Category: Law & Policy

DMCA Review III – SJC Sounds Skeptical That Everything Is Fine

Yesterday afternoon, the Senate Judiciary Committee (part of it anyway) held the third hearing in its ongoing review of the Digital Millennium Copyright Act (1998). A handful of senators convened in the Rayburn building while witnesses testified via video conference.  The title of this hearing was Is the DMCA’s Notice-and-Takedown System Working in the 21st Century? Notice-and-Takedown is also referred to as Section 512, or Title II of the DMCA.

Given the extraordinary and terrible events currently gripping the nation, it appears that Big Tech tried to use the atmosphere of crisis in order scuttle this hearing. In the few days leading up to June 2, articles, blog posts, and social media comments began appearing, declaring that 1) Congress had more important matters to address; 2) that this hearing is emblematic of Republican callousness in a time of pandemic and national pain; and 3) that witness Don Henley of the Eagles is already wealthy and just seeking more money for himself.

In response to those accusations, people may take note that while Congress is focused on more urgent matters, they are also tending to a few smaller ones, and DMCA is just one of these. As for the accusation of partisanship, the Senators questioning the witnesses yesterday totaled two Democrats (Coons, & Blumenthal) and one Republican (Tillis), and any observer would be hard pressed to find much daylight between the two parties on this subject. As for accusations that Henley testified for his own sake, rather than, as he stated, “…out of a sense of duty and obligation to those artists, those creators who paved the road for me and my contemporaries, and for those who will travel this road after us,” people are free to read his testimony and decide for themselves what his motives are.

With regard to the substance of the hearing, it is little surprise that Big Tech and its network of shills would try to discredit the process. Because it does not look like their arguments in favor of maintaining the status quo of the Notice-and-Takedown process are finding much purchase with the Committee. Jonathan Berroya, testifying for the Internet Association toed the industry line that the DMCA is working well and working as intended. But none of the senators who spoke seemed terribly convinced that this could possibly be the case when one side of the DMCA equation—the creators—is unanimous in saying that that Notice-and-Takedown is not working.

Further, the parties testifying that the DMCA should be left alone tend to present arguments that are both off topic and, curiously enough, contrary to their own aims. For instance, representing PublicKnowledge, Meredith Filak Rose led off her testimony by reiterating the complaint that the US Copyright Office, in its report on Section 512 of the DMCA, neglected to consider the 229 million Americans who use the internet every day. “In the current pandemic,” she states, “every facet of our lives — from studying and working to buying food and paying utilities — occurs online. Every law that governs individuals’ use of and access to the internet affects all of us.”

While that generalization is true, it is also a distraction in context to the matter at hand because most of the online activity to which Rose alludes has nothing to do with copyright and, therefore, nothing to do with the DMCA. Ordering a pastrami sandwich or doing one’s banking over the internet does not implicate the DMCA, and the Committee is unlikely to be confused about this distinction. More importantly, Rose’s preamble panegyric to the people is there to tee up the alleged amount of takedown abuse that occurs online. “… in our nation’s attempt to reconcile the legitimate needs of artists and digital platforms, what has developed is a legal regime that, for all its good intentions, allows private parties to censor one another’s speech on any online platform, at any time, for any reason,” she stated.

So, not only does Rose, in that sentence, affirm that DMCA was a negotiation between two sides (just like she and others criticized the USCO for saying it was), but if it is true that rampant abusive takedown is a problem, why in the world would PublicKnowledge advocate maintaining the status quo? Credit to attorney Kevin Casini for mentioning this on Twitter last night, and the point cannot be overstated.

If protected speech and legal commerce is chronically being threatened by abuse of the Notice-and-Takedown system, why would parties representing the public interest not want to work with rightsholders to amend the DMCA? Misuse of copyright enforcement for censorship, or to avoid criticism, is a disservice to copyright and, therefore, a disservice to rightsholders. Yet, PublicKnowledge apparently stands in solidarity with the Internet Association, insisting that DMCA is working well and should be left unchanged. This is inscrutable.

