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.

© 2020, David Newhoff. All rights reserved.

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