The IP + Race conference hosted by Boston College in April 2017, sponsored by Jessica Silbey, Anjali Vats, Deidre Keller, and Amit Basole, is seeking participants. They are expecting special musical guests for the conference as well – all IP and critical race related, of course.
Wednesday, May 04, 2016
Tuesday, May 03, 2016
Official description: Panelists from previous sessions and observers may sign up at the roundtable to comment on topics discussed during earlier panels or raise and discuss other pertinent issues.
David Green, NBC Universal: what should the Office do at the end of the process? Don’t undertake a rewrite of 512. Everyone here would change parts or a lot of it but even if the Office came back with a wonderful rewrite, that would be a bloodbath. Trench warfare of congressional activity = little progress. Should be a driver for progress through face to face discussions. Content owners and ISPs have very different views, but we can still reach a compromise that’s reasonable and fair and can involve w/time. Can and should encourage dialogue; have Congress members do the same. Isolated announcements from a single internet company that it’s fixed the problem are bad. Also do best practices, and education prominently displayed around uploads; descriptions of fair use that everyone can use.
JC: how do you get people to the table? Key stakeholders and smaller players?
Green: doesn’t get made in a big room like this. Where stakeholders understand the problems and goals: UCG principles. With search: “get together and see if you can make progress, then come back to me” (ideally said by chair of Judiciary Committee) can put a thumb on the scales and encourage cooperation.
Todd Dubler (sp?), Recording Academy: remarkable that you’ve heard from entire creative community that they can’t use the system effectively to keep their work from being infringed. Two worlds: work with us; they stick their fingers in their ears and reject voluntary agreements. Hoops for issuing notice; very little that uploaders have to do to upload; education or formality would be appropriate there. Finding some way to distinguish between good notices and bad notices. Find way to designate STMs. Original intent behind red flag knowledge should be reinstated. Takedown should mean staydown: when you’ve notified the service that it’s infringing and you have the tech to track, you should be able to keep it from going back up. Stacked URLs are clearly outside the intent of the DMCA even if there are difficulties.
Joshua Lamel, Re:Create: Testifying in California. Re:Create had nothing to do with the public comments, but they were from over 89,000 people, not people who were paid to testify but who chose to be here. Important for California that these proceedings be livestreamed. This is something about the future of the internet; people care passionately and can’t afford to be here today. Consumer and artist community have interests.
Andrew Bridges: Continued massive confusion between 512(a) and other types of ISPs. ISPs and sites—sites are (c) and (d), very different from (a) service providers. That distinction kept getting eclipsed. Google and YT, both of which have prevailed in expensive litigation; obsession w/them distorts (c) law in general. There is a wide variety of service providers in any category that could be injured by policies developed for Googles. Discussion of good actors/bad actors is demonization that is counterproductive. Focus should be on behaviors, activities, legal criteria. “Come to the table” goes both ways—refusal of many important and prominent (c) holders and agents to work collaboratively w/ISPs, including reputable companies. UGC best practices—Veoh was one of the participants, and it was sued into bankruptcy even as it won major victories under DMCA; limitation of voluntary agreements. Absence of citizen interest in voluntary agreements—payment processor agreements weren’t made w/merchant participants; sites get blackballed by ad networks until you make a record label happy. No due process. That’s a problem w/voluntary agreements w/o public. Real abuse of DMCA notice gamed for monetary purposes. Perfect 10 sends repeatedly bad notices, faxing them late at night before a holiday weekend on plain paper with no letterhead etc. Hoping that the ISP would lose the notices. Rightscorp sent 100s of 1000s of false notices w/o being able to determine that the account holder assigned to an IP address was an infringer or even that there was an infringer. Finally, KTC’s Claggett question about effect on legitimate content: I hope the focus isn’t on content but lawful activity and free expression. Many policies have substantial effects on legit activities and free expression, especially in 512(a), where consequences of termination can be life-shattering. There only way to get back on is to use rogue services/fake—that’s counterproductive.
Allan Adler, AAP: Nature of commerce to come up w/new business models, but whatever else you do, please don’t indulge blaming the victim. Condescension, misdirection, anachronistic. May have had some legitimacy in 2006, not 2016. House Judiciary hearing in 2013: rise of innovative business models: content delivery models in the internet age. Rapid but no impact on rampant online infringement. Look around us, how we and our children are now accessing motion pictures and music—can’t doubt that new business models have been a success. Even if we hadn’t, the suggestion to fight theft w/new business models is pernicious. Individuals who earn their livings through art and plaintively explained their plight b/c of inadequacies of 512, shouldn’t be told to invent new business models along w/creative works simply to sustain a living by creating art.
Will Buckley: Need for transparency in this process. US Copyright Office received 90,000 submissions day before closing day. Generated by Fight for the Future, mysteriously financed company that flooded your servers w/same message. Disturbing: end run—we’re not really talking about free speech. This is about property. Free speech that’s often used in this discussion that takes it sideways. As far as false DMCA notices: there are very small percentages, less than 5%, and very few have ever gone to court. That’s not a real issue. Yes, ratcheted up over time, b/c of companies like Rightscorp, but I was at UCLA last year w/ the House Judiciary Committee. Talked to Goodlatte about staydown: he said we don’t want what happened w/SOPA to happen again. He meant a literal cyberattack that scared the heck out of the people in Congress. It’s important to have bloodbaths, rules and laws that work. [Rules and laws that create bloodbaths?]
RT, OTW: Who’s the game-changing musician of our generation, asked in the last panel? I offer you the queen, Beyonce, who just reinvented the music video. I offer you a man who wrote a hip-hop musical about Alexander Hamilton: Lin-Manuel Miranda, who has embraced online engagement, embraced online annotation of his lyrics on Genius, which wouldn’t exist without 512; he embraced YouTube and Tumblr and gifs, you might say NON-STOP. We will continue to have our geniuses; they will just be different.
Emphasize that, even accepting without question that piracy is a problem, “do something” is not a policy. Nor is “staydown” b/c even a trivial change in a bit changes the fingerprint of a simple staydown filter. The specific things suggested in the past two days—Content ID and Book ID and Audible Magic—overblock and underblock, and the biggest users of Content ID can’t say enough bad things about it—they suggest keyword blocking and other measures to supplement it. In Sony, UMG, Warner’s comments, Content ID doesn’t work well, so they conclude that everyone should have to use it.
Worse, the proposed changes have no connection to suppressing the worst offenders—those overseas and rogue sites that do nothing to comply right now. So you’ll be crippling US-compliant sites and not even getting the benefit sought.
JC: what if it worked? [That is, it wasn’t only 60% effective?]
RT: Well, it works (at least at the 60% level, according to the big companies) because it cost $50 million, which the rest of us can’t afford to build.
JC: What if it worked and was free?
RT: The way it catches things that aren't exactly the same is by catching things even when they differ. Then it would catch a lot of fair uses. Testimony: catches 20 seconds of quotation in a 40 minute film. YT can have that as a business model, and we do talk to Google about fair use, but as a mandate it would be a huge free expression problem.
A separate problem with staydown—don’t assume that all works are like studio films: Digital Media Licensing Ass’n at 5: “If images are distributed by multiple representatives, or licensed on a non-exclusive basis, it can be nearly impossible to distinguish an infringing use from a licensed use.” That’s ten times more true if the ISP is in charge, meaning that properly licensed uses will be taken down both to the detriment of the copyright owner and the licensed user. Also: Yahoo’s comment recounts its experience w/takedowns related to tobacco ads: some clearly fair, some maybe not: staydown would prevent that kind of analysis.
Finally: You have not heard unanimity from the entire creative community. I represent 600,000 creators who feel very differently. Ask you to remember also the incredible transformative works community building skills particularly among women and underrepresented minorities—I encourage you to read our submission to PTO/NTIA green paper, and see if you can do it without crying at some of the stories of how transformative works transformed these women’s lives, their careers, and their futures.
Pariser: What the © office might do: MPAA hopes © office issues a report giving guidance on the proper interpretation of 512 to the judiciary, similar to making available paper. These reports are enormously helpful to the judiciary in understanding the proper way to interpret, even if they don’t always follow the guidance. For STMs, legislative history: Committee would accept ad hoc groups as long as the process was open, fair. Could mean that the door is open to anyone who wants to come in; that would make it redundant w/earlier use of “open” to describe standards bodies. Another way is that the record would be open. In either case, © office could sponsor a procedure that was both.
Sarah Hows: Spent 4 years training to be an actor and 1 year trying to make it on the stage. What stood out to me is the difference b/t pro creators and someone engaging in creative activities, which is amazing; not everyone can be a pro artist. It takes a lot of investment to be a pro artist. It’s very different to try to make money than to make art.
[Fortunately, transformative works communities can help develop those very skills.]
Maria Schneider: my last recording won a Grammy, cost over $200,000, took years to write the music; year in studio recording, editing, mixing, preparing beautiful work to stand out. When I say it cost $200,000 I didn’t include my time writing music, producing, $80,000 from my savings. So it’s pushing $300,000. When I find links to this on Google, that’s why I talk about Google. I have embraced the internet like no artist has embraced the internet; first artist to win Grammy from selling just on internet; worked w/ArtistShare to document and know every fan; I put up video content documenting throughout the year the making of the recording. When someone puts my videos/scores up on Limetorrent and I can’t find a way to take it down, it hurts me financially. In 1993, before anyone knew who I was, I sold 25,000 records; now that I have 5 Grammys I’ve sold 8000 copies of my current album. It’s so accepted that Spotify offers no money b/c they’re competing with free. Like offering me 45% of my own 401(k). This is my asset, my life.
(In homage to Jonathan Zittrain, I am giving this panel the nickname, The Future of the Internet and How To Stop It)
Official description: General trends, including notice volume and other relevant empirical data; scalability and future viability of section 512 notice-and-takedown system; relevant technological developments; impact of international models and norms; overall balance (or imbalance) of system with respect to copyright owners, service providers, and consumers; whether system is fulfilling Congress’ intended objectives; suggested improvements, including “notice-and-staydown” and enhanced protections against misuse of takedown process; interests of users and the general public; and other pertinent issues.
