Tag: DMCA 2020 Review

DMCA Hearings III (Part 2): Independent Creators Must Remain in the Foreground

How many times have comments about copyright included some variation on the theme “I would not pirate, if the revenue went to the artists instead of big corporations.”? Not only is this sentiment a fallacy based on ignorance about how the creative markets work, but these insincere claims to support the real creators ring especially hollow in context to those now advocating the status quo of DMCA Section 512 (a.k.a. the Notice-and Takedown system).

“…authors and small creators who are already struggling against the tide of tech disruption of the creative industries are excluded.”

I highlight these words from the testimony of Douglas J. Preston, President of The Authors Guild, because if the Senate Judiciary Committee hears one message in response to its inquiry about the Notice-and-Takedown system, it is this:  Section 512 provides no viable, sustainable remedy for the independent creator.

American copyright law’s first animating principle is to secure the exclusive rights of the individual author in order to provide an incentive to produce and distribute new works. One glance at Preston’s testimony, listing the number of domestic online platforms that currently support rampant book piracy, and it is easy to understand why no writer—or sole creator in any medium—can possibly afford to pursue infringement at the volume and speed at which it persists.

Google, eBay, Facebook, and LinkedIn are all cited in Preston’s account of the various ways in which authors are confronted with ads, links, or user-generated sources to obtain pirated digital copies of their books. “Google makes it particularly easy to get to these pirate sites and unknowingly buy pirated copies,” Preston states. 

Members of the committee should underline that sentence. Because those words unknowingly buy refer to a customer who does not intend to pirate (is not looking for a freebie) but has been misdirected by Google’s search engine toward the purchase of an infringing copy instead of a legal one. Nevertheless, Google and its industry colleagues have insisted upon the narrowest interpretation of their responsibilities under the terms of DMCA, while asserting in these hearings that Section 512 is working “as intended.”

Testifying on behalf of the Internet Association (an organization founded concurrently with the anti-SOPA campaign of 2011/12), Jonathan Berroya presents a picture of the DMCA operating very well for all parties. “The balance Congress sought to achieve in section 512 in 1998 is not askew,” he states. “Indeed, the legislative intent of fostering collaboration among stakeholders and the growth of a robust and innovative internet has been decidedly achieved, resulting in the development of cutting-edge solutions to infringement and other voluntary measures.”

Berroya could not have used the word collaboration more often in his testimony without it becoming unseemly. But after years in which the major OSPs grew their dominant market positions, partly by refusing even to cooperate with rightsholders, the Internet Association, can, at best, half-heartedly support its “collaboration” claim by pointing to various agreements among OSPs and corporate rightsholders (e.g. YouTube & major labels). And even this hodgepodge of imperfect licensing, tracking, and enforcement arrangements does nothing for independent creators, who lack the resources and opportunities that are available to industrial rightsholders.

This is why Mr. Preston’s presentation, on behalf of book authors, makes what may be the most salient point in the 512 review—that most creators act as their own copyright enforcement departments in addition to doing the work of authorship. Copyright law has always envisioned that the owner would enforce his own rights, but not at a scale of tens of thousands of infringements each year.

As I wrote in my first post about this hearing, the internet industry tends to bring generalizations and a litany of irrelevant talking points to a debate where independent rightsholders present both quantitative and qualitative evidence describing their actual experiences using Notice-and-Takedown. For example, the Internet Association highlights the value of the streaming market to the entertainment industry and consumers, which is true but largely unrelated to the question Congress is asking.

Aside from the fact that the streaming market has some bugs in it (e.g. songwriters are being clobbered by artificially low royalty rates engendered by the imbalance of the 512 immunity regime), the success of popular platforms like Netflix, Hulu, Amazon Prime, et al is not the result the Notice-and-Takedown/immunity provisions of 512. On the contrary, these types of platforms were fostered by Title I, or Section 1201, of the DMCA and are, therefore, a subject for a different hearing. Almost as irrelevant is the Internet Association’s attempt to misdirect the committee’s attention to foreign-based pirate sites …

“… it should be noted that most…infringement occurs overseas, beyond the reach of the U.S. Copyright Act. The U.S. government must keep up its pressure on foreign governments to pursue extraterritorial websites entirely dedicated to piracy and should avoid the temptation to subject legitimate platforms to unduly onerous standards because the most egregious offenders are out of reach.”

Although it is true that pirate sites operating overseas are the largest facilitators of mass infringement, the more relevant issue before the committee remains the substantial amount of infringement facilitated by some of the largest domestic platforms. And this includes facilitating access to foreign-based sites. As Berroya himself notes, the U.S. Copyright Act does not reach these foreign actors, which is one reason rightsholders have proposed various methods to starve these site operators of user access or revenue, or both. But to date, the major members of the Internet Association have spent millions in PR and lobbying dollars opposing every initiative in this regard, both in the U.S. and abroad.  

So, Berroya’s allusion to foreign piracy reads like another round of shell-game—one that is very familiar to rightsholders—in which the internet industry pays lip service to solutions like “keeping up pressure on foreign governments,” which they will then oppose through the very large public megaphones that they themselves own and operate. In some cases, even the aforementioned voluntary anti-piracy measures have been strenuously criticized by the “digital rights” groups whose funding comes from the same companies comprising the Internet Association.

Finally, echoing the sentiments of other critics, the Internet Association repeats the fallacy that the Copyright Office, in its Report on Section 512, neglected to consider “the public” as a stakeholder. Berroya testifes …

“While it is understandable that the Copyright Office would focus on the impact of section 512 on copyright owners and copyright law, an assessment of the DMCA safe harbors is incomplete without meaningful consideration of other values important to users, such as free speech, economic and cultural citizenship, and privacy.”

Although that sounds very pretty, it is more smoke fogging the debate. The speech right is not protected by online platforms, and copyright infringement is not protected speech. It is hardly conclusive that “economic and cultural citizenship” has been vastly improved by digital life for a majority of citizens. And with regard to privacy, most people can easily identify which members of the Internet Association have been caught invading privacy and abusing user data. Certainly, it is not the authors who are harvesting and selling data about millions of Americans. 

So, let us stay focused on the subject at hand, which is whether Notice-and-Takedown is working to balance the needs of OSPs and rightsholders. And let us not be distracted by references to online activity or technological developments that have little or nothing to do with the DMCA. It is hardly surprising that the Internet Association, with its membership of the wealthiest and most powerful OSPs in the world, claims that Section 512 is working as intended. No doubt it’s working beautifully for them.

But it is also not surprising that the members of the Senate Judiciary Committee sound skeptical about the fulfillment of 512. This probably has a lot to do with the fact that instead of merely offering platitudes about the value of creative works, authors present hard data showing how often those works are being pirated and by whom. From this evidence, it is very easy to see why no individual creator stands a chance against that tide, which explains why the internet industry would rather draw everyone’s attention elsewhere.

Photo by: fizkes

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.