Google Report: 99.95 Percent Of DMCA Takedown Notices Are Bot-Generated Bullshit Buckshot

from the overplaying-their-hand dept

Google, being the search giant that it is, has been banging the drum for some time about the silly way the DMCA has been abused by those that wield it like a cudgel. Here at Techdirt, we too have described the many ways that the well-intentioned DMCA and the way its implemented by service providers has deviated from its intended purpose. Still, the vast majority of our stories discuss deliberate attempts by human beings to silence critics and competition using the takedown process. Google, on the other hand, has been far more focused on statistics for DMCA takedown notices that show wanton disregard for what it was supposed to be used for entirely. That makes sense of course, as the abuse of the takedown process is a burden on the search company. In that first link, for instance, Google noted that more than half the takedown notices it was receiving in 2009 were mere attempts by one business targeting a competitor, while over a third of the notices contained nothing in the way of a valid copyright dispute.

But if those numbers were striking in 2009, Google's latest comment to the Copyright Office (see our own comment here) on what's happening in the DMCA 512 notice-and-takedown world shows some stats for takedown notices received through its Trusted Copyright Removal Program... and makes the whole ordeal look completely silly.

A significant portion of the recent increases in DMCA submission volumes for Google Search stem from notices that appear to be duplicative, unnecessary, or mistaken. As we explained at the San Francisco Roundtable, a substantial number of takedown requests submitted to Google are for URLs that have never been in our search index, and therefore could never have appeared in our search results. For example, in January 2017, the most prolific submitter submitted notices that Google honored for 16,457,433 URLs. But on further inspection, 16,450,129 (99.97%) of those URLs were not in our search index in the first place. Nor is this problem limited to one submitter: in total, 99.95% of all URLs processed from our Trusted Copyright Removal Program in January 2017 were not in our index.

Now, because Google is Google, the company doesn't generally have a great deal of sympathy hoisted upon it by the public, never mind by copyright protectionists. But, come on, this is simply nuts. When the number of claims coming through the system that don't even pertain to listed results by Google can be logically rounded up to 100%, that's putting a burden on a company for no valid reason whatsoever. Even if you hate Google, or distrust it, it should be plain as day that it's unfair for it to have to wade through all this muck just to appease the entertainment industries.

And, it's important to note that this isn't all of the notices received, but just those coming through the Trusted Copyright Removal system -- meaning that these are organizations that supposedly are supposed to have at least some credibility not to be submitting totally bogus notices. But, apparently, they don't actually give a damn.

The problem, as you may have already guessed, is that most of these claims are being generated through automated systems designed to shotgun-blast DMCA notices with reckless abandon.

These numbers of simply staggering with only a tiny number of millions of requests reflecting actual pages in the search index. Rather, 99.95% of the processed URLs from Google’s trusted submitter program are machine-generated URLs that do not involve actual pages in the search index. Given that data, Google notes that claims that the large number of requests correlates to infringing content on the Internet is incorrect:

Nor is the large number of takedown requests to Google a good proxy even for the volume of infringing material available on the Internet. Many of these submissions appear to be generated by merely scrambling the words in a search query and appending that to a URL, so that each query makes a different URL that nonetheless leads to the same page of results.

The claim by the entertainment industry that one can see what a problem piracy is by looking at the sheer volume of DMCA notices sent to search engines shall hereby be declared dead, having been buried by the industry's fellow takedown-notice-filers. That claim never made much sense, but these stats sever any link between takedown notice numbers and actual piracy completely. And there needs to be a remedy for this, whether its punishment upon the abusers or rules for how notices can be filed. Because these numbers are ridiculous.

Filed Under: censorship, copyright, copyright office, dmca, dmca 512, false takedowns, free speech, notice and takedown, takedowns
Companies: google

Why The DMCA's Notice & Takedown Already Has First Amendment Problems... And RIAA/MPAA Want To Make That Worse

from the taking-down-speech-is-a-problem dept

The Copyright Office's study concerning Section 512 of the DMCA (the notice-and-takedown/safe harbors part of the law) had its second comment period end this week -- which is why you're seeing stories about how the RIAA is suddenly talking about piracy filters and notice-and-staydown. Via our think tank arm, the Copia Institute we filed our own comments, pointing out the already problematic First Amendment issues with the way the current notice-and-takedown system works. Remember, there's a very high standard set by the Supreme Court before you can take down expressive content. But the notice-and-takedown system ignores all of that:

Because this takedown system functions as a system of extra-judicial injunctions it is critical that the speech they target have at least as much protection as speech targeted by any request for injunctive relief. Ordinarily someone seeking to enjoin speech would need to properly plead and then prove that the targeted speech was indeed actionable. Under present practice, however, senders of takedown notices have not needed to overcome these sorts of hurdles prior to effecting the removal of targeted content via their takedown demands.