Jonathan Band, Amazon: the DMCA is a workable compromise; 512 balances rightsholders, service providers, users; no amendments are necessary. It will continue to work, barring something unexpected.
Matthew Barblan, Center for the Protection of Intellectual Property: Works really well for ISPs and horribly for creative community. If this continues it won’t work really well for anyone. We’ve seen disruption of creative industries. ISPs should keep in mind that the reason why the internet is so popular is that it’s a great tool for disseminating creative content made by our industries. [Excuse me?] Creative economy will be a shadow of what it was.
William Buckley, FarePlay, Inc.: Heart of the problem is the law is clearly broken; designed to make a simplified process for websites who made an error in posting © material; could remove it w/o need for lawsuit. Intention was for creators to have streamlined way to get content removed. Problem was it was written improperly. Doesn’t refer to a specific piece of content, leading to whack a mole situation, and that’s the genesis of these takedown notices. We have so many now b/c the system doesn’t work. Automated notices = higher numbers. But the core is a broken law that fails to fulfill its purpose.
Stephen Carlisle, Nova Southeastern University: My primary gig is fair use. Evaluating it for professors, staff, library [poor professors!]. I’m hemmed in by what courts say it is now. We see this push to expand where courts are currently. Every fair use case has to be judged on its facts. No bright line rules. Authors’ Guild denial of cert—mirror image copy is transformative; 6th and 11th circuit say that a mirror image copy isn’t transformative. [? I note that Univ. of Ga. didn’t argue that its copies were transformative.] Berkeley study: 7-8% of notice were possible fair uses—remixes, mashups, and covers. But covers need to be licensed, as do remixes. I did a Westlaw search on remix and mashup and couldn’t find a single case of a mashup or remix being found to be fair use. Fair use isn’t extended there by courts and there’s a push further. Guy in California now has $1 million in funding to make a Star Trek movie w/no permission from Paramount.
Alisa Coleman, ABKCO Music & Records: Broken: need notice and staydown.
Andy Deutch, Internet Commerce Coalition: Imagine a world w/o DMCA—stunted. ISP groups that make this possible could not exist w/o 512. Problems w/infringement exist, but creative community’s woes aren’t due to 512 or even infringement; economic problems have affected all creative trades. 512 encouraged enormous investment, new mechanisms for curbing infringement, spread of broadband.
JC: the Q is, if we continue this way, what will we be looking at? Is notice and takedown scaleable? [Is the United States scaleable? Interesting question in 1790; not a particularly predictable one. Prediction is hard, especially about the future. I refuse to make predictions five years out, much less twenty.]
Deutch: world of creators is variable. They have different needs & problems. Impossible to do everything for everyone. Same is true on the other side—10s of thousands of designated agents.
Sarah Feingold, Etsy, Inc.: Free speech—we need the internet as it is, doing pretty well.
KTC: Some fear in your comments that you’d be subject to increasing volume. Are you concerned that without change you might be inundated w/notices?
Feingold: Etsy has scaled, and so has our DMCA function. We’d scale and always treat it as a floor and not a ceiling.
Greenberg: has the DMCA aged well and will continue to age well? What I hear is that it’s perfect or that it’s a second-best and any tinkering will upset parties.
Feingold: working as it is. Would want to see proposed changes before further comment.
Kathy Garmezy, Directors Guild of America: Independent directors—if DMCA continues, assume there are no protections and find alternative ways to make up revenue. Everybody we’ve talked to has ended up turning away from 512 as unworkable. Not a lawyer, but her sense that staydown would make a huge difference for creators. Not all content on the internet is equal. Pro content created by people who want to earn a living should be treated differently versus other content.
Bruce Joseph, Wiley Rein LLP: Section 512(a), conduit function—that both retrospectively and prospectively is working right and the balance will continue to be right 20 years from now. Despite calls for change, based on my preliminary review, there is very little if anything asking for change in 512(a). Led to massive investment and it’s the only way we’ll continue to see massive investment by service providers that create huge new opportunities in the economy as a whole and content providers. Commerce, education, information, politics—it’s all there, and wouldn’t have happened without 512(a). If any change is necessary, it’s time to eliminate the idea that internet access could be terminated as a condition of the safe harbor.
Thomas Kennedy, American Society of Media Photographers: Concerns w/512 going forward. Our members are approaching market failure, and adjustments are needed. Tech changes have changed things for photogs; small claims alternative would be step in the right direction. Big problem is that DMCA isn’t contributing to necessary dialog b/t OSPs and creative community, and the way they reap enormous benefits from creation that aren’t shared.
David Korzenik, Miller Korzenik Sommers Rayman LLP largely representing news organizations: Parallel to right to be forgotten in Europe—as worry about privacy increases, takedown notices increase. Companies like Google and other search operators are faced w/1000s of takedown requests to evaluate. Even if they try to balance these, a lot of this “censorship” occurs outside public view so we don’t know what’s lost. 512 is generally good, but shouldn’t create presumptions against speakers, burdens against new forms of fair use/conversation/interaction – may be untested in courts but need to be assisted. Good thing about 512 and American law generally is that we favor new tech rather than taxing them as they do in Europe. Continue in vein of Sony Betamax and 512: no presumptions against legitimate speech.
Dina LaPolt, LaPolt Law, PC: No, it’s not sustainable. We’re all miserable. Two separate communities that desperately need each other and nobody’s listening. Fix things a little. Staydown. Keep it down while we figure out in a small claims type of way whether it’s supposed to be down. ISP has responsibility to keep track of that file. If someone makes a counterclaim, we should have more than 10 days to work it out, during which it should stay down. Maybe 60 days. Why force my clients to force a lawsuit against you, b/c they will? [He made me do it!] We could work it out in friendly arbitration to see if the staydown will persist. To figure out whether it should be fair use before my clients make a case for stealing doesn’t seem an amicable way to fix the system. [Accusations of stealing, OTOH, are friendly-like.]
JC: are you suggesting that all other identical files should be kept down too during this period of decisionmaking?
LaPolt: yes and no. Music community is not great w/metadata. I’m saying if I make a claim and there’s a specific file, they should keep that metadata and notify me if someone puts it back up. Result: coexistence for healthy community.
Michael Michaud, Channel Awesome, Inc.: My company makes content on YT and has a website that attracts millions. Staydown—but to put the burden onto websites is the same burden, now on us. Harms small websites that don’t have resources. Viewers are the ones who determine whether content succeeds. YT has started careers, and a lot of people rely on fair use to get out there, such as Justin Bieber. This isn’t defended enough. There are lots of examples of abuse of takedowns. We had four notices last year, all wrong. We lost an entire month of revenue b/c of a claim that had to stay down 10 days even though they dropped they claim. They can block you, take your money, or block your monetization for 20 seconds of video in a 40 minute video.
JC: are you agreeing to those terms when you upload?
Michaud: YT doesn’t set these terms.
JC: but that’s not the law [it’s just what you seem to want to turn into the law.]
Michaud: they can do a global block w/o even using the DMCA.
Christopher Mohr, Software and Information Industry Association: If things stay the same, we are not calling at this time for amendments to the statute. It is under strain. In the coming months, as court cases come down, there are areas that can and should be clarified—see our comments. Our hope is that we can see greater growth in positives such as voluntary agreements.
Mickey Osterreicher, National Press Photographers Association: sides are talking past each other. Haves speak of reasonable profits and cost of doing business; have-nots say corporate greed. Pernicious theft of work. One side says fair use is a defense, the other says it’s a condition precedent. Creators big and small say shortcomings/unintended consequences of 512 should be addressed. Basis for © is promotion of progress of science and useful arts, if 512 doesn’t help secure exclusive rights of authors to allow them fair compensation, we may see the demise of useful and creative works as they continue to be misappropriated. Turning blind eye to infringement has created imbalance in online ecosystem. [This is why the Avengers movie is going to have such an unprecedentedly small global take, I imagine.]
Janice Pilch, Rutgers University Libraries [comments are her own, not views or official position of Rutgers or any library association]: Absent legislative change, the situation will continue to deteriorate for creative people benefiting from their own work. Since 1998, the internet has become something other than what Congress intended—thrives on illegal commerce. Black market is bad; 512 rewards disrespect for moral/material interests of others. Supported by safe harbors and not open/democratic; closed system w/unfair advantage to itself. Needs to change or society will be worse off. Social issues are as important as internet itself.
Kevin Rupy USTelecom: $1.4 trillion investment in broadband in the US. $78 billion in one year. As Joseph noted, that investment is in part based on 512(a).
Van Armen, Ass’n of Amer. Independent Music: From our perspective, DMCA has problems. What happens if things don’t change? Our members are very concerned about control of their works. They want a market for the fruits of their labor. As we see things now, we’re afraid that if things aren’t changed, there won’t be adequate compensation in the future.
June Besek, Kernochan Center for Law, Media and the Arts, Columbia Law School: Fact is that 512 will not persist; there will be judicial change even if there’s no legislative change. If past predicts future, that’s concerning, b/c courts have often placed emphasis on allowing service providers to flourish and grow, and less on rightsholders’ interests. Reading representative list out of statute, defining red flag knowledge narrowly, etc. Service providers continue to base businesses on infringement. 512(h) has limited effect b/c you have to file a John Doe lawsuit. No liability even when their own contractors post; they have to consider fair use before filing. Not all these decisions were bad, but balance hasn’t been achieved. Shouldn’t assume that decisions will be better/different if we go on the way we are. ISPs will continue to pay a lot of $ to respond to takedown notices, and © owners will spend a lot of $ to file notices. And © owners will lose a lot of $ because materials will be up. [#notallisps]
JC: you’re suggesting that narrow interpretations could be avoided—how could courts reverse that trend? Is that likely?
Besek: doesn’t see SCt case in future; evolution could occur over time.
KTC: what is the goal? Less piracy? More content in the world? What would be a measure of success under DMCA now or in future?
