s not working b/c statute has successfully moved infringing activity off of US servers; that needs to be addressed. A very good way to do that is to insist that all free trade agreements included requirement to implement notice and takedown—Korea, Australia regimes are working well.
 
Troy Dow, Disney: No reason to construe location to require specific URL of file. Legis. history didn’t have file-specific URL in mind; that goes to representative list issue. Need to look at what we’re trying to achieve w/ red flag knowledge. Congress didn’t want to balance it by putting all the duty on © owners to notify; AOL wanted that. Instead service providers have obligation independent of notice to respond when obvious that infringement is happening on their sites.  512(m) was addressed in Senate Report: service provider has no obligation to seek out infringement, but not qualify if it turned a blind eye to obvious infringement, and provides examples of red flag knowledge—talks about well beyond item specific knowledge, e.g., gains awareness by viewing a site that was clearly a pirate site with sound recordings available for unauthorized downloads.  Exclude pirate directories from the safe harbor: typically use words such as pirate, bootleg, and other slang making their uses obvious.  Apparent from even a brief and casual viewing that such a site would not be entitled to safe harbor. Not required to make difficult judgments, but obvious pirate site may raise a red flag simply when the ISP sees it. Purpose is to distinguish innocent and not innocent ISPs.  Actual knowledge is a good standard, but there was disagreement w/traditional constructive knowledge standard—concern was that was too broad and malleable and uncertain. Decision: something in between, which was red flag.  Distinguish b/t true innocents and not.  If so, required to respond appropriately.
 
KTC: The courts that disagreed have the benefit of legis. history. Why weren’t they persuaded?
 
Dow: I have no idea. Wrong. 4th Cir. was right in ALS Scan.  Service providers are free to make decisions to take advantage of infringement so long as their knowledge level doesn’t rise to actual knowledge—red flag is a nullity, and now you have to show inducement or actual knowledge; inducement is dealt w/elsewhere in the statute.
 
Joseph DiMona, Broadcast Music, Inc.: Secondary liability is important to licensing performing rights. Dance hall cases: owner is liable, not particular band or singer.  Judge Posner recognized this in Aimster: individual file swappers are ignorant or disdainful. Firms that facilitate their infringement are also liable.  Suing consumers: Timeconsuming and a teaspoon solution to an ocean problem. That’s the issue w/streaming.  Vicarious/contributory infringement were both expressly incorporated into the safe harbor.  Vicarious: right and ability to control + direct financial benefit from infringement. Cases have gone astray, holding that right and ability to control infringement requires knowledge of specific works. Vicarious liability never required knowledge; essentially eradicates vicarious liability.  Have to be basically a direct infringer; makes no sense.  Contributory infringement: awareness has to mean something different than knowledge in basic statutory construction.  Infringing activity meant something different than material—it’s a true limit on the safe harbors.  Concept of willful blindness is part of contrib. infringement. There’s even a court decision requiring willful blindness to specific work; that’s a logical fallacy b/c you can’t be blind to something you know about. Courts have gone off the rails to detriment of creators who’ve suffered a tsunami of infringement. Statute is broken; has to be rebalanced or tweaked. Regardless of what was in the mind of Congress at the time, haven’t had the right constructions. 1 billion takedown notices isn’t symptom of functioning statute.  Burden totally on creators. 
 
JC: If courts had interpreted this differently, as you want, would the statute be balanced? Is the problem that the statute is not well conceived or interpreted? 
 
DiMona: yes to all. In hindsight, regret some of the choices that led courts down a bad path. If more balanced result in current language, the language on its face/intent at the time was balance in sharing responsibility, if you become aware of rampant infringement, and you’re inducing it, and you’re making money off of it, then the duty shifts to you.  [Wouldn’t that already be true re: inducement?]  At a minimum, monitoring has to be required for certain things in entertainment area or for using entertainment to sell other products.
 
Sarah Deutsch, Mayer Brown formerly at Verizon, DMCA negotiator (you’re welcome!): This deal was struck by 10 people in a room together. Congressional language—took the words we agreed to, whether we like them now or not. They put the counternotice back in, protecting consumers. No monitoring language was added in order to protect privacy: Congress was very concerned that ISPs not monitor.  Notice from the © owner is supposed to comply w/DMCA. Notice from other sources: service provider is not required to make discriminating judgments b/c it’s not in the best position to do so. Burdens were based on the functions the service provider performed. Hosts can do more.  We’ve spent millions of dollars dealing w/infringements, takedowns, 24-hour availability, notice forwarding—all these required substantial good faith. Assume good faith.  Prof. Emerson, when red flag comes from a source other than © owner, it has to be very bright and wave very brightly indeed.
 
