Copyright Office Pushing Dangerous And Ridiculous Plan To Strip Websites Of DMCA Safe Harbors

from the don't-let-this-happen dept

Back at the end of May the Copyright Office put out a Notice of Proposed Rulemaking (NPRM) concerning some changes to the DMCA agent registration process. As we've noted for years, technically to be covered by the important DMCA safe harbors you first have to register with the Copyright Office (and we've repeatedly recommended that you do so, if you have any kind of site, even a personal one, where people may post potentially infringing material). Not registering won't automatically make you liable, but it can make the legal process a lot more problematic for you if someone posts infringing material on your website. Most people who commented on this new NPRM were pleasantly surprised to see that the key part of the proposal was reducing the fee for registering an agent from $105 (or more) down to just $6. The Copyright Office says it can do this thanks to the much easier efficiency of electronic filing. That's great.

But hidden in the details is something not great at all. First spotted by the ever eagle-eyed Eric Goldman, part of this proposal was actually reviving a very bad proposal from 2011 to also force sites to renew their DMCA agent every 3 years. This is dumb for so many reasons -- and Eric, along with the EFF, told the Copyright Office this back when the proposal first came out -- and... the Copyright Office never responded (though it still says it's coming...). And here's the really nasty bit: the Copyright Office insists that any comments being made over this NPRM can only be about the change in the fee, and not the serial renewals, even though it also notes (in a footnote, of course) that this new lower fee is dependent on it becoming a recurring fee thanks to the renewals.

On top of that, it seems clear that those of us who have already paid lots of money to register will still have our registrations thrown out, and we'll have to start paying recurring fees. That seems doubly ridiculous. We've already paid quite a lot, and I don't see how the Copyright Office should be able to throw out our existing agent claim, nor why we should suddenly have to remember to go back and renew our registration every three years. Remember, this is the same Copyright Office that seems to have no interest at all in making copyright holders renew their registrations, as such a thing would be too burdensome.

Given all that, Eric, again with the EFF, and a bunch of others (including us at Techdirt!) filed comments with the Copyright Office on Friday, complaining about this new rule, which will almost certainly burden many legitimate sites, causing them to lose their DMCA safe harbors simply by failing to re-register an agent in a timely manner.

We believe that once a service provider has made a valid designation, the designation should remain effective in the Copyright Office indefinitely, for at least three reasons: (1) 17 U.S.C. §512(c)1 already has too many conditions; (2) §512’s formalities already inhibit small service providers from enjoying the safe harbor; and (3) §512 already deprives service providers of protection if they do not accurately maintain their designations. For these reasons, we oppose any proposal to disqualify a service provider from the safe harbor for failing to maintain its agent registration with the Copyright Office, whether because the service provider failed to pay the appropriate renewal fee, failed to re-register an existing valid registration, or failed to take any other future action after a valid registration has been made.

If the hidden consequence of the Copyright Office’s proposed lower agent registration fees is a higher risk that an unsuspecting provider will lose §512’s safe harbor protections because it failed to renew, then the real cost of the new system is far too high. Therefore, we request that the Copyright Office offer a cost-effective option letting providers make only a single one-time registration to remain permanently effective.

The letter goes on to point out that in order to qualify for the DMCA's safe harbors, a site already needs to satisfy 12 different conditions, which is already too burdensome. And this renewal process would make it even worse, if only because a site that simply forgets to register may face massive liability:

The new condition would have significant consequences: an otherwise-protected service provider could, if found liable for copyright infringement under the substantive liability standards, be exposed to a massive—and potentially business-ending—damage award that could reach millions (or even billions) of dollars for forgetting to renew or maintain the agent designation on time.

The letter also reminds the Copyright Office about its own views on why re-registration "formalities" is a bad idea for copyright registrations:

“[T]he renewal provision of the current law is a highly technical and rigid formality, and it often results in the unfair and unintended loss of copyright protection.”

The same concerns exist here, including the concern for conditions not present in other national systems.

More generally, the history of the Copyright Act clearly demonstrates that if Congress wanted to put an agent renewal condition into the law, it knew how to do so. The Copyright Office’s authority to make regulations for receiving DMCA agents’ designations does not include authority to add additional conditions to §512(c) itself, and the Copyright Office has not identified any legislative grant that provides it with such authority.

Frankly, it's ridiculous that you need to register with the Copyright Office to receive the safe harbors in the first place, but if that's the case, there's simply no reason that they should suddenly add in this demand to re-register every few years.

Filed Under: copyright, copyright office, dmca, dmca 512, dmca agent, renewals, safe harbors

Appeals Court Gives Big Loss To Record Labels In Their Quixotic Lawsuit Against Vimeo For Lipdubs

from the let-it-go,-guys dept

The record labels basically will find no innovation that's not worth suing, and so back in 2013 they sued the online video hosting/streaming site Vimeo, in part because the site had created a popular genre of videos known as "lipdubs" where people would lip sync to a song in a video. In the fall of 2013, the district court rejected most, but not all, of the record labels' arguments about the DMCA. The labels had argued that Vimeo lost its DMCA safe harbors for a variety of reasons, including not having a reasonable repeat infringer policy (and by "reasonable" the labels claimed it had to be the same as YouTube's), red flag knowledge, and the fact that because Vimeo lets people download videos there's no safe harbor. The court rejected basically all of those arguments -- but did leave open the possibility that red flag knowledge might apply if Vimeo employees had watched some of the videos at play in the case. There was also one very problematic part of the ruling, which is that the court said that pre-1972 sound recordings do not qualify for the DMCA's safe harbors because of the weird quirk of copyright law history by which pre-1972 sound recordings are not actually covered by federal copyright law (but, instead, various state laws and common law).

It's taken quite some time, but on appeal the 2nd Circuit has finally released a ruling that trashes every single of of the record labels' arguments and sides with Vimeo across the board. That is, it upholds all of the stuff the district court had about Vimeo not losing its safe harbors and goes one step further in overturning the lower court's ruling concerning pre-1972 music. The decision was written by Judge Pierre Leval, who tends to be awesome on copyright issues.

In overturning the district court on whether or not the DMCA applies to pre-1972 recordings, the ruling is pretty clear, even going against the Copyright Office's views that argued against the DMCA covering such works.

While we unhesitatingly acknowledge the Copyright Office’s superior expertise on the Copyright Act, we cannot accept its reading of § 512(c). It is based in major part on a misreading of the statute. The Report’s main argument—that § 501(a) defines the words “infringement of copyright” as meaning infringement of the rights granted by the federal statute—misreads this provision. And as for the arguments based on canons of statutory construction, a subject not within the special expertise of the Copyright Office, we respectfully conclude that the pertinent canons were misunderstood and misapplied.

To get to this conclusion, the court just reads the actual law:

A literal and natural reading of the text of § 512(c) leads to the conclusion that its use of the phrase “infringement of copyright” does include infringement of state laws of copyright. One who has been found liable for infringement of copyright under state laws has indisputably been found “liable for infringement of copyright.” In this instance, Congress did not qualify the phrase “infringement of copyright” by adding, as it did in other circumstances, the words, “under this title.” See, e.g., § 106 (“Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following . . . .); § 201(a) (“Copyright in a work protected under this title vests initially in the author or authors of the work.”). To interpret § 512(c)’s guarantee that service providers “shall not be liable . . . for infringement of copyright” to mean that they may nonetheless be liable for infringement of copyright under state laws would be, at the very least, a strained interpretation—one that could be justified only by concluding that Congress must have meant something different from what it said.