Band: look at the objectives in 512: thriving internet? Do you have a thriving creative environment? Goes back to the facts that Petricone cited. That’s what we should look at. The © Act isn’t about protecting particular business models, but about promoting progress.
KI: if we decide those are the metrics, how do we measure them? Sheer number? US compared to other countries? Historically? What’s our benchmark?
Band: US and int’l success—all kinds of metrics, though some things are more difficult to measure. As Feingold was saying, all of us are creating works all the time; the number of photos created every day is over a billion. No Q re: absolute number. Q of quality—that’s more difficult and complicated. Doesn’t seem to be any shortage of high quality content either, and there are distribution models—open access publishing, completely different business model.
Barblan: if service providers were incentivized to do more to remove a link, we could arrive at a place where most popular streaming website in the world isn’t a substitute for music you’d have to buy. [He means YT.] Encouraging the production of pro quality content that people can make a living at as pro artists; this difference matters. If you go on YT and listen to someone playing a cover, that’s entertaining but not the same as a pro quality album that cost several hundred thousand dollars to record. Encourage people to be able to make a living as artists. It’s tough to see how to measure that; shouldn’t just measure amount of works out there. Overall ability of pirated content—if we see #s like that continue to increase and anything is available to free, we’ll see market disruptions that make it hard for people to make a living.
Buckley: It’s about money. What’s the value of broadband without content? Band said there was no proof that piracy cut revenue of record business 60% and photography and literature. In spirit of full disclosure, I’ve circulated a petition that requests a staydown provision to go along w/takedown. We’re not asking for a new law. Hollywood makes 30% fewer movies than a decade ago, 60% fewer “nuanced” movies. Instead, event films demand a premium price to go see films in HD and 3D. That’s one way film industry had a successful year. My petition discusses author who filed 570 takedown notices for one book & one site, and he was never able to succeed. Balancing compensation for artists w/ tremendous wealth generated for tech sector ot we’ll lose our rich heritage.
Carlisle: Promote progress—we should ask ourselves: is 512 promoting the progress of useful arts. Shrinking songwriters in Nashville. We are killing an entire generation of creative artists: we’ll never hear b/c we can’t sustain a living. I asked: who is the game changing musician of our generation: Kurt Cobain, Jimi Hendrix, Prince. The best answer he had was Eminem, 20 years old. [LIN MANUEL MIRANDA, anyone?] I’ll take Prince over Justin Bieber.
Greenberg: What makes income driven artists going forward?
Carlisle: shrinking revenue pool. Touring sold records, in the old days. Now records are loss leaders for tours. Touring is very expensive.
Coleman: goals should be to protect copyright owners and switch the current balance to favor songwriters etc. W/o cover songs, the music publishing industry wouldn’t exist. People want to make tribute versions whether on the internet or a CD. We need to protect right to monetize cover versions.
Deutsh: Don’t overlook enormous new opportunities created for artists. Viral hits—make money and earn a living in ways that could never have occurred in the pre internet era. Even on the creative side, there are winners from the system that’s evolved. Other industries have also had to roll with the punches, but by no means is the internet the sole villain.
JC: are we evolving into a society w/o investment in up and coming artists, b/c that’s been the model for a long time. We’re hearing there’s not enough money in the current ecosystem to invest in many new artists. Is that a social loss?
Deutsh: remains to be proved. Stock market capitalization of these cos. remains high. They continue to be profitable. Can’t compare to 1980s, but then 1950s was different too. Big bands died. Change in what consumers want to hear/watch is a feature of the American cultural landscape. People who want and need to create will continue to come to the fore; many more people are now doing that b/c they can get their works out to others. Mixed future: large entertainment cos. and music publishers, all providing capital and facilitating distribution. Alongside, new artistse who become viral sensations; that’s new and cumulative rather than subtractive.
Feingold: I don’t see desctruction of artistic communities; I see the opposite, millions of sellers on Etsy with $293 million dollars of sales, 80% of whom are women, many working from home—wouldn’t have brought products to market without lower barriers to entry, enabled by DMCA. Use Etsy to pay bills.
Joseph: SCt made clear that © exists to promote the progress of science. Golan v. Holder; refers broadly to the creation and spread of knowledge and learning. Sen. Hatch said the same thing. SCt has emphasized that the ultimate goal of © is the public interest, not the author’s private interest. Sony teaches us that the monopoly privileges are neither unlimited nor primarily designed to provide a special private benefit; rather it’s a means to achieve an important public purpose. Inducing dissemination post-creation is an appropriate means to promote science. Your goal at the Office is to consider what’s best for the public in creation and spread of knowledge and learning. Those are the touchstones for evaluating what you might do to the internet.
Kennedy: © is about the ability to focus and master craft, serving the public interest. Reducing that capacity of artists and scientists to have the ability to focus, you’re diminishing what the public can ultimately get.
Korzenik: public interest is important; © systems around the world balance interests of authors, distributors, and readers. France is author driven. Our system is distributor driven. People who care about public interest in this country are librarians. Everyone conveys sense that internet is place of chaos and destruction. There’s another side in Europe, Russia, China—an incredible tool for policing and social control and censorship. Whether privately through notice and takedown or publicly. Internet reveals many things—sexual abuse that existed but we now see; police abuse likewise; © abuse that existed in the print world that we now know. Be mindful of the power of this tool to police; its controls need to be moderated so that new fair uses aren’t suppressed.
LaPolt: I don’t understand why my clients’ property should be public interest. There is a social loss in the music community. Until now, the only companies that could put up risk money were record companies. Publishers don’t give you money up front. But now record companies can’t put up a new artist unless she gives up 25% of touring, sponsorships, etc. That’s not sustainable. Simple fixes would enable us to get along. Internet can be a valuable tool for some independent artists, but we need to work together.
Mohr: In measuring success, there are two interests. Interest in generating services, which has succeeded. Another interest: purpose of copyright. Congress put copyright in to unify state law; recognition of the benefits of an incentive for authors and publishers to make useful things; public good coincides w/claims of individuals. Eldred footnote: benefits of incentives of the profit motive. It’s there where our membership sees the most strain. We believe courts can sort that out, but 512 should restore incentives lost through poorly considered decisions.
Osterreicher: We can all agree that images drive page views. Most of the photographers outside (for Silver sentencing) don’t work for newspapers b/c there are fewer papers w/smaller staffs. The only way to make a living is to go out and spend hours waiting around for a few moments of chaos, trying to get a better picture than others. The only way they can then get $ is by licensing images. If there’s no way to protect licensing, at least get them taken down when they’re misappropriated. If we’re all going to depend on UGC—seeing is believing. We’d like to believe that news isn’t photoshopped. It’s a small microcosm of people that create images, but useful to show how important it is to protect that work.
Pilch: Group of musicians was demonstrating outside w/posters: takedown means staydown; Congress, fix the DMCA. Goal should be that everyone flourishes, but not based on theft, misappropriation, and involuntary exploitation, which public policy has never endorsed—racketeering and trafficking in information. A new form of oppression. Not free speech. Just economic abuse. Goal should be to end economic abuse and even out economic rewards. Fewer takedown notices, fewer complaints, richer culture.
Van Armen: it’s in the public interest to motivate creators to create new works. Imbalanced system w/no market = public is much poorer. If we were to adjust the DMCA safe harbors, how do we know 20 years from now whether it was good? Whether there are innovative digital services; we do need those. Some digital services have been very good. But we’re also undermined, taking big hits.
KTC: how do we develop a tweaked law or dialogue to see these goals implemented? We’ve heard voluntary solutions; staydown; how other countries handle things but other panels noted reduction in piracy given their new laws.
Besek: single most important thing would be takedown/staydown. Some objections are well taken but there should be an opportunity to object if your content is filtered out, just as it is w/notice and takedown. Could be different standards for different classes of ISPs, at least for a certain period of time while they’re a startup. Pessimistic about voluntary measures b/c there are business models involving access to content, and b/c there are businesses that have good faith but don’t see what’s in it for them even though it might help them to reduce takedowns [which assumes that they get huge #s of takedowns].
Band: Amazon would oppose any statutory change. Voluntary measures. Deutsh: we live in a time of rapid tech change; it’s stressful for everyone. We all have to reinvent ourselves repeatedly.
Barblan: artists aren’t luddites; invested heavily in new means of dissemination. When you make it easy to steal from them, reduce the $ they can use to develop new business models and new forms of art. Some sort of staydown would be a really good step in making it hard to steal from artists. Once a service provider is on notice that a work isn’t licensed, they should bear the responsibility to avoid reappearance, whether through filtering or changing the way content is uploaded. Incredibly technologically advanced industries can do autocomplete [um, Google can do autocomplete—this is your scheduled reminder that Google is not the internet!]—hard to believe they won’t be able to figure it out once you shift the burden to them.
Buckley: w/o staydown, we don’t have an antipiracy law. Grooveshark admitted in court that they had used the takedown provision as a way to avoid prosecution. Enabled them to follow directions and repost. They had a server with a “Pez strategy.” Put exact same piece of content over and over; they were caught b/c of internal email sent to employees seeking songs. There should be penalties for false takedown claims. There has to be recourse on both sides. No free pass to destroy someone else’s career. Has to be balance.
Carlisle: speaking personally. If 512 worked, YT wouldn’t be using it as a negotiating tactic. You take what we give you or we throw you into notice hell. Staydown levels the playing field, so Spotify can’t compare its rates to YT. Puts burden on policing the internet on the YT and FB and others profiting from this content. It’s the only solution that can work. Think if we didn’t have to process a billion notices a year—less bad notices would be sent too.
Coleman: Urge you to think about innovation as a whole w/r/t 512. We know what doesn’t work. We don’t know what won’t work 5-10 years from now. No one would have thought we’d be talking about it this way. Think about takedowns, staydowns, small claims, not for the long term but perhaps for the short term. [I think this is perceptive about our ability to predict.]