June Besek, Kernochan Center for Law, Media and the Arts, Columbia Law School: Intended to be a balance, create an environment where tech companies could thrive and © owners could put works out w/o unreasonable fear of infringement. Not working today.  Bottom line: content holders can’t get their stuff down.  W/r/t red flags: courts have construed it too narrowly.  Viacom: vanishingly small likelihood of red flag produced in discovery.  Duty to investigate upon getting red flag knowledge, however obtained, is not duty to monitor—monitoring is ongoing.
 
Jonathan Band, Library Copyright Alliance: I was one of the people outside the room where it happened. Every word was negotiated, both statutory and the report language. Negotiated w/SIAA (Mohr’s predecessor).  Yahoo! was a directory that hired surfers to visit websites in those days. They were afraid that visiting a website = lose safe harbor. Wanted it clear that they wouldn’t.  Agree w/Dow that the idea was to find something in between actual and constructive knowledge.  Courts have gotten it right.  In terms of overall balance, it’s important to have balance w/in 512, but to the extent that Congress got involved in balancing, it was involved in the grand balance b/t 512 and 1201. At the end of the day, 512 was there for the service providers, and 1201 was ultimately there for the rightsholders. That was the legislative bargain. When you read the various decisions, when they introduce the history, the cases explain these two provisions.  Anti-circumvention and safe harbor: bigger balance, even though you’re just looking at 512—these aren’t totally separate provisions.
 
Todd Anten, Quinn Emanuel Urquhart & Sullivan LLP: Red flag: (1) It would be disastrous to not consider our desire to encourage service providers to remove things they don’t want such as porn, hate speech, bullying; if you have expansive view of red flag knowledge, looking for other TOS violations opens themselves up to potential liability b/c if they look and say “it’s not hate speech” it might still be infringing. Reading red flag standard expansively would lead to ISPs not looking at anything or over-removing.  (2) There are many things out there that are not infringing at all. Could be licensed, could be fair use. To put service providers in position of making these calls would lead to overcorrection w/r/t materials that aren’t infringing, and this is a bad idea.  RIAA submitted an amicus brief in Lenz said that fair use is notoriously troublesome to apply.  So when an ISP comes across a use of © material, © doesn’t mean infringing.  To ask for searching for words, or categories, or filtering, that’s not reasonable for the ISPs or for the posters of information who may be engaging in fair use.  (3) Such an approach can also be disastrous for small innovators; can’t always stand up against an unmeritorious lawsuit on behalf of users—ultimately overcorrection makes more sense than spending years and hundreds of thousands of dollars on a lawsuit.  The red flag is not supposed to do that—for blatant infringement.
 
JC: investigating porn voluntarily: if they encounter something, like a full Beatles track and they know there’s no license, would that qualify as red flag? [Worth noting that these click workers doing content review are almost certainly not Americans, not with the requisite cultural knowledge—they are also not lawyers even if they are trained on the TOS.]
 
Anten: Movie posted from beginning to end w/watermark—that could create a question of fact re red flag knowledge. But legislative history shows, © material alone can’t be enough—has to be something else accompanying the material.
 
JC: what if the person knew it wasn’t licensed—small website won’t have a Beatles license.
 
Anten: If it’s you, that’s actual knowledge.
 
JC: obvious pirate sites?
 
Anten: 512(d)—but putting that aside, it’s one to say for the Groovesharks of the world that’s massive, that’s different from YT’s massive variation—can’t make individualized judgments.
 
KTC: what would give you comfort about infringement? If a content owner sends a notice saying “I have not licensed any of my content to appear on this website. Anything is infringing.” Is that red flag?
 
Anten: No. Information reasonably sufficient to permit the service provider to locate the material, instead of making them search. Even if someone sends that letter, it could still be a fair use or there could be other licenses, especially if time has passed. Red flag knowledge addresses a narrow circumstance where subjectively it can’t be anything but infringement.
 
Greenberg: why are creators better than ISPs in IDing fair use?
 
Anten: The ISPs are in a terrible position—the poster is probably in the best position.
 
Allan Adler, Association of American Publishers: You can find anything you want in the legislative history, which is unsurprising b/c it cames from 3 separate committees and negotiated conference reports. It’s not uncommon in © history for Congress to have to go back and fix judicial mistakes in interpreting Congress’ handiwork.  Viacom and UMG: statutory construction where there was little statutory construction done—neither court gave much attention to awareness, or facts or circumstances, or infringing activity, or even the term about.  That’s all critical to meaning of red flag and relation to actual knowledge.  Ignored language of provisions they were construing; actual knowledge refers to “the material or an activity using the material,” where red flag refers to “infringing activity,” with no article at all. That’s not an accident, whether from negotiators or from Congress. The decisions that ultimately conflated these two in practical effect and created single notice and takedown requirement can’t be squared with any version of congressional intent.  Service providers have 512(m) fetish. But again, most of the courts have echoed that representation w/o looking carefully at its wording. Just says: nothing in this section shall condition applicability of safe harbors on monitoring the service—which means ongoing—or affirmatively seeking facts indicating infringing activity. Didn’t say confirming or reacting to; affirmatively seeking isn’t the same thing as reacting or confirming.  Based on overall framework and leg. intent, Congress would have assumed that red flag would lead to some reactive action on ISP’s part.  How much is subject to debate, but that would be useful in helping us recognize distinct standards rather than conflating them as the 2d and 9th Cir. did.  Congress warned against willful blindness to info that comes their way; Congress was looking at secondary liability and looked at lots of areas of law, such as the flea market cases.  Providing venue and opportunity, but not intent, for illegal activity—that was on Congress’ mind in understanding what it meant in 512(m). Didn’t mean there’d never be a responsibility on the part of the ISP to look into the facts. Just didn’t define quota for investigative activity.
 
