Tag: DMCA 2020 Review

Senate Judiciary Committee Releases DMCA Discussion Draft

Shortly before Christmas, the Senate Judiciary Committee released the discussion draft of a bill to amend the copyright law, primarily the sections known as the Digital Millennium Copyright Act of 1998. There is something in the proposals for everyone to like or hate, but it is important to keep in mind that this is the starting point for what will be several years’ worth of negotiations. Although that legislative reality may not stop the copyright critics and the tech industry from fulminating early and often, I shall try, with this post, to describe a few of the major proposals without strenuously arguing for or against any one amendment. Each new recommendation deserves thorough discussion. But not today. We have a long way to go.

Section 512 Proposals

The big headline—and one that probably nobody likes—is that the discussion draft essentially throws out the four safe harbors and calls upon the National Telecommunications and Information Administration (NTIA) to develop a new set of criteria. Presently, the DMCA defines four types of service provider activities (e.g. system caching) and the conditions each must meet in order to retain immunity for liability stemming from infringements caused by users. This nearly blank-slate approach is such a bombshell in everyone’s camp that it is far too early to comment on what the responses will be.

One of the most significant proposed changes, which copyright owners have advocated for years, is a response to the complaint that courts have consistently misinterpreted what it means for a service provider to have “knowledge” of infringement on their platforms. The discussion draft includes new language meant to clarify Congress’s original intent and, in principle, limit a service provider’s ability in court to claim that they are innocently unaware of infringing material on their platforms.

The knowledge issue is the king gremlin of all DMCA squabbles, especially for smaller copyright owners (e.g. indie musical artists), who reasonably ask how can a company like Google claim to anticipate what everyone wants for breakfast but cannot know when certain works are repeatedly infringed on YouTube? In that spirit, the discussion draft introduces the conduct of willful blindness on the part of the OSP as grounds for abrogating the §512 liability shield, and it also recommends a burden on the OSP to contact and assist the notice sender who has made certain, partial errors in a takedown request. Ultimately, it is hoped that clarifying the knowledge standard will help to achieve a “notice-and-staydown” regime whenever “complete and near-complete works” are uploaded to a platform.

On the other side of that coin, the critics of the takedown mechanism will presumably like the working draft’s call for stricter penalties for bad faith misrepresentations, including specific sanctions against repeat wrongful takedowns by any party. That said, I imagine the same critics will grumble at the notion that bad faith misrepresentation can cut both ways (e.g. for counter notices), and I assume they will scream blue murder at the suggestion that the Copyright Claims Board, to be formed at the Copyright Office under the provisions of the CASE Act, would be the body to adjudicate allegations of bad faith use of the DMCA.

On that subject, expect the anti-copyright critics to marshal its rhetorical forces to scorn the expanded role the USCO would play in general under the provisions of the discussion draft. In addition to the above-mentioned role of the CCB, the bill envisions the Copyright Office writing and maintaining standardized rules and forms for the notice and counter-notice process and giving the Register of Copyrights the authority to determine what personal information (e.g. of an alleged infringer) may be protected by a service provider. Further, pursuant to a proposal mentioned below, the USCO would maintain a list of notices for “orphan works” being used without license, after a user makes a good faith effort to locate the rightsholders.

Section 1201 – Trafficking in Circumvention Devices

This is the part of the statute copyright owners would prefer to be left intact, and many stakeholders on that side of the debate will probably be highly critical of the proposed changes in the discussion draft. 1201establishes prohibitions against circumventing technical measures used to protect copyrighted works in the digital age—an original example being the encryption software used to protect a CD or DVD against copying.

Although the discussion draft comes nowhere near the kind of holistic assault on 1201 that groups like the EFF would like to see, it does propose to substantially alter, if not repeal, the prohibition against trafficking in devices used for circumvention. We can expect rightsholders to fight hard on that one. Meanwhile, there may be room for compromise on the recommendation that the Register be given the authority to make certain types of circumvention permanently exempted, so that, for instance, good-faith researchers do not need to reapply every three years for exemptions they have received in the past. 

Section 1202 – Encouraging Attribution

This part of the DMCA, not often enforced or discussed in the public copyright conversation, prohibits the removal of copyright management information (CMI) from a work. The one proposed change to this part of the DMCA would alter the intent aspect of this conduct. As it stands, the potentially liable user must remove the CMI with the intent to cause (and presumably hide) an infringement. But the revised language would make removal of CMI with the intent to deny attribution to the author the only standard necessary to be potentially liable under the DMCA. Expect copyright critics to complain about this, though not quite so loudly as the 512 proposals.