Deutch: it is in ISP’s interest to cooperate w/owners. Those who thrive on infringement will ultimately be caught—those who tried have lost. 512 is not a shield, nor is Grooveshark typical of the 512 system. No one says this is perfect, but changing this would change the good balance Congress struck in 1998. © owners are the best ones to ID material.
JC: once they’ve identified the content, assuming the provider has access to fingerprint, why shouldn’t they screen for that. They supply a hashtag [she means hash]—why wouldn’t the ISP have duty to track that?
Deutch: Ultimately not their responsibility; Congress made that decision.
JC: but after affirmative identification, ISP w/tech ability should keep file down?
Deutch: it’s a big assumption, but they should talk about it.
Feingold: staydown would be extraordinarily burdensome; also I see so many abusive notices to squash free speech. Is the content still infringing when it reappears? Those are technologically and legally difficult questions.
KI: abusive notices: has Etsy received them?
Feingold: trying to take down competition, or someone is saying something about them. I’ve seen takedown notices that should be counternoticed.
Greenberg: are these free speech or unfair competition issues?
Feingold: they’re both.
KTC: is the underlying content TM infringement or are people trying to use TM improperly?
Feingold: using them together; both properly and improperly. There’s no counternotice procedure.
KTC: should there be TM DMCA?
Feingold: should be examined.
JC: do you have a repeat infringer policy? Could you share it w/us? How does it work w/physical goods?
Feingold: we have human review; it’s very burdensome. Nuts and bolts are confidential; we’ve seen takedowns sent at 9 am, 10 am, 11 am and claim that therefore we have to terminate the target’s account for repeat infringement.
KTC: Is it something unique to your particular atmosphere in terms of abuse? Are you seeing notices from competitors b/c you have individual businesses in one website, who might be incentivized to abuse the process that might not necessarily occur w/other websites? [other websites that don’t host UGC?]
Feingold: we run the gamut—giant brands and people who were best friends and then had a falling out and sent takedown notices against each other.
Garmezy: staydown would make a huge difference. Heard creators as collateral damage of changing times; motion capture was created by directors, so we know the internet is powerful, but creating is unique, special, ephemeral, and not everyone can do it. Be guided by remembering creativity.
Van Armen: Small and medium sized businesses: it’s a real burden to take something to federal court when a counternotification is provided. For us, a big intervention that would help is small claims process. Standardized takedown notices w/open standards would also reduce costs for small and medium sized businesses.
Official description: Voluntary alternatives to and modifications of statutory notice-and-takedown process; best practices; collaborative efforts of content owners, service providers and others to address online infringement, including availability of programs to smaller service providers and creators; cooperation in identifying infringers; graduated response programs to address infringement; efforts to delist or downgrade infringing materials within online search results; participation of third-party providers, such as advertisers and payment processors, in voluntary arrangements; overall effectiveness of voluntary arrangements; educational outreach; government role in encouraging private solutions; and other pertinent issues.
Kimberly Isbell: Let’s start with voluntary measures that are helpful. If so, what are their characteristics that could be replicated?
Jonathan Band, Library Copyright Alliance: Voluntary measures taken by a payment processor: for a long time. Victoria Espinel asked them to get together for standards/best practices. Cooperated w/int’l anticounterfeiting coalition; working well. The most significant feature: it was developed by payment processors. Came together w/best practices; responsive to their needs but also to reach consensus w/in the industry instead of trying to work across industries.
KI: how important was IPEC’s involvement? Necessary or not?
Band: Payment processors were all doing this already; it’s a highly concentrated industry and there’s competitive pressure. Helpful to have IPEC in the final steps but lots was b/c they were already doing it.
Troy Dow, Disney: Voluntary measures are a bright spot. A number of them, in our comments w/MPAA. Principles for UGC—has worked for setting standards. What allowed success was that we had collaborative sessions; multilateral b/t creators, platform providers. Started by putting aside difficult legal questions about what the law required and set a goal of UGC environment promoting legitimate creation but also prevented infringement. Then we tackled some problems. Included tech solutions; included understanding about © owners’ behavior. Included an agreement that this wasn’t just a one time set of principles but an ongoing relationship.
KI: what circumstances encouraged the players to get together?
Dow: Underlying framework of DMCA; everyone was unsure what the law would say. Litigation was a potential route. Legislation was a potential route. Prospect of losing a lawsuit on both sides brought the parties together.
KTC: does the legal framework remain sufficient to encourage continued development of voluntary agreements?
Dow: many issues in yesterday’s panels have a lot to do w/that. Narrow construction of DMCA shifts balance away from shared responsibility to rightsholders; that does push away from environment of cooperation.
Michael Petricone, Consumer Technology Association: Legit services making it easy for consumers to do the right thing—piracy dropped. British record industry: overall use of pirate sites had dropped a bunch; UK predicts will continue. Spotify has been shown to reduce piracy where it opens.
KI: yet the content owners are telling us it’s still a problem. Possibility: (1) not enough legit services; (2) legit services aren’t enough; (3) we will never eradicate piracy.
Petricone: eradicating piracy online is impossible; the key is to reduce that as far as you can. Voluntary measures and presenting users w/wide variety of legit and appropriately priced content. There are real numbers here and they show a great success in decreasing piracy and increasing access to content.
KTC: do you think that on the content side, content owners are focusing their approach on developing legit content, or is that still a distribution challenge online?
Petricone: 1998, there was a period of transition, to be expected for any new tech; increasingly embracing the internet.
Casey Rae, Future of Music Coalition: 512(i) encourages this.
KTC: why wasn’t it effective?
Rae: it really wasn’t tried. Rightsholders assumed they’d pursue their rights as they had done previously. Grokster: record labels were interested in achieving favorable legal precedent. ISPs faced legit difficulty in identifying works. Things change. Ongoing relationship: Credit card best practices; ad exchange best practices; separate copyright notice system. All came from different situations; gov’t has role to create environment, but doesn’t need to legislate anything as long as info is presented from rightsholders to ISPs. But we need to know accessibility and affordability of tech for small & medium enterprises. Need to continue to evaluate developing tech.
Maria Schneider, Musician: a young musician has 45 million plays on Spotify; never gotten a check more than $60. It is not working. Troy’s solution: Disney found a way to come to the table, but for musicians individually there are no solutions. Content ID isn’t available to me.
Jennifer Pariser, Motion Picture Association of America: Endorses Dow’s optimism about voluntary agreements as partial solutions. All of them are flawed in that they only have some players and they can only be somewhat effective. More successful = players have incentive to come to table. They face liability if they don’t. Copyright Alert system = ISPs enjoy immunity if they cooperate w/us in a piracy solution, whereas other solutions, like domain name registries, have been more difficult to work w/ b/c they don’t face liability.
KI: we’ve heard that the trend in the course is to interpret safe harbors more broadly. Have you seen an effect on the prevalence of voluntary initiatives?
Pariser: hard to say there’s a one to one correlation, but for sure when great cases (for us) come out, ISPs have more enthusiasm for voluntary initiatives. Hopefully BMG v. Cox will help the Copyright Alert system, whereas limited liability for payment processors pulled in the other direction. Entities have their own reasons to do things. Ad networks: they don’t want their clients associated with garbage sites. But court decisions finding that an operator has no liability are bad days for voluntary initiatives. [And what makes you come to the table on good days for you?]
JC: Cox is not in Copyright Alert system?
KTC: what role do you see for gov’t? Response to Petrichone?
Pariser: content industry has done more and more and more to make content available. Windows are closing. Enormous amounts of content available legally, and yet piracy is huge, b/c people still want something for nothing so we need more than licensing. What gov’t can do: courts are different from © Office; the Office could designate specific things as STMs. Part of the problem w/getting sites to adopt STMs is that there’s no agreement on them. Sound of one hand clapping. If we say Audible Magic is a great solution and get no buyin, it goes nowhere.
JC: Parsing definition of STM: what’s meant by the use of “open, fair and voluntary”?
Pariser: something not like Content ID: available to the public, perhaps at a price.
JC: licensable tech?
Pariser: yes—you can’t be too small or too big, as long as you make the right kind of content.
Mary Rasenberger, Authors Guild: Voluntary measures are good if they work; problem w/ones to date is that they don’t work for individual creators. Part of the problem is that individual creators have been left out of best practices, voluntary measures, industry agreements; don’t have ability to negotiate w/ISPs. Authors are left with notice and takedown & its shortcomings. There is growing book piracy. Complaints up 600% in the last 5 years; no affordable service for authors to use. Examples w/Google’s Content Verification—you can’t do it as an individual. Copyright Alert doesn’t work; 6 strikes is too much. Voluntary efforts by advertisers aren’t working either—our authors have Google Alerts set up and get dozens a day; they click and they get ads for sites they’ve just visited. Individual complains to payment processors—your notice just gets lost; they only want to deal w/ trusted senders. Individuals should be part of the negotiation. STM: the tech exists, and if creators were part of that negotiation, there could be potential for great relief.
Rasenberger: it works, but it’s not readily available to authors. We’d like to see industry adopt something like BookID on a wide basis, including ISPs. In a way authors could readily avail themselves of. Most creators simply lack the resources to spend on additional tech or to hire services to assist them.
JC: why not available to individual authors?
Rasenberger: they’d have to be part of the service, which they’re not. [I’m not sure that’s true.]
KTC: are you saying the fingerprints that filter is not something that individual authors have participated in?
Rasenberger: yes, and then the ISP doesn’t want to filter. They’ll take down in response to notice but not filter in advance.
Victoria Sheckler, Recording Industry Association of America: Voluntary initiatives can be helpful, but everyone has to get in the game for it to work. Varying degrees of success. Has to be in backdrop of working legal system. BPI’s reduction of piracy: different legal regime, used differently, creating significant reason for reduction in piracy not applicable here.
KTC: In terms of the difference, pirate sites?
Sheckler: our comment suggests court orders had significant impact on piracy.
KI: are there particular characteristics shared by successful initiatives?
Sheckler: building trust, skin in the game, regular communication.