JC: Another legal issue?
 
Kerry Sheehan: quickly, on repeat infringers: tendency to assume that all ISPs are the same. Severe penalty to lose cloud storage, but more draconian to lose internet access where people use that for homework, job finding, doing jobs, even calling 911.  So flexibility on what the penalty should be.
 
JC: should be able to terminate service for nonpayment
 
Sheehan: that’s for the providers.  Courts have been fairly flexible—just have to adopt and reasonably implement termination in appropriate circumstances.
 
Samantha Schonfeld, Amplify Education Holding: Band said Congress was concerned about creation of internet—we’ve come very far. Mindfulness of the way that tech inextricably moves forward.  Don’t know what 2 decades from now will look like. Tech has swung against rights holder; revisit legislation in less than 20 years.
 
Mary Rasenberger: right and ability to control/direct financial benefit: Congress intended to adopt the common law, but the courts have demanded more than the right and ability to remove infringing content or discontinue service b/c of perceived conflict w/takedown requirement to use the safe harbor. The problem is that the only way that ISPs can assert control over infringing is precisely by blocking, takedown or discontinuing service. [Really?] Congress should explain that that’s enough. That would sweep in service providers profiting from piracy, forcing them to cooperate, as 512 was intended to do. If someone falls out of this provision, they’d have to work w/© holders through filtering or other automatic means. Burden of policing has to be shared under 512.  Search services are in the business of automated search. They know how to find infringing content. They have the tools. Burden on rights holders, individual creators, upsets the balance b/c they don’t have access to the same tools.
 
Joseph: Repeat infringement: Sheehan is right. Infringer does not mean alleged or claimed infringer.  Excellent article by Prof. Nimmer.  Statute was very careful to distinguish b/t infringer and alleged/claimed infringement.  In addition, this standard is intentionally flexible: you really can say Congress intended one of only 4 substantive changes made by Congress from the negotiated text was “in appropriate circumstances”—Congress was concerned even then about loss of service and it’s a greater concern now.
 
Jacoby: Congress has allowed services that don’t track infringement to benefit from this so repeat infringer guidance would be good. Vicarious liability: now courts require active participation, enough to be direct or contributory liability, inconsistent w/statute. Storage at direction of user: even if Congress wanted to cover access, access can’t mean the permanent distribution of exact copies/downloading.  Responding to Anten: Grooveshark was still able to take advantage of standard set by the courts for red flag knowledge even though they lost the case on direct infringement and lack of a repeat infringement policy.
 
Rebecca Prince: Fair use and the content creator’s perspective. One example: you want to critique something—you want to use a short clip. You can’t get permission. I know I’m operating w/o a license, and I know it has to be fair use. Automated systems can preclude me from defending myself. Content ID looks for match. Just b/c it’s © doesn’t mean it’s not fair use. Even if I’m speaking over that clip, w/o taking Lenz into account, it’s blocked world wide for 14-30 days. YT =largest outlet; limits your ability to speak.
 
Petricone: DMCA succeeds b/c it doesn’t impose hard limits on flexible tech. Sets a floor on which voluntary measures can be built. That’s happening with © notice, Google search practices, advertiser best practices.
 
Ostrow: Small businesses/entrepreneurs: from my perspective, the ones I represent—musicians, record labels, publishers—they have been infringed to subsidize these other small businesses. The balance needs to be restruck. Representative lists have been written out of the statute. Burden on content creator to provide individual URLs, not in the statute but imposed by many sites, is undue.
 
Mohr: One of the largest sources of frustration for our members is repeated sending of notices to specific site for specific work—1000/month to get a textbook down. There is as yet no case law upholding a 512(j) injunction. That’s an area that ought to be explored. Injunction would have to be tailored to address concerns raised by ISPs.  Urge office to explore that to ameliorate some of the problems.
 
Kaufman: Burden of proof on fair use—it isn’t; the burden should be on the user.  Lenz shifts the burden/distorts it.  [What about the reasonable but wrong analysis? Lenz is pretty clear that that’s allowed.]  Traditionally, alleged infringer is the one in possession of facts.  [Except on market impact …]  I can’t do analysis on that.  Only a counternotification can tell me.  There is counternotification to get a conversation started. Burden on rightsholder when they lack the info to do that analysis is unfair.
 