In contrast, there is every reason to believe that Congress meant exactly what it said. As explained above, what Congress intended in passing § 512(c) was to strike a compromise under which, in return for the obligation to take down infringing works promptly on receipt of notice of infringement from the owner, Internet service providers would be relieved of liability for user-posted infringements of which they were unaware, as well as of the obligation to scour matter posted on their services to ensure against copyright infringement. The purpose of the compromise was to make economically feasible the provision of valuable Internet services while expanding protections of the interests of copyright owners through the new notice-and-takedown provision. To construe § 512(c) as leaving service providers subject to liability under state copyright laws for postings by users of infringements of which the service providers were unaware would defeat the very purpose Congress sought to achieve in passing the statute. Service providers would be compelled either to incur heavy costs of monitoring every posting to be sure it did not contain infringing pre-1972 recordings, or incurring potentially crushing liabilities under state copyright laws. It is not as if pre-1972 sound recordings were sufficiently outdated as to render the potential liabilities insignificant. Some of the most popular recorded music of all time was recorded before 1972, including work of The Beatles, The Supremes, Elvis Presley, Aretha Franklin, Barbra Streisand, and Marvin Gaye.

Whether we confine our examination to the plain meaning of the text, or consider in addition the purpose the text was intended to achieve, we find no reason to doubt that § 512(c), as it states, protects service providers from all liability for infringement of copyright, and not merely from liability under the federal statute.

Later the court doubles down on the idea that pretending the DMCA's safe harbors don't apply to pre-1972 sound recordings would basically undermine the entire DMCA:

Finally, construing the safe harbor of § 512(c) as not granting protection to service providers from liability for state-law-based copyright infringements would substantially defeat the statute’s purposes. Internet service providers that allow the public to post works on their sites would either need to incur enormous expenses to monitor all postings to ensure the absence of infringing material (contravening the provision of § 512(m) excusing them from such obligation), or would incur state law-based liabilities for copyright infringement by reason of user-posted infringements of which they were unaware. The financial burdens in either case would be substantial and would likely either dissuade service providers from making large investments in the expansion of the growth and speed of the Internet (which Congress sought to encourage) or perhaps cause them to charge so much for the service as to undermine substantially the public usefulness of the service Congress undertook to promote.

On the infamous question of "red flag knowledge" the court notes that the Viacom v. YouTube case settled this a while ago. And this includes the fact that employees of Vimeo may have seen copyright-covered music on Vimeo, so the lower court was wrong to say that just because an employee watched a video, the "red flag" knowledge question could go to trial:

The mere fact that an employee of the service provider has viewed a video posted by a user (absent specific information regarding how much of the video the employee saw or the reason for which it was viewed), and that the video contains all or nearly all of a copyrighted song that is “recognizable,” would be insufficient for many reasons to make infringement obvious to an ordinary reasonable person, who is not an expert in music or the law of copyright.

This is a useful point. Over and over again we see people who support the current copyright system (or who want it expanded) insist that it's "obvious" to everyone when there's infringement happening. We've tried to explain repeatedly why that's not necessarily the case. There are all sorts of factors that make it difficult -- from the fact that the songs may be authorized to questions around fair use to a variety of other issues. So it's good to see the court make such a clear statement on this point and to overturn the lower court ruling that would have made life difficult for a number of platform companies. The court clearly understands this issue that so many copyright maximalists miss:

First, the employee’s viewing might have been brief. The fact that an employee viewed enough of a video to post a brief comment, add it to a channel (such as kitten videos) or hit the “like” button, would not show that she had ascertained that its audio track contains all or virtually all of a piece of music. Second, the insufficiency of some viewing by a service provider’s employee to prove the viewer’s awareness that a video contains all or virtually all of a song is all the more true in contemplation of the many different business purposes for which the employee might have viewed the video. The purpose of the viewing might include application of technical elements of computer expertise, classification by subject matter, sampling to detect inappropriate obscenity or bigotry, and innumerable other objectives having nothing to do with recognition of infringing music in the soundtrack. Furthermore, the fact that music is “recognizable” (which, in its dictionary definition of “capable of being recognized” would seem to apply to all music that is original and thus distinguishable from other music), or even famous (which is perhaps what the district court meant by “recognizable”), is insufficient to demonstrate that the music was in fact recognized by a hypothetical ordinary individual who has no specialized knowledge of the field of music. Some ordinary people know little or nothing of music. Lovers of one style or category of music may have no familiarity with other categories. For example, 60-year-olds, 40-year-olds, and 20-year-olds, even those who are music lovers, may know and love entirely different bodies of music, so that music intimately familiar to some may be entirely unfamiliar to others.

Furthermore, employees of service providers cannot be assumed to have expertise in the laws of copyright. Even assuming awareness that a user posting contains copyrighted music, the service provider’s employee cannot be expected to know how to distinguish, for example, between infringements and parodies that may qualify as fair use. Nor can every employee of a service provider be automatically expected to know how likely or unlikely it may be that the user who posted the material had authorization to use the copyrighted music. Even an employee who was a copyright expert cannot be expected to know when use of a copyrighted song has been licensed. Additionally, the service provider is under no legal obligation to have its employees investigate to determine the answers to these questions.

The court does allow that, during discovery, a copyright plaintiff may work to establish that employees who did view the videos were able to understand that it was infringing, but merely having employees view a video is not evidence of red flag knowledge. The court also rejects the idea -- as many copyright maximalists insist -- that this interpretation of red flag knowledge writes it out of the statute. Not so, the court points out:

This argument has no merit. While the difference between actual knowledge of infringement under § 512(c)(1)(A)(i) and red flag knowledge under § 512(c)(1)(A)(ii) may not be vast, it is nonetheless a real difference. If the facts actually known by an employee of the service provider make infringement obvious, the service provider cannot escape liability through the mechanism of the safe harbor on the ground that the person with knowledge of those facts never thought of the obvious significance of what she knew in relation to infringement. Plaintiffs further argue that this understanding of red flag knowledge reduces it to a very small category. Assuming this is so, it is of no significance. The fact that Congress was unwilling to extend the safe harbor to circumstances where the service provider did not subjectively know that the posted material infringed, but did know facts that made infringement objectively obvious, does not compel the conclusion that Congress expected this extension to cover a large number of instances. That is especially so in view of the fact that the purpose of § 512(c) was to give service providers immunity, in exchange for augmenting the arsenal of copyright owners by creating the notice and-takedown mechanism.

The court goes into detail about the different burdens that each party needs to carry in trying to establish red flag knowledge:

A significant aspect of our ruling relates to the burdens of proof on the question of the defendant’s entitlement to the safe harbor—particularly with respect to the issue of red flag knowledge. The issue is potentially confusing because of the large numbers of factual questions that can arise in connection with a claim of the safe harbor. A service provider’s entitlement to the safe harbor is properly seen as an affirmative defense, and therefore must be raised by the defendant. The defendant undoubtedly bears the burden of raising entitlement to the safe harbor and of demonstrating that it has the status of service provider, as defined, and has taken the steps necessary for eligibility. On the other hand, on the question whether the service provider should be disqualified based on the copyright owner’s accusations of misconduct—i.e., by reason of the service provider’s failure to act as the statute requires after receiving the copyright owner’s notification or otherwise acquiring actual or red flag knowledge—the burden of proof more appropriately shifts to the plaintiff. The service provider cannot reasonably be expected to prove broad negatives, providing affidavits of every person who was in its employ during the time the video was on its site, attesting that they did not know of the infringement and did not know of the innumerable facts that might make infringement obvious. And to read the statute as requiring a trial whenever the plaintiff contests the credibility of such attestations would largely destroy the benefit of the safe harbor Congress intended to create.

