Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

DMCA Review Begins. Watch the Red Flag.

Early last week, the Senate Judiciary Committee held the first in what will be a year-long series of hearings (roughly one per month) to review the Digital Millennium Copyright Act.  Almost as old as the publicly-available internet itself, the 1998 DMCA expressed the best efforts of Congress to predict how the digital market might evolve and to, therefore, strike a balance between the interests of internet service providers (ISPs) and copyright owners.

Over the intervening twenty-two years, much—MUCH—has been written, debated, shouted, flung, wailed, opined, and scorned about the DMCA, specifically Titles I and II of the five-title statute.  If we ask the tech-centric/copyright-skeptics, they are likely to say that Title I (§1201) is a disaster and that Title II (§512) is working just fine; while the creator/copyright proponent will tell us exactly the opposite. I cannot condense the number of issues raised in this first hearing alone into a single post—especially when §1201 and §512 address very different legal regimes—and it is far too early in the review process to respond to any specific proposals being made. 

What I will reiterate in this post is that the greatest concern to creators of every size is the conditional liability shield (“safe harbor”) provided to web platforms by §512.  It is the foundation of the oft-described “whack-a-mole” problem whereby the independent author attempts to remove infringing uses of her works one-by-one, only to have them reappear on the same platform(s) faster than she can prepare new notices.  (And “whack-a-mole” can be just as big a problem for a small business like an apparel maker as it is for a traditional artist like a musician.)  

In response to this futile battle with online infringement, authors often give up enforcement via the DMCA takedown process (resigned to donating even more revenue to billion-dollar corporations) while they ask as a community why the major platforms in particular cannot do a better job of preventing protected works from being chronically re-uploaded without license.  This second question is where we step into a BIG policy kerfuffle with regard to §512, and I imagine it is a topic about which we are going to hear a lot of ideas and a lot of noise.  

This week’s hearing hosted two panels of witnesses, the first of which provided an overview as to how the DMCA came to be; while the second panel, comprising IP academics, provided some insight as to where the DMCA debate may be heading.  In the interest of keeping this post containable, I will focus on the testimonies of Professor Sandra Aistars of the George Mason School of Law and Professor Rebecca Tushnet of Harvard Law School, and the subject of “red flag” knowledge under the DMCA.  

What is “Red Flag” Knowledge?

Unfortunately, you will get different answers depending on whom you ask, including a court split on the matter if you ask either the Second or the Ninth Circuit Court of Appeals.  But in everyday life, “red flag” knowledge is a reasonable, common-sense inference that one can draw from a modest amount of empirical evidence and experience.  If you enter the house to find trash strewn across the floor and a chagrined puppy in the corner, you will not need training in forensic science to have “red flag” knowledge that either the dog has committed a misdemeanor, or he has been artfully framed by the cat.  

That roughly describes the degree of analysis Congress intended ISPs to perform when encountering evidence of copyright infringement on their platforms.  As Professor Aistars noted, “Although Congress did not obligate service providers to actively seek out infringements, it did require them to act expeditiously to remove infringing materials once they have knowledge or awareness of infringing activity on their networks.” (See companion Appendix describing basic ISP Conditions.)

For example, let us imagine that the users of a web platform we’ll call Vimeo are making videos using some famous music we’ll call Beatles songs.  Any ordinary observer can reasonably assume that these users probably did not license these sound recordings; yet in the case Capitol Records v. Vimeo, the Second Circuit held, on the issue of “red flag” knowledge, that the platform’s operators would have needed either legal or music-industry expertise in order to discover infringement.

Keeping in mind that voluntary removal of material based on “red flag” knowledge of infringement is a condition of an ISP’s “safe harbor,” decisions like Vimeo do more than erase this part of the statute—they exacerbate a culture of infringement through court-sanctioned willful blindness.  And as Aistars added in her testimony, “Pointedly, this occurred in a case where discovery had revealed emails from managers to employees winkingly encouraging infringement.”  Thus, Aistars is among those who would advocate clarifying the meaning of “red flag” to restore the intent of §512.