Johnson: Yep.  Adler is right too.  Flea market: ISPs are just that, venue. If you are ISP, you know there’s a lot of infringement.  [Interesting contrast in this claim to Berkeley study—there are lots  of ISPs in the world, and very few of them are Google.]  Might as well come to my house and steal my car from my driveway. Need a © 911.  Who sponsored the DMCA?  Late Rep. Coble, friend of songwriters.  1996, 1997—suddenly he gets $1.2 million in donations in 1998, then goes back to  $200,000/year.
 
Hart: 9th Cir. was correct to reject calls to overturn Rossi: subjective good faith standard, not higher objective standard would have been an undue burden under 512(f).  512(f) applies to notices and counternotices, so that would be rough on them too and reduce the already small # of counternotices.
 
Halpert: BMG v. Cox case is wrong about repeat infringers; that’s on appeal. We don’t want DMCA reopened; cases go both ways. Swap meets: DMCA specifically adopts a different standard b/c treating internet that way didn’t make sense. Legislative history is very clear that direct financial benefit isn’t receiving a standard fee or a volume based fee; it’s akin to aiding and abetting; otherwise all the internet would be vicariously liable. Finally, Grooveshark is dead, regardless of the theory.
 
Dow: right and ability to control: disagree about vicarious liability standard; even if so, courts in adding something more standard have set the bar so high that they allow ISPs to provide site for infringing, shifting burden entirely to content owners; even if decisions are made to shift burden for ISP’s financial benefit, that’s just the DMCA, but it’s not where the DMCA puts the burden.
 
DiMona: representative list: we were looking forward to that as performing rights organization—10 million works.  Representative list of our catalog: then they’d have to recognize that they were a music infringement website. Courts have read that out of the law.  Right of making available recognized in treaties; safe harbors affect that right by impacting availability.
 
Deutsch: Representative list: when statute was drafted, it was clear that identification of the © work was for a list on the site, not representative works owned by the © owner.  Injunctive relief has been there for 20 years; no cases brought; not the ISP’s job to bring those cases; microcosm of entire balance of the DMCA. In considering injunction, courts need to consider tech feasibility and noninterference w/noninfringing material, and less restrictive means—good balance.  Not wise to change the DMCA; when service provider is acting as conduit, the only way we can cooperate is block or filter, like foreign websites—these are even more important remedies to avoid today.
 
Besek: Lenz case: It’s too bad that the amended opinion omitted automated systems, but automated systems can still reasonably be used by the rights holder.  It’s just that there were no automated systems in that case. Use could be appropriate depending on the parameters of how they’re set.  There are cases where an automated system would do better than a human. Ironic to impose human review requirement on rightholders when one principal reason for 512 is that we couldn’t expect ISPs to do it given volume of infringement and difficulty of judging fair use. [Actually, it was b/c of the volume of the content on the internet, and presumably at some point the content owner should be willing to give its position on fair use.]
 
Band: how can all these courts be so wrong? Well, they’re right. They understand that © affects more people more directly in their lives than any other part of the US code.
 
Anten: that the Groovesharks of the world have been killed w/o needing change in red flag standard means there’s no need for change.
 
Adler: 512(m) needs to be reviewed b/c it distorts red flag/willful blindness.  Lenz isn’t just about fair use; rationale the court used was that fair use is one form of authorization under the law. © owner has to consider that as well as other limits and exceptions. That means information that clearly isn’t in © owner’s possession, such as identity and status of alleged infringer, and intent and purpose, must be assumed or investigated. Substantial compliance has also been distorted in Perfect 10 v. ccBill and Hendrickson v. eBay.  Substantial compliance could occur w/three elements; yet those cases decided there wasn’t substantial compliance even though problems didn’t involve any of the three elements Congress identified.  [Boy, those courts are dumb.]

Copyright Office 512 Roundtable: Service provider response

Session 2: Notice-and-Takedown Process—Service Provider Response and Counter-Notifications
 
Official description: Handling of and response to notices, including timing and notices from high-volume senders; sending and handling of counter-notifications; volume of notices and counter-notifications; costs and burdens on large- and small-scale service providers; role of automation, including filtering technologies; noncompliant notices and misuse of notice process; rejection of notices; impact of takedowns on users and public; protections for fair use; relevant empirical data; and other pertinent issues. 
 
Claggett: ISP experience: Is it working effectively? Automated notices?
 
Michael Weinberg Shapeways: High level concept works reasonably well given the circumstances. Notice quality is highly variable, which doesn’t track to the size of the content owner. People assume 512 notice and takedown model for complaints unrelated to ©.
 
Claggett: Can you handle notice volume?
 
Weinberg: notices are bursty for us: week w/few and then w/lot. That’s problematic from staff allocation standpoint.  But we can handle it.  As we see #s go up, need to build internal tools.
 
