RIAA: How Dare The Internet Use The DMCA That We Wrote To Build Useful Services!
from the calm-down,-sparky dept
As we've mentioned, today is the day that comments are due to the Copyright Office on the effectiveness (or not) of Section 512 of the DMCA, better known as the "notice and takedown" safe harbor provisions. We'll be posting the details of our own filing at some point (possibly not until Monday as we're still finalizing a few things), but some of the other filings are starting to filter out, including a fairly astounding 97-page document from a bunch of legacy music industry organizations (about half of which is the actual filing, with the rest being appendices), including the RIAA, ASCAP, AFM, NMPA, SoundExchange and more. It's basically every organization that represents the way the industry used to work -- and the document reads like an angry polemic against the internet. It would have been much shorter, if they just wrote "our business used to be much better when we had more control and less competition -- and we never bothered to adapt, so fuck Google and all those internet companies -- and let's change the DMCA to punish them and magically bring back the good old days."Also, the filing seems to leave out the fairly important point that it was these groups that basically wrote the DMCA that they're now whining about. Actually, let's get even more specific. The comment here was co-written by lawyer Steve Metalitz -- who has a way of showing up whenever some legacy industry is pushing to make copyright laws much, much worse. Metalitz's own bio emphasizes the fact that, as a lobbyist, he was "instrumental in the drafting" of the DMCA:
The Music Community’s list of frustrations with the DMCA is long. A broken “notice-and-takedown” system. Toothless repeat infringer policies. Active services mischaracterized as passive intermediaries. Incentives for services to embrace willful blindness instead of preventing known and widespread infringement. The words “representative list” read out of the statute.Basically, Metalitz uses the document as a chance to list off how he's sad that the courts have basically ruled against copyright holders trying to chip away at the safe harbors at pretty much every turn:
Courts have also given little meaning to key provisions for content owners in the DMCA bargain. Examples include “red flag” knowledge, repeat infringer policies and representative lists. The result: safe harbor status for services that choose to stick their heads in the sand rather than do their fair share, forcing content owners to divert valuable resources from away creating content to sending minimally effective take down notices, or for content owners with limited resources, to actually refrain from sending takedown notices at all. Content owners, especially those with limited resources, simply cannot take on the entire digital universe alone.Astoundingly, this comment claims that the results in the YouTube and Veoh lawsuits prove how broken the DMCA is and how much it favors internet companies. Remember, Veoh was a YouTube competitor that won its lawsuit that had been filed by Universal Music... but went out of business due to the legal costs of defending itself under the DMCA. And Metalitz and the RIAA are bitching about the fact that Veoh won... as if that was the travesty in the case, rather than the fact that the recording industry was able to shut down a perfectly legal web service that many people found useful.
At its worst, the DMCA safe harbors have become a business plan for profiting off of stolen content; at best, the system is a de facto government subsidy enriching some digital services at the expense of creators. This almost 20 year-old, 20th Century law should be updated.
The comment goes on to whine that even as more music is available to the public these days, revenue is down for some of those who signed on to the comment (the comment is careful not to mention that ASCAP, BMI, SESAC and SoundExchange revenue keeps going up... but... those inconvenient details must be ignored). What the filing also ignores, of course, is that these very same players fought tooth and nail against any of the innovative services that helped make this revolution in music accessibility possible. They basically now want to tax all the innovative companies who experimented and found the models that work and make consumers better off, while they themselves did none of that and actively sought to block nearly every new innovation. Talk about entitlement.
The comment also ignores the basic fact that if so much more music is being consumed today, that seems to suggest that the law must be working in some manner, seeing as the purpose of copyright law is to incentivize the creation of new works so that the public can benefit. By their own words, that seems to be happening.
Despite music being more popular than ever today, U.S. music industry revenues have been virtually flat since 2010 and are down nearly 50% since the DMCA was enacted in 1998. This has led to what we call the “value grab”, creating market distortions that lead to bizarre statistics like vinyl records generating more revenue for the industry in 2015 than the billions of on-demand ad-supported music streams on YouTube and similar services.Except, of course, that comparison between vinyl and YouTube is total bullshit. As we were just discussing a week ago, the industry is comparing apples and oranges, using the gross "retail value" on vinyl (ignoring discounts and all the money that goes to everyone in the distribution chain) and only counting the net "wholesale value" on free streams (and ignoring the upsell opportunities or other revenue that comes from ad-supported streams).
The summary so far: we wrote the DMCA, but now we're going to whine about it. The public is benefiting like never before from new music -- so we're going to ignore that the purpose of copyright law appears to be met. We're not making as much money as we used to (ignoring that some of us are making much more than we used to)... but we see big internet companies making lots of money, so we're going to ignore that it's probably because they innovated and built services the public wanted while we sued our own biggest fans.
