Hearing Confirms Congress is Moving Ahead with Legislation to Protect Creators Against Piracy and Digital Replicas
On June 30, the House Judiciary Committee, Subcommittee on Courts, Intellectual Property, Artificial Intelligence, and the Internet held a hearing titled A Midlife Crisis? IP and the Internet, which covered a spectrum of pressing copyright and creator rights issues from generative AI to digital replicas to foreign based piracy. While the scope of the hearing was broad, the Subcommittee heard from a panel of expert witnesses who spoke directly to problems affecting the copyright and creative communities and the practical legislative solutions that would ensure creators’ rights are enforceable in the age of the internet and generative AI. Subcommittee leadership made clear that Congress is moving ahead with bipartisan efforts to better protect copyright owners and creators, including enacting long-discussed judicial site blocking legislation—which is critical to battling the endemic of foreign-based piracy.
Opening Remarks Detail Challenges Facing Creators and Copyright Owners
The hearing began with opening remarks by Subcommittee Chairman Darrell Issa (R-CA), Ranking Member Hank Johnson (D-GA), as well as full Judiciary Committee Chairman Jim Jordan (R-OH) and Ranking Member Jamie Raskin (D-MD), during which all stressed the importance of protecting the creative industries while not hindering the development of AI and digital technologies. Speaking to online piracy, Chairman Issa noted that while the DMCA has worked “some,” piracy continues to harm copyright owners and important questions surrounding the DMCA’s notice and takedown system—namely what constitutes “expeditious” removal of infringing material—remain to be answered. Chairman Issa also used his time to show a pre-recorded video featuring filmmakers, authors, musicians, and numerous other creative industry professionals who expressed concerns with rampant online piracy and thanked the Subcommittee for working towards practical solutions to combat the pervasive infringement problem.
The panel of witnesses then provided opening statements, starting with actor and SAG-AFTRA President Sean Astin, whose remarks and written testimony focused on protecting against unauthorized digital replicas and deepfakes. Next was Chris Floyd, Of Counsel at Amblin Entertainment, who explained the difficulties creators in the film industry face when trying to protect their works against online theft, noting “the internet supercharged digital piracy.” Floyd also explained how judicial site blocking has been successfully implemented in nearly 60 countries around the world—making the U.S. an outlier—and warned against lowering our time-tested IP protection standards to keep up with China.
Steve Francis, Executive Chairman of IP House, an international IP enforcement organization, focused his remarks on the existential threat that global IP theft poses, including how it’s evolved and scaled up in recent years. He explained how IP crime is more organized and harder to disrupt than ever due to the anonymity on the internet—a problem that is most effectively addressed by judicial site blocking.
Chris Mohr, President of the Software & Information Industry Association (SIIA), next explained that while his member organizations sit on both sides of many IP issues, they are supportive of targeted, guardrail-heavy efforts to combat unauthorized digital replicas and foreign piracy sites. Lastly, Bhamati Viswanathan, a Professor of Law and Fellow at the Kernochan Center for Law, Media & Art, focused on the importance of sustaining robust arts and entertainment industries alongside tech—which in the age of generative AI means encouraging and incentivizing the licensing of copyrighted works for training. She also stressed that the “midlife” of the internet was not a crisis, but an opportunity to adopt much needed enforcement mechanisms like site blocking and digital replica protections.
Q&A Drills Down on Challenges, Effective Solutions
Much of the Committee member questions for the panelists focused on holding foreign-based piracy sites accountable, protecting against unauthorized digital replicas, and copyright issues surrounding generative AI. After being asked by Representative Cline (R-VA) whether the Supreme Court’s recent Cox v. Sony decision on contributory infringement liability makes site blocking more urgent, Mohr answered that, from a rightsholder perspective, it does, and that copyright owners need a way to hold illicit foreign-based websites accountable. Ranking Member Johnson (D-GA) then shifted the conversation to transparency requirements for AI developers that use copyright works for training, asking Dr. Viswanathan whether they should be required. She responded by taking issue with the premise that AI developers shouldn’t have to pay to use copyrighted works since humans do and that yes, transparency should be required. She also stressed that licensing is the best solution to address the market harm caused by unauthorized use of copyrighted works for training and that AI companies shouldn’t have a get-out-of-jail-free card simply because they say licensing is hard or expensive. It’s a common refrain—that licensing is too hard or expensive—but for many AI developers that are now the most profitable and solution-oriented companies of all time (when it comes to their problems), it’s a lame excuse.