Lui Simpson, Association of American Publishers: Successful for those who can afford to be part of the measures—too expensive, not w/in reach of smaller rightsholder. Should be some push from gov’t to make these measures far more effective. They become successful b/c there’s interest in engagement. Pushing parties together about what might work: that’s needed. Petricone puts onus on rightsholder to solve a problem they didn’t create.
RT, OTW: Interested in the claim that “everyone has to get in the game”—but what does that mean? Big website does not mean big notices. Our website receives 100 million visits/week and gets fewer notices than there are people from the Copyright Office here. Wikipedia is orders of magnitude bigger and reports similar numbers, most of them flawed. We’ve heard a lot about sites that ignore DMCA notices (overseas sites, SciHub): making such sites double plus illegal, since on the facts as stated they already are vulnerable to liability under current law, is not costless; it hurts the rest of us trying to do the right thing. We have experience with a government mandate to use filtering technology: Sabam v. Scarlet case in Belgium: injunction overturned because Audible Magic didn’t work as promised.
Nancy Wolff Digital Media Licensing Association : Tech is there for reverse image search, but there’s no risk of massive litigation b/c licensors are small and can’t afford litigation so they won’t come to the table. Multiple options for legit licensing of images, but it’s very easy to infringe. Small claims court might help. No voluntary measures there b/c no reason to talk.
Greg Barnes, DiMA: (1) I share the optimism about voluntary measures; allows different people to come to the table and avoids one size fits all approach that would doom us. (2) Gov’t role: important role in bringing people to table as objective facilitator, but shouldn’t put thumb on scale to achieve a certain outcome. On licensing: Petricone’s point about ability to have licensed content out there decreasing piracy is hard to deny. So many different studies [Australia, anyone?] show this. There are still problems in licensing musical performances, mechanical licensing—broken for decades, and Office knows this. Online video services’ ability to stream video has been hindered based on relationship between studios and DVDs. Lots of work to do, but industry agreements allow us to talk about this and reduce demand.
John Garry, Pearson Education: Experience negotiating—tech for websites that can screen in advance—none of the voluntary aspects deal w/outlaw sites, and they’re a tremendous problem w/ no incentive to use voluntary measures. Effective: website that came to AAP early on and wanted that part of this business model; they wanted a business relationship. Another experience: negotiating w/a large website that looked DMCA-invulnerable; found a chink in their armor so they negotiated to become a legit business. Every great fortune is founded on a great crime. Nice relationship going forward. Voluntary is great when you can get it, but the outlaws are a real problem.
Melvin Gibbs, Content Creators Coalition: Garry’s right. That period of transition has become a permanent state for us. We’ve explored voluntary compliance. The parties are siloed and not speaking. ISPs have been lax in codifying standards for accepting notice. True market failure. We want gov’t to facilitate.
Thomas Kennedy, American Society of Media Photographers: Simson & Wolff are right. There are organizations that need to talk with individual creators, and that’s not happening b/c there’s not sufficient incentives. Voluntary measures can’t do that.
Kerry Sheehan, Public Knowledge: done right, voluntary measures can ensure protection for speech and allow competition/avoid barriers to entry. But we shouldn’t just talk about this as rights owners and ISPs. It’s the world of internet users. These agreements need to be voluntary, not the result of coercion, threats of new gov’t enforcement measures. Need to be from open process, also public interest voices. We haven’t seen public interest participation and these agreements can be unfair to users and smaller providers. If filtering is being proposed as STM, that’s especially important. A more traditional open standards body would be more appropriate.
KTC: considering the public interest: how do we do that?
Sheehan: greater transparency, greater inclusion of groups who speak on behalf of public interest.
KI: what are the problems? Unavailability to smaller content owners. Other issues w/existing voluntary measures? Do you see a way to fix or improve those shortcomings and what would that look like?
Jonathan Band: Definitely preferable to coerced measures. HEOA: coercive measure. Wrongly assumed that campus infringement rates were higher than elsewhere but that turned out not to be true. Legitimate study that tries to understand the notice system and people are criticizing it b/c it’s based on a sample!
JC: Is it a bad law?
Band: mandated education is a bad thing. No one’s ever been able to show that infringement causes huge substitution; the amount is subject to debate. I’m not convinced that requiring people to watch an online video is really going to change behavior. Rather, what changes behavior is the fact that the old world where there were creators distributors and users has become meaningless—every user can be a creator; they become more sensitive to the complexity of © and its boundaries. When you make your own videos, you understand what you’re creating and what you’re using as building blocks, as all creators do. The act of creation allows you to recognize what you owe and what you don’t. Educate users about the rights of others? No, educate them about their own rights, which comes naturally.
Terry Hart, Copyright Alliance : Not a concern about any particular measure, but more data is always important. Copyright Alert system: overview of # of notices; very helpful. More recently, we had the PTO best practices in sending notices proceeding. Written comments suggested it has been effective. Worth looking at how well it’s worked.
Rae: Inclusivity is the key need. Look at earlier agreements later codified, like mechanical royalties, or streaming royalties for music that were blessed by Congress. That’s stood since 2000, though it has lots of failures. And it’s inclusive of all those eligible to receive royalties.
KI: on multistakeholder process: we heard some people basically saying there were too many cooks. Is there a way to balance inclusion with getting so big that it becomes unwieldy and you can’t reach consensus?
Rae: target the problem to be solved. If looking at repopulation of infringing links, limit to UGC sites, not search (though search is related to that). Array of tech vendors so you can understand what they do. Small artists included is absolutely important, and same w/developer community, who’s theoretically the builders of platforms for us.
Schneider: what we don’t do in this country. We don’t allow people to make money through illegal activity largely through initimidation. That’s racketeering. For me, that’s what YouTube does. With these data lords [nice!] of unimaginable size, represented by att’ys and lobbyists that are siphoning my assets. All the large studios in NY have closed; you can’t record a large film score in NY any more. All over the world—old men tell me how under Communism they listened to jazz and it gave them hope. This is a culture of literature, of music, that we want. This isn’t about you protecting a large business making money no matter what. Do we want a culture owned by one company? I don’t. Voluntary measures, best practices like fingerprinting required by every company; standardized takedowns; no required agreement to TOS; checkpoints educationally on upload for photography, for music, for everything framed by the Copyright Office; videos that people have to listen too so they don’t have to watch YT’s copyright basics video. Muppets! Fair use is jiggling around and you can’t read it. It’s ridiculous. A ratings system for everyone that does a takedown or counternotice. Forces people to have accountability for takedowns and counternotices. Everyone should agree to it. It’s common sense to anyone who doesn’t have a hidden agenda.
Janice Pilch, Rutgers University Libraries: HEOA, regardless of who pushed it, it is perceived to have improved the P2P situation in universities. May seem onerous and rigid but appears to have had an effect. How could that be bad? Education is important as a viable approach to changing behaviors. There’s tremendous confusion on right or wrongness of infringement in the context of viral social media messaging that’s anti musician, anti copyright, anti publisher, anti human. Pushed by the industries who benefit most from infringement, translates directly into cash for them. Users benefit from infringement and they have various motives. Sometimes they’re innocent b/c they don’t know or are confused by social messaging; there’s no standard for national copyright education and people never learn. Students commonly never have heard of copyright or fair use. Industry-driven social messaging tells them that infringements is a good thing; contrary to basic social instincts and norms to respect others’ works. Education could be stronger. For the public it doesn’t exist in good forms. But we need to kill the business model of infringement first.
KTC: are there studies about effects of education on user behavior? Social messaging that’s anti-©?
Pilch: HEOA requires universities to review effectiveness of plans to combat unauthorized distribution. I haven’t read the reports, but they exist. On social media, on the basis of personal experience, I see it on blogs and listservs. We’ve heard of bullying people who object to their works being used, and of people who agree—you get a string of communication beating someone up for liking © or wanting their work taken down. Can’t cite specifics.
Pariser: Not enough voluntary agreements—incentive to come to the table. On the educational piece: you’re hearing two different streams of ideas around education—one is we need it/another that the current info sucks. Copyright Office could create more educational materials for consumers. Becoming creator is not its own education; in her experience, when you tell a middle school student that her selfie is © they don’t understand the plight of the © industry because they want to give it away for nothing [the horror!] and that doesn’t convey the message we want to convey.
Rasenberger: Voluntary measures can’t be the whole solution b/c they don’t address criminal pirate sites, the source of a great deal of book piracy. They move around the web and are mostly situated abroad. Mandated TPMs through 512(i): it would be important for the process to be mandated; given that the burden is on rightsholders, there’s little incentive for ISPs to come to the table. The gov’t has a role in convening these kinds of standards creation in multiindustry processes that are open, fair, and voluntary. BookID works only with Scribd; a mandated process could force other service providers to also adopt it.
Education could help w/some users. Authors tell us, particularly in genre field, that fans tell them that they only read books for free—they have no shame. Free books are so readily available. Need teeth for penalties, just as with speed limits—you need to give tickets to pirates online.
Simpson: participation has to be broad and inclusive. Payment processor negotiated: rights holders invited were limited, not inclusive. We do face a problem of overinclusion w/o expertise, so it needs to be a balance. Preconsultation measure allowing those to voice their concerns. Need to compel people to
Rebecca Tushnet, Organization for Transformative Works
Back to the Q: What are the problems? Content ID: well known problems with overblocking fair uses and falsely claiming revenues owed to others, recited extensively in comments and also routinely reported to us by our creators, including the internationally recognized artist I mentioned yesterday.
Different genres: Scribd’s own website clearly explains the two big problems with BookID: [Scribd’s bookID:
“BookID relies upon computer-readable text in digital documents. Content scanned from paper sources may not contain computer-readable text data, making those sources unsuitable for use as references. Similarly, digital documents encoded with optical character recognition (OCR) technology may contain garbled or partial computer- readable text data. This may be true regardless of whether the document is readable to humans. These conditions make it very difficult, if not impossible, to detect matches…. [Note that this means that evasion is trivially easy: all you need to do is insert things that people can’t see but computers can.]