A significant reason takedown notice senders have been able to evade these constitutional requirements is because there is no effective consequence for sending non-meritorious takedown demands.

Unfortunately, the likes of the RIAA and others are pushing to make the system even worse, and we point out to the Copyright Office how that would exacerbate the First Amendment issues from the DMCA:

Under no circumstance should the Copyright Office advocate for exacerbating any of the consequences to speech that the DMCA already inflicts. For instance, any proposal to increase the power of a takedown notice, such as by turning it into a permanent injunction through “takedown-and-staydown” proposed by Question #12, would only increase the severity of the Constitutional injury the DMCA inflicts, as would requiring any additional delay in restoring content after receiving a counter-notice, as proposed by Question #5. If the Copyright Office is to do anything it should only be to encourage alleviation of the incursions on free speech that these unchecked takedown notices allow.

In our comment, we also note our concerns about some of the recent court decisions that seem to expand the DMCA in very dangerous ways that could also have serious free speech implications:

... those recent cases have also suggested that these takedown notices effectively start a clock on the intermediary, where once it learns too much about a user’s predilection for potentially infringing activities it must act to remove that user’s access to its systems entirely.

These cases are troublesome for several reasons, not the least of which being that, like jurisprudence relating to Section 512(f), they also infer a statutory requirement not actually in the statute. Section 512(i) only says that an intermediary must have a policy for terminating repeat infringers; it is otherwise silent as to what that policy should be, and post-hoc decisions by a court threaten to make safe harbor protection illusory, given that a platform can never be sure if it has complied with the statute or not.

They are also troublesome because they give the takedown demand a sort of power that such demands would never have outside of the DMCA. As discussed above, and in prior comments and proceedings, infringement allegations can often be false (or even merely mistaken), which is why injunctions are not granted without due process. Due process allows the allegations to be tested, so that only the meritorious accusations can result in any penalty. Allowing a penalty for unproven allegations, particularly with respect to speech, amounts to prior restraint, which is itself anathema to the First Amendment. A penalty that censors speech is bad enough, but a penalty that censors speakers altogether raises the constitutional injury to a whole other level. We have already seen malevolent actors abuse takedown notices to try to suppress criticism. We should not also be handing them the power to use takedown notices to suppress critics’ ability to speak out at all.

It's unfortunate that there has been little to no review at all of the First Amendment implications of the DMCA. And, no, we're not saying that infringement is free speech (heading off the comment that we're sure someone is already itching to make below). But we are saying that any system that removes expression has to take into account the First Amendment. But the DMCA doesn't discriminate and is regularly used to take down content that is clearly not infringing, as well as lots of content where it's not truly determined if it is actually infringing.

And without that analysis exploring the First Amendment implications, we now have the RIAA, MPAA and their friends trying to make the powers to censor even stronger, which is quite ridiculous coming from two organizations that often highlight their commitment to the First Amendment.

Filed Under: cathy gellis, censorship, copyright, dmca, dmca 512, first amendment, injunctions, notice & staydown, notice & takedown
Companies: mpaa, riaa

Ding Dong: Silly Six Strikes Copyright Infringement Scheme Is Dead

from the about-time dept

The pointless "six strikes" plan -- a hilarious "voluntary agreement" between some big ISPs and the MPAA & RIAA is no more. It's dead. It never should have lived, and of course, the MPAA is now blaming everyone but itself for the failure -- and we'll get to that. But first, some background.

As you may remember, back in 2011, after significant direct pressure from the White House, many of the big ISPs and the MPAA & RIAA came to a (ha ha) "voluntary" agreement on a six strikes program to deal with "repeat infringers." There was a lot of history behind this, which we won't rehash, but the shorter version is that, for many years, the MPAA & RIAA have stupidly believed that if you could kick people off the internet (completely) if they're caught infringing three times, that would magically make piracy go away. They got a "three strikes" law passed in a few countries, starting with France. It was a complete disaster, as basically everyone who wasn't from the MPAA and RIAA predicted.

In the US, it became clear that there wasn't the political appetite to push through a three strikes law, so instead parts of the government, starting with the White House, started putting tremendous pressure on ISPs to work out a deal. The negotiations took a very, very long time. There were lots of rumors about them and then radio silence -- until the "six strikes" deal was announced. The "compromise" was that (1) it was six strikes instead of three and (2) after six strikes... nothing happened. The key aspect of the three strikes plans the legacy entertainment industry had pushed was that you lose your internet connection. But the ISPs, rightfully, considered that a complete dealbreaker and basically refused any deal with a cut off.

Of course, just months after the agreement was reached, the whole SOPA/PIPA thing happened, and ISPs realized that they probably could have pushed back even harder and not agreed to a crummy deal. The implementation of the plan was delayed repeatedly, and it was believed that some of the ISPs wanted to renegotiate post-SOPA.