Floyd, in response to a question from Ranking Member Johnson about how piracy impacts filmmaking, explained that it’s changed how movies are made and that it negatively affects funding or whether a movie gets made at all. He added that the end result is fewer movies being made, fewer people being employed along the way, and more risks taken on the movies that do get funded.
Representative Raskin (D-MD) shifted the questioning back to generative AI, explaining that books he has authored were part of datasets used by Anthropic and subject to the massive settlement in the recent Bartz v. Anthropic case. He asked Dr. Viswanathan whether she agreed with that court’s conclusion that, while the downloading of pirated works was not fair use, that the use for training was transformative and qualified as fair use. Viswanathan made the important distinction between transformative in a legal sense versus technical and pointed out that courts are struggling with the difference. She also reminded the Committee that fair use is an affirmative defense and that the fourth factor—the effect of the actual or potential market for a work—should weigh against AI developers when they could have licensed works for training. Indeed, copyright owners in many ongoing lawsuits have detailed numerous ways unauthorized training harms the market for their works, from direct substitution to lost licensing opportunities to the dilution of markets being flooded by AI generated works.
Representative Gooden (R-TX) followed up by asking how AI companies, specifically LLM developers, get the materials they use for training. Viswanathan explained that they suck them up like a “giant hoover” by scraping the entire internet, which inevitably includes illicit websites full of pirated works. Gooden asked why if he (or any human) can give someone a used book to read, why can’t AI companies use books without permission or compensating the author. Viswanathan explained that AI companies are taking books, not being given or gifted them, and that even though things like the first sale doctrine allow for humans to give each other used versions of physical works, they do not permit the recipient to copy or use the work for any purpose they desire. It’s worth noting that the first sale doctrine does not apply to digital copies of a work, which is what AI companies are making over an over during the training process.
Representative Lofgren (D-CA) then discussed her recent work on the Foreign Anti-Digital Piracy Act (FADPA), a targeted, bipartisan effort to implement a judicial site blocking system. She explained that the bill is grounded in the simple principle that Congress can combat foreign-based piracy while not sacrificing due process, free expression, privacy, or the open internet. In response to a question about sufficient guardrails in the bill, Viswanathan explained that the legislative efforts are crafted in a way in which legitimate non-infringing uses will still flourish, but that bad actors that represent piracy’s long-running “whack-a-mole” problem will be targeted. Lofgren, shifting to generative AI training, asked the panel about whether sufficient technological measures—like watermarking or robots.txt—exist to block AI companies from scraping whatever they want from websites. Viswanathan explained that while some technological protections exist, there are end runs around such measures that make them far from a perfect solution. While AI companies often argue that technical measure can help copyright owners avoid having their works used for AI training, it’s should be recognized that along with being easily overridden, the measures taken to block scraping often result in less online exposure for creators who need it to make a living.
Bringing the questioning back to foreign-based piracy, Representative Fry (R-SC) asked Astin whether site blocking was important to SAG-AFTRA. Astin explained that while the actors and artists he represents are not typically copyright owners in the works they appear in, it is important that their employers are able to successfully enforce their rights because it affects entire industries. Chairman Issa also noted that while lawmakers consider site blocking legislation, they should also consider empowering organizations like the International Trade Commission (ITC) to deal more in intangible property in way that would result in broader and more effective enforcement of the law.
Many other Subcommittee members, including Representatives Ross (D-NC), Kamlager-Dove (D-CA), Lee (R-FL), and Fitzgerald (R-WI) asked questions of the witnesses and all expressed strong support for protecting against piracy and unauthorized digital replicas. Representative Ross asked Francis about the health and safety risks of counterfeit goods and the enforcement hurdles. Francis agreed that bad actors and counterfeits remain a significant problem and agreed with Rep. Ross that government funding for task forces at the state and local level is imperative.
Conclusion
Chairman Issa closed by telling the panel that he expects the hearing to be the last before site blocking and digital replica bills move and that stakeholders on both sides are close to final compromises. He stressed that he wants site blocking legislation to move “under his watch,” which is notable because his term is coming to an end and he will not be running for reelection next year. In the end, he noted that the panel demonstrated that allowing the kind of damage caused by online piracy and digital replica abuse to continue is no longer possible. And based on the statements and questions of the Committee members during the hearing, it’s clear that lawmakers agree and that effective legislative solutions are imminent.
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