The Vimeo emails Aistars mentions are typical of the shoulder shrugs and middle fingers creators are used to receiving from many platform operators, and application of the DMCA to date has unquestionably fostered cultural attitudes anathema to the kind of cooperation between ISPs and rightsholders Congress specifically intended to promote two decades ago.  Further, unintended endorsement of this culture among site operators may be exacerbating a persistent misunderstanding among individual and commercial users that the internet is a realm of automatic immunity.  As I have described in several posts, this misconception can cause unnecessary trouble for both creators and users of protected works.

Responses to Fixing “Red Flag” 

Anticipating the likelihood that, if there is to be any revision to §512 at all, “red flag” will be a major point of debate, Professor Tushnet warned against what she and others see as throwing out the proverbial baby with the bathwater.  “If there is one message I would ask the members of the Committee to take away today,” she stated in her opening testimony, “it is that most beneficiaries of §512 are not Google or Facebook.”  Tushnet cautions that if we were to amend §512 solely as a response to the challenges creators face on very large, commercial platforms like YouTube, we risk simultaneously putting compliant, smaller platforms out of operation and facilitating even greater monopolization by the largest entities.

As a statistical matter, Tushnet is making a “few bad apples” argument, except for the fact that some of the baddest apples in the bunch happen to be the most powerful, wealthiest internet companies in the world.  So, even if we take her premise and data at face value (i.e. that millions of compliant sites rely on §512 to exist), this does not recommend ignoring the catalog of evidence that application of the DMCA has promoted willful blindness among the operators of major ISPs.  Simply put, if twenty-million sites operate without harm while one site does harm to twenty-million creators, we still have a problem if the law shields that one site from liability.  So, the status quo cannot be the final answer.  

As a practical consideration, Tushnet’s argument is based on the assumption that a more clearly defined restoration of the intent of “red flag” knowledge can only be implemented by technological measures, which only the largest ISPs can afford.  Hence, her argument that this will result in entrenching, for instance, YouTube’s monopoly position, notably glossing over the fact that there are other forces entrenching online monopolies.  While this technology-investment argument is worthy of discussion, the aforementioned Vimeo case is just one example in which the principle of “red flag” knowledge was obliterated in a purely human paradigm (i.e. human managers choosing not to see what was right in front of them).

Post Hoc Ergo Propter Hoc? (or not all good things come from §512.)

As Tushnet testified, her own Organization for Transformative Works site hosts over “four-million works” yielding 1.2 billion page views per month, while the site receives takedown notices at a rate of less than one per month, most of which are invalid.  Assuming these data are correct, the site to which she refers seems barely relevant as an example. It is a large fanfic platform with what appears to be a vast amount of material—mainly short works of written text—that is highly unlikely to infringe.  No sound recordings.  No photographs.  No film clips.  At most, some fanfic writer could maybe—and I mean maybe—run afoul of a derivative works right. 

From a cursory review of OTW, it is not at all evident that adopting a clearer, statutory definition of “red flag” (in order to hold the majors accountable) would force a site like this one to invest in prohibitively expensive technology in order to remain complaint.  If the platform is indeed receiving takedown notices at a rate of less than one valid notice per month, this is most likely evidence that the site hosts little to no infringing material—and that when notices are received, human review is sufficient to the task.  Further, the fact that the site hosts “fandoms” for a long list of works owned by major motion picture studios indicates that infringement must be very low to near zero if it has not invited the attention of an industry with the resources to send notices in volume.  

As is often the case, defenders of the status quo (the same is true for Section 230 of the CDA) will say “look at all the benefits this law has yielded” and then point to examples that, under scrutiny, do not necessarily rely on the liability shield so substantially as may be asserted.  In this vein, Tushnet’s testimony includes several references to all manner of good news about the creative industries—more movies, TV, music, etc. than ever before—but it would be a logical stretch to assert that, for instance, Billie Eilish’s YouTube-to-Grammy-Awards success story owes much at all to §512—let alone the collapse of the “red flag” principle. 