The plan finally went into effect, and just as lots of people predicted, it had no real impact. Just as everywhere else where this plan went into effect, people who really wanted to find infringing works continued to do so. They just found ways of avoiding being spotted. It certainly didn't magically make people want to go out and buy stuff. The organization that was set up to manage the six strikes program, the Center for Copyright Information (CCI) bravely put on its best Baghdad Bob beret and insisted that the plan was working great -- even as leaked documents showed that Hollywood knew from early on that the plan was a dud.

And now it's dead:

Major internet providers are ending a four-year-old system in which consumers received “copyright alerts” when they viewed peer-to-peer pirated content.

The ISPs, studios, and record labels did not extend a pact that implemented the voluntary program, viewed as a way to fight piracy without the need for congressional legislation. When it debuted in 2013, it was viewed as a major new initiative to fight piracy, with Internet users subject to repeated notices if they continued to access infringing content.

But, true to form, the MPAA wants to point the finger at everyone but itself for its own failures to stop treating fans as criminals:

Although no reason was given for ending the program, the MPAA, in a statement from its general counsel, indicated frustration at the inability to stop repeat infringers.

“These repeat infringers are the ones who drive ongoing and problematic P2P piracy,” Steven Fabrizio, executive vice president and global general counsel at the MPAA, said in a statement. “In fact, an estimated 981 million movies and TV shows were downloaded in the U.S. last year using P2P. ”

Left out of this, of course, is the fact that the movie studios had the best year ever last year in terms of US box office revenue. And that more and more people are happy to pay for services like Netflix, even as the studios have been basically pulling tons of movies from those legal services.

We've been saying it for nearly two decades, but piracy is not the problem. Not listening to your customers is the problem. The MPAA is so focused on punishment it never recognizes that the carrot works better than the stick (which never actually works).

Of course, the MPAA still isn't getting this lesson. It's doubling down, which is why the BMG v. Cox case is so important to watch. Even before the six strikes plan went into effect, the legacy entertainment industry admitted that the real goal was to force ISPs to disconnect users. They planned to lump the six strikes plan in with a total misinterpretation of the DMCA to incorrectly argue that the DMCA actually requires ISPs to kick users off their service.

This reading is plainly wrong from what was in the DMCA and the negotiations around the DMCA. The law does require a policy to terminate "repeat infringers" but that was for online services (like a YouTube or a blog hosting company) and not for access providers. Unfortunately, in the Cox case, the judge seemed to get hung up on some unfortunate emails and a bizarre lack of understanding about how important an internet connection is for many people today, and ruled that ISPs do have to kick people off the internet.

That case is now on appeal, and basically all of the usual suspects (on each side) have been filing amicus briefs to push the 4th Circuit one way or the other. But a decision on that should be coming in the not too distant future, and that's going to be super important. If BMG's win is upheld, then it may be seen as a requirement for ISPs to not just put in place their own three- to six-strikes type plan, but that it would need to kick people off the internet based on such accusations (not convictions) of infringement.

And none of that will make people buy a product they don't want.

The MPAA has had a couple of decades to stop attacking its biggest fans as criminals and to actually focus on providing them what they want. And it keeps on failing to just focus on that. Instead, it keeps overreacting to piracy and getting infatuated with the idea that it must break the internet. The death of the official six strikes plan was inevitable. It was a dumb plan from the start. But the real issue here is what will happen in court. Will the court uphold a dangerous plan that will lead to innocent people being kicked completely off the internet? Or will it recognize that maybe, just maybe, Hollywood's focus on control shouldn't ruin people's lives?

Filed Under: copyright, dmca, dmca 512, isps, six strikes, three strikes, voluntary agreements
Companies: bmg, cci, cox, mpaa, riaa

Perfect 10 Loses Once Again, Sets More Good Copyright Precedent

from the the-weird-gift-that-keeps-on-giving dept

As we've noted, sorta-porn company Perfect 10 really is the gift that keeps on giving. The company claims that it's in the porn business, but in one of the many, many lawsuits it has filed, it was suggested that the company is little more than a pure copyright troll, just looking for companies to sue. This was in a filing made by one of the companies Perfect 10 sued back in 2010:

Perfect 10 is a copyright troll that does not operate a real business and instead seeks to foster the spread of infringing copies of works that it owns over the Internet in order to entrap and shakedown websites and services where copies of its images may randomly end up.

Perfect 10 does not have the employees or attributes of a legitimate business. Today, Perfect 10 is essentially a paralegal service masquerading as a porn company. It is run by its founder, Norm Zada, out of his Beverly Hills home with the help of full and part time employees who are paid primarily to troll the Internet looking for (but not removing) allegedly infringing copies of Perfect 10 images for use in existing or potential future litigation and to draft declarations and other papers.