As for allegations of DMCA takedown abuse itself, Rose recites the impressive-sounding statistic from an academic study, stating, “After quantitatively examining a set of over 108 million takedown requests, researchers concluded that approximately 30% of the requests were ‘potentially problematic’ and that 4.5 million of those requests were ‘fundamentally flawed.’  Bad notices are, by any measure, pervasive.”

Those stats come from a study done in 2016 by researchers at Berkeley and Columbia; and as I critiqued at the time, the research itself does not quite say, or justify, what Rose and others imply about takedown abuse overall. For instance, the study’s data set only includes takedowns directed at Google Search and does not include, for instance, takedowns directed at YouTube, where works like music are infringed all day long.*

And that brings us to the testimony of composer Kerry Muzzey, who is not rich and famous like Don Henley, and who stated that he was apprehensive about testifying because he feared that Google might retaliate against him by cancelling his Content ID account. (This is because, as many may not realize, not every rightsholder gets a Content ID account.)

Most essentially, Muzzey is the walking definition of the independent creator whose statistical data are not the result of a university study financially backed by either Google or the RIAA. His evidence sums up his own experiences—and those of countless other creators—and it speaks volumes …

“My music was not being used by amateurs to make cute little kitten videos. There were car commercials, ads for luxury hotel chains, pharmaceutical and biotech companies, airlines, Fortune 500 companies, banks, and dozens upon dozens of international television shows that had used my music without licensing it from me. To date, YouTube Content ID has located about 110,000 unlicensed uses of my music in videos hosted on its platform.”

That’s the story in a nutshell. That’s the problem creators have with DMCA Section 512 as it stands. And so far, the Committee seems to get it. Because Congress certainly never intended, nor would it have welcomed, the volume of commercial exploitation Muzzey describes as being facilitated by just one online platform. And one major cost to him, as well as the rest of us, is so clearly stated thus: “I will never know what creativity was lost while policing these thefts.” That is an inversion of the incentive principle in the foundation of copyright. It is, therefore, anathema to say that the section of the copyright act that produces these results is “working as intended.”

I do not mean to ignore the other witnesses and will likely follow up with a response to some of the other arguments presented in this hearing. But the contrast between Rose’s testimony and Muzzey’s highlights a recurring theme about this oft-heated debate. Defenders of the status quo of DMCA Section 512 chronically recite platitudes about the internet in general. And that’s all well and good. But even if every digital-age benefit were flawless (and we know they are not), this still would not address the futility of the Notice-and-Takedown system for tens of thousands rightsholders.

*When one of the authors of that study commented on this site to correct one technical error I had made, she did not quarrel with my overall critique of the study or the way it had been reported on in articles and blogs.

Some People Will Say Anything to Hurt Creators

You know how it’s offensive when a certain president uses a trope like “Do Nothing Democrats” to sling mud in lieu of articulating some kind of coherent, let alone moral, policy on any issue? Well, this same tactic is even more offensive when it’s used by people who should know better, especially people who believe they’re standing up for something. I try not to get personal about some of the copyright arguments, but this time it’s impossible. Mike Masnick is full of shit. And he should know better. In fact, I suspect he does know better.

Masnick doesn’t like copyright. Fine. Whatever. If he wants to advocate for the status quo of the DMCA, let him make a merit-based argument. Instead, his latest post criticizing congressional review of the DMCA (which began in February), he uses America’s overlapping, heartbreaking crises, and divisive politics, to justify this title:

In The Midst Of A Pandemic And Widespread Unrest, Senate Republicans Think It’s Time To Use Copyright To Make The Richest Musicians Richer

Perfect. That is ideally designed to generate maximum social media virality and teeth-gritting outrage. Except for one tiny problem: it ain’t true. For one thing, DMCA review is just one of many bipartisan, legislative processes, already underway, that were slowed but not entirely stopped by the pandemic. Next, and more importantly, it is not Republicans who suddenly put this on the agenda ahead of more pressing matters. Republican Senator Tillis is leading the Senate Judiciary Committee DMCA review, but in collaboration with Democrats you might know like Senators Coons and Leahy. They both support copyright and creators, but why mention that in a time when we can sow more discord?