Compelling!
And, of course, the comment pushes for a "notice and staydown" regime:
Copyright owners should not be required to engage in the endless game of sending repeat takedown notices to protect their works, simply because another or the same infringement of the initially noticed work appears at a marginally different URL than the first time. The current standard of “URL by URL” takedown does not make sense in a world where there is an infinite supply of URLs. As described in the response to Question 15, technologies exist to identify content that is reposted on a digital service after it is removed, services of all sizes have implemented them, and they should be deployed as a standard industry practice.Again, this ignores the basic fact that copyright is context dependent. And you can't put a total block on content, because you don't actually know if the content is actually infringing each time. Hell, remember in the Viacom case against YouTube (which the comment whines about), Viacom had to admit that the evil pirate uploaders to a bunch of the videos... were actually Viacom employees trying to market Viacom content. This is why we don't do full on content blocks, because just because the content is up, doesn't mean that it's infringing.
Even more ridiculous, while at one point noting that almost no one files counternotices, so that means that DMCA takedowns are almost all legit (despite a recent study debunking this point), it later whines that there are too many false counternotices:
In our experience, the counter-notification process results in too many false-positive counter-notices. For example, IFPI received counter-notices on 653 infringements, based on a sample of 98,753 infringements noticed to YouTube. After reviewing these counter-notices, it appeared that over 80% of the counter-notices had no good faith basis for claiming “mistake or misidentification,” the only valid statutory grounds for a counter-notification. Yet, based on this sample, the association representing the rights holders would be required to institute over 500 lawsuits in order to enforce their rights. This is an unmanageable burden. These statistics further demonstrate that the deck is unfairly stacked against rights holders.Filing 500 lawsuits would be an "unmanageable burden?" Funny, the RIAA was able to go after at least 30,000 individuals. And, really, this paragraph acts as if filing a lawsuit is the only possible remedy in such a situation. It's not.
Also, trying to make sure that they're as evil and against the public and fans as much as possible, the comment actually decides to whine about the ruling in the dancing baby case, saying that it's some horrible burden to have to consider fair use before sending a takedown, even though they just need a subjective good faith belief, rather than an objective one:
We take this opportunity to highlight one case in particular, Lenz v. Universal Music Corp. In that case, contrary to Congressional intent and the weight of authority concerning who has the burden of claiming and proving fair use, the court held that a copyright holder must subjectively consider fair use before submitting a DMCA notice. This unique decision, and the fanfare that has followed it, is quite remarkable considering that other courts have expressly rejected that view, and that the Supreme Court has routinely held that the burden of proof for a fair use defense rests on the accused infringer.They also whine that the newly amended version of that ruling took out the random dicta that an automated takedown system could meet the standard.
Believe it or not, that's just a sampling of all the ridiculousness in the comment. It's simply not a reality-based document. One hopes that the Copyright Office might actually recognize that, though that seems unlikely.
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Filed Under: copyright, dmca, dmca 512, liability, notice and staydown, notice and takedown, safe harbors, steve metalitz
Companies: ascap, nmpa, riaa, soundexchange
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Shoot first, ask questions only if it makes it to court
By that same logic people shouldn't have to worry about whether or not a use of something might be infringing before posting it because doing so would just be 'too difficult', and they can always just take it down later if it reaches that point. 'Accidents happen' after all, if they want to use that excuse to cover for bogus DMCA claims regarding other people's content because checking first is just too difficult, then they don't get to complain when someone else uses it with regards to their content because checking whether or not the use might be infringing would take effort on the part of the poster.
On a semi-related note, it would almost be worth it to have them get what they are demanding here, if doing so resulted in sites having the guts to apply it fairly. If context doesn't matter, and once claimed always down, then taking down an un-authorized post of a song or movie clip would result in the authorized version being taken down and blocked from being posted as well. After all without context the files are the same, the songs/clips are the same, so both need to be barred from being posted. Perhaps having entire services completely blocked from their use might drive the point into their thick skulls how stupid their demand really is.
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Re: Shoot first, ask questions only if it makes it to court
However I would be much more likely to go along with "notice and stay down" if one of the possible outcomes was loss of copyright. Whoops, that notice wasn't filed in good faith. Your intellectual property now belongs to the Public.
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Re: Re: Shoot first, ask questions only if it makes it to court
It's as if they don't realize that their suggestions aren't just bad for the public, they're bad for THEM too -- human nature will make what they want backfire even worse than what they're stuck with right now.