One of the core elements of a Perfect 10 copyright trolling operation is that it rarely sends legitimate DMCA notices. Sometimes it just sends screenshots of images and basically says "take this down" without ever pointing to the actual location of the content. That's yet another reason why many have argued it's little more than a troll. Someone truly looking to protect its own content would actually follow the DMCA and tell service providers where the content was hosted, rather than tap dancing around such questions... and then filing lawsuits. I'm sure that some who Perfect 10 threatens just settle, but when cases go to court, Perfect 10 not only loses, but loses in impressive fashion, setting all sorts of useful and valuable precedents around the DMCA and how service providers should respond to takedowns. Among the useful cases:

• Perfect 10 v. Google
• Perfect 10 v. CCBill
• Perfect 10 v. Amazon
• Perfect 10 v. Visa

And, then, in 2014, Perfect 10 lost yet again, this time to Usenet provider Giganews. The case there was so egregious that in 2015, Perfect 10 was ordered to pay $5.6 million in legal fees to Giganews for filing such a bogus claim.

Perfect 10 appealed (of course) and the 9th Circuit has now given us yet another smackdown of Perfect 10, affirming the lower court decision, and saying that Perfect 10's theories about Usenet infringement are pretty crazy. One key point in the ruling, that Perfect 10 tried to argue, was that in light of the bizarre (and still nonsensical) Supreme Court Aereo ("looks like a duck") test, Giganews should be found to have been a direct infringer due to its interpretation of "volitional conduct." Specifically, Perfect 10 seemed to argue that Aereo wiped away the need to show "volitional conduct" by the parties accused of infringing. The court isn't buying it:

Contrary to Perfect 10’s contention, this requirement of causation remains an element of a direct infringement claim. In Fox Broadcasting, we explained that “[i]nfringement of the reproduction right requires copying by the defendant, which comprises a requirement that the defendant cause the copying.” ... In using this language, we indicated that causation is an element of a direct infringement claim.

Furthermore, the court points out that Perfect 10's interpretation of Aereo is just wrong:

The volitional-conduct requirement is consistent with the Aereo majority opinion, in which the Supreme Court held that Aereo, a service that streamed broadcast television programming to subscribers over the Internet, “perform[ed] publicly” as defined by the Transmit Clause.... First, the Aereo Court did not expressly address the volitional-conduct requirement for direct liability under the Copyright Act, nor did it directly dispute or comment on Justice Scalia’s explanation of the doctrine. Thus, as one court in the Central District of California subsequently opined, because “[t]he volitional conduct doctrine is a significant and long-standing rule, adopted by all Courts of Appeal to have considered it, . . . it would be folly to presume that Aereo categorically jettisoned it by implication.”

From there, the court makes quick work of each one of Perfect 10's claims, pointing out how each one appears to be divorced from the reality of the law. Perfect 10 seems to be one of the perfectly ridiculous plaintiffs. A key part of this case, for example, is that Giganews regularly pointed out that in order to remove postings from its Usenet servers, it needs the proper Message-ID and, in the rare cases where Perfect 10 passed those along, they were quickly removed. But most of the time, Perfect 10 refused to actually pass along Message-IDs, and seemed to indicate Giganews should still block those images:

we hold that there were no simple measures available that Giganews failed to take to remove Perfect 10’s works from its servers. Giganews presented sufficient evidence that Perfect 10’s proposed method for locating infringing messages was onerous and unreasonably complicated. Indeed, Giganews spent more than 20 hours processing 565 Message-IDs from Perfect 10 because they were not machine-readable. Giganews calculates that Perfect 10’s method would therefore require 354,000 hours of manual work for every 10 million Message- IDs – the number of Message-IDs that Giganews receives every month. Moreover, the record is clear that when Giganews did receive machine-readable Message-IDs, it immediately processed them and subsequently removed the messages from its servers.

There's also the question of "inducement" -- the Supreme Court-invented legal concept that sunk Grokster a little over a decade ago. Once again, there's nothing in what Giganews that comes even remotely close to inducing infringement:

Based on the record, no reasonable juror could conclude Giganews distributed its product “with the object of promoting its use to infringe copyright.”...

Perfect 10 points to entirely inconclusive evidence of any such objective to infringe copyrights. For example, Perfect 10 identifies Giganews’s advertising materials, which state that its product “has built-in MP3 and File Locators that search all Giganews newsgroups for music, pictures, and movies without having to download millions of messages.” Perfect 10 also points to a web page where a Giganews advertisement appears next to text written by another entity, which states that Giganews “provide[s] an uncensored news feed with up to 20 ssl encrypted connection and over 460 days worth of retention. That is over a years [sic] worth of access to downloadable music, movies and games.” However, neither of these advertisements nor any other evidence in the record indicates that Giganews itself promoted its product “with the object” of infringing copyright.