Believe me, I’m pissed at Republicans right now for a whole lot of things. But that does not excuse Masnick, or anyone else, for trying to frame a solidly bipartisan issue as a “Republican” agenda, let alone to use national tragedies as a smokescreen. But in this case, Masnick tore a big ol’ page from the Trumpian playbook and led off his post by citing a statement of Senator McConnell’s from two weeks ago, when he said that he didn’t any see urgency in responding to the pandemic. Now, I would not give Mitch McConnell the time of day, but that statement is only connected to DMCA review in Masnick’s imagination. Only that isn’t even true. Mike isn’t stupid. He knows exactly what he’s doing and why it’s effective. And it’s immoral.

By a similar sleight of hand, Masnick wants everyone to feel that it’s wrong that Don Henley of the Eagles is set to testify tomorrow. He writes, “…this is the same Don Henley who has been attacking the internet for at least a decade, when he whined that it was all copyright infringement that anyone might take any of his songs and build on it in doing a remix or a mashup.”

Again. Masnick should feel free to articulate why he thinks Henley’s views are incorrect and why he thinks he shouldn’t be testifying, but he doesn’t do that. It’s just more personality politics because that’s what we need more of right now.  And let’s not pretend that if a less well-known singer/songwriter had the same set of issues with YouTube (and they do!) that Masnick would give those complaints any more consideration.

Two days ago, I said I was concerned that Silicon Valley, and its network of well-financed mouthpieces, would leverage Trump’s fight with Twitter to push back on any proposed review of the liability shields enjoyed by internet platforms. Well, interestingly enough, Section 512 of the DMCA is another liability shield Silicon Valley will fight tooth-and-nail to keep intact (as though it was perfect in 1998). It’s the part of the DMCA that nearly all rightsholders do not like about the current application of the law—especially creators who are way smaller than Don Henley. And unless I miss my guess, based on some of the comments appearing on Twitter, and a Washington Post article that’s basically a longer version of Masnick’s post, this is looking a bit like a coordinated effort to stymie DMCA review by framing it as a “Republican” initiative in a time when that message just might work.

In truth, the protection of copyright has long enjoyed bipartisan support in Congress, even before there was a Congress! So, let’s get in a lather about some other issues. We have plenty. At the same time, I might point out that the shoe doesn’t look so good on the other foot. In a time of pandemic and gut-wrenching scenes in our city streets, Silicon Valley’s minions want to make sure that Google & Co. get to keep screwing over artists and creators? Nice.

Does Masnick Not Know That The Public Is Not An Online Service Provider?

Signaling one of the talking points I expect we’ll be seeing quite often as the DMCA fight brews—and it is brewing—Mike Masnick and others have declared that the Copyright Office, in its newly released report on DMCA Section 512, neglected to include the public among the stakeholders with a vested interest in the 1998 addition to the copyright law. In his first post on the topic, Masnick asks rhetorically Does the U.S. Copyright Office Not Know That Copyright’s Main Stakeholders Are The Public? Never mind that this is a retread of an unsupportable theme of his, but the premise sets up a false dichotomy that will be used as a pretense to campaign for the status quo of Section 512 — especially because the USCO has recommended a few areas for possible revision.

Let us first keep in mind that we, the public, are always the beneficiaries (or not) of policies relating to the interests of both copyright owners and online service providers (OSPs). Or, as my friend Neil Turkewitz puts it, “The public interest is always affected by decisions made by private actors. Indeed, it’s fair to observe that the public interest is itself a contrivance, and represents the constellation of interests of individual members of the public.”