As Chairman Tillis noted, “this is a very wonky subject,” and that last description of mine was very wonky indeed; but DMCA review will be a devil-in-the-details story to watch.  Despite the hyperbole that will inevitably seep onto social media about these hearings, it is neither practical nor desirable for rightsholders to seek obliteration of the safe harbor altogether—that is not the goal.  But at the same time, it cannot be acceptable that a statute designed to mitigate copyright infringement and incentivize cooperation has served to reward infringement and position ISPs and rightsholders at permanent loggerheads.  

*This case is further complicated by a conflict between state and federal law over the use of sound recordings made prior to 1972, but that’s a whole other bowl of noodles. 

Photo source by Robertobinetti70

Appendix I to DMCA 2020: Section 512 “Safe Harbor” Conditions

May people know that online service providers are shielded from liability for copyright infringement by their users, meaning that a court will, on summary judgment, often excuse a web platform as a named defendant when an infringement has been committed by its customers.  Many people are not aware, however, that a service provider must meet certain conditions in order to remain protected by this “safe harbor.”  

These conditions are voluntary, and although failure to meet them does not automatically make a provider liable for infringement; non-compliance will—or is meant to—void the automatic protection in a potential litigation.  Below is a list of several–but not all–of the key conditions a service provider must meet under the DMCA statute Section 512, including an explanation of “red flag” knowledge:

THIRD-PARTY INFRINGEMENT — The infringing material must have been made available by users/customers.  

This is the foundation of 512—the very reasonable assumption by early online service providers (e.g. the Baby Bells) that users will inevitably transmit infringing material online.  If the platforms were held liable for infringement by its users, this would have stifled investment in developing many platforms that host User Generated Content (UGC).  Infringing material may not be made available by a service provider.  If a site operator directly uploads or transmits infringing material of its own volition, the “safe harbor” does not shield it from liability.

NOTICE & TAKEDOWN — The service provider must expeditiously remove infringing material upon receipt of a valid takedown notice sent by the copyright owner or their agent.  

Often simply called notice-and-takedown (or just takedown), sites that wish to maintain the protection of the “safe harbor” generally comply with this provision, though it is a subject of controversy on all sides.  For creators, sending takedown notices, one infringing use at a time, is the source of the “whack-a-mole” complaint.  For ISPs and some users, the takedown regime is often described as rife with abuse and error.  See post here responding to one “abuse” study cited by Professor Tushnet in her testimony at the first DMCA hearing 2020. 

REPEAT INFRINGERS — Develop and maintain a policy that includes account termination as a final step for repeat-infringers.  

This issue made big news when ISP Cox Communications lost two substantial lawsuits for failure to maintain such a policy.  While the DMC does not clearly define “repeat infringer” or dictate the design of a “repeat infringer policy,” it is usually some type scaled warning process (e.g. six-strikes), but which must result in account termination if the repeat infringer refuses to stop.  For instance, the courts found that Cox’s 14-strikes-and-they-will-eventually-reset-your-account process voided their “safe harbor” in court. 

KNOWLEDGE — Site operators are not required to search for infringement, but they must remove material upon obtaining knowledge that it is infringing.   

Because the knowledge conditions have largely been ignored in practice over the past 22 years, many people do not know they exist or what they are.  Codified in 512(c), the statute expressly states that the service provider “shall not be liable” if (1) its operators do not have actual knowledge of infringement; (2) its operators are not aware of facts or circumstances from which infringing activity is apparent; and (3) upon obtaining knowledge of infringement, expeditiously removes the relevant material.  

That second condition describing “facts or circumstances” is what we often refer to as “red flag” knowledge under the DMCA.  This is the “walks like a duck,” common-sense knowledge standard that has generally been erased from practice.  For instance, many cases and complaints involve famous works used in ways that any layperson could assume is unlicensed; or several famous litigations have found evidence of internal communications indicating that site operators had a pretty good idea that infringement was taking place. 