Orphan Works

The discussion draft proposes that a user of a work be allowed to do so without license in circumstances where the rightsholder cannot be found (i.e. the work is “orphaned”). This liability exception would require the user to meet several conditions, including a documented, good-faith effort to locate the rightsholder; providing appropriate attribution to the author; and filing a Notice of Use with the Copyright Office (mentioned above).

While this proposal sounds reasonable and balanced with respect to the individual user, or perhaps the not-for-profit library, a related problem to-date has been that big, corporate entities (e.g. Spotify) have used the Notice of Intent mechanism (§109), in conjunction with their technological capabilities, to create a pseudo-licensing regime for works en masse.* And, as rights advocate Chris Castle has noted, many of the works alleged to be “orphans” have been famous songs for which the owners are not hard to locate. We’ll see how this proposal shakes out, but suffice to say, an amendment designed to serve the individual creator or educator should not become a new loophole for the likes of Spotify and YouTube to exploit.

Relocation of the Copyright Office

Given the expanded role of the Copyright Office proposed in the discussion draft, we can expect to hear the usual suspects dredge up their unfounded allegations that the USCO “cannot be trusted,” or that it is “culturally captured by the major copyright owners.” But what will really get the copyright skeptics in a lather is the proposal that reprises a longstanding notion to relocate the Copyright Office out of the Library of Congress (into the Department of Commerce), and to make the Register of Copyrights a presidential appointee. I have written a couple of posts asserting the fundamental soundness of making the Copyright Office independent of the Library, and no doubt this subject will need revisiting as the storm clouds gather around this recommendation.

Other Key Proposals

The rest of the discussion draft addresses other matters not specific to the DMCA. It contains the language of the CASE Act such as it would be added to Title 17, which is the full U.S. Copyright Law. It proposes changes to the registration process so that good faith errors made by applicants are not refused protection, if the work would be otherwise eligible for registration. It contains an amendment to abrogate a registration if the application was filed in bad faith. And it contains a provision to amend original applications to add derivative works rather than file new applications for each derivative.

In short, there are several proposals (likely uncontroversial) that aspire to streamline Copyright Office processes and/or save applicants money on fees, but we shall see where any of this goes. Beyond that, I shall spare readers any attempt to summarize all the draft recommendations in one post. As I say, we are only at the beginning of a very long process, and each of the major amendments should be discussed in deeper dives. Deep dives to follow. Some breath holding will be necessary.

*NOTE: Though prior use of the NOI process is still relevant to the discussion, it should be noted that the practice of obtaining licenses for music via NOI was eliminated by the Music Modernization Act.

DMCA Hearing 5: More Consensus Than You Might Think on Section 1201

On September 16th, the IP Subcommittee of the Senate Judiciary Committee held hearing number five in its ongoing review of the 22-year-old Digital Millennium Copyright Act. The subject was Title I of the DMCA, also referred to as §1201, which proscribes the circumvention of Digital Rights Management (DRM) technologies used to protect copyrighted works distributed through digital systems. When the DMCA was enacted in 1998, as the market was shifting away from the purchase of physical copies of works, DRM was predominantly used to control licensed access to creative content (e.g. eBooks) that falls under traditional categories of copyright law.

With regard to the ordinary consumption of music, movies, TV shows, books, etc., §1201’s protections have been highly successful for producers and consumers. Critics who scorn DRM on principle (i.e. hate copyright) are unlikely to acknowledge that all the variety and instant access we enjoy—from Audible to Netflix—is entirely founded on DMCA’s anti-circumvention provisions. At the same time, readers are probably familiar with, and sympathetic to, complaints about DRM preventing farmers from repairing tractors, patients from accessing medical data, security researchers from analyzing vital systems, or the blind and deaf from accessing reading material. Yet, despite a considerable volume of headlines on these issues, last week’s testimony sounded more like consensus than conflict.

Professor Blake Reid, Director of the Samuelson-Glushko Technology Law & Policy Clinic, testified on behalf of various constituencies that have been unintentionally harmed by §1201 and addressed, for instance, the matter of access to electronic books for the blind and deaf. Although organizations representing blind and deaf readers have successfully petitioned the Copyright Office for §1201 exemptions in its triennial rulemaking process, Reid and others assert that the requirement to re-apply every three years is a high burden for these constituencies, merely to maintain exemptions that have no opposition.

