Inconvenient Friction: DMCA Review 2020

Tomorrow (December 18, 2020), the Senate Judiciary Committee will present draft legislation with proposed amendments to the Digital Millennium Copyright Act of 1998. Whatever is in the draft will probably set someone’s hair on fire—or perhaps everyone’s hair on fire who has an interest in digital-age copyright enforcement. But any initial shouting will then hunker down for the drudgery of legislative haggling, which could take years. As Chairman Tillis noted in his opening remarks in the final 2020 DMCA hearing held on 12/15, it will most likely take all of his second term to get any new legislation “across the finish line.”

Tuesday’s hearing, titled The Role of Private Agreements and Existing Technology in Curbing Online Piracy, was another two-panel session with testimony by witnesses from both copyright owner and platform owner industries. Heavyweights YouTube and Facebook were in attendance, and it was noted that Twitter declined to participate. The copyright owners were most prominently represented by CreativeFuture and Copyright Alliance. All the familiar themes were reprised by both sides, but I would draw readers’ attention to the testimony of Noah Becker, music creator, and co-founder of the digital rights management company AdRev, because it presents the following information:

AdRev, which works in conjunction with YouTube’s Content ID system to identify protected works, reviews thousands of disputed takedowns every week and finds that 30% of disputes are valid, while 70% are invalid. Why do I highlight that stat? Because there is so much generalized noise about wrongful takedown allegedly silencing speech and stifling “new” creative expression despite the fact that these generalizations are not well supported by data.

The observation by AdRev that most disputes are invalid (e.g. erroneous claims of fair use*) concurs with anecdotal evidence (e.g. most people don’t understand fair use); but the fact that 30% of disputes are found to be valid, and therefore left online, also demonstrates that a more robust system of technological enforcement can benefit both owners and users of copyrighted works. As Becker stated in his testimony:

[Filtering systems] allow bona fide fair uses to thrive on the platform. YouTube’s amazing success attests to the fact that the system, works. Content ID can match millions of fingerprints against billions of hours of video while providing copyright owners and users a set of tools to easily communicate with each other about rights claims and related issues.

YouTube’s own testimony states that fewer than 1% of the takedowns it receives are disputed and that among the disputed, 55% of these favor the user of the material. This indicates that fewer than .5% of all takedowns on the platform are potentially wrongful.

Echoing the foundation of the class-action suit against YouTube by composer Maria Schneider, Becker notes that although systems like Content ID work quite well, small and independent rightsholders are not granted access to that technology by YouTube, and they generally cannot afford outside services like AdRev. Nevertheless, opponents of more robust online enforcement (i.e. advocates for the status quo of Section 512) will continue to ask Congress to ignore independent, professional creators for the sake of “new creators,” which is odd because many “new creators” want to be professionals as well.

The “New Creators” Argument Against Enforcement

In Tuesday’s hearing Joshua Lamel of Re:Create Coalition alluded once again to a somewhat ambiguous class of internet users known as “new creators,” a term so expansive that it encompasses new artists who would like to become professionals, pure hobbyists, small-business product makers, social media influencers, and media creators who presently earn revenue from online-only platforms (e.g. YouTubers receiving a share of ad revenues). While no party, whether amateur, professional, or would-be professional, should be ignored in the DMCA conversation, Congress should note that organizations like Re:Create tend to paint a very broad tapestry with the hope that nobody considers how much of this “new” creative activity is not in conflict with copyright enforcement.

On the contrary, many “new creators” are either immediately or eventually just as dependent on copyright as the “old creators.” For evidence, the IP Subcommittee need look no further than the small businesses operating in every state that find their creative products counterfeited on sites like Amazon, Etsy, and eBay. Further, with regard to generalizations about the class of “new creators,” Congress should be mindful of at least the following five considerations:

1) there does not appear to be any clear evidence proving that chronic, wrongful takedown is as rampant as alleged by various parties, let alone that the class of “new creators” has been substantially harmed by same;

2) per AdRev’s evidence, broadening the application of STM should support “new creators” by extending technological capabilities to more notice senders and respondents;

3) “New creators” like YouTubers are equally concerned with protection of their works (as YouTube’s Copyright Match system demonstrates);

4) The online marketplace for “new creators” remains too young and mercurial for policy to be predicated on over-eager predictions about economic or cultural benefits; and

5) The major platforms are an oligopoly where a single site like YouTube can amend its terms at will, leading to events like the “adpocalypse” that abruptly cut off ad revenue for many “new creators.”

With regard to points 4 and 5, Congress should view these negotiations in the context of copyright’s history and remember that at various moments in amending U.S. copyright law, one industry or another has advanced an interest in preventing some class of creators from enforcing its rights. At the time of the 1909 Act, the newspapers fought to avoid licensing photographs, and the player-piano companies didn’t want to license musical compositions; and a few years later, at the time motion pictures were added to copyright in 1912, the movie producers generally hoped to avoid licensing adaptations of novels. This is not a new story.

Today, the major internet companies would prefer to abrogate copyright enforcement altogether as an inconvenient friction gumming up the free flow of money through their advertising platforms. One big difference in this era is that YouTube, Facebook, et al pretend that they are not the parties exploiting creative works while they profit to the tune of billions of dollars from the exploitation. That ruse has persisted long enough. And at no time in copyright’s legislative history has protecting the individual creators’ interests from the users’ interests failed to fulfill copyright’s purpose to promote progress.

*AdRev also notes improper claims of valid licenses and/or that the material used is in the public domain.

Enjoy this blog? Please spread the word :)