Perfect 10 further argues that Giganews has the object of promoting infringement because it: (1) “offers 25,000 terabytes of copyrighted materials . . . without permission,” (2) “continues to commercially exploit the content of known repeat infringers,” and (3) “advertises that it does not keep track of subscriber downloads, effectively encouraging infringement.” Even if true, none of this conduct suggests that Giganews clearly expressed an intent to promote infringement or took “affirmative steps . . . to foster infringement.”

The court also rejects the "vicarious" liability wackiness that Perfect 10 argues, noting that Perfect 10's theory seems to violate the very basic concept of who has standing in court:

Here, Perfect 10 argues for a rule that would allow a court to hold Giganews liable under a theory of vicarious liability by showing only that Giganews benefits financially from the infringement of another’s works, regardless of whether Giganews received any financial benefit from the specific infringement alleged. Such a rule would allow cases to be built on the rights of owners and the actions of users not before the court. At the very least, Perfect 10’s proposed rule is in significant tension with Article III’s standing requirement. At most, Perfect 10’s view runs counter to the requirement that there be a “causal connection between the injury and the conduct complained of[.]”

Finally, the court upheld the fee award for legal fees from Perfect 10, meaning that it may now be on the hook for many millions of dollars for bringing such a ridiculous lawsuit in the first place. Perfect 10 may, of course, ask the Supreme Court to hear a further appeal, but that seems unlikely to go anywhere. And, in the meantime, we've got another useful precedent sent by a wacky Perfect 10 case.

Filed Under: copyright, dmca, dmca 512, safe harbors, takedowns, volitional conduct
Companies: giganews, perfect 10

RIAA Still Pushing Its Bogus Message Of A 'Value Gap' And 'Fair Compensation'

from the can-we-review-some-history dept

The RIAA is not exactly known for being the most honest of organizations out there, but in an interview given by the organization's General Counsel, Steve Marks, the level of blatant dishonesty is taken to incredible new levels. I'm going to take just one paragraph and break down what a load of total bullshit it is, and hopefully it will demonstrate, yet again, why the RIAA should never be taken seriously in its claims. It's the final question in a short interview with the Hollywood Reporter, and the question is at the top:

What changes do you foresee in the landscape of music law over the next five years?

Issues like the “value gap” and obligations of intermediaries will continue to dominate the legal landscape. Ideally, the Byzantine legal structure today would give way to a system where creators are fairly compensated and competitors are on equal footing. Those who have an interest in music could come together to figure out solutions. While litigation can be an important tool, it often takes a long time and the results are unclear. Solutions between business and industry partners can clear a path through thorny legal issues. The combination of partnership and technology can go a long way to ensuring a healthy music ecosystem.

Let's take this bit by bit.

Issues like the "value gap"....

The "value gap" is a completely made up concept by the RIAA and friends, arguing that internet platforms aren't paying the record labels (not the artists) enough. It's based on a series of out and out lies, including the simply false claim that artists make more from vinyl record sales than from online streaming.

The "value gap" is the RIAA cherry picking misleading numbers to argue that internet platforms aren't paying them enough. Note that they don't make any effort to improve what they're doing -- they're just demanding more money from platforms... just because.

And, really, that's the same issue with the rest of that sentence:

... obligations of intermediaries will continue to dominate the legal landscape.

"Obligations of intermediaries." That's legal speak for "we want everyone else to act as our private police force, and they should automatically block infringing material or we should be able to sue them for billions of dollars." Never mind the fact that the industry can't even keep track of its own copyrights, and has been known to sue over authorized works or that the RIAA itself has a history of falsely claiming infringement on works that were actually authorized -- even in cases that resulted in the bogus takedown of a site that was sent promotional works to post. And yet it expects "intermediaries" (read: Google) to magically know which works are authorized and which are not -- and to face billions of dollars in possible judgments if it guesses wrong.

Ideally, the Byzantine legal structure today...

The reason copyright's legal structure today is so "Byzantine" is because of lobbying by the RIAA and its friends at the MPAA. Every time a new technology comes along, the RIAA flips out and demands a patchwork of add-ons to copyright law to protect its gatekeeper powers, allowing it to extract monopoly rents.

Of course, the "Byzantine legal structure" Marks is whining about here is actually the very one that the RIAA itself lobbies heavily for with the DMCA's 512 notice-and-takedown provisions. The RIAA wanted a way to censor the internet via copyright law, and the DMCA was the trick. The fact that the RIAA no longer likes the deal that it fought for is just a bad joke.

And, let's not even get into the "Byzantine" structure of RIAA label contracts designed to keep artists from actually getting paid... Or, wait, let's dig right into that following the next bit of insanity from Marks.

... give way to a system where creators are fairly compensated...