Actual volume: just under 1000 notices last year; trend to go significantly beyond that. One problem is that those notices tend to be an IP grab bag.  Due to our our site’s capacities: 3D printing.  Addit’l burden of processing in ID’ing real complaint.  Easy to forget that burden from 512 standpoint.
 
JC: would it be helpful to have a clear form that maybe said “for copyright claims” on the top—would that aid you?
 
Weinberg: when we tried to update registration w/CO, took 4 months to find out what to do if we didn’t have a fax.  Structure of the form, connecting to back end would have to involve over time; not clear there are mechanisms to evolve a standardized form even if it was correct at the time it was deployed.  On the flip side, if data about notice process became more public, that could be worth the process.
 
Rebecca Tushnet Organization for Transformative Works
The over 600,000 registered creators on our site who’ve posted over 2 million works, and our small all volunteer coding and legal teams, appreciate the opportunity to participate.  Most ISPs are like us, Wikimedia, Internet Archive: we receive relatively few notices, they’re generally illegitimate attempts to assert rights over titles or fair uses, we hand review each one, no capacity to build filters that are unnecessary anyway.
 
JC: Might it make sense for big sites?
 
RT: not here to say that. What I learned from comparing UMG, Sony, and Warner’s comments with those of other copyright owners advocating for increased duties for ISPs: I learned that the best filtering system is the one you’re not using.  UMG says Content ID is 60% effective, Sony says it missed millions of infringements.  The other content companies, like the book publishers, are sure that Content ID must be fantastic and therefore should be applied to the entire internet. But the biggest users of Content ID think it’s full of holes. There’s always something more to demand: like Angelica Schuyler, they will never be satisfied. 
 
Brianna Schofield University of California-Berkeley School of  Law: Tremendous diversity in how service providers interact w/the notice system.  DMCA classic: intake manageable by hand. Varying degrees of quality of notices. 
 
Another group gets a large influx of notices; not the predominant thing for most ISPs.  DMCA-auto: reacted to influx by developing automated systems to process. DMCA-Plus: beyond the requirements of the statutes.  Any reaction should take account of this diversity.
 
Claggett: could you do percentages?
 
Schofield: we surveyed a small #, but tried to have a representative sample of broader ecosystem.
 
DMCA classic is dominant by far.
 
Claggett: does this suggest that different policies need to be made depending on type of ISP?
 
Schofield: Instead, system is self-managing and reacting to needs of platforms. Hard to draw lines from policymakers’ perspective to arbitrarily putting any of them in buckets. Some service providers you might expect to get lots of notices are actually service providers that aren’t getting that many notices and don’t need automated processing.
 
Kevin Rupy USTelecom: Broadband service providers, large, small and everything in between.  Small rural providers with a couple thousand lines to “traditional” huge broadband providers like Verizon. Generally speaking, the safe harbor provisions are functioning as intended. However, we do have issues w/getting §512(c) notices when acting as mere conduit under §512(a); clear under statute and caselaw that those notices aren’t valid.  Multiple notices don’t render someone a repeat infringer; we believe that termination under appropriate circumstances should be narrowly construed and subject to some type of judicial oversight. Congress, this administration, and our main regulator the FCC view broadband employment/adoption as a principal goal. So termination needs to be for real reasons.
 
JC: if someone doesn’t pay their bill, do they get service terminated?
 
Rupy: Yes.
 
JC: so you do terminate subscribers for other reasons.
 
Rupy: Yes.
 
JC: Courts have said you don’t need a judicial determination to be a repeat infringer, at least some courts. Assuming that’s the law, how would a © owner communicate w/you about infringements repeating on your site?
 
Rupy: That’s happening in the marketplace, w/voluntary mechanisms like CCI: content community and broadband providers identify and address repeat infringement, or alleged repeat infringement.
 
Claggett: does it end in termination?
 
Rupy: depends on the nature of the escalation, it can.
 
JC: Your companies have agreed to take in notices and consider them voluntarily, but you don’t want the notices served under §512(c).
 
Rupy: if it relates to hosting, which we do, sure.  Where you have challenges is §512(a) conduit—there’s nothing for us to take down or remove!
 
JC: if someone becomes aware of P2P infringement on your network, how do they notify you? Do you accept those?
 
Rupy: Judicial due process; civil actions.
 
JC: but if a © owner wants to notify you, how would they do that outside of a judicial order?
 
Rupy: it would depend on the nature of the infringement.  If hosting that content, §512(c).
 
JC: instead of sending a notice, is there an acceptable alternative that would communicate the P2P infringement issue?
 
Rupy: we can talk about that, but as we view the framework currently, sending millions of notices to ISPs under §512(c) when they’re acting under (a) is not how the DMCA is set up. That’s one reason ISPs are working w/the content community for a voluntary framework for addressing repeat infringement.
 
Claggett: you’re saying a notice is just an allegation of infringement.  In your view, absent adjudication of infringement, would you not consider it unproven allegation?
 
Rupy: yes.
 