Not surprisingly, the Copyright Office seems to agree with Reid on this point. In her testimony before the committee, General Counsel Regan Smith stated that because the statute does not give the Office authority to grant permanent exemptions, Congress could make the process more efficient and fair by amending §1201 to explicitly and permanently exempt deaf and blind readers, along with other frequent petitioners (e.g. security researchers), who have consistently been granted exemptions without opposition. It stands to reason that the Copyright Office would prefer not to spend its limited resources reviewing and re-reviewing the petitions of these parties, to say nothing of the fact that many interests in circumventing DRM often fall under the jurisdictions of other agencies, like the EPA, more than the Library of Congress.

The apparent consensus between the Copyright Office and many of the stakeholders represented by Professor Reid suggest to me that all those headlines, which have fed a lot of §1201 rancor over the years, may be outdated with respect to the task before the IP subcommittee today. At least in the consideration of various categories of petitioners, there appears to be ample room for negotiating a compromise bill calling for a wider spectrum of permanent exemptions.

Where Conflict Persists

More generally, however, there remains an ideological split over the nature of §1201. Reid and others view the prohibition against circumvention of DRM as a prior restraint on those parties who would only circumvent in order to engage in otherwise legal conduct. Thus, these critics of Title I would like Congress to amend the statute to affirmatively state that circumvention for non-infringing purposes is not a violation of law. The Copyright Office does not endorse this nexus between circumvention and infringement. Especially with regard to §1201’s prohibition against trafficking in devices used for circumvention, this nexus would undermine the fundamental purpose of the statute, which is the aforementioned fostering of eBooks, streaming platforms, and all those services we enjoy.

Personally, I am not unsympathetic to Reid’s view, at least in principle. If a documentary filmmaker uses software to rip a scene from a DVD to incorporate into her film in a manner that would be considered a fair use, the act of circumvention does seem incidental to her otherwise legal conduct, especially because the DRM is there to protect copyright, which, in this hypothetical, is not being infringed. So, I get where Reid et al are coming from when they argue that the act of circumvention itself should not be a violation.

On the other hand, these types of one-off examples are at least a little bit flimsy as practical matters. If the doc filmmaker uses AV clips in a manner consistent with fair use, the owner of those clips is highly unlikely to file a viable legal complaint. And absent a solid copyright infringement claim, the prospect that the rightsholder will file suit solely on an allegation of circumvention seems like a dubious path for most attorneys to follow.

Doubtless, Reid and I could play Pong with different examples tilting toward one hypothetical outcome or another. But it seems to me that the more exemplary users represent a class (e.g. teachers), the more they belong in the above discussion about candidates who deserve permanent exemption, rather than serve as a rationale to codify an infringement nexus. In fact, both teachers and documentary filmmakers have been granted limited exemptions in prior USCO rulemakings and are both viable classes for the committee’s further consideration.  

If I can presume to read between the lines of the testimony, the Copyright Office has an interest in resolving many of the unanticipated conflicts that have arisen from the protection of software integrated into devices and machines that are not typically within the scope of copyright law; but the Office also has a duty to §1201’s original purpose to secure the rights of copyright owners to control the manner in which their creative works are accessed. Endorsing an infringement nexus would perhaps resolve the former, but it would also betray that latter. Hence, a more nuanced approach to legislative adjustment should be sufficient to satisfy all parties with balanced results.

See full summary of the hearing at Copyright Alliance.

DMCA HEARING IV – Contemplating Fair Use

With the first three DMCA review hearings before the Senate Subcommittee on IP, it was fairly easy to identify the salient matters most likely to survive beyond this inquiry period and become part of the substantive debate on possible legislative revision. For instance, the need to more clearly define constructive, or “red flag,” knowledge in Section 512 is a recurring theme, at least from the rightsholders, and it is a problem that is at least conceivable as a legislative fix.

But in regard to the most recent hearing, held on July 28, it is little tougher to make an educated guess as to what may come of it. And this is partly because the topic itself is a tricky one that inevitably spills over into matters not directly pertinent to the DMCA. The title of the panel is How does the DMCA contemplate limitations and exceptions like fair use? And although Professor Jane C. Ginsburg of Columbia Law School answered that question about as directly as one could—outlining the ways in which Section 512 “accommodates” fair use, and discussing the efficacy of same—my general takeaway from hearing overall was that it seems pretty difficult for any legislative fix to alleviate the tension between DMCA and fair use.