Finally the court is fine with the lower court rejecting the argument of "willful blindness." The court points out that the law is clear that services have no proactive duty to monitor sites for infringement, no matter how many times copyright holders insist they must. And this holds true even if they monitor for other stuff:

We see no reason why Vimeo’s voluntary undertaking to monitor videos for infringement of visual material should deprive it of the statutory privilege not to monitor for infringement of music.

The court also rejects the related claim that once Vimeo had some info suggesting some music may be infringing, it had a duty to further investigate -- and the failure to do that was willful blindness. Not so, says the court:

Section 512(c) specifies the consequences of a service provider’s knowledge of facts that might show infringement. If the service provider knows of the infringement, or learns of facts and circumstances that make infringement obvious, it must act expeditiously to take down the infringing matter, or lose the protection of the safe harbor. But we can see no reason to construe the statute as vitiating the protection of § 512(m) and requiring investigation merely because the service provider learns facts raising a suspicion of infringement (as opposed to facts making infringement obvious). Protecting service providers from the expense of monitoring was an important part of the compromise embodied in the safe harbor. Congress’s objective was to serve the public interest by encouraging Internet service providers to make expensive investments in the expansion of the speed and capacity of the Internet by relieving them of burdensome expenses and liabilities to copyright owners, while granting to the latter compensating protections in the service providers’ takedown obligations. If service providers were compelled constantly to take stock of all information their employees may have acquired that might suggest the presence of infringements in user postings, and to undertake monitoring investigations whenever some level of suspicion was surpassed, these obligations would largely undo the value of § 512(m). We see no merit in this argument.

Finally, the labels had tried to argue that Vimeo employees encouraging users to create lipdubs constituted a form of willful blindness because they then refused to recognize that this encouraged infringement. The court isn't buying it:

The evidence cited to us by Plaintiffs, consisting of a handful of sporadic instances (amongst the millions of posted videos) in which Vimeo employees inappropriately encouraged users to post videos that infringed music cannot support a finding of the sort of generalized encouragement of infringement supposed by their legal theory. It therefore cannot suffice to justify stripping Vimeo completely of the protection of § 512(m).

In short, just because some employees may have encouraged lipdub videos it most certainly does not remove all of Vimeo's safe harbors.

This ruling is a complete and total victory for Vimeo against the labels -- and an important win for the safe harbors of the DMCA (and for the ability for websites that create useful services for the public to protect themselves). I'm sure the labels will try to challenge this decision, but it's a very strong and useful ruling as it stands.

Filed Under: copyright, dmca, dmca 512, dmca safe harbors, lipdubs, pierre leval, pre-1972 sound recordings, red flag knowledge, safe harbors, willful blindness
Companies: riaa, vimeo

Google Comes Down On The Wrong Side Of The TPP

from the short-sighted dept

This is extremely unfortunate, but not surprising. Google has made some noise sounding supportive of the TPP over the past year or so, and now it's put out a blog post strongly supporting the agreement, and claiming that it's good for intellectual property and the internet. The company is wrong. The statement is right about a big problem on the internet -- the growing restrictions and limitations on the internet in different jurisdictions:

But Internet restrictions -- like censorship, site-blocking, and forced local storage of data -- threaten the Internet’s open architecture. This can seriously harm established businesses, startups trying to reach a global audience, and Internet users seeking to communicate and collaborate across national borders.

Yes, absolutely. And the TPP only tackles a tiny part of that -- and in some ways makes other aspects worse. But that's not what Google says. Instead, it misrepresents what the TPP really does. The post is correct about the issue of cross-border data flows and localization -- and I agree that these are good things -- but they're small parts of an agreement that has so many other problems:

The Internet has revolutionized how people can share and access information, and the TPP promotes the free flow of information in ways that are unprecedented for a binding international agreement. The TPP requires the 12 participating countries to allow cross-border transfers of information and prohibits them from requiring local storage of data. These provisions will support the Internet’s open architecture and make it more difficult for TPP countries to block Internet sites -- so that users have access to a web that is global, not just local. 

It's after that where the post goes off the rails:

The TPP provides strong copyright protections, while also requiring fair and reasonable copyright exceptions and limitations that protect the Internet. It balances the interests of copyright holders with the public’s interest in the wider distribution and use of creative works -- enabling innovations like search engines, social networks, video recording, the iPod, cloud computing, and machine learning. The endorsement of balanced copyright is unprecedented for a trade agreement. The TPP similarly requires the kinds of copyright safe harbors that have been critical to the Internet’s success, with allowances for some variation to account for different legal systems. 

This is just wrong, and it's the most frustrating part of the post. The TPP expands copyright rules to ridiculous levels in many countries, including extending copyright terms at a time when there is no sound basis for advocating for extending copyright terms. And the "requiring fair and reasonable copyright exceptions and limitations that protect the Internet" is just wrong. Yes, it's true that for the first time the USTR actually acknowledges user rights in such an agreement. In the past, all such trade agreements only focused on expanding copyright holder rights. So you can argue that's progress. But the details showed that it's not creating "fair and reasonable copyright exceptions and limitations," but instead pushing a misleading tool that will limit the way countries can explore fair use, and (even more important) makes the fair use stuff optional. Google claiming that it requires such things is just... wrong.

The TPP advances other important Internet policy goals. It prohibits discrimination against foreign Internet services, limits governments’ ability to demand access to encryption keys or other cryptographic methods, requires pro-innovation telecom access policies, prohibits customs duties on digital products, requires proportionality in intellectual property remedies, and advances other key digital goals. 

Yes, this part is also a good thing that it's in the TPP, but (1) it's so outweighed by bad things that it's really not that big of a deal and (2) the issues around encryption and telecom access policies are not nearly as clear cut in the TPP as this blog post implies, nor are they necessary to do via the TPP process.

As I've said before, I'm a supporter of free trade, generally (unlike many who oppose the TPP). But the TPP is not about free trade, other than at the margins. There's so much in there that's about blatant protectionism and supporting certain business models over others. Of course, that's how the trade game is played these days. Companies get big enough to influence the USTR to advocate for closed room deals that favor them. And Google is big enough to play that game. This public support of the TPP is a part of that game, but it's unfortunate. The company could have and should have taken a stand on this, noting the things that are important in the TPP, but also being honest about the disastrous IP section and other problems in the agreement (such as the corporate sovereignty provisions that will almost certainly come back to bite Google and others).
There are good trade agreements to be made. And they can focus on things like protecting a free and open internet, and creating important safe harbors for communication and innovation. But the TPP is not that agreement -- and it's disappointing that Google has decided to jump on board, rather than highlight the very clear and very real problems of the TPP.