The BookID database may contain reference samples from educational textbooks and other works that contain long excerpts of classic literature, religious texts, legal documents, and government publications that are typically in the public domain. This can occasionally result in the removal of uncopyrighted, authorized, or public domain material from Scribd.
… Unfortunately, the volume of reference samples and uploads to Scribd prevent any sort of manual oversight or notification prior to effecting removals.”]
Result is: overblocking: quotes from public domain materials or even fair use quotes of another book: first uploader blocks subsequent users of quotes; underblocking, just need to scan using OCR. The change could even be something invisible to the naked eye, such as putting a nonbreakable space ( ) in place of a regular space, or adding random sentences and hiding them with CSS.
[More generally, a simple filter is trivially easy to evade: easy to recode media in new file format and get different hash; algorithms to spot minor edits would be difficult both in terms of programmer time and expertise and computational resources. ]
If this check is actually supposed to work (that is, catch these workarounds), you get into the realm of plagiarism detectors, which are a fairly complicated technology. It would take us years to develop our own plagiarism detector, especially given we're part-time volunteers.
How to fix? No perfect fix. Easy appeal, nonthreatening about piracy, walk people through: In some cases, Wikipedia’s fair use and public domain guidelines for use of images would be good places to start: useful for people who are highly motivated and willing to invest a fair amount of time.
Not only is this education stuff really something that its proponents imagine being imposed on the unwashed others, rather than on themselves every time they seek to upload a photo to Facebook or send an email, it’s also yet another mirage. We know people don’t read the terms and conditions. We know they (we) just check the box. [Copyright, which most people don’t care about, won’t be the topic that changes their minds. There are only a few effective ways of making disclosures, and you can only do them once in a while or people tune those out too. Education sounds like having your cake and taking it too, but it’s not that simple. There are things you can do in particular circumstances once the issue has become salient to people, like Wikipedia editors, but the mandate being described as ideal would not be doing the work; what would be doing the work is the associated filtering mandate.]
Nancy Wolff: can’t speak to voluntary measures in our area b/c there aren’t any. Takedown doesn’t work. Harassment as a result of notices. Copyright Office guidance on STMs would be good. Certain creators shouldn’t be excluded.
Wayne Josel, ASCAP: we spend time educating our licensee base about what the law is. Easier to get people to recognize obligations to take a license before engaging in bad behavior than to correct bad behavior once it starts—better for us to speak to a guy who’s about to open a restaurant than one who’s been playing music for 3-4 years. Contra Band, opposite of respect takes place when people create new content—the ease of creating overcomes their sensitivity to others’ rights. [How dare these new creators find out what creating feels like.] User experience overrides information; people don’t click on the terms of service; services want to make it frictionless so you no longer have to warrant that you own what you upload. [I agree that it’s a problem, but people ignore these! You can try all you want! The reason the services want frictionlessness is in part that while friction does deter uptake, it also doesn’t actually leave the people who sit through the legalese with any greater appreciation of the TOS. So the benefits don’t justify the costs in most cases. If friction worked in terms of having people internalize new rules, there’d be more of a reason to use it.] The law should be required reading.
Dow: the ones that work better are collaborative, not unilateral.
Gibbs: public should be encouraged to think of themselves as creators. Creation is built on other creation, which is why it’s in the Constitution. People do need to be educated about their rights—not just fair use, but you made it and it’s worth something.
Sheehan: we should provide meaningful opportunities for public input and transparency in CCI going forward.
KTC: education—what’s wrong w/education?
Sheehan: consider differences b/t ISPs, resources, user community. One size fits all will never work—under and overinclusive, with unexpected consequences. Balanced content in educational programs should respect users’ rights to reuse content in fair and legal ways.
Official description: Infringement monitoring tools and services; automated sending of notices, including notice parameters; automated processing of notices; role of human review; identification of works through fingerprinting, hash identifiers, and other technologies; filtering, including “staydown” capabilities; fair use considerations; identification and tracking of repeat infringers; and other pertinent issues.
JC: what tech is potentially available to help notice senders and responders? How does it relate to incentives provided under the law? Interested in details, costs.
Sofia Castillo, Association of American Publishers: Many of our members use tech to address piracy on a regular basis.
Jonathan Band, Library Copyright Alliance: our concern is overnotice, overtakedown, and harm to fair use.
Michael Housley, Viacom: oversee our tech vendors, Content ID; we’re constantly dealing w/vendors in marketplace
Sarah Howes, Copyright Alliance: don’t know anything about tech, and that’s like the artists I represent.
David Kaplan, Warner Brothers Entertainment Inc.: Use tech fingerprinting and scanning in enforcement.
Michael Petricone, Consumer Technology Association: 2200 innovative companies, many small businesses, many 512-reliant.
Eugene Mopsik, American Photographic Artists: photo artists, routinely use various tech means to discover unauthorized use of images; founding board member of Plus Coalition, created to help ID rights information and connect rights holders w/market.
Casey Rae, Future of Music Coalition: Primarily interested on artist side; accessibility and affordability of detection tech; intersection w/data integrity w/identification tech.
Steven Rosenthal, McGraw-Hill Education: Oversee antipiracy/anticounterfeiting program, work w/vendors who identify piracy and further our content protection needs.
Mara Schneider, Musician: Here speaking as someone who sees tech around me used to monetize content and make it easy for uploaders but I don’t have access to for takedowns.
Brianna Schofield, University of California-Berkeley School of Law: Research study looked into use of tech by notice senders and OSPs.
Matthew Schruers, Computer & Communications Industry Association: Licensed distributors; intermediaries that provide tools for users.
Lisa Shaftel, Graphic Artists Guild: Illustrator/educator of graphic designers about business and © licensing and monetization and use of tech to find infringing uses.
Victoria Sheckler, Recording Industry Association of America: Work w/antipiracy dep’t.
Howie Singer, Warner Music Group: Chief technologist at strategy group: evaluation of tech that can support or threaten music business.
Lisa Willmer, Getty Images: availability of image recognition software and what mechanisms we don’t have to bring leverage on ISPs to actually use that tech.
Nancy Wolff, Digital Media Licensing Association: Tech used for purposes of licensing and image recognition that’s available and what can be done to make it more useful.
Andy Deutsch, Internet Comms Coalition: transmit and host content; interest in tech changes and cooperative efforts to develop best practices for 512.
JC: Heard lots about challenges of system on both sides, in terms of sending notices and volume of notices, some of which are not properly prepared. Is tech a big part of the answer here?
Castillo: Yes, tech is a big part of the answer. Partly b/c there is strong opposition to legislative solutions. Voluntary agreements and best practices have their limitations; don’t include everybody. Filtering, fingerprinting, watermarking is possible, even if not perfect; a good start. They actually would provide more effectiveness rather than just efficiency to notice and takedown. Scribd’s BookID fingerprinting system: an algorithm that incorporates word count, word frequency, etc. Matching content can’t be uploaded/is removed from site. Possibility of challenging BookID based removals. Good example of places where we can start building on tech and tweaking filters so they eventually become more accurate and fewer false positives. Tech-based solutions are good b/c 512(m) prohibition wouldn’t apply if information comes from DMCA notices/already provided by © owners. This would be information ISPs already have.
JC: why did Scribd adopt that tech?
Castillo: Don’t know the history. Where they get the info: references from © owners or authors; information from DMCA notices. This would be a way to reduce their intake of notices; once you have a filter the reuploading process, you get fewer notices which is better for the ISP. [Yeah, right. Of course, if you’re an ISP that didn’t get flooded with notices in the past, developing fingerprinting is just a cost.]
Band: The internet is vast; copyright owners can use tech to find infringing material; tech includes Google. There’s a danger of using these tech measures to get false positives. Filtering needs to be voluntary.
JC: you say tech has to play a role and you’re concerned about inaccurate notices. On a practical level, how do you address that? Given that tech tools are necessary to this process, how do you address overnoticing and overtakedown in a way that might actually work at scale?
Band: not possible—it’s an imperfect world. Good faith belief that content is infringing; software can’t have a good faith belief. We need to suspend our belief to some extent. Not sure there’s anything from a policy perspective.
JC: could decrease errors, but errors inevitable?
Band: yes, we need to recognize that. We need to acknowledge that instead of denying it.
KTC: In terms of tech, assessing fair use—is that actually possible to use tech to comply w/court saying content owner must consider fair use? If it’s a tech that only captures full length films or sound recordings plus some other factor? Could it be completely automated and subjectively in good faith?
Band: Besek brought this up w/r/t Lenz amended opinion; I won’t speculate about why the 9th Circuit removed that line. At the very least, tech can be developed to consider some of these factors. Whether that would necessarily in a given case be sufficient, I don’t know. You’re not going to have a lot of cases like Lenz. Rightsholders should build that screening into their system, and it might result in errors once in a while. If a takedown is challenged, once in a while they might have to litigate that. Once in a while, they may have to pay damages. Cost of doing business.
Housley: there are tech available today that correctly deployed can be used to find, especially, unedited content. Viacom gives a wide berth to fair use. Focus will always be most damaging content, which is full length. Existing tech helps us manage that. We’re selling tech short if we don’t think we can come up w/something better than fingerprinting. AI and machine learning: the sky’s the limit to ID content. It may be that the original intent of the DMCA to have ISPs and owners work together has been distorted; incentive to fine tune tech is no longer there.
JC: are you familiar w/tech in market? [Yes.] We heard about Content ID and Scribd. Are there third party vendors who offer filtering as an outside vendor to sites who might be interested in using tech?
Housley: yes, there are.
JC: are there any websites other than YT and Scribd that have adopted staydown tech through custom or third party software?
Housley: there are Audible Magic sites—Facebook has started to develop its own system. There is also Vobile.
JC: wants to know more about third party services and fingerprinting.
KTC: how does that work in getting the needed info to create the hashes or fingerprinting?
Housley: on the creator side, either they provide the tools and we put it into the database, or we give the content to them. Creators can get fingerprints in and deploy the tech on any site.