With Super Bowl Complaint, Graham Misunderstands Exploitation

Because I defend the principles of copyright, I write a lot about the value of creative expression and the author’s right to choose how that expression is used.  In this context, then, I think it is within the editorial nature of this blog to respond to Franklin Graham’s public complaints about last week’s Super Bowl halftime performances by Jennifer Lopez and Shakira, to wit:

“I don’t expect the world to act like the church, but our country has had a sense of moral decency on prime time television in order to protect children. We see that disappearing before our eyes. It was demonstrated tonight in the Pepsi Super Bowl Halftime Show—with millions of children watching. This exhibition was Pepsi showing young girls that sexual exploitation of women is okay. With the exploitation of women on the rise worldwide, instead of lowering the standard, we as a society should be raising it. I’m disappointed in Pepsi and the NFL.” [Emphasis added]

I get that being a sanctimonious prig is part of the Graham brand, but he is dead wrong to conflate his prim sensitivities with the concept of exploitation.  This is an insult to Lopez and Shakira as well as actual victims of exploitation, many who have only recently begun to come forward en masse to talk about those experiences.  In fact, the trend generally called the #MeToo movement, much of which is centered in the entertainment industry, is exactly why the correct word to describe the performances by two middle-aged moms (who can still move like that!) is empowerment.

Perhaps because the religious right suffers from a fundamental disconnect on the subject of human agency in free societies, Graham fails to understand that consent is generally the dividing line between expression and exploitation.  For a simple object lesson in this distinction, think back to 2014, when nude images of several female stars were hacked, leaked online, and then hosted for far too long on platforms like Reddit. One of those stars, Jennifer Lawrence, posed for a series of artfully done nudes for Vanity Fair in order to reclaim her right to consent.  “The line between objectification and empowerment is a notoriously thin one, particularly for women,” wrote Megan Garber for The Atlantic about the Lawrence photo shoot.

Likewise, with regard to last week’s halftime show, unless some story emerges to the contrary, we can assume that mega-stars JLo and Shakira are not about to do anything they do not want to do.  Graham, therefore, has no business associating his prissy response with the broader narrative of exploitation.  What he really means is that he and his flock found the choreography too sexual for the American church that is football—and one could unpack that psychology for quite some time—but here’s a news flash:  dance is sexual.  And it’s almost quaint that Graham is blushing in 2020.  Eleven years ago, Pepsi produced a Super Bowl spot featuring Republican Senator Bob Dole (age 86) and his dog implicitly getting a bit randy while watching Britney Spears (age 28) shake her thing.  I mean…c’mon.

In a post or two, I have opined that one of the coolest things about America (a true claim to greatness, if you will) is that the twin forces of the First Amendment and copyright law empower artists to express themselves without requiring permission by the State.  At the founding period, the constitutional protection of IP law was both a function of economic reality and ideological principle.  The new nation did not have the resources to establish any kind of national endowment for the development of art and culture; and at the same time, the Framers clearly expressed a wariness of nobility, nationalized religion, and patronage.  Moreover, the ancient mechanisms of pre-modern copyright law in England were codified as tools of religious censorship and royal prerogative; and by contrast, modern American copyright bore fruit the Framers could not even imagine.  Not only are we the beneficiaries of a diverse mosaic of creative expression, but copyright has given many artists the power to do exactly what they want on their own terms.  

So, if Graham et al are offended by what they see on television, they can choose not to watch, just as many will choose not to watch Graham because we find him offensive.  Hell, they can even complain (as Graham did) to the sponsors and the league that they consider the performance tasteless, if that’s how they really feel.  But let us not conflate personal taste in creative expression with exploitation.  Artists work very hard to avoid unwanted exploitation at every phase of their careers, and that goes double for women.  Jennifer Lopez and Shakira are prime examples of what it means to own their power—expressive, commercial, sexual, etc.—and only they have the right to say otherwise.  

Statue of Liberty photo by Andrea_Izzotti