Filed Under: copyright, fair use, safe harbors, tpp, trade agreements, ustr
Companies: google

Thailand Government Wants To Undermine Website Encryption, Hold ISPs Responsible For Third-Party Content

from the and-that's-in-addition-to-the-country's-native-toilet-snakes dept

Thailand's government has never been considered a friend of internet services or users, thanks to its interest in suppressing dissent/ensuring its king remain unoffended. It has often claimed it has no interest in censoring the internet -- sometimes in statements delivered while shutting down livestreams of discussions with ISPs on how to better censor the internet.

Unsurprisingly, it's not a fan of encryption. The Thai government is currently amending its Computer Crimes Act in hopes of updating its censorship abilities. In addition to codifying ISP compliance with government demands, it's also looking to destroy anything standing between it and full control of internet activity.

On Thursday, 26 May 2016, the Thai Netizen Network (TNN) leaked a report, ‘Ministry of Information and Communication Technology,’ which proposes an amendment to Article 20 of the Computer Crime Act. The amendment will provide the Ministry of Information and Communication Technology (MICT) with the authority to access, block or delete encrypted content on websites.

“The Minister may issue a regulation for Internet Service Providers to delete or restrain the dissemination of computer data, in accordance with evolving technology,” says the seventh page of the document, leaked by TNN. The document specifically names the Secure Sockets Layer (SSL) protocol, one of the most common encryption technologies, saying that to delete or stop the dissemination of data under this protocol, the Ministry requires special methods and mechanisms.

The justification for attacking website encryption is the usual: to access evidence of criminal activity or, more vaguely, content that could result in "public disturbance." The latter is nothing more than the government granting itself the power to shut down anything it doesn't like by blocking or deleting the content. SSL makes blocking websites difficult, so naturally it has to go.

And that's not the last of the government's terrible ideas. It's also looking to hold ISPs responsible for content posted by third parties.

“Any provider who either cooperates or conspires in, or permits a violation of Article 14 within their service provision, shall be punishable in the same way as a violator of Article 14,” reads Article 15 of the MICT’s draft amendment.

Here's Section 14 as it reads now:

Section 14. If any person commits any offence of the following acts shall be subject to imprisonment for not more than five years or a fine of not more than one hundred thousand baht or both:

- that involves import to a computer system of forged computer data, either in whole or in part, or false computer data, in a manner that is likely to cause damage to that third party or the public;

- that involves import to a computer system of false computer data in a manner that is likely to damage the country's security or cause a public panic;

- that involves import to a computer system of any computer data related with an offence against the Kingdom's security under the Criminal Code;

- that involves import to a computer system of any computer data of a pornographic nature that is publicly accessible;

- that involves the dissemination or forwarding of computer data already known to be computer data under (1) (2) (3) or (4).

Section 230 inverted, basically. Whatever is done by the least of ISPs users is done by the ISP (for all intents, purposes, and punishments).

But, hey, on the bright side, the government is looking to torture/kill/disappear fewer dissidents and activists at some undertermined point in the future. (h/t The Grugq)

The human rights community today signaled cautious optimism about the interim cabinet’s move to criminalize torture and enforced disappearance by public officials in Thailand.

Endorsing the bill nine years after its adoption was first urged, the cabinet’s resolution said the law would “enhance the effectiveness” of existing laws and serve “to raise human rights protection in Thailand to the same par with the international standard,” according to an unofficial translation.

Considering the UN and the European Court of Human Rights both consider internet access to be a basic human right, it appears Thailand is still several years away from reaching the lower rungs of international humans rights standards. And by granting itself increased control of the internet, the government is guaranteeing it will soon be encroaching on the limited amount of human rights turf it has ceded.

Filed Under: censorship, encryption, intermediary liability, safe harbors, thailand

A Dozen Bad Ideas That Were Raised At The Copyright Office's DMCA Roundtables

from the not-looking-good dept

The Copyright Office has been holding a series of "roundtable discussions" on copyright reform that it's going to use to produce a paper supporting certain changes to copyright law. We already know that some sort of copyright reform bill is expected in the near future, and what comes out of this whole process is going to be fairly important. Unfortunately, the roundtables are not encouraging. There was one held in NY a few weeks ago, which Rebecca Tushnet blogged about in great detail, and I attended the ones last week in San Francisco and I've gathered up my tweeted commentary, if you feel like reading through it.

Unlike the House Judiciary Committee roundtable that was held in Silicon Valley last year, where the Representatives surprised many of us by actually asking good questions and listening to the answers, the Copyright Office's roundtables were bizarre and troubling. First, the whole setup of the two two-day events was problematic. The Copyright Office wanted to make sure that everyone who applied to speak was allowed to participate in some manner, so for each set of roundtables, they set up 7 roundtables of 20 people each on pre-defined topics, where each roundtable was only 90 minutes.

This was problematic in many ways, because the very fact that the Copyright Office already assigned the topics of each "panel" suggested the preconceived notions that the Office came into the hearings with. Second, 20 people in 90 minutes meant a kind of soundbite culture, rather than an actual discussion. Basically, 4 people from the Copyright Office sat up front and would declare the topic and ask a single (usually general) question to kick off the panel. Then anyone who wanted to respond would turn their name placards on the side. Each person speaking was told they had 2 minutes, and a Copyright Office person would hold up cards counting down the time until finally holding up a giant STOP sign when time ran out. If the Copyright Office people felt like it, they might pepper you with follow up questions, or just move on to the next upturned placard. Only a few times during two full days of everyone locked in a courtroom was there any real discussion or attempt at moving the ball forward on issues. Instead, there were a lot of 2 minute speeches, often totally contradictory, and sometimes with people saying blatantly false things.

The hearings were not livestreamed, though there was a court reporter who apparently is creating a transcript that will be distributed at some point (hopefully soon). While anyone could sign up to participate, the public was definitely a big missing factor. The Copyright Office itself repeatedly seemed to act as if copyright law is about two industries at war with each other -- "content" v. "tech" -- and unfortunately seemed to think that all content creators who mattered were against the tech industry. While the public could, in theory, have attended, there was very little seating available for non-participants, and we were all quite literally locked into a courtroom in San Francisco (getting out was always fun as we had to wait for the doors to unlock).

If I had to summarize the most general theme throughout the hearings, it was this: many individuals and businesses that relied on a certain way of doing business in past decades have not been able to adapt to the changing internet world, and they're very upset about this. They see that companies like Google (especially) are now making lots of money, and assume that somehow that money belongs to them. This ridiculous chart was waved around by one of the participants. It's basically the old way of doing business lashing out at the new way. Attempts to point out that there are many more new content creators today, and many more ways to make money, were dismissed, ignored or ridiculed. Attempts to point out that the "obvious" solutions weren't at all obvious and might cause more harm than good were similarly ignored. There were many attempts to "blame Google" and to use copyright law to "force Google" to do... something. Many of the things that people were asking for, Google actually already does, but people wanted more.

With that as background, here are twelve really troubling ideas that were raised during the hearing, many (though not all) by representatives from the Copyright Office itself:

1. Notice & Staydown: If there was one overarching theme to the hearings it was the idea that many kept pushing for a "notice and staydown" regime to replace the current "notice and takedown" regime in the DMCA today. There would be weird alternating comments from people where a recording industry person would say something like "look, we need notice & staydown!" and then someone who actually understood the technology or the law would explain the problems of a notice & staydown regime, only to have the next person ignore all of that and say "what we truly need is notice and staydown." Concerns raised about abusive takedowns were mostly ignored. The Copyright Office kept arguing that people can just counternotice abusive takedowns, and didn't seem to care that evidence suggests many people are too afraid to counternotice. They also totally ignored the fact that if you move to a notice and staydown regime, there won't be notices to counter in many cases.
   