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Re: Shoot first, ask questions only if it makes it to court
Wasn't there a story a while back about how HBO hired an automated takedown company that filed takedown notices against its own HBOGo service? Well, sorry, you got a takedown notice so you have to take it down and keep it down.
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4 Steps to Prosperity
2. Complain law doesn't do enough
3. ???
4. Profit!!!
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Re: 4 Steps to Prosperity
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Yes, he helped draft it. No, it's not working like it's supposed to. Totally consistent positions, Mike. You're reaching, as per usual.
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Re: the devil's in the details
Ya, but the actual reasons it's not working like it's supposed to are quite different from ones Metalitz proposed as were his reasons for helping draft the DMCA in the first place
So I guess they are totally consistent positions, all emanating from faulty logic.
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Re:
Imagine there's a community sandox. Some of the kids get together and ask the park to cordon off a section of the box so they can make sand sculptures using their own equipment, and without the other kids messing it up just roughousing in the box. The park agrees.
However, then some of the kids in the roped off section notice that OTHER parts of the unroped off box are starting to act out plays using their creations as the setting.
They go back to the park complaining, and the park says "OK, you need to get permission before performing plays in the sandbox."
However, kids keep performing the plays, so the roped off kids go back and complain again, telling the park "if you put in this system where if we catch kids doing it, they get kicked out of the sandbox immediately, that's all we want." So the park does this.
Suddenly, kids taking pictures of the creations, or just digging holes elsewhere in the sandbox are being kicked out, because the roped-off kids suspect they were really performing a play, or because they happened to be there while someone else was performing a play, or because the sandbox was crowded that day and the roped-off kids couldn't be bothered to figure out who was doing what, so they just kicked them all out.
Now they're finding that it's all too much work, so they've gone back to the park to complain that the current system isn't working, and they need kids permanently banned from the sandbox after they've been kicked out. One of the kids who helped set up the original agreement with the park is the spokesperson.
I hope that was helpful, or at least entertaining :)
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Re:
True. I guess he assumed courts would totally ignore all the token protections of free expression he assented to including, and just keep siding with large media corporations in all things. For him, the entire point of copyright law is to give the RIAA everything it wants at the expense of everyone else, he must indeed feel like it's not working how it's supposed to!
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Re:
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Ahh, so he has no interest in representing the public interest but has only represented private industry interests. Yet he was instrumental in the passage of laws that affect the public. So our laws are then not representative of the public but are representative of those that are instrumental in representing private interests.
Also if copy protection laws are really about the artists (though they should only be about the public) then why is the penalty structure one sided against artists that have their works falsely taken down? Why don't artists and service providers that receive false takedown notices receive the same protections as copy protection holders that get their works infringed upon with equivalent penalties against those filing those bogus takedown requests? Is it because these laws are not intended to serve the artists?
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Re:
You knew that already, right? ;-)
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Said the guys who act like this in the world of an inifinite supply of copies.
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LOL
Yeah, you kind of overshot with the M in DMCA, didn't you? So now it's antiquated, is it?
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When have the RIAA, ASCAP, AFM, NMPA, SoundExchange ever created any content? They are organisations that buy other peoples content, or make money by acting as collection agencies for other peoples contents, with the latter mainly gaining benefit for the big artists at the expense of the rest of the artists creating content.
The organisations they are the ones that benefit from a gate keeper controlled market, while many artists can benefit from the free market enables by self publishing on the Internet. In reality these organisations are anti artists, as the control over publishing that they want benefits them much more than it does the artists.
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Hmm. No. Music is being produced in spite of the law.
The document and the citations in it, or most of them (I have just skewed through) seem to be a testament to how broken copyright is. Culture is the one that needs more protection from those vultures, not the contrary.
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Steve Metalitz as DMCA drafter
harmful."
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Re: Steve Metalitz as DMCA drafter
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Re: Steve Metalitz as DMCA drafter
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Re: Steve Metalitz as DMCA drafter
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If they had their way, that 20% of what is most likely fair use would be blocked from the internet. That alone is a reason to maintain the current system.
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Re:
Dollars to donuts says they are not counting a DMCA request against legitimate fair-use as a "mistake."
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Re:
I mean, there are TONS of YouTube channels that monetise t.v. show episodes without any edits, and the are almost completely ignored by the companies. While the people who only review them are the ones being punished.
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Re:
I mean, there are TONS of YouTube channels that monetise t.v. show episodes without any edits, and the are almost completely ignored by the companies. While the people who only review them are the ones being punished.