Claggett: These millions of notices: what is causing this phenomenon—just a difference of opinion on legal basis?  Is there any recourse in §512 to prevent that?
 
Rupy: That’s an improper use of §512.
 
Claggett: is this barred by §512 or can you use §512(f) or some other legal recourse?
 
Rupy: Can’t speak to that.
 
Claggett: Are specific stakeholders sending them?
 
Rupy: generally speaking, member companies have seen an increase over the last few years.  Different entities behind that; addressed in comments at broader level.
 
Claggett: ignore them?
 
Rupy: varies by provider and situation. Under some voluntary frameworks, you may see those notices forwarded on to the individual subscriber.  Even with the forwarding, it’s an allegation of infringement.
 
Jennifer Pariser Motion Picture Association of America: 512 is best for ISPs of every size. Google can automate; small ISPs don’t spend much; it’s a cost of doing business whether large or not. That’s where the imbalance comes: relatively manageable cost of doing business v. creation side is being killed by piracy and dealing w/great burdens from §512 to little effect.
 
In terms of §512(a): CCI is not a voluntary organization; it’s a contractually based organization with the MPAA, RIAA, and five largest ISPs, but only those 5.  Others are invited to be members but have chosen not to be.  Minimal effect of that program is only for subscribers of those services; only deals w/P2P piracy; doesn’t end w/termination.
 
Marcie Kaufman Ithaka/Artstor: we are stewards of content licensed to us and provide it to libraries etc. Have a freemium access model for users.  Sit between ISPs and users. We have to issue our own takedown notices. But we have SharedShelf ISP service model—content management for digital collections for institutions, integrated w/licensed materials. They do their own screening of IP rights, and are generally cautious b/c they’re academic institutions. Fills an important niche allowing teaching materials to be integrated. 
 
Artstor couldn’t have created this w/o DMCA safe harbor.  We don’t monitor it—it’s password protected.  Needs to be consideration of the service provider, size, etc. in any changes under consideration.  We are the innovation the safe harbors meant to protect and changes would really affect innovations like us.
 
Andrew Bridges Fenwick & West LLP: DMCA works well for ISPs; nobody’s happy with it, and that’s the sign of a good law.  Four points of concern, three of which can be solved by education. (1) Broad misunderstanding that the safe harbor has replaced the substantive standards of © infringement, or that the DMCA gives © rights to creators. It simply limits remedies. Before you reach safe harbor, you have to be otherwise liable.  Rampant confusion about that.  (2) Rampant confusion about role of §512(a) conduit provider and notices to them using §512(c).  (3) A number of abuses; DMCA used by business model itself, a monetization strategy and litigation strategy, rather than a framework to encourage collaboration.  (4) Needs litigation to fix: pervasive problem of extreme statutory damages.  Once that’s done, many other complex questions become easier to solve.
Kerry Sheehan Public Knowledge: Tempting to see future of §512 as being solely about ISPs and content creators, but also about internet users as a whole—increased risk of liability means increased risk of takedown of protected expression online.  [And they are content creators too!]
 
Jay Rosenthal ESL Music/ESL Music Publishing: Contrasting those who get the notices and those who send them. It’s great that it’s ok on the ISP side. On the content owner side, it’s an incredible drain, and smaller © owners have stopped using it.  Burden on ISPs, but there’s got to be a shift in this burden in policing the internet.  If we both feel pain, that would be the right balance.  But since they’re saying it’s working relatively well and we’re saying it’s not, that should push © policy towards us.
 
Damon DiMarco Author [Authors’ Guild]: One of only two independent © holders here. [I beg to disagree: what are AO3 users, chopped liver? I’ve sent takedown notices.]  Written five books. Google alert.  Forty alerts in April: pirated instances.  DMCA is toothless.  I spend the majority of my time running after people stealing from me.  Panamanian companies, overseas companies.  I should have an attorney, but I can’t afford one.  Independent artist’s POV: complete debacle. Don’t have an answer, but you need to know what the ecosystem is like. Stratified against independent producers of content.
 
Claggett: Types of improper notices—targeting legitimate content that have negative effects on free expression.
 
Hillary Johnson Author: What DiMarco said.  Major book published 20 years—most infringed, plagiarized book of the 20th century.  Most egregious: a FB user who’s published my book on his FB page three times over in 10 years. Started by sending takedown notices to FB; took about three days to satisfy FB’s demands to prove that I was the author who owned the ©.  I live on Social Security and a $500/hour lawyer presented 75 instances of © infringement. FB told this guy to C&D; I never saw the letter; he stopped for two months, but w/a lot of profanity, anger, hostility.  It stopped for a while but since then he’s posting material that appeared elsewhere on other people’s websites.  He’s now plagiarizing instead of posting verbatim. My book has been utterly devalued; efforts to protect it have been futile.
 
JC: when you sent a takedown notice to FB, do they respond? What do they demand?
 
