Author: Kevin Madigan

On December 27, the Protecting Lawful Streaming Act (PLSA) was signed into law, marking a significant milestone in closing a loophole in the law that has frustrated creators, copyright owners, and law enforcement agencies for over a decade. To help better understand what the law will do—and just as importantly, what it will not—we’re here to answer your questions and provide background on the long-overdue modernization of criminal penalties for copyright infringement.

What is the PLSA?

The Protecting Lawful Streaming Act is one of three intellectual property bills signed into law in December 2020 as part of the Consolidated Appropriations Act 2021. The PLSA was enacted with widespread bipartisan, bicameral support and is the result of over a decade of efforts by Congress, the Copyright Office, law enforcement and regulatory agencies, and various stakeholder communities to close an unintended gap in copyright law that allowed large-scale commercial enterprises to avoid serious consequences for their illegal streaming of copyrighted works. By harmonizing criminal penalties for violations of the public performance rights associated with digital streaming with those that have long existed for violations of reproduction and distribution rights, the PLSA will provide prosecutors with an effective tool to deter harmful criminal activity and protect the rights of creators and copyright owners.

Why is closing the streaming loophole important?

Streaming is now the preferred avenue for illegal piracy of movies, television shows, music, sporting events, and many other types of copyrighted works, yet for many years outdated language in the law resulted in significant differences in the criminal penalties available for copyright piracy depending on the how the pirated works were being made available. A criminal enterprise making such works available for download was subject to felony charges, but the same criminal enterprise making those works available for streaming was subject only to misdemeanor penalties.

This discrepancy in available criminal penalties hampered law enforcement’s efforts to deter widespread, commercial-scale streaming infringement through criminal prosecution. As a result, rogue organizations were able to build lucrative businesses around streaming pirated movies, music, video games, books and other copyright works and escape any meaningful prosecution.

How Harmful is Streaming Piracy?

• Streaming is now the preferred avenue for illegal piracy of all types of audio and video content, accounting for 80% of all U.S. piracy
• Streaming piracy costs the U.S. economy more than $29 billion a year
• 9 million broadband users in the U.S. subscribe to illegal “on demand” streaming services
• Streaming piracy threatens creative and technology industries that employ 2.6 million Americans and provide $229 billion in annual economic benefits

How long have policymakers and stakeholders been discussing a solution to the streaming loophole?

The harmful effects of streaming piracy and the lack of appropriate criminal penalties have long been recognized by a variety of government agencies and stakeholders in the copyright community. Measures in support of and leading up to the PLSA over the past decade include:

• Law enforcement agencies’ repeated encouragement of Congress, over the course of many years, to plug the streaming loophole
• Longstanding Copyright Office support for closing the streaming loophole
• Endorsement by the Department of Justice, the Intellectual Property Enforcement Coordinator (IPEC), and the Department of Commerce Internet Policy Task Force over the course of the Obama and Trump administrations
• A report from the Federal Trade Commission warning of the harms associated with illegal streaming
• A bill in the 112th Congress proposed in response to unauthorized streaming
• At least three hearings before the House Judiciary Committee and House Subcommittee on IP, Competition, and the Internet highlighting the harms of streaming piracy, the need to protect online commerce by combating illegal streaming, and the lack of sufficient streaming penalties

How did policymakers and stakeholders come to agree on the approach and language that resulted in enactment of the PLSA?

In early 2020, Senator Thom Tillis (R-NC) brought together a diverse group of stakeholders to work towards meaningful changes to the outdated criminal laws surrounding streaming piracy. Representatives of various communities, including copyright owners, platforms, online service providers (OSPs), legitimate licensees, and users negotiated over the course of more than ten meetings spanning about six months, carefully contemplating a number of proposals and working in good faith to arrive at a compromise.

The result of these negotiations was an agreement reached in July 2020 that was supported by content creators and copyright owners (including the Motion Picture Association and the International Alliance of Theatrical Stage Employees), legitimate content distributors (including the National Association of Broadcasters and NCTA – The Internet & Television Association), and major sports leagues (including Ultimate Fighting Championship and the National Basketball Association). Importantly, groups that often express concern around copyright legislation (including those representing internet service providers, internet platforms and edge providers, and user groups) were not opposed to the legislation. Representatives of these groups even went on record at a House Judiciary Committee hearing confirming that they were either supportive of the bill or neutral.

What does the PLSA do?

The PLSA modernizes criminal copyright law by ensuring the availability of felony penalties for illegal streaming, consistent with those that have long existed for illegal downloading and distribution. The bill amends title 18, United States Code, by inserting a new section 2319C titled “Illicit digital transmission services,” which lists the prohibited acts that will now be subject to heightened penalties.

The statute requires that a person must act (1) willfully, (2) for purposes of commercial advantage or private financial gain and (3) offer or provide to the public a digital transmission service. A digital transmission service is defined in the statute as “a service that has the primary purpose of publicly performing works by digital transmission.” It’s also important to understand that the requirements that a person must act “willfully” and “for purposes of commercial advantage or private financial gain” are standards taken directly from existing criminal copyright law.

