It’s been exactly one year since US Copyright Office head Maria Pallante called for a comprehensive update to the Copyright Act. Since then the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet has conducted a series of hearings amounting to a review of our nation’s copyright laws.
That process continued last Thursday with an examination of Section 512 of the Digital Millennium Copyright Act (DMCA). This section contains “notice and takedown” provisions, under which internet service providers are sheilded from liability for infringement committed by users. Such “safe harbors” are only extended if an online service expeditiously complies with rightsholders’ requests to take down infringing content upon receiving notice. (You can watch the hearing online and read witnesses’ written testimony at the Judiciary Committee’s website).
The safe harbor protection provided by the DMCA is important to musicians and other creators because it enables the existence of many services that we use every day to communicate with fans, express ourselves creatively and sell our wares. Without the safe harbor, it would be difficult for services like Bandcamp, Soundcloud, Twitter, YouTube, and countless others to have gotten off the ground and remain in business, due to potential damages for the actions of their users.
However, assessments of how well the notice and takedown requirements are working in practice vary widely.
Sending takedown notices is frequently compared by rightsholders to an endless frustrating game of “whack-a-mole”—as soon as infringing files are removed, they can pop up again, often on the same site. The first witness, Sean O’Connor of the University of Washington Law School stated in his written testimony, “It would be one thing if these were copies that at least purported to be transformative. And there are some of those. But holding them to the side, for many artists and owners the majority of postings are simply straight-on non-transformative copies seeking to evade copyright.” O’Connor argued that the current language of Section 512 had the inadvertent impact of disincentivizing companies from looking at what users upload at all. He suggested addressing these problems with voluntary agreements to monitor for repeated uploads of the same infringing files, and to legislate only if necessary.
Other frustrations with the current state of the notice and takedown system came from Paul Sieminski of Automattic, parent company of the popular blogging platform Wordpress, who reported a “striking rise” in abusive DMCA notices by companies or individuals intended to censor unflattering speech by falsely claiming copyright infringment. He noted that no statutory damages exist for this kind of abuse.
Another academic, Annemarie Bridy of University of Idaho, contended that while perfect copyright enforcement “is technically impossible and economically infeasible,” the DMCA had held up remarkably well and plays a crucial role in balancing the need for copyright enforcement with encouraging new innovations. She acknowledged that the DMCA scaled less well for P2P services, but noted that non-statutory measures like the Copyright Alert System were helping to fill that gap.
Naturally, we were especially excited to hear from composer Maria Schneider. Schneider is no foe of technology and was an early adopter of fan funding; her album Concert In the Garden was the first internet-only album to win a Grammy. But the situation she described was certainly frustrating: “I come here as an independent musician in the prime of my career, grateful for a steadily growing fan base and critical acclaim. But my livelihood is being threatened by illegal distribution of my work that I cannot rein in.” Without the resources of a major label to send automated takedown notices, Schneider argued, she was unable to keep up.
Schneider also echoed a perspective shared by many musicians we talk to, in that she was uninterested in punishing individuals who uploaded her work, but just wanted it to stay offline. In addition to addressing the whack-a-mole problem through filtering technology, Schneider wanted to see file locker and cloud storage sites do a better job of educating users about what kind of content is okay to upload, and to create a more streamlined and less intimidating for artists to submit takedown notices. She had praise for YouTube’s takedown system’s simplicity and user-friendliness—although she did have one complaint about the “frowning face” that greets users when a video is taken down along with the explanation “This video is not available due to a copyright claim by Maria Schneider.”
Rep. Blake Farenthold (R-TX) presented an unusual line of questioning for Schneider, asking “Let’s say I want to put up a video of my cat and put some music behind it. How easy is it for me to get a license to put your music under my cat video? I mean, how many hoops is [sic] there to jump through on that?”