Johnson: 2011-2013 I was sending notices to FB. They sent a form back asking for proof.
 
Thomas Kennedy American Society of Media Photographers: Incredibly asymmetrical. No collaboration w/individuals.
 
Mickey Osterreicher National Press Photographers Association: Haves and have-nots have completely different view of how this is working.  Fair use has become a sword—courts have difficulty deciding fair use, so that’s problematic.
 
Marc Ostrow Law Offices of Marc D. Ostrow: Silent majority: represents a lot of individual songwriters and recording artists and small businesses. There are lots of people who never bother to send notices any more to the YT and FB of the world.  Very few counternotices are even served because the person whose content was taken down will just repost it quickly.  Statutory damages aren’t that high when you consider the cost of prosecuting litigation to trial. I’ve had people get angry at takedowns b/c they say they’re fans.
 
JC: in your view people don’t use counternotice process, just repost.
 
Ostrow: in my universe of small publishers, yes. The one counternotice I’m aware of involved a small classical publisher—a university concert posted the entire performance, and the composer didn’t like the performance, and posting an entire work w/o transformation is not fair use; they claimed it was fair use.
 
JC: did you sue?
 
Ostrow: No, b/c of cost/benefit analysis. 
 
JC: did the content come down?
 
Ostrow: yes, it did, but in other circumstances it’s just reposted.
 
Claggett: want to focus on improper notices that are improper for free speech.
 
Pariser: The Berkeley study doesn’t have anything to tell us about the internet ecosystem outside of Google. The study looked at 1800 so-called improper notices w/in the confines of a limited period of time. 30% of notices sent were improper, supposedly. 15% were some variety of technical mistake; mismatch b/t Usher’s music and movie House of Usher—not suppression of legitimate expression. That work shouldn’t have been there to begin w/.  Others pointed to more than 1 URL, making it difficult for Google to know; that’s a problem for Google but not a huge problem.  7% in supposed fair use bucket.  They are way overgenerous in what might be considered fair use—covers and ringtones are not fair use.  Even so, doesn’t say © owner lacked good faith basis.
 
Google’s own statistics say less than 1%.  We won’t say there’s never been an improper notice in the history of the world. Anecdotal. Microscopically small percentage.
 
Schofield: Hosts of all sizes talked about notices targeting noninfringing content. The problem there is that there’s a tendency to take down content that the service providers do no matter what. Others have a different risk tolerance profile, like WordPress.  Study 2: largely automated notices often targeting problematic sites.  Large rightsholders are focusing their efforts on big sites.  So we looked beyond large rightsholders targeting those sites. So we pulled notices sent to Google Image search. Tended to be individuals/small businesses. Different dynamic, with lots more issues of expression: blogs, message board threads.  15% targeting improper subject matter.  Help us study!
 
Claggett: could you go back and determine whether those procedurally bad ones were based on legitimate content?
 
A: it would be hard.
 
JC: which is more accurate, automated or human review?
 
A: depends on type of rights holder.  Image search: human attention wasn’t necessarily a panacea. Largely unsophisticated actors in the system. 
 
Claggett: pro vendors typically had less inaccuracies than the individual or small business owner notices—is that who they targeted or their understanding of the law?
 
A: depending on how you count, 70% of Google Image notices had problem; we set one particular person’s notices aside, leaving 37% with problems in image search, and that’s about sophistication.
 
Claggett: does that suggest in preventing abuse there needs to be a different solution depending on the type of notice sender if individuals and smaller businesses—would higher damages make a different amount of sense?
 
A: we recommend tailored solutions. By & large, for automation there are best practices about refining these systems to minimize errors. We’ve spoken with rights enforcement orgs that say there are mechanisms to refine algorithms to limit mismatch.  Some orgs weigh success on numbers, not on quality. Smaller senders: educational efforts could be targeted to see what the process is about.
 
Rebecca Prince, Becky Boop: I’ve been subject of improper notices based on my fair uses. First: DMCA strikes by competitors. I create video on YT, which is one of the few platforms that gives you AdSense revenue, mostly w/in the first few days. Competitors can lob four notices = account termination; no recourse to reinstate your account. If this is how you make a living, that’s very serious.  YT’s Content ID system: I have the opposite problem, where I submit a counternotification, and the company just sits and waits and then just submit a new notice; they can keep your content down for months, which has a chilling effect and changes the content you create.
 
Claggett: are they not complying w/putback?
 
Prince: material will be reinstated, but company will create a new followup claim. It’s automated and so no one checks to see it’s a second claim to keep your content down again.
 
JC: Content ID?
 
Prince: yes, segues into DMCA if you counternotify.
 
Jay Rosenthal: Cover versions of songs are not fair use as Berkeley study says.  Small percentages—stifling innovation argument should be made much more from the user side. © takes the idea/expression distinction into account. If original © owner wants to stop use of expression, they should be able to do so. © owner needs remedy to stop someone from using expression.
 