   Related to this, there seemed to be little willingness to recognize that copyright is context specific, and that the same content in one realm may be infringing, while in another may be non-infringing. Which brings us to:
   
   
2. Notice & Staydown For Full-Length Content: This appears to be the "compromise" solution that the Copyright Office kept pushing during the discussions, repeatedly bringing this up as an option. Their argument is that "okay, some people are worried about notice and staydown interfering with fair use, but 'full-length content' isn't fair use, so perhaps we just say that if it's 'full-length' movies, books and music, then any platform needs to have a notice & staydown setup."
   
   Of course, there are numerous problems with this as well. First off, such filtering platforms are both expensive and often not very good (see: ContentID, which cost $60 million to build, and still sucks). A requirement for such a filtering system would basically stop all new entrants into the market and lock the big players (YouTube, Facebook) in as the dominant platforms. It also doesn't make sense for all kinds of content. A lawyer from Wikimedia pointed out that a technology filter mandate would be insane for Wikipedia, since its human editors already seemed to be better and more efficient at removing infringing stuff.
   
   Most importantly, plenty of full-length content may be non-infringing. I mean, we just had the Google Books ruling not too long ago, which found that scanning, indexing and storing full-length books was fair use. Or there's the Bloomberg/Swatch case where full-length recordings of investor conference calls were used in a way that was fair use. Or what about people backing up their own movies? After all, one of the most famous copyright lawsuits ever, the Betamax case over the legality of home video recordings, found that recording full-length video... was fair use. Creating a bright line rule saying that full-length content isn't fair use would go against settled law and harm many forms of innovation.
   
   And that brings us to:
   
   
3. One-size-fits-all tech mandates and carve-out attempts: Because of the points above, the Copyright Office and some others kept trying to see if there were ways to write the rules so that they would only target certain players (i.e., "Google"). This makes little sense for a variety of reasons. First, as Google itself noted, when you're talking about something like YouTube, it already offers a notice-and-staydown tool in the form of ContentID, but many people choose not to use the staydown portion, because Google also offers an option to "monetize" those works. Whether or not we agree with how ContentID works, it's clear that it already provides a lot more than what the law currently says YouTube needs to do, and people still aren't satisfied.
   
   But it's nearly impossible to create mandates for technology in a way that doesn't (1) harm many other companies in the space and (2) create weird and dangerous incentives. The most common suggestion was some sort of special safe harbor for "small" companies, so that the next startup wasn't burdened with having to build or buy a filter... until they reached a certain size. But that doesn't work either. Both Wikimedia and the Internet Archive noted that in terms of traffic, they're both pretty big... but they're also both non-profits with limited funding and where a mandated tech filter would be both prohibitively expensive and total overkill. So, then the Copyright Office suggested maybe a carve-out for "non-profits." But, as someone from eBay pointed out, that still creates problems for a site like eBay. eBay notes that it doesn't have a huge issue of copyright infringement, but there is always some that happens -- usually in the form of people using photographs for an auction without having a license. But, as eBay notes, the "harm" here is pretty minimal, and the idea that eBay should need to purchase an expensive tech filter to weed that out is clearly overkill.
   
   
4. Only some kinds of content matter: Perhaps the most frustrating thing was how clearly the Copyright Office and many of the participants who had experience in the legacy content creation world seemed to totally dismiss the idea of new content creators, new kinds of content and new content business models. When lawyer Cathy Gellis mentioned that she was an amateur singer who was able to make some money today, whereas in the past she'd be totally out of luck, the Copyright Office's immediate response was to basically say, "but that doesn't count" for content creators who need to invest in their content creation. Similarly, one musician did the "get off my lawn" style of complaint, saying that all the music today sounds the same, and blamed piracy and Google for that happening (which is incredible, since there is so much more music, including so many different kinds of music, more widely available than ever before). Over and over again people suggested that their own content mattered much more than anyone else's.
   
   Too often, panelists absolutely dismissed amateur content or even professional content from new kinds of content creators. People dismissed YouTube as just being about "cat videos." And, again, the Copyright Office seemed to support this idea. In fact, somewhat astoundingly, at one point, someone from the Copyright Office tossed out the suggestion that political content could get extra rights, compared to other kinds of content, suggesting that maybe political related videos could get a carve-out such that it would get put back up online faster if it gets a bogus takedown, whereas a "dancing baby" doesn't matter enough. That would clearly violate the First Amendment in determining that some kinds of speech get extra rights compared to other kinds of speech. Update: In the original post, I wrote that Copyright Office General Counsel Jacqueline Charlesworth made the comparison between political speech and "dancing baby" speech. It turns out that it was another Copyright Office employee, Karyn Temple Claggett. I apologize for the error.
   
   
5. Service providers shouldn't be allowed to reject takedown notices: This one was pretty incredible (especially combined with the next one). The Copyright Office's General Counsel seemed taken aback by the idea that service providers might choose, of their own volition, to reject DMCA takedown notices. She came back to this point multiple times on day one, suggesting that she was somehow uncomfortable with the idea that a service provider might choose to "adjudicate" whether or not a takedown notice was valid. This was surprising, because the law is pretty clear. The DMCA does not say what a service provider must do. It just describes steps that are necessary to keep the safe harbors. That doesn't mean that if you don't follow the safe harbor requirements you're violating the law, it just means that if you're sued, you don't get an automatic pass on liability. But Charlesworth seemed really disturbed by that idea. And that's problematic, because if you talk to various platforms that receive lots of takedowns, they need to be able to reject some to avoid completely bogus takedowns.
   
   
6. Service providers should lose their safe harbors based on a single decision to reject safe harbors over a single takedown: This one could potentially be lumped together with the one above, but it's so crazy that it deserves its own bullet point. Basically, Charlesworth suggested that if a service provider decides to forego the safe harbors for a single item (e.g., refusing to take down content based on an obviously frivolous takedown notice), it might mean that they've removed safe harbors for the entire site. This came up during a direct discussion with a lawyer from Google, in which she interrupted him to ask why a service provider would refuse to take down content, and it was explained that if the takedown was obviously bogus, a site shouldn't take it down. Charlesworth then questioned the lawyer about whether or not the safe harbors only applied to each individual instance, or to the site as a whole, leaving many people in the audience stunned that this was even a question -- including the Google lawyer, who basically said that "obviously" the safe harbor question applied to each individual takedown.
   
   Put these two things together and the suggestion is that service providers should never be allowed to question a takedown, no matter how bogus, and if they do, they automatically lose the DMCA's safe harbors entirely. Talk about a recipe for mass censorship.
   
   
7. Punishment for false counternotices: Another bizarre idea that came up during these discussions was adding punishment for false counternotices. This is crazy. The system is already totally imbalanced in favor of the person sending the takedown. They get to remove content in most cases based on a single email, and there's no real punishment for false takedowns at all. But after one person complained about false counternotices (a problem that I find it difficult to believe actually exists at any type of scale that warrants further corrective action), suddenly the Copyright Office suggested that maybe there could be additional punishment for bogus counternotices (but without suggesting there should be any punishment for false notices). This makes no sense. There's already punishment for false counternotices, which is that the copyright holder gets to sue the person for up to $150k per infringed work.
   