Wait. The RIAA is asking for "creators" to be "fairly compensated"? Hahahahahahaha. Oh, that's a good one. This is the same RIAA who has worked incredibly hard to screw over artists time and time again to make sure they are not fairly compensated? The same RIAA whose member labels create contracts where artists routinely note that they made $0 in royalties, because the label contracts make it so impossible to recoup the advance that when you ask for an "accounting" of how much money an album has made, the labels just make shit up to avoid paying.

These would also be the very same RIAA member labels who take the vast majority of the revenue from new platforms, leaving just a pittance for artists -- and then whine that it's the platforms not giving them a fair deal. The very same labels that make sure that artists get close to nothing of any money coming in to the label. And, yes, the very same labels who for years pretended that digital music was classified as the same as a CD sale -- with much lower royalty rates than "licensed" music, leading numerous artists to sue just to get what they were clearly owed. The very same labels that many artists have had to sue, just to get a proper accounting of what is owed.

So, I'm sorry, but what a load of bullshit for the RIAA, of all organizations, to claim that it's fighting for "fair compensation" for artists. The RIAA has a decades-long history of screwing over actual artists at basically every opportunity.

... competitors are on equal footing...

Another completely ridiculous claim. The "equal footing" that the RIAA is talking about here is forcing online platforms to all conform to one particular business model -- a totally unsustainable one where an insane percentage of revenue all flows back to the labels (not the artists) despite the fact that the labels fought these platforms and did absolutely nothing to help make them a success. The whole "equal footing" or "level playing field" is really just the RIAA demanding a particular business model and saying that any innovation in business models (even if they're better for actual artists) should not be allowed, unless the RIAA gives its okay. It's basically the "we don't want any innovation" stance.

Those who have an interest in music could come together to figure out solutions.

This is hilarious. For decades, the RIAA has been the major obstructionist party here. It was the internet industry that dragged the RIAA kicking and screaming into the 21st century while people like Marks focused on suing music fans. To now claim that he just wants to "come together to figure out solutions" is laughable. The only "solutions" the RIAA wants are ones where it does none of the work, and it gets all of the money.

While litigation can be an important tool, it often takes a long time and the results are unclear.

Translation: we sued a bunch of fans and that made everyone hate us. Also, we sued a bunch of platforms and lost badly because the law isn't actually what we want it to be.

Solutions between business and industry partners can clear a path through thorny legal issues. The combination of partnership and technology can go a long way to ensuring a healthy music ecosystem.

This is just a repeat of the opening line, basically. It's the RIAA saying that the internet industry needs to solve all of its problems, and what it means is that the recording industry doesn't want to budge an inch, doesn't want to do anything, and just wants the internet companies to give tons of money to the labels and to wave a magic wand and make piracy disappear.

Filed Under: copyright, dmca, dmca 512, fair compensation, intermediary liability, safe harbors, steve marks, value gap
Companies: riaa

Every Website Needs To Re-register With The Copyright Office, Who Can't Build A Functioning System

from the are-you-serious? dept

As we mentioned last month, the Copyright Office -- despite being warned this was a bad idea -- has decided to implement a brand new system for websites to register DMCA agents, and has done so in a way that will undoubtedly fuck over many websites. It's already ridiculous enough that in order to be fully protected under the DMCA's safe harbor rules (that say you're not liable if someone posts infringing material to your website), you need to register a designated "DMCA agent" with the Copyright Office. The idea behind this is that by registering an agent, copyright holders will be able to look up who to send a takedown notice to. And, sure, that makes sense, but remember that this is the same Copyright Office that supports not requiring copyright holders to register their works, meaning that there may not be any legitimate way to contact copyright holders back.

The reason for the new system is that the old system was just ridiculous -- on that everyone can agree. You had to fill out a paper form, sign it, and send it in. The Copyright Office has been way behind on digitizing everything, so moving to a web based system is a good thing. Also, the old system required payment of over $100, while the new one is just $6. That's all good. The problem is twofold: first, the Copyright Office has said that it is throwing out all the old registrations, and if you want to retain your safe harbors, you need to re-register. There's a grace period through the end of next year, but plenty of sites who don't follow the Copyright Office's every move are going to miss this, and will no longer have an officially registered agent with the Copyright Office (it's possible that, should this issue go to court, a platform could reasonably argue that it still did meet the statutory requirements in the original registration, but why force site owners through that hoop in the first place). The second problem, is that this new system will toss out records every three years, so if you forget to renew, you once again can lose your legal safe harbors. This puts tons of websites at serious risk, removing key protections and opening them up to lawsuits from copyright trolls.

Either way, the Copyright Office opened the doors on the new system yesterday, and so I went ahead and re-registered Techdirt. And, let's just say, the Copyright Office has a reputation for being technically clueless, and boy, does it live up to that reputation with its new system -- though, to be fair, as the Copyright Office's General Counsel reminded me on Twitter, it's actually the Library of Congress that built the system. First off, to register a new agent, you need to first register with the Copyright Office's system. As Eric Goldman points out, the system is not designed for individuals or sole proprietorships, even though those people should be able to get DMCA safe harbor protections as well. Specifically, to register, it requires an organization name and a "second contact" name and information. I'm not sure what individuals should do, other than maybe make something up -- though, before you even get started, the system pops up a warning suggesting that you may face criminal charges under the CFAA if you do anything wrong (while it means if you try to hack the system, the wording may confuse many people not familiar with the law). Nice touch.