Schneider responded, “You know, anyone who wants to use my music for something—all they have to do is ask me for permission, and that’s for me to decide to give you permission…”
At this point Farenthold interrupted, “Okay, so then I have to go Google your name, find out who you are, then I have to Google the performer, find out who they are; I mean, this is a very complicated process!”
Schneider replied “Not really. Why don’t you just go to mariaschneider.com, my Artistshare website? You can contact me there.”
Farenthold may have had a point buried in there somewhere about the benefits of creating a system where licensing is as smooth as possible; it can be challenging in circumstances where rightsholders are hard to track down. But it was a little baffling in this context, as locating Schneider’s email on her website takes about 10 seconds, and it’s not as if there’s a shortage of available music for soundtracking cat videos. And of course, YouTube’s Content ID allows artists and rightsholders to enable cat videos or creative reuses while monetizing their work, if they want to give permission.
If Farenthold needed asistance in executing a Google search, he could have looked to the witness table. Katherine Oyama of Google was on hand to speak about the company’s DMCA efforts, but as this was the first appearance by a Google rep at one of these hearings, Oyama was also asked questions that didn’t fit squarely into the topic of notice and takedown. Oyama emphasized Google’s antipiracy efforts, including a “follow the money” strategy: “As a global leader in online advertising,” she testified, “Google is committed to rooting out and ejecting rogue sites from our advertising services.” She also emphasized Google’s work in downranking sites hit by valid copyright claims in its search algorithm, and noted Google’s interest in pointing users towards legitimate creative content as a vendor through Google Play.
Not every member of the subcommittee found this satisfying. Rep. Judy Chu (D-CA) expressed concern that it was still relatively easy to find clearly infringing content ranked highly in search results and whipped out her iPhone to demonstrate. Rep. Cedric Richmond (D-LA) noted that Google’s autocomplete function in its current form can end up nudging users (particularly unsophisticated users—Richmond used his mother as an example) toward unauthorized content by suggesting additional search terms that lead in that direction.
In general, it was encouraging and refreshing to see so much of the conversation at this hearing focused on the needs of independent creators working with limited resources. As we wrote in our written testimony:
The law makes no distinction between large and small rightsholders; neither does it distinguish between superstars and developing artists. This is as it should be. However, it is important that the systems that assist copyright owners and creators in protecting their rights not disadvantage actors operating at a smaller scale. This argument can be extended to the startup community who may not be able to bring a new breakthrough to the marketplace if they are liable for the alleged infringements of their users, or if they must retain specialized legal counsel that might act as a disincentive to innovation and investment.
Happily, the legislative process is not the only possible avenue for making the DMCA notice & takedown system work better. Yesterday, the US Patent and & Trademark Office hosted the first public meeting of a multistakeholder forum about improving the operation of notice-and-takedown. It’s a consensus-oriented process building off of the feedback to the recent green paper from the United States Patent and Trademark Office (USPTO), which is designed “with the goal of developing meaningful voluntary agreements that will improve the operation of the current system for all involved.” The hope is by bringing different kinds of stakeholders—rightsholders, tech companies, public interest organizations, etc.—together, areas of consensus and potential collaboration can be identified.
Perhaps most encouragingly for FMC, the USPTO recognized the importance of addressing the difficulties faced by individuals and small/medium sized enterprises (SMEs) in using the notice and takedown system. It’s no surprise that individual rightsholders’ interests don’t always align perfectly with the biggest industry players, but for us, the test of a system isn’t whether it makes sense for Lady Gaga, but how it works independent creators like Maria Schneider and the innovations she uses to power her career.
And of course, getting notice-and-takedown right doesn’t just mean making sure that creators have the ability to protect their work. It also means making sure that creators have access to diverse new tools and platforms that allow them to get their music heard and reach new audiences in the ways that make sense for them and allow them to compete alongside the big guys. As this process continues (the next meeting is tenatively set for May in California), we’ll be participating with a focus on making sure the perspectives of individual musicians and independent labels’ are considered at every step.
Whackamole photo by Flickr user Sa-Ku-Ra used under a Creative Commons license.