We enjoy the benefits created by internet platforms just as we enjoy the works produced by rightsholders. Because the public interest is intertwined with the interests of both sides in this narrative, the legislative history (despite what Masnick claims) does not point to a triad of stakeholders in which the public is one prong. The DMCA was negotiated by two sides (both representing large, corporate interests) hammering out a deal in the late 1990s, at a time when nobody could have predicted how the consumer-based internet might evolve.

On the OSP side, when AT&T and the other telcos sought a shield against liability for the inevitable copyright infringements by the public, the primary rationale (and a reasonable one) was that investors would shun internet prospects if the service providers would be vulnerable to expensive and ongoing litigation. These companies did not lead with homilies on free speech or the fair use exception in copyright law. It was about business. So, let us not be blinded by the fallacy of presentism. When the Copyright Office says that 512 was intended to balance two competing interests—rightsholders and OSPs—that statement is neither inaccurate nor indicative of a disregard for the public.

One reason I imagine we will be hearing this rhetorical accusation about the allegedly missing public is that it softens the ground for declarations like this one:  “… the report mainly focuses on large internet providers liking the safe harbors, and copyright holders wanting it to be worse…and then claims that since only one side is ‘upset’ clearly that means things are out of balance,” writes Masnick. See what’s happening there?

By pretending that Section 512 is not the result of a two-sided arrangement, Masnick is able to make a mathematically impossible statement, implying that when one side of an agreement feels it isn’t working, this is somehow not evidence of an imbalance. Even if one has contempt for a particular side—and I think copyright critics’ contempt for authors is a matter of record at this point—if one side says an agreement is not working, this is the definition of “unbalanced.” Further, the implication that 512 is working just fine for the public is political theater. Not only could most of the public likely not explain what Section 512 does, but the public also does not enjoy any kind of liability shield under the terms of the DMCA.

It is frankly disingenuous to suggest that the public is ever represented as a whole constituency. And it is as arrogant as it is futile when people like Masnick presume to speak for the public. Which public would that be exactly? Are millions of creators of copyrighted works not part of the public? What about the millions of people whose livelihoods are dependent upon the creative industries? Or what about the public that simply enjoys creative works, which is pretty much everybody? John and Jane Q Public are not nearly so confused about the relationship between copyright and the works they enjoy as many critics like to suggest. And the conflicts inherent to Section 512 were, and remain, conflicts between rightsholders and online service providers. Period.

It is not wrong to maintain that the public has an interest in the implementation of Section 512, and in future posts, I’ll get into some of the proposed amendments that may or may not be considered by Congress. But because those forces hellbent on maintaining the status quo of 512 decided, as a first volley, to lob this allegation that the public was overlooked by the Copyright Office, I will insist that this is neither supported by the content in the report, nor remotely instructive to the purpose of legislative review.

Meanwhile, as long as Masnick et al insist upon conflating the public interest with that of the OSPs, we might want to keep in mind that the public has not exclusively benefitted from the catalytic effects of internet platforms over the last 20 years. We don’t see any headlines saying Songwriters Sell User Data to Troll Farms or Photographers Tied to Election Fraud or Poets Fueling White Supremacy Worldwide. Which force is more responsible for InfoWars, copyright or YouTube?

I know. Don’t blame the internet for every problem in the world. But a little common sense is called for, no? Is it a coincidence that platform expansion is concurrent with rampant ignorance raging through Western civilization like a forest fire? Huge swaths of the public are evidently so howling-at-the-moon stupid (thank you Aaron Sorkin for the expression) that they are willing to believe anything. So, I think we have reasonable cause to look askance at the dawn of the so-called information age and ask where we went wrong.

In that spirit, let us also remember that the purpose of copyright, as expressed in the constitutional clause, is to “promote science.” While “science” has long since been expanded to encompass the creative arts, the notion of enlightenment still lives in the doctrines of copyright. And to the extent the Copyright Office seeks to preserve that principle, it is unquestionably serving the public.