Oh, and then there's the password system. Like many people, I use a password manager, which also will generate strong passwords for you. I went through the process of filling out my info, and generated a strong password... and I got back an error message. It seems that the Copyright Office has taken what used to be considered best practices, and then took it to an insane extreme: First of all, the US government, in the form of NIST, recently released new guidelines for password policies for any US government websites. And the Copyright Office ignores them, because whoever designed the new DMCA system seems to not give a shit and not be even remotely aware of good security practices these days. Here's what the new rules say:

No composition rules. What this means is, no more rules that force you to use particular characters or combinations, like those daunting conditions on some password reset pages that say, “Your password must contain one lowercase letter, one uppercase letter, one number, four symbols but not &%#@_, and the surname of at least one astronaut.”

Let people choose freely, and encourage longer phrases instead of hard-to-remember passwords or illusory complexity such as pA55w+rd.

So, yeah, nice job Copyright Office for ignoring what you're supposed to do. Second, even if those rules did make sense, by lumping together all of them, and then adding the absolutely ridiculous and bad security practice of saying "must not have any repeated letters, numbers, or special characters," you actually reduce randomness and make passwords less secure. This is just bad security.

To deal with this rule, I generated a much longer password, and then manually went through and removed any repeated letters, numbers or special characters, and made sure that all of the other rules were met. They were. I hit submit. The system rejected it, and gave me the exact same error message. I tried again. Same problem. I kept trying things for about 20 minutes until I figured out what the problem was. You see above, where it says "and special character "!@#$%^&*()""? Well, in my first attempt at a password I had two special characters: ? and >. I incorrectly assumed that when they say "special character" they mean any special character on the keyboard, and not just those limited to the ones above the number line on your keyboard. Once I realized that might be the issue, I still had a problem. And that's because my new password had " as a special character. I incorrectly assumed that was okay because it's in that list above, right? Except, no, it's not. It's just put around those symbols for no reason at all except to fool people. It would be nice if the error message actually told you that you could only use those characters and that the " wasn't included. Would have saved me a lot of time.

Once I finally finished that, the system sent me a confirmation/validation email (good), which I used to confirm my email and log into the system... only to discover that everything I had just done... was not actually registering a DMCA agent. It was just to register your account to use the Copyright Office's DMCA system. So I had to then go and fill out another form to register our DMCA agent (and I won't even get into the fact that once you've activated your account, the message telling you to "click here" to login to designate an agent makes it so that it's not at all where to actually click -- great design guys!).

Finally, once I'm all registered, and despite the fact that I'm very clearly registered in the United States, the system says I'm in Canada. Because, apparently, the genius IT staff thinks that the "CA", which everywhere else means California, means Canada in their own system. Because whatever, nothing matters. So, yes, I eventually paid my $6 and got registered, but lots of people won't and lots of sites are now going to expose themselves to bogus lawsuits. And for those who do get through this process, you may end up in Canada. So anyway, off we go to this new era, in which websites are much more at risk of losing their safe harbor protections, and to make it more fun, the system you need to use to register yourself is buggy as hell with a bunch of bad design practices. It's almost as if they want websites to lose their safe harbors. Considering that the key role of the Copyright Office is to register stuff (the boss of the office is literally called "The Register"), it seems fairly ridiculous that they make it so difficult to register DMCA agents, and then force renewal every three years (while at the same time insisting that any renewal requirement for copyright holders would go against the natural order of things and bring famine and pestilence upon the land).

Filed Under: copyright office, dmca, dmca 512, dmca agent, library of congress, nist, passwords, safe harbors

Copyright Office Fucks Over Thousands Of Sites With Plans To Remove Their DMCA Safe Harbors

from the so-dumb dept

If you run any kind of website it's super important that you file with the Copyright Office to officially register a DMCA agent. This is a key part of the DMCA. If you want to make use of the DMCA's safe harbors -- which create a clear safe harbor for websites to avoid liability of infringing material posted by users -- then you have to first register with the Copyright Office. Larger corporate sites already know this, but many, many smaller sites do not. This is why for years we've posted messages reminding anyone who has a blog to just go and register with the Copyright Office to get basic DMCA protections (especially after a copyright troll went after some smaller blogs who had not done so).