   And, indeed, as various studies have pointed out, the fear of such a lawsuit already greatly chills the willingness of many people to file counternotices at all. The idea of chilling the counternotice process even further, especially without fixing the problem of abusive takedowns, is crazy.
   
   
8. Artists struggling to make money have piracy/Google to blame: Over and over again speakers and the Copyright Office kept pointing out this or that content creator who is struggling to make money as proof of "the problem." But that's a massive logical leap. I'm sure that some content creators are losing some earning opportunities because of infringement, but making money as a content creator has always been incredibly difficult. Most musicians don't make very much money. Most movies don't make much money. And it was that way before the internet was even around, and it's still true today. It seems ridiculous to assume that single examples of artists struggling must be a result of piracy. The author TJ Stiles, who is on the board of the Authors Guild, literally claimed that because of infringement he was less creative and wrote less, saying piracy meant he couldn't pay healthcare or his mortgage.
   
   Yet, I can just as easily point to new authors or other content creators who are now making a living entirely because of these new platforms that so many people at last week's hearings were angry about. These days, there are new business models using Kickstarter, Patreon, IndieGogo, YouTube, Vine, Instagram, Snapchat, Amazon and many, many more. And many of the artists making money from those platforms wouldn't even have been able to create content in the old world. So those seem to wipe out the claims that it's "piracy" undermining the ability to make money. It seems to suggest that it frequently is a number of other factors from (1) a lack of an audience, (2) an audience that is no longer interested, (3) an inability to go where the audience wants to go these days or (4) an unwillingness to adapt to new business models. One filmmaker even claimed that he didn't think the law should allow "new media" business models to upend "old media" business models. That's an interesting viewpoint, given that under that thinking, film shouldn't have been allowed, since it undermined the market for theater.
   
   
9. Public comments are a "denial of service" attack: As mentioned earlier, it was somewhat distressing how frequently the public was ignored in all of this. The Copyright Office was clearly not entirely happy with the fact that Fight for the Future and the YouTube creators (yes, actual content creators!) urged the public to file comments with the Copyright Office on the problems with bogus takedowns. But perhaps the most ridiculous comment came from (known Techdirt hater) Jonathan Taplin, who suggested that because the Copyright Office's servers couldn't handle the ~87,000 inbound comments, it might be considered a "denial of service attack." Really? Helping the public to comment is a denial of service attack?
   
   On one of the panels that I was on, I raised the issue of the public being left out of all of this, and the focus on tech v. content -- neither of which might have the public's best interests in mind. The Copyright Office asked about how to better engage the public, and I suggested that encouraging more public comments, rather than dismissing them or labeling them "zombies" or a denial of service attack, might be a good start.
   
   
10. Gov't-supported "Voluntary measures" as a panacea: Repeatedly this was one area where the Copyright Office kept claiming "we have some agreement!" where both tech and the legacy content players kept insisting that "voluntary measures" between these parties could solve many of the issues. Representatives from Microsoft and Google excitedly talked up all the great "voluntary measures" that were going on in working with the content industries to come up with solutions that went beyond what the law required. Others talked up various efforts to stop ad networks or payment processors from working with "pirate sites."
    
    But, again, this seems dangerous to me. Voluntary measures between two giant industries leave the public and the public interest out of the discussion. Attacking "pirate" sites sounds great until you ask, "how is that list made?" Considering that the Internet Archive, personal blogs and even 50 Cent's personal website have been called pirate sites in previous attempts to build such lists, it's not quite as obvious as some would have you believe.
    
    On top of that, lots of brilliant innovations look like piracy when they're first created, but later turn out to be revolutionary. As I noted in my 2-minute soundbite opportunity, radio, the photocopier, cable TV, the VCR, the DVR, the mp3 player and online video were all decried as nothing but piracy tools when they first came out. And yet all of them turned into significant business opportunities for content creators. Cutting those off in the early days through the collusion of "voluntary measures" could stifle all sorts of powerful innovations that actually would help content creators make more money and reach a wider audience.
    
    
11. The Lumen Database as a rogue site: One filmmaker was particularly concerned about the fact that Lumen Database (formerly known as ChillingEffects.org) archived DMCA takedown notices that were forwarded to the site. The claim was that people seeking infringing versions of content would search through Lumen to find the URLs listed for takedown. Someone else pointed out that there's no evidence that this is happening at any sense of scale, but someone from the Copyright Office substituted anecdotes for data, and claimed, "well, it's come up a lot." The suggestion was that perhaps Lumen should be required to redact the details of takedowns, and that only certified researchers should be allowed to access the full corpus.
    
    This is troubling on any number of levels. One of the things that was clear throughout the discussion is that we need more data and more research into what's working and what's not working. And you don't do that by locking up important data and then suggesting that only a special class of people should be allowed in. Though, I guess it fits with the idea that only some kinds of content creators matter. Apparently only some kinds of researchers might matter as well.
    
    
12. Technology is magic: Over and over again, folks who actually understood the technology pointed out why technology is no magic bullet. You can't automate understanding what is and what is not infringing. But someone from a lobbying group for the legacy copyright players pulled out the "you're all so smart, nerd harder" card by saying that if Silicon Valley can build a self-driving car, surely it can build a technology that can determine what is and what is not fair use. This has echoes of the debate over backdooring encryption, which is another of these "nerd harder" situations, in which non-technologists assume that technology is magic and doing x and doing y are somehow equivalent. All I can say in response to that is obligatory xkcd:
    

All in all, the two days of hearings was somewhat frustrating. I had hoped that it might be a way to actually have some productive discussions that actually focused on what was best for "promoting the progress." Instead, it seemed to involve the Copyright Office coming in with preconceived notions, mainly focused on how copyright law can be changed to better prop up legacy business models, at the expense of the public and innovation -- including all of the new creators who rely on that innovation.

Filed Under: 512, copyright, copyright office, dmca, dmca 512, fair use, notice and staydown, notice and takedown, safe harbors

NYU Sues YouTube For Reposting Video After Video Poster Sent DMCA Counternotice

from the not-how-the-law-works dept

You would think that a large university like New York University -- better known as NYU -- would have decently competent lawyers. Especially since NYU has its very own law school that is frequently one of the top ranked law schools in the country. So it's a bit surprising to see NYU file a copyright infringement lawsuit against YouTube that seems to, pretty clearly, go against the DMCA's rules (found via Eric Goldman).

The lawsuit is mainly focused on someone named Jesse Flores, who apparently runs a YouTube account called Atheists Exposed. I think it would be fair to say that Flores does not like atheists, and the summary of that YouTube account my be subtitled "videos of atheists behaving badly." I'm not sure which video in particular upset NYU, but the university submitted a DMCA takedown notice to YouTube, claiming that some of his footage infringed upon its copyright. As I type this, the video in question remains down. Having suffered through watching at least some of the other videos Flores has on the account, I'm assuming it's a clip of an atheist somehow associated with NYU, but (you guessed it) behaving badly. This might be embarrassing for NYU, but given the commentary around the videos, there's at least an argument of fair use here (though, without knowing more, perhaps the fair use claim isn't strong). Still... it does seem that basically all of the videos on the account are for the purpose of comment and criticism. NYU insists that the video is not fair use, stating that Flores had no license to the work "nor does the Defendant’s use of the Work fall into fair use or any other limitations on exclusive rights of copyright."