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Re: Re:
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We get approximately 100 DMCA notices per month, and only a small fraction of those are from *AAs and other large rightsholders.
I'm not saying that infringement doesn't happen - it certainly does, and I've done my fair share of shutting down user accounts. However, to hear it from the *AAs, the sky is falling. But... 1,000,000+ customers, and only 100 notices/month? It doesn't look that way to me. So, based on my individual experience... either there's a ton of as-yet-unidentified infringement on my company's network, the infringement is happening largely somewhere else, or it's not nearly as bad as they make it sound.
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If my math is correct, that is 0.66%. Not even 1%. Holy Mother of God! Such a burden.
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And it all comes from folk who still haven't done a thing about the Pirate Bay after 15 odd years. They are beyond serious consideration.
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I have a simple solution Google can implement tomarrow to solve the problem
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The DMCA system needs to be reworked
YouTube's copyright system was put into place over a decade ago, and since then, the Internet has developed in ways never before imagined, and is more important to our world than ever. A new DMCA needs to be put into place for it to have the full beneficial impact. It will take some time to make it especially effective, but it's an effort we need to all pitch in on to make possible, however long it takes.
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Re: The DMCA system needs to be reworked
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DMCA
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DMCA
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Re: DMCA
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Re: Re: DMCA
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Re: Re: Re: DMCA
You really need to learn to let it go or you're going to have a stroke. The internet is full of that stuff.
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Re: Re: Re: Re: DMCA
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Re: Re: Re: Re: Re: DMCA
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Re: Re: Re: Re: Re: DMCA
I didn't believe you at first but it seems this is (partially) true. Amazingly stupid move by Amazon.
http://www.amazon.com/forum/kindle?_encoding=UTF8&cdForum=Fx1D7SY3BVSESG&cdThread=Tx3 3W47U3P6MKWF
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Re: Re: Re: Re: Re: Re: DMCA
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Re: DMCA
You're grounded. One week of proper paragraph study for you!
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Re: Re: DMCA
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Re: Re: DMCA
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Re: Re: DMCA
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Re: Re: DMCA
And GREAT job of pretending you're my dad. I mean it's not like I have a last name that is shown for you to see. And it's not like my parents divorced when I was 2-3.
Oh wait BOTH OF THOSE ARE TRUE!
I'm pretty forgiving of the second one about may parents divorcing shortly after I was born, but not you're ignorance to my last name. I mean come on it's right t the top of this comment Logan RIVERA.
And not to mention that you're kind of being a jerk since not only was I using auto correct which has iffy results, but you also made fun of my spelling in a really rude way.
I mean look at nasch, he can be kind of abrasive, but his heart is in the right place. This sight is heavily dependent on a user's spelling.
You just act like a big shot as if you know ALL about EVERY word in the English language. Kind of like game theory and Matpat's (the guy who dose all the math and science for video game theories) huge ego that gets to the point where he thanks he knows more about the games then the CREATORS.
Ok you aren't THAT bad (and you probably won't ever see this) ,but attacking a TEEN no less (I'm 14 at the making of this comment and was 13 when I firs wrote that comment up there where I SAID in an after statement that it wasn't perfect and that you could give me constructive criticism by the way) when you are probably a young adult is just cruel.
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Re: DMCA
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Re: DMCA
The CEO even said they wanted to fix this officially broken system, and she STILL hasn't done anything.
I know this is extreme but, I think all the companies that are trying to attack YouTube accounts are threatening to sue them if YouTube tries to fix the DMCA. And I bet you all known the reason why.
Bottom line, someone has GOT to sue these companies before they end up destroying YouTube. Both the YouTube company and the content creators at being victimized by these bullies
If this continues, we might have to do something extreme. Either sue ALL the companies that have taken down videos just because of the criticism. Or we ALL have to get off of YouTube from the most famous of content creators, to the accountless video watcher because this is getting out of control.
What do you think?
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Re: Re: DMCA
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The underlying dynamic here is:
There needs to be some consideration for lag time though. It is like taking a shit while skydiving. Eventually your going to need to slow down.
People who've been paying attention to the progressive increase in anti-hacker propaganda over the past several years are likely a little nervous about having to pull the rip cord. Should they be and why?
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the DMCA crap
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Re: the DMCA crap
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Re: Re: the DMCA crap
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Re: Re: Re: the DMCA crap
Because I don't enjoy reading walls of text on discussion forums. Get a better tablet. ;-)
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RIAA/MPAA FUCK. YOU.
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This shit, really companies?
I'm all for protecting your stuff...without breaking in on everyone else's rights and other laws. You know, fair use?
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What. The. Hell.
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Re: What. The. Hell.
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