Keep in mind that the DMCA was a deal hammered out by very large, corporate interests. The online service providers (OSPs) at that time, mostly major telecoms, wanted immunity from civil suit for the copyright infringements users would inevitably commit. The notice-and-takedown provision of 512 was the compromise solution for rightsholders to remove those infringements, and the counter-notice provision was created in order to restore material taken down in error.

While it would be wrong, without supporting evidence, to assert that Congress never contemplated nuanced, “close calls” like fair uses in 1998, it is generally undisputed by all parties that Congress did not fully anticipate the scale and speed at which copyrighted works would be uploaded to online platforms over the past 22 years. Let alone uploaded repeatedly by multiple users, or the monetary value of all that infringing activity to a major platform owner. Consequently, it seems reasonable to conclude that Congress likewise could not quite have imagined a digital landscape in which tens of thousands, if not millions, of individual rightsholders and users would be expected to become literate in the fair use doctrine.

Whether this also means that Congress expected that there would more often be fact-based incidences of error in takedown notices (e.g. wrong party, wrong material, non-copyright complaints, etc.), we cannot say for certain, but these are the type of error that require no education in fair use, or any other subjective legal doctrine, in order to file a valid counter notice. Although 512 may not have been written with individual, lay users in mind, it is certainly the case that independent creators and users of works have long been left to fend for themselves, filing their own notices or counter-notices, and trying to understand fair use—a body of judge-made law about which judges disagree with some frequency.

Fair use, as I will soon discuss in greater detail with regard to Google v. Oracle, is a consideration of both fact and law, and if its principles can be slippery for courts and attorneys to hold onto, it can certainly be tricky for the average rightsholder or user. Meanwhile, amid the general chatter on this subject, OSPs, digital rights groups, and users tend to complain that fair uses are removed all the time, while rightsholders complain that users make erroneous fair use claims all the time. And without question, both groups are correct at least some of the time. Neither independent rightsholders nor users—and certainly no parties acting in bad faith—can be counted on to be “right” about fair use all of the time, least of all through the constrained mechanisms of the notice/counter-notice provisions of the DMCA.

Because the committee asked a difficult question, it was not surprising that the witnesses covered a lot familiar ground that, while important, is either not specific to fair use or not specific to the DMCA. For instance, lead counsel for the National Press Photographers Association, Mickey Osterricher, described various ways in which the “whack-a-mole” problem does almost immediate and lasting harm to the value of news photography and video. This is an archetypal failure of the DMCA’s takedown provision to protect individual authors, and while it is not directly connected the inquiry into the contemplation of fair use, it is a problem often exacerbated when users make overbroad or erroneous assertions of fair use in their counter notices.

For instance, Osterricher’s reference to the devaluation of photojournalism, through unlicensed copying and distribution online, is related to a fair use question that was raised in the hearing about the use of works by political campaigns or advocacy organizations. Although attorney Matthew Sanderson, in his testimony, referred to these examples as “paradigmatic fair uses,” that may be a bit overstated. If the owner of a photo sends a takedown notice targeting a campaign video that contains her image, this could be a wrongful takedown targeting the candidate rather than a copyright infringement, but it is more likely to be a proper takedown targeting an infringement, independent of the author’s feelings about the candidate. Or, if the work being used is strongly associated with its creator(s) identities, like a famous song, there is the added dimension of coerced speech, which is potentially more serious than copyright infringement alone.

All of that is by way of saying that a review of DMCA’s mechanisms cannot easily hope to reconcile a lot of complex (often fraught) fair use questions, which will always be a case-by-case consideration. In the meantime, though, GRAMMY-winning, gospel singer/songwriter Yolanda Adams, in her testimony, did offer an old-fashioned, low-tech solution to many of the conflicts that arise between artists and political groups:  ask permission. “Musicians run the spectrum of political views,” she says. “If candidates want to use music in their campaigns, work with us – the artists and songwriters – to find the right match.” This is solid advice that users other than political operatives should strongly consider.

In fact, the low-tech (i.e. human) solution would probably alleviate a lot of the tension that exists between rightsholders and users, and perhaps loosen some of the tension between the DMCA and fair use. If I had to guess, I would say that rightsholders have two major problems when it comes to this part of the discussion. They suffer most acutely when professional users—be they political campaigns or ice cream companies—make use of works without license; and they suffer broadly when the major internet companies, through their advocacy networks, promote an expansive rhetoric about the fair use doctrine, resulting in even well-intended users making erroneous fair use assumptions. This also happens to get users needlessly sued, by the way.