Flores, appears to have filed a counternotice on May 3rd -- in which he doesn't even claim fair use. Rather, he says that he received permission to post the video from the Veritas Forum at NYU, saying that it had the rights to the video in question.

NYU then reached out to Flores directly asking him to withdraw the counternotice. Flores, perhaps not too surprisingly, has refused to withdraw it. YouTube has made it clear that it will follow the rules in the DMCA -- specifically Section 512(g)(2)(B) and (C) -- which say that upon receipt of a valid counternotice (and the lack of a lawsuit filed against the uploader) the site is to replace the removed material in 10 to 14 business days after the counternotice. There are a few conditions around this, but none are that important in this case. There also is some question as to whether or not the site has to replace the content. The statute can be read that way, though some have argued that that's a weird result, since sites should have free control to refuse to repost any video if they so choose.

Either way, NYU noticed, YouTube took it down, Flores counternoticed, and YouTube has said it's putting the video back up. Under the very, very, very, very clear language of the DMCA, this means that YouTube is protected from liability if there is any infringement in the video. That's the whole basis of the safe harbors. They say "if you take down upon notice and follow these other rules, such as reposting it after 10 business days upon counternotice," then you're protected from a copyright lawsuit.

So, what did NYU do? It sued YouTube (and Flores). The suit against Flores, obviously, will turn on whether (1) he actually received a license, as he implies, or (2) if not, if the use was actually fair (and again, we don't know enough to say at this point). But including claims against YouTube? That's not just a non-starter, it's ridiculous, and makes you wonder if NYU's lawyers spoke to any of the copyright experts at NYU's own law school to explain that this is not how the DMCA notice-and-takedown process works. The most generous interpretation of this is that NYU's lawyers completely misinterpreted the DMCA (and YouTube's notification to NYU about the counternotice) and read the requirement of a lawsuit to include YouTube, so that the site knew not to put the video back up. What YouTube and the law actually require is merely evidence that a lawsuit was filed against the uploader. Including YouTube in the suit is an interesting way to provide "evidence," but it also goes completely against the DMCA's safe harbors.

I'm guessing that NYU will file an amended complaint fairly soon that drops YouTube from the complaint. But, still...

Filed Under: 512, athiests exposed, copyright, counternotice, dmca, jesse flores, safe harbors
Companies: nyu, youtube

More Evidence That Tons Of DMCA Takedowns Are Bad News... And That People Are Afraid To Counternotice

from the it's-a-real-problem dept

Earlier this week, we wrote about a major new study that revealed that a ton of DMCA takedown notices are clearly faulty, and how that shows just how messed up the DMCA's notice-and-takedown provisions are in giving tremendous incentives to send notices with absolutely no punishment for filing bogus takedowns. The legacy music industry and its supporters keep claiming that the fact that there are so few counternotices is evidence that there's almost no abuse. In fact, in the legacy music industry filing we wrote about earlier today, they even had the gall to claim that the real abuse is in the counternotices themselves.

As more and more comment filings to the Copyright Office about the DMCA process are being released, there's increasing evidence that the legacy entertainment industry's claims are, simply, full of shit. The latest is the excellent comment filed by Automattic (the folks who make Wordpress), whose Wordpress.com offering hosts over 80 million websites. The company notes that even while hosting so much content, the majority of the time the company spends dealing with DMCA notices is... dealing with the bogus ones:

We put a great deal of resources toward processing takedown notices because we take our responsibilities under the DMCA seriously. We aim to respond to all inbound takedown notices within 48 hours, exceeding the law’s requirements. But a significant portion of the resources we put towards our DMCA program are aimed at combating the shortcomings of the notice and takedown system. For example, we spend significant effort reviewing and trying to weed out overbroad and abusive DMCA takedown notices, so that our users’ speech isn’t needlessly censored. This is a real cost to us, and diverts resources from more productive uses, like improving the products and services we offer our customers.

As with the study we highlighted earlier this week, Automattic notes that a huge number of notices it receives are invalid. First, it notes that approximately 29% of notices simply aren't valid notices in that they fail to meet the criteria laid out by the DMCA for what constitutes a valid notice. Then, another 10% of notices do meet the criteria to be an official notice, but are "clearly false or mistaken." And that's based on their own review of the notices. So, approximately 40% of all DMCA takedown notices the company receives are bogus. But, contrary to what the legacy industry folks and their shills are saying, Automattic notes that very few people file counternotices, out of a fear of being sued, and they're concerned about how this leads to censorship of perfectly legal speech.

Our statistics bear this out. As discussed below with respect to Subject No. 30, our statistics show that about 10% of the notices of claimed infringement we receive are otherwise valid but are clearly false or mistaken. But we receive many fewer counter notifications than that—only about one-half of one percent of the total number of notices we receive. We think this ratio shows that the low number of counter notifications is not the result of a correspondingly low number of false and mistaken assertions of infringement, but instead results from the concern that sending a counter notification is likely to result in costly litigation, even if that litigation would ultimately turn out to hold that no infringement had occurred. The company notes that out of a batch of approximately 1,700 "valid" but bogus notices, only 113 counter notices were sent. Most people just don't bother out of fear of getting sued.

The company also highlights just how broken Section 512(f) is -- which is the section that is supposed to be used against bogus takedowns. But as we've written about in the past, it's basically a dead letter. There are almost no examples of 512(f) being used successfully against someone for sending a takedown... with the one exception being Automattic! As we wrote about, a few years ago, Automattic actually sued over egregiously bad DMCA notices and even won a case, but... it was by default, because the notice sender just ignored the lawsuit. In the other lawsuit, it could never actually find the plaintiff who sent the bogus censorious takedowns.

The company also provides a number of actual examples of bogus DMCA takedown notices to get beyond just the statistical aspect and to prove the problem is real:

• A medical transcription training service that used forged customer testimonials on their website submitted a takedown for screenshots of the fake testimonials in a blog post exposing the scam.
• A physician demanded removal of newspaper excerpts posted to a blog critical of the physician, by submitting a DMCA notice in which he falsely claimed to be a representative of the newspaper.
• A model involved in a contract dispute with a photographer submitted a series of DMCA notices seeking removal of images of the model for which the photographer was the rights holder.
• An international corporation submitted DMCA notices seeking removal of images of company documents posted by a whistleblower.
• A frequent submitter of DMCA notices submitted a DMCA notice seeking removal of a screenshot of an online discussion criticizing him for submitting overreaching DMCA notices.

As the company notes, each of these were clearly bogus, but since 512(f) is basically useless, it would be a complete waste of time to sue over them.

It's good to see companies sharing this kind of information, and it tracks closely with what the study from earlier this week said, which was based on a different corpus of data. So, yeah, when the legacy guys claim there's no abuse, they're simply full of shit.

Filed Under: abuse, censorship, copyright, counternotices, dmca, dmca 512, notice and takedown, safe harbors, wordpress
Companies: automattic

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: So it seems rather... rich, for the legacy music industry to hire Metalitz, who proudly states that he was "instrumental in the drafting" of the DMCA while lobbying on behalf of these same groups, to now write a jeremiad about how totally awful the DMCA is for these same groups. But that's what's happened. The document literally mentions Google or YouTube more than once per page. But it starts right in with the industry's concerns, which might be summarized as "why hasn't Google stopped the evil piracy!?!?"