RT: [I’m pretty sure there’s at least one PD film about the House of Usher.] [For examples of problem notices, see the comments of: Engine, Github, Redbubble, Matthew Neco’s discussion of Docstoc, Yahoo!, Automattic, Siteground, SoundCloud, Internet Archive, Wikimedia.] Jon Penney’s study of blogger and twitter takedowns: substantial minority percentage of plausible fair uses, including criticism. 
 
This is situation not ISPs v. copyright owners or so-called “content creators.”  Our users are creators and © owners too; we assist them w/information about DMCA when someone is selling copies of their works on Amazon; I’ve sent takedown requests myself.  But they are mostly at risk of invalid takedowns.  Mostly for critical works.  When we ask for proof of ownership, we do so b/c there are people who pretend to be HBO [Game of Thrones], Warner [Harry Potter], and all sorts of others.  The things people complained about in the last panel are the sorts of educational measures people have just been advocating for here—when Google asks if it’s a picture of you, the reason they’re asking is to try to figure out if you really have a copyright claim! You can’t have it all.
 
Haves and have-nots: those exist on both sides!  DMCA notice from big copyright owner—people are scared to counternotify b/c if they consult a lawyer the lawyer has to tell them about statutory damages.  One woman’s videos have been shown in multiple curated shows at museums; still thought long and hard about counternotice.  Small creators do often decline to interact w/the legal system.  But please recognize that if you accept the testimony that lots of people don’t bother to contest an abuse, that’s true for people who receive notices too!
 
Counternotices: Digital Media Ass’n, submitted a study whose questions assumed s512 wasn’t strong enough.  Has an interesting non-statistical survey, 9% of those experienced counternotices and also experienced invalid claims against them.
 
Michael Weinberg: I personally review every takedown. We get plenty of facially legit requests. But we get takedown notices for all sorts of stuff. The internet is big and people use a takedown option for everything. You may code something as a technical error—weren’t willing to assert they were the © owner—but what that means is that they didn’t actually have an ownership interest.  If we try to structure the complaint on the front end to avoid bad takedowns—taking the interest of creators seriously both for senders and for recipients—we have to balance burden on rightsholders sending notices and ability to avoid burdening our creatives.  We get people who send takedowns based on every use of a word they claim to own. 
 
Charlyn Zlotnik Photographer: 5 years ago I sent notices to ISPs and didn’t receive replies.  YT responded w/removals. Lately I’ve been going directly to people posting on Flickr or Pinterest; it seems like the burden was always on photographers but it’s out of hand now. There should be notices in real simple English—if you scanned something from a book, don’t post it. All my older work in books is being scanned in hi-res.
 
Perry Bashkoff WEA Digital & Revenue Development: Practicality of utilizing toolsets given to content owners: encourage decisionmakers to sit w/a content owner.  Tools are good enough; manpower hours to protect works of artists and talent is simply not manageable.  Practical reality of discussion: YT Content ID owner #1—seeing what it means to receive a counternotice saying “I bought this CD,” or “get lost”—we get that all the time.
 
Sheehan: No matter whether you characterize these as intentional or just mistakes, you get suppression of speech.  Every Single Word video series: edits films down to every single word spoken by a character of color. Excellent critique of racism in Hollywood; they received a DMCA takedown. What happens when content is taken down w/out a large public uproar?  Rightsholder rescinded a request.
 
JC: There is a counternotification procedure.
 
Sheehan: intimidating for users to swear—imbalance of responsibility b/t notice senders and counternotice senders.  SCt has made very clear that fair use includes expression, BTW.
 
JC: an unfair takedown notice—there is a procedure available under the law.
 
Sheehan: it isn’t working—so maybe we need to refine notices and make counternotification easier.
 
JC: education?  PK could do more to educate posters.
 
Sheehan: could also do more to educate rightsholders about proper notice. There are things to do to equalize burdens on rightsholders. Not simply an educational issue but intimidation factor of having to swear under penalty of perjury.
 
Schofield: if you extrapolate across the notices, that is millions of improper notices.
 
Adrienne Fields, Artists Rights Standard: Incredibly burdensome. Can’t reach a fraction of infringing uses on the internet. Notices that I file are rejected for no apparent reason. If they want to take on that role, they should be responsible for the infringing activity. Incentivized not to remove b/c they like having traffic from works by big name artists.  Rejected where the artist’s name was included on the video and thirty works appeared in the video. [All I want here is some recognition of the parallels b/t the “why don’t you sue if they’re not complying w/the DMCA?” question and the “why don’t you counternotify if the notice is abusive?” question.]  When we send notice to a conduit, it’s b/c we can’t find them any other way—they use proxy services.
 
Michael Housley, Viacom: Even if we had all the notices perfect and always sent them, piracy is growing. We need more than the notice black hole.  Filtering, other tech available now that can be used not just for antipiracy but for all sorts of content identification. [That’s not terrifying from a civil liberties perspective at all.]