Howes: individual creators are very excited by the online opportunities to control their work. We are seeing tech being developed by OSPs that are helping individual creators, which gets to legislative intent. As artists, we are very collaborative people. Hamilton wasn’t made by one man but by a team of people who came up w/solutions. Artists can build really successful platforms; when it comes to piracy on other platforms, there needs to be more access. Individual creators: still using reverse image searches and Google alerts, which is ineffective. On top of that, have to ID every individual contribution of their work. Control is part of your ability to make a living.
JC: Is there anything in the market that individual creators can use to search for content that’s affordable?
Howes: I don’t know. There might be. There are some services Mopsik can talk about. Many individual artists are still new to this. There are platforms created by artists trying to figure out more collaborative ways to involve the creator, similar to Content ID: most successful part of Content ID is that it asks the creator what to do w/the infringement.
Kaplan: tech is part of the solution. There are no silver bullets. That shouldn’t be a reason to discount the use of tech. Tech will evolve over time so that it’s increasingly accurate and less expensive. Things that may not have seemed reasonable 5 years ago will. Not so much about software—use of tech is almost always mixed w/human review/setup. Notice sending/scanning at scale; often human review results in errors. Tech itself has a lower error rate. Facilitating fair use: definitely; matches can be ID’d by duration relative to overall length of work. YT developed w/content ID. When we talked to YT first 7 years ago—it worked to a limited extent, but needed a ruleset associated w/content about leaving up v. taking down—we thought they were overblocking and taking down too much that we’d leave down. We became comfortable we were giving fair use enough of a berth.
JC: human component in setting parameters for software. Talk more about that? Human review at the other end when flagged—how does that integrate?
Kaplan: Depending on what piece of online policy we’re addressing. Scanning in framing content—there’s a universe of pirate sites, not the entire internet, so we use human review to decide where to scan in the first place. Word matches, word exclusion. Google notice: run searches and human reviews to see if it’s a link to a pirate site. Filtering: humans set up what content to look for; duration of match before action is taken; sometimes the action is “human review” if the match didn’t fall into certain parameters. Can decide based on whether it’s Audio, video, both. Can also do rulesets around territorial restrictions.
JC: are they trained in fair use?
Kaplan: in our case, yes. For less than full feature/episode, that’s [heavily ?].
KTC: Schofield’s study identified issues w/misidentifications—do you share concerns about improper notices? Are there ways to reduce concerns?
Kaplan: there’s always potential for increased errors. It’s usually the fault of the human. Can reduce errors w/tech.
Petricone: Tech is very exciting and promising. Content ID: 99.5% of music revenues are now made w/Content ID, 99.7% accuracy. New model of revenue—Ben Affleck interview set to “Sound of Silence” went viral, drove the song to the top 10 50 years after its release. Fan uploaded content accoutns for 50% of music revenue on YT.
JC: not everyone is able to take advantage of Content ID. Can you speak about that?
Petricone: Not right now.
Mopsik: Tech for motion pictures, Excipio is a company that also extends to ID unlicensed uses. Service providers in image space who use their own fingerprinting algorithm and then the list has to be evaluated by the rightsholder to determine what’s licensed and what’s not. The missing link in the image space is the ability to identify what is an actual licensed use and what’s not. That’s something Plus Coalition has been working on for years; predicated on ability to establish a persistent machine actionable identifier. W/o greater penalty for removal from images, that link will never happen. Plus has an identifier w/ the image, w/all licensing info held in an updatable database. If you’re able to make that link, then machine action can determine authorization. W/r/t fair use: photog are not particularly knowledgeable about fair use; images are rarely used in snippets, and that can have significant impacts on market over time.
JC: do individual photographers have access to an affordable service?
Mopsik: the fees are not significant. [he says of the body whose board he’s on.] They take 50% of any recovery. They have a legal services component and pursue the infringement.
JC: they send a takedown notice?
Mopsik: they will. [No, they sue.] Frequently, takedown procedure involves chasing phantoms. Or people takedown but may have been using it for years. There’s a lot of attitude involved when you tell them that there should be compensation.
Rae: Primarily we’re talking about ID tech, that’s 512(i). Earlier, it wasn’t practical on the service side to implement tech to do this. On the content side, they always want new favorable legal precedent and damages. We’re in a new place now. 512(i) encourages the creation of new standards. But the method of deploying that is collaborative effort. We have to get our processes dialed into that. I’d like to see vendors, smaller rightsholders, ISPs in a body that can provide recommendations not just once but on ongoing basis, given new tech environments—virtual reality, etc. Fair use is interesting; my preference would be less focus on the entirety of a work. We can probably solve many problems through process focused on practical implication.
JC: did you participate in Dep’t of Commerce process? [yes] Where do things stand? Written comments expressed pessimism about ability to get together and get standard tech measures.
Rae: optimistic, though Dep’t of Commerce process was more of a cattle call. Better to focus on those who are representative of the stakeholders, like the Copyright Alert process.
Rosenthal: burdens of developing tech: the same tech used to ID infringement, like hash values and checksums, can be used to filter the materials by sites and prevent whack a mole. It’s not new tech that needs to be developed. Intentional avoidance of tech by ISPs to avoid claims of willful blindness in terms of not logging IP addresses, so that DMCA notices are effectively rendered impotent. Lots of frustrations when we try to enforce our rights. Why can’t you use the same tech we’re using: IP address, hash value. Reinventing the wheel: tech is out there. We developed live streaming filters that fingerprint and filter livestreaming TV and pay per view in real time. Some sites created their own tech to do this. Willingness is needed.
KTC: Unwillingness: Do you think there’s a disincentive in 512?
Rosenthal: in terms of logging IP addresses, Cox v. BMG creates a disincentive to do so to avoid willful blindness. In terms of non-filtering ISPs: many of these sites are run primarily by hosting and distribution of content known to be infringing. If we cleaned up their site, they’d lose the majority of their content/appeal.
Schneider: Obviously, there will be error. Machine learning: translation on the internet learned so fast. If you compare it to the billions of errors in people uploading things, it doesn’t compare. Tech should be used in conjunction w/education. Automation w/o education: Content ID. I should be accepted into Content ID as a condition of safe harbor. Also being used for uploading and people think they’re doing something good b/c it’s being monetized. But they’re also catching my music, which isn’t being monetized and it’s hurting me, and fans don’t realize that. It should say: this isn’t in our database of Content ID, so if you don’t own it, don’t upload it. Everyone’s complaining about erroneous takedowns and counternotices; education is required.
JC: Why can’t you join Content ID?
Schneider: automated response gave me the impression I wasn’t big enough. They don’t say why. Secret terms. They’ll send someone to talk to you, but Zoe Keating was bullied into giving her whole catalog—all or nothing. Safe harbor shouldn’t allow you to use these tools for their own gain.
KTC: On the notice side, popups appear to caution about whether you took the picture. On the upload side, what cautions are used?
Schneider: this is the biggest educational thing. Standardized requirements and questions for all upload sites. You have to sign penalty of perjury on the notice side. Upload: ask under penalty of perjury if you have permission, and warn about possibility of atty’s fees. Tell them what isn’t fair use. I’d love to see the Copyright Office set the standard. [I wonder if she wants to go through this every time she sends an email with an attachment, or an email long enough to contain song lyrics.] Standardized: you have to accept Google’s TOC and go through 46 steps. If you’re in a safe harbor, that should be a privilege, not a right, have to adhere to standardized rules.
Schofield: In our research, we spoke to and heard rights holders’ frustration w/dealing w/proliferation of infringing content online. Automated tools are one way of dealing w/this to detect infringement. We ID a number of best practices for refining those systems, minimizing mistakes. We heard from rights holders who are already employing best practices, including human cross checks and checking the sites that are targeted. These are good. Tech strategies on OSP side: some are voluntarily implementing them; we see good reasons for them to remain voluntary not least of which b/c huge amount of the ecosystem doesn’t have the kind of volume of infringing content that would justify imposing these systems.
JC: Smaller providers/w/o lots of infringement, ok, but if a site is using filtering to place ads/for own economic purposes, should that be available for rightsholders? Websites, sophisticated larger websites, use fingerprinting for their own purposes—to ID content to place ads on it. If it’s already in use by a website, should it be made available to people like Schneider. Should she be able to use Content ID if they’re already using it and it’s available to other rightsholders?
Schofield: can’t comment on that specifically. [Ad tech doesn’t “fingerprint” files in the way that she thinks they do, I’m pretty sure. What would be the payoff? Keyword use, sure.] If a tool has been developed to combat infringement, yes, it should be available to everyone. We recommend trying to make systems broadly available, with caveat re: using the same best practices.
KTC: There’s been a lot of focus on the #s of improper notices. You seem to support use of automated systems despite finding a lot of improper notices?
Schofield: use of automation on the sender side is an important part of the solution, but they can be refined.
Schruers: As I was listening, I was reminded that the internet sector is occasionally criticized for technological solutionism: but here we hear that our tech can be solution to all problems. Appreciate the enthusiasm but we should understand the challenges. DMCA Plus is expensive. It doesn’t make everyone happy. And it’s a tool of limited applicability. Only meaningfully applied in 512(b) and (c), so half our DMCA actors aren’t within the scope of that. 512(a) aren’t taking custody of the content, and can’t filter unless they create a firewall. Nor are 512(d) services hosting content, and don’t have a library to filter against. And of course all that assumes a populated database and a contextual ruleset about what you do when you find content in the DB. Clear in PTO process that there are large entities on both sides and small entities on both sides. Small ISPs face a real challenge in scaling up automation. Small ISPs have to be able to take notices by fax, email, etc. Automating that is a serious challenge. If we said “it has to be a webform,” that might be easier to automate, but I don’t see that happening any time soon.
JC: different solutions for larger and smaller websites? [Where does Wikipedia fall?] Few notices = manual; millions = different.
Schruers: that’s what we see today. Small ISPs will always do manual takedowns, bundled w/other unrelated claims like defamation. Large ISPs also handle that, but as smaller percentage; architecture assumes sophisticated users. [Remember, large site isn’t the same thing as large number of notices: Wikipedia!]