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.

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.

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.

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.

Filed Under: copyright, dmca, dmca 512, liability, notice and staydown, notice and takedown, safe harbors, steve metalitz
Companies: ascap, nmpa, riaa, soundexchange

20 Years Ago Today: The Most Important Law On The Internet Was Signed, Almost By Accident

from the give-thanks dept

The internet as we know it would be a very, very different place if 20 years ago today, President Clinton hadn't signed the Communications Decency Act. To be fair, nearly all of the CDA was a horrible mess that was actually a terrible idea for the internet. A key part of the bill was about "cleaning up" pornography on the internet. However, to "balance" that out, the bill included Section 230 -- added by two Congressmen in the House of Representatives: Ron Wyden and Chris Cox. They had pushed this clause as a separate bill, the Internet Freedom and Family Empowerment Act, but it didn't get enough traction. It was only when they attached it to the Communications Decency Act (which had passed the Senate without it), that it was able to move forward. And thus, 20 years ago today, when President Clinton signed the CDA, most of the attention was on the "stopping indecency" part, and very little on the "throw in" of Section 230. And yet, there's a strong argument that Section 230 may be one of the most important laws -- perhaps the most important -- passed in the past few decades.

As you hopefully already know, a year later, in Reno v. ACLU, the Supreme Court tossed out basically all of the CDA as unconstitutional. The only tidbit of the law that remained valid? You guessed it: Section 230. And, of course, it became the key law in enabling the internet to grow the way it did. It's been said in the past, fairly accurately, that no law contributed more to the growth of the internet than CDA 230, and that's because of a fairly simple and straightforward principle. CDA 230 simply said that an internet service is not liable for actions of its users. This meant that new websites and internet services didn't need to carefully monitor and track everything that every user did to make sure it wasn't violating a law. That meant the legal risks and liability for creating services that allowed the public to create all kinds of content went way down.

Without a robust Section 230, it's difficult to see many of the most popular platforms today existing. It's no surprise that soon after CDA 230 we saw the rise of blogging and social media -- and almost always coming from American companies. Both would be significantly more difficult without Section 230's protections. In fact, much of the push for Section 230 came in response to a horrible court case, Stratton Oakmont v. Prodigy, in which an internet bulletin board commenter attacked financial firm Stratton Oakmont, and its president, for apparently being involved in criminal and fraudulent activity. Stratton Oakmont -- now perhaps well known as the firm portrayed as doing all sorts of criminal and fraudulent things in the movie The Wolf of Wall Street -- sued Prodigy for the comment and won. The liability from such a ruling scared numerous online platforms, in particular because a key part of the ruling was that because Prodigy posted "guidelines" and removed posts with offensive language, it suddenly became a "publisher" of the content, and was liable for that content.

A key, and often overlooked, part of Section 230, is that it actually does encourage sites to take proactive measures to filter content, by noting that any kind of moderation or guidelines absolutely does not remove the protections of Section 230. As such, sites get to decide for themselves whether or not to moderate their content in any way, without facing the legal risk of suddenly being declared the publisher. Other countries have no such protections, leading to some dangerous rulings, and creating something akin to a "right to be forgotten" in some instances.

There have been numerous cases testing Section 230 over the years -- and the law has remained strong and in place -- though it is still being challenged to this day. The biggest and most important case was Zeran v. AOL, the first case testing Section 230, in which the court found that Section 230 was a powerful tool that kept sites from being held responsible for content posted by users.

Section 230 has been powerful in so many ways. It has both enabled and protected free speech online by letting companies set up platforms where people can speak openly. Without it, the internet would be much more limited as a platform for communicating to the public. As the 4th Circuit noted in its ruling in the Zeran case:

The amount of information communicated via interactive computer services is therefore staggering. The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted.

It has protected privacy, by making it clear that there was no duty for websites to monitor and track their users, to avoid any kind of liability. It has created incentives to create tremendous economic value, by making it clear that companies could be formed to enable public communications, such as blogging, forums and social media -- without being sued into bankruptcy over misuse. And it has actually enabled better moderation of platforms in not making them give up protections, if they choose how to moderate certain content.

It is difficult to express just how important Section 230 has been over the past 20 years other than to say that, without it, it's unlikely that you would be able to comment on Techdirt today. It's also unlikely that you'd have tools like Twitter or Facebook or Yelp or AirBnb. Any service that relies on public input owes a huge debt to Section 230, and it's quite incredible that it was basically included as an "add-on" that very few noticed when it was signed.

So, as we're hanging out here on the internet today, in a place that is alive only because of Section 230, please thank (now Senator) Ron Wyden in particular for his role in creating Section 230, and pay attention, because there are very powerful forces working right now to undermine Section 230 entirely. It's been a key driver of free expression and economic growth for the past 20 years, and it would be a shame to undermine that now.

Filed Under: cda, cda 230, communications decency act, free speech, immunity, innovation, internet, liability, ron wyden, safe harbors

US Copyright Office Asks For Public Comments On DMCA's Notice And Takedown

from the well,-this-ought-to-be-interesting dept

On New Year's Eve, the US Copyright Office dropped a bit of a surprise, asking for public comment on the DMCA's Section 512 safe harbor provisions -- which are probably better known as the "notice and takedown" provisions:

The United States Copyright Office is undertaking a public study to evaluate the impact and effectiveness of the DMCA safe harbor provisions contained in 17 U.S.C. 512. Among other issues, the Office will consider the costs and burdens of the notice-and-takedown process on large- and small-scale copyright owners, online service providers, and the general public. The Office will also review how successfully section 512 addresses online infringement and protects against improper takedown notices. To aid in this effort, and to provide thorough assistance to Congress, the Office is seeking public input on a number of key questions.

You can see the full Notice of Inquiry (also embedded below).

What comes out of this may certainly be interesting, but it's not difficult to predict that there will be two huge piles of responses that are more or less diametrically opposed: a group of content creators who are obsessed with the fact that they have to send takedown notices and that their works still keep popping up will complain about all of this, and say that the notice and takedown process is too onerous for content creators, and that we should move instead to a world where platforms have to pro-actively monitor things, such as with a "notice and staydown" procedure. On the flip side, you'll have plenty of people and internet platforms talking about how onerous things are from the other side: platforms are inundated with piles of requests, many of which are completely bogus, but which companies often feel compelled to take down to avoid liability. And end users face tons of censorship due to bogus and abusive takedowns.

The Copyright Office has historically come down on the side of copyright maximalists, so it wouldn't surprise me to see that the end result of this process is them suggesting more liability and responsibilities for internet platforms -- in part because they have absolutely no clue what a disaster that would be for content creators themselves. People who want to put more burdens on platforms think that this somehow helps content creators, but the opposite is true. It will mean fewer online platforms serving content creators, because the burdens will be too high. It will further entrench the large players and limit new upstarts, innovators and competitors.

If you decide to submit your own comments -- and I suggest you do -- I would hope that you focus on these "unintended" consequences of mucking with the system in the direction of further burdening these services that seem to be doing a pretty good job serving most content creators and internet users.

Filed Under: copyright, copyright office, dmca, dmca 512, notice and takedown, safe harbors