If we return to Osterricher’s advocacy of visual journalists, appropriations of these works will invariably comprise at least some users—both professional and non-professional—who assume that because they are engaged in helping to disseminate “news,” their uses of unlicensed images are naturally fair uses. Many different types of users chronically fail to recognize that those exemplary terms named in Section 107 of the law (e.g. “news reporting, teaching, parody”) are all subject to conditions and considerations that further refine the terms within the intent of fair use.

At what is arguably the opposite end of the spectrum, it was easy to be sympathetic to musician Rick Beato’s testimony when he described his music education videos on YouTube. For instance, he mentions performing ten seconds of a Beatles song in order to teach viewers how the piece is constructed, and he cites this as a typical example of a video that may be targeted by a large rightsholder using automated systems to identify unlicensed uses of their musical works.

Beato’s description strikes me as fitting well within the spirit of fair use, if not the application of the exception to date. Historically, a fair use for teaching applies to physical classroom settings. But as recent events have underlined, we may need to broaden our definition of “classroom” to the virtual learning environment, and it does seem plausible that fair use could embrace the kind of teaching Beato does on his YouTube channel.

Having said that, though, once we expand the “learning environment” to the internet, we likewise expand the aforementioned confusion that already exists among even well-intended users of works. The word teaching will be defined too broadly in the mind of many users. In 2015, I wrote about a friend who made this very mistake, presuming a fair use of some photographs because she thought of her blog as “educational.”

It seems to me that there may be solutions to the Beato example that could exist parallel to the DMCA. For instance, a registry of channels that intend to consistently use works in a fair use manner so that the major rightsholders can whitelist these channels? And this would not prevent auditing the channels for compliance. The copyright critics may gasp, of course. A user should not have to seek permission for fair uses! In principle, that’s true, but in reality, for every channel like Rick Beato’s, there are thousands of YouTubers who are merely infringing, full stop. And we need Google-scale solutions for Google-scale problems.  

Relatedly, Professor Ginsburg endorsed, or at least alluded to, the possibility of an alternative dispute resolution function within the mechanisms of 512, designed solely to resolve fair use questions. This echoes the USCO in its report on Section 512, published this May, though is not clear whether an ADR provision specific to DMCA would be seen as redundant to the provisions of the CASE Act, if it is ever passes.

Regardless of the CASE question, it seems that Ginsburg and others are looking for solutions to address the conflict inherent to the time period after a counter-notice has been filed to restore allegedly infringing material. At that point the rightsholder must either prove he is taking legal action against the respondent, or the material will be restored within 10-14 days. “That is a tight deadline for rightholders, but potentially a devastatingly long one for fair users,” Ginsburg stated.

So, it is understandable why one might wish for an ADR mechanism to at least provide guidance on the probability that a use is either a fair use or not as a step prior to issuing a takedown. How exactly one harmonizes this persnickety area of U.S. law with global platforms is a question I cannot answer, though again, Ginsburg recommended that Congress monitor the efficacy of newly-passed provisions in the EU, where some of the largest platforms will be required to preclear rights before hosting user-generated works. Although labeled the “censorship machine” by European critics, the provision, Article 17 of the Single Market Directive, passed into law in 2019, but not yet into practice. And the likes of Google are far from done fighting compliance. So, we’ll see what happens there.

In case you can’t tell, I’m pretty skeptical that there is much Congress can do to better harmonize fair use and the DMCA, though I do believe there is much that can be done to both tweak the mechanisms in DMCA and mitigate bewilderment about fair use, and this may result in better balancing the two. Above all, the major platforms that have reaped billions in ad dollars while hosting infringing material, as it ebbs and flows across their platforms, have often camouflaged their pecuniary interests by claiming to defend fair uses on behalf of their users. 

But fair use cannot be so easily generalized. And if a platform like YouTube cannot, under the terms of the DMCA, be held responsible for monitoring its site for infringements, how can it possibly quantify the number of fair uses on the same platform? Hence, it seems that fixing the gaps in 512 where platforms have managed to slip through congressional intent to impose some burden (like constructive knowledge) may have the added benefit that these same companies will devote less energy toward expanding the fair use doctrine until it swallows copyright entirely.