A few months back, we noted, with alarm, that the Copyright Office was considering a plan to revamp how it handled DMCA registrations, which had some good -- mainly making the registration process cheaper -- but a really horrific idea of requiring sites to re-register every three years or lose their safe harbor protections. Despite many people warning the Copyright Office how this would be a disaster, on Monday the Office announced it was going ahead with the plan anyway, not even acknowledging that thousands of sites are likely to get fucked over by this move:

The United States Copyright Office has completed development of a new electronic system to designate and search for agents to receive notifications of claimed infringement, as required under the Digital Millennium Copyright Act (DMCA). Accordingly, the Office is publishing a final rule in the Federal Register tomorrow to implement that system, replacing an interim rule that the Office had adopted after the DMCA’s enactment. A prepublication version of the rule is available for public inspection here. The rule is effective on December 1, 2016, the date that the new online registration system and directory will be launched. In the meantime, users can begin to acquaint themselves with the new system by watching the video tutorials available here. Any service provider that has previously designated an agent with the Office will have until December 31, 2017, to submit a new designation electronically through the new online registration system.

Got that? Even if you followed the law and registered before, if you don't re-register (and pay another fee), then you will be kicked off the list of registered DMCA agents, meaning that you will lose your DMCA safe harbors. Basically, the Copyright Office is announcing that it is kicking EVERY SINGLE site that registered for DMCA safe harbor protection OFF THE SAFE HARBOR LIST.. That's horrendous. You have until the end of 2017, but really, how many sites (especially smaller sites or one person blogs) who don't follow copyright law are going to realize they need to do this? This is a recipe for disaster, and is basically the Copyright Office giving a giant middle finger to the DMCA's safe harbors for the sites that need them the most: smaller blogs and forum sites.

The Copyright Office's stated reason for doing this is nonsensical. It complains about outdated information in its database:

Since the DMCA’s enactment in 1998, online service providers have designated agents with the Copyright Office via paper filings, and the Office has made scanned copies of these filings available to the public by posting them on the Office’s website. Although the DMCA requires service providers to update their designations with the Office as information changes, an examination of a large sample of existing designations found that 22 percent were for defunct service providers, while approximately 65 percent of nondefunct service providers’ designations had inaccurate information (when compared to the information provided by service providers on their own websites).

The correct way to deal with this is to create a campaign to encourage sites to update their info -- not to kick everyone off. This is the goddamn Copyright Office, whose whole job is about "registering" information about people. Does the Copyright Office threaten to dump someone's copyright if a copyright holder's information is out of date? Of course not. That would be ridiculous. But it's now going to do that to any website that doesn't remember to constantly re-register a DMCA agent. This is a recipe for disaster, and for no good reason at all. And the idea that false or outdated info is a problem doesn't make much sense either. If a site has incorrect info, then they risk missing DMCA takedown notifications, meaning that they already face problems in not keeping their info up to date. The "solution" is not to make life worse for lots of other sites.

The final rule insists that this is no big deal because outdated info is "functionally equivalent to not designating an agent." However, as Eric Goldman points out, that's a total non sequitur. While it's true that those with outdated info may not have an official registration any more, that's no excuse for kicking off all those sites that do have valid registration. Those sites are fucked, for no reason other than the Copyright Office decided it has the right and power to just dump the entire list as of December 1.

As Goldman notes in his write-up of this clusterfuck, there's a simple solution here that the Copyright Office could have done, but didn't:

And when the Copyright Office disingenuously says the renewal requirement “should in many cases actually assist service providers in retaining their safe harbor, rather than serving to deprive them of it,” it mockably conflates its ability to communicate helpful information to registrants with draconian substantive policy effects. Here’s an alternative: send out the reminder notices but don’t make the consequences of non-renewal COMPLETE FORFEITURE OF THE DMCA SAFE HARBORS. Similarly, the analogies to other recurring obligations, like business licenses, ignore (1) the frequently less draconian consequences of non-compliance, and (2) the reality that many of these recurring obligations are nevertheless frequently mismanaged by both big and small companies.

Goldman also notes another horrifying part of the plan. The Copyright Office -- ostensibly to "help" those sites who forget to renew their DMCA agent - will list those sites on a public website of "lapsed" safe harbor registrants. Except, it's likely that instead of "helping" those sites, it will actually just be presenting a target list for copyright trolls to go searching for any infringing material on any site with a lapsed safe harbor registration.

There are questions about what can be done here. It's possible with new management coming to the Copyright Office that it may reverse this move, but that seems unlikely. It's quite likely, however, that there will be some lawsuit over this, especially as the Copyright Office is single-handedly removing protections for a whole bunch of sites. Another option is that Congress could get involved, but that would likely create an even bigger mess (Congress touching copyright law -- especially anything to do with the DMCA's safe harbors -- is not likely to end well).

This just seems like yet another example (in a ridiculously long list) of how screwed up the Copyright Office is these days.

Filed Under: 512 safe harbors, copyright, copyright office, dmca, dmca 512, dmca registration, safe harbor

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

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