JC: could set different standards for different classes.
Schruers: could do for 512(a), (b) etc. PTO process tried to do that, and people didn’t seem happy w/it—heterogeneity on all sides.
KTC: Is there anything that can be done absent or with legislation to encourage voluntary use by ISPs?
Schruers: if it’s legislation, it’s not voluntary; but there are processes over time tailored to the constituents around the table. Large notice senders can take advantage of automated systems. In terms of access to DMCA Plus systems: privileged access to the back end of a platform, allowing people to take down or claim revenues--you will want the users of that system do reasonable things like indemnify the platform for misrepresentations about what you own. Stakeholders should have a demonstrated course of legit use of the tools. If that isn’t there, use the DMCA.
KTC: I didn’t mean mandating use of a tech measure, but maybe decreasing exposure to statutory damages if you filter.
Schruers: basic complaint from ISP is difficulty of responding to messy, hand-coded notices; there’s already a lot of incentive to reduce that burden, which is why they’re always looking for new tools like the PTO process.
Greenberg: There are no STMs. But ISPs are concerned about locking stuff into place. Neither will work, so what’s the solution to encourage the use of tech measures by the ISPs?
Schruers: cost of responding to notices is encouragement, especially since some will always have to be dealt w/by hand. That’s a compelling motivation right there. Allow tech to evolve over time. Acknowledge broader marketplace: there isn’t going to be as much unlicensed if it’s available licensed, with less aggressive windowing.
JC: so maintaining the fax # requirement incentivizes Content ID? I kid.
Shaftel: Should make it a violation for host to strip metadata through upload; makes Plus system for images useless. Should be voluntary licensing w/Pinterest, FB, YT—users aren’t compensating, and there should be collective licensing. Adobe could create identifiers for software users, which could also be used as part of Copyright Office registration. Creator ID could facilitate electronic payment, voluntary transactions. Tech is possible. Visual creators are more likely to use this if they know they’ll derive an income. We’d need to define commercial use in the context of licensing as opposed to fair use. Getty has guidelines in its web feature; definition would have to be approved by museums and libraries, b/c we are mostly concerned about allowing them fair use. If users paid for commercial use, they’d have safe harbor from DMCA takedown.
Sheckler: Tech does exist that is commercial, reasonable, and reasonably price. Audible Magic is available at $1000/month for certain limitations. Key is thoughtful implementation of filtering which isn’t just parameters of tech, but also rules on top of that. Content ID has a variety of problems that could be addressed. False positive issue: thoughtful implementation would address that; Takedown Project study is inappropriate for thinking about fair use. Price of admission—only applied to search; applied to a snapshot from 2013; it is targeted sample.
JC: you mentioned thoughtful implementation. Can you elaborate?
Sheckler: Review to see site is fit for scale notices. We’re not going to search .pdf for music. And Audible Magic you want to catch all/substantially all of the work.
Singer: It’s not always about tech but the business processes that go along with it. Stacked URLs defeating takedowns: this isn’t a bug but a feature of sites designed to be robust to individualized takedown notices. Get a prerelease song and never publish the URL of the actual location but create 1000 references and publish 100/day. Each day they issue takedowns and the content is never removed. Notice and takedown individual URL system can never be effective when site works to defeat the system. “Pez dispenser” for valuable content. Grooveshark. [Why isn’t this already illegal under the DMCA?] Standards could be based on size or on how responsibly they deal w/that. Warner and Viacom should be treated better than people who send bad notices. We should look at bad actors: majority of our notices to 4squared are repeats. We can verify an account on Twitter, so why not for takedowns?
JC: how common are the Pez dispeners sites?
Singer: We’ve found it in other cases than Grooveshark; unlikely that a user upload was the source of the same song on the next day w/ a nearly identical URL. [Why is that ok under the current DMCA?]
JC: Is there a tech solution?
Singer: if there were notice and staydown that said this song shouldn’t be available.
JC: anything w/o staydown?
Singer: not for those who are trying to undermine the effectiveness of the process?
Willmer: there’s no content ID for images; the tech exists but Google has chosen not to implement it; voluntary action isn’t enough. Congress mandated use of STMs; that was key to striking a balance. The definition of STMs was too narrow. There’s no tech that meets it so it’s meaningless. Focus should not be on how the tech was developed but on what it does and whether it’s available on reasonable terms. There is a way to check images on upload to see if it’s registered. Platforms educate users about perils of filing takedown notices: Are you really sure about that? Even if it requires personal info? Imagine if they had the same interest in educating users. What if it said when you uploaded a photo in the database “this photo is protected by ©--please ensure that you have a license or that it’s fair use,” with a guide to fair use. [Um, if I took it, it’s also protected by ©--you mean something else, right? Or is © only for you guys?] Sites that block crawlers should also not be allowed immunity. [So, no DMCA for Facebook, eh?]
Willmer: frustrating. We don’t have the clout to get Google to provide what they’ve provided to other industries.
KTC: popup education: what is the cost of takedown steps?
Willmer: having content on the site benefits the site so it’s clear that the incentives are for the content to be put on the site, not to stay off if it’s not licensed.
KTC: is the lack of STMs just w/r/t images?
Willmer: I’m aware of none.
JC: I did see some references that metadata would be a STM. Do you have an opinion on that?
Willmer: don’t think it meets the 512 definition. It’s a key identifier of © ownership, and part of the problem is that the metadata is often stripped, particularly when uploaded to large platforms. They take the position that it increases the size of the file.
JC: any litigation over that?
Willmer: no litigation to my knowledge.
KTC: Is anyone aware of a STM that meets the 512 definition?
Scheckler [?]: CafePress case, but that was settled. Didn’t say it was or wasn’t.
Wolfe: Google image search—we talked about wouldn’t it be helpful if it said “images may be subject to ©” and they listened and left the user experience the same way. Everything’s about the user experience, not a healthy licensing market. Image recognition tech is only the beginning—the amount of images online, and the requirements for sending a notice, are inefficient and burdensome. Really hasn’t aged well.
Deutch: ISPs aren’t averse to tech. We want best practices. Problem w/mandated tech measures that don’t start from negotiated process is enormous variety of ISPs. Google is one, but there are 1000s of designated agents. Some are not in a position to implement the fancier and perhaps more promising tech. They believe 1998 bargain was: © owners ID content they think is infringing and ISPs have to take it down; that remains appropriate and filtering is not really workable. Data is frequently atomized; can’t tell who it belongs too. Large content users often encourage fans to post © materials; impossible w/o invading privacy for ISPs to figure out what’s tolerated. No magic bullet, but everything has to be done in cooperation, as DMCA itself was.
JC: You say filtering can’t work, but YT uses it and we have other sites that are clearly all unlicensed content. If © owner is sending notice to a full length use, by definition they know it’s not licensed. Why is filtering an impossibility in that environment?
Deutch: that’s the job of suing the website: hotfile, grokster, aimster, napster, scour have all gone down: whenever © owners have really faced a rogue site, the effective way of dealing with that is a direct © lawsuit; if they’re doing what you say, they don’t have any claim to safe harbor and courts repeatedly said they don’t.
JC: but DMCA did envision collaboration, and that hasn’t happened as much as some would like. So we should have litigation? That’s expensive for both sides.
Deutch: it’s difficult to filter consistent w/other values: user privacy, undue burden on ISPs. Nobody has yet spoken to a scalable tech for all ISPs—continue to let tech develop.
KTC: Anything to be done short of mandating the adoption of certain tech?
Mopsik: IPTC has a great study if you search for IPTC metadata study: Chart that tells you which metadata is maintained/stripped on upload to most popular social media sites. Image Rights is one company that provides this service for photogs.
Schneider: in 2008 HEOA passed for universities, perceiving that students were responsible for so much infringement. NYU is using Audible Magic. They have to do educational steps and report them. People at universities say it’s working relatively well, not an inordinate burden. I’m a big fan of a rating system for people who do takedowns. Rating creates accountability and encourages education. Everyone is complaining about a purposeful lack of education. Use the tech for education.
Schruers: Paradigmatic example given of easy infirngement case was “full copy” but remember this very court in which we sit found that full copies were fair use.
JC: what else can you use to draw a line for automation?
Schruers: which raises the question of whether that is a good idea. Solutionist view of technology is not a panacea.
JC: so is every full-length use in need of review by a human person? How is that plausible as a solution?
Schruers: It’s not a solution, but it’s the law.
JC: but you’re trying to solve a sea of infringement, and we’re trying to solve that.
Schruers: can’t assume it’s inherently infringing.
JC: but they have to assume it to run an automated system, even if there’s a remote possibility of an error.
Schruers: which is my broader point: there are built in limitations to what we can reasonably automate, which is why we see differences b/t DMCA-plus systems. Just b/c the entire internet hasn’t adopted DMCA-plus, doesn’t mean there’s not extensive cooperation w/rightsholders, tailored to particular platforms.
KTC: it has been difficult to develop STMs. Do you see any path forward?
Schruers: mistaken premise that STMs are the only path forward.
KTC: DMCA said it should be a possibility; to avoid that becoming a nullity, could we do something to make it a reality.
Schruers: we’re on the path forward in different parts of ecosystem. DMCA misassessed the probability of homogeneity, but shouldn’t discount the robust variety we’re seeing in different spaces optimized for the platforms we’re seeing.
Scheckler: There are reasonably priced techs available today that would significantly reduce the volume of notices and counternotices. W/r/t PTO process, I was heavily involved, and while it had some helpful outcomes, it didn’t discuss STMs. DMCA doesn’t say there can’t be flexibility. They’re not coming to the table.
KTC: what would encourage them to come to the table or to voluntarily employ some of this tech?
Scheckler: we stand ready to work w/you and Congress.
Willmer: The best leverage Congress would have is to condition immunity on coming to the table and being willing to implement available tech. Congress wanted to keep the works from going up in the first place rather than having them taken down. [Hunh?]