If all three of these initial requirements are met, a person must then satisfy one of the following three factors by providing a digital transmission service that:

(1) is primarily designed or provided for the purpose of publicly performing copyright-protected works by digital transmission without the authority of the copyright owner or the law;

(2) has no commercially significant purpose or use other than to publicly perform copyright-protected works by means of digital transmission without the authority of the copyright owner or the law; or

(3) is intentionally marketed by or at the direction of that person to promote its use in publicly performing copyright-protected works by means of digital transmission without the authority of the copyright owner or the law.

The statute adopts penalties for these prohibited acts which are generally consistent with those that exist for similar violations of reproduction and distribution rights. For example, the penalty for a base first offense is a fine or imprisonment of not more than 3 years, or both. The statute also includes enhanced penalties for infringement of “works being prepared for commercial public performance,” which means things like pre-release and newly released movies and live streaming sporting events. Because piracy of this type of content can be extremely harmful to the copyright owner, the penalties are heightened to a fine or imprisonment of not more than 5 years, or both. Finally, repeat offenders may be subject to the most serious penalties which include a fine or imprisonment of not more than 10 years, or both, if the offense is a second or subsequent offense.

Who will be subject to the criminal penalties established by the PLSA?

The provisions of the PLSA were carefully drafted with input from stakeholders from the service provider, platform, and user communities so that the law ensures felony penalties are available only against the most egregious offenders: Those who operate commercial streaming services that are primarily designed, marketed, or have no significant use other than for illegal streaming of copyrighted content. These services would include subscription pirate Internet Protocol Television (IPTV) services that mimic legitimate streaming services by offering vast amounts of movies and television programs as well as other illicit “tube” channels that allow users to stream unauthorized content.

Who will not be subject to the criminal penalties established by the PLSA?

The law will not affect the activities of ordinary internet users. Nor would it criminalize good faith business/licensing disputes or noncommercial activities. This means that individual internet streamers cannot be subject to felony prosecution under the PLSA, for example by  incorporating unauthorized content in a YouTube or Twitch stream. The normal practices of internet service providers (ISPs) would also not be subject to penalties under the PLSA, even when ISP users/subscribers misuse their services for purposes of infringement.

What’s Next?

The provisions of the PLSA are immediately applicable and can be used by law enforcement to bring charges against large-scale criminal enterprises engaged in illicit streaming. As evidenced by more than a decade of efforts to close the streaming loophole, the need for the PLSA is long overdue, and we look forward to a more modern copyright system that will protect our vibrant creative ecosystem and provide a powerful deterrent to would-be criminals.

On October 7th, the Supreme Court heard oral arguments in the much-anticipated Google v. Oracle America copyright dispute that has been winding its way through lower courts for the past decade. At the virtual hearing, arguments by the lawyers and questions from the Justices focused on a few key issues, including 1) the copyrightability of Oracle’s declaring code, 2) whether the merger doctrine renders the code uncopyrightable, and 3) the appropriate standard of review for fair use determinations.

We posted a comprehensive analysis of these and other issues discussed during the oral arguments, and there have been a number of articles and blogs weighing in on the case since then. While these articles include a variety of accounts, from general summaries by leading news outlets to more nuanced reviews by IP experts who have been following the case for years, the published reactions include some shared takeaways that could spell trouble for Google.

The New York Times

In an article published the same day as oral arguments, the New York Times reported that the Justices recognized that “the copyright case of the decade” could have far reaching implications for the computer software industry. While the article stopped short of predicting a winner, it noted that “on balance, Mr. Goldstein, Google’s lawyer, faced more hostile questions than did his adversaries in the case.” Touching on the question of copyrightability, the article highlighted an exchange between Justice Alito and Goldstein in which Alito said that “I am concerned that, under your argument, all computer code is at risk of losing protection.” As to Google’s fair use defense, the article focused on the response Malcolm Stewart, Deputy Solicitor General representing the U.S. government in support of Oracle, gave when asked by Justice Sotomayor whether the use was transformative. Mr. Stewart explained that simply using content on a different platform is not transformative, likening Google’s use of Oracle’s code to livestreaming a movie over the internet that had only been previously released in theaters. On the merger question, the article drew attention to the fact that many Justices pointed out that Google had options besides using Oracle’s code and that other companies had either taken a license from Oracle or innovated their way around the copyright protected code.

CNN

CNN Business also reported on the case the same day as oral arguments, and like the New York Times, acknowledged that Google’s attorney got the brunt of the Justices’ tough questions. The article made clear that “[o]nly Justice Stephen Breyer appeared to express a strong preference for Google’s position.” Addressing the merger issue, the article noted that “Chief Justice Roberts suggested that for Oracle’s code to become so important that others would seek to copy it implies that the company should be rewarded, not hurt through copyright infringement.” The article also observed that while Google’s attorney claimed a finding in favor of Oracle would destroy the software industry, Kavanaugh pointed out that since a 2014 federal circuit ruling for Oracle, “Google’s nightmare scenario has not come to pass.”

Ars Technica

An article posted shorty after oral arguments on Ars Technica-a tech-centered outlet that often takes a skeptical view of copyright-was blunt in calling the hearing “a disaster for Google.” On copyrightability, the author of the article admitted that after listening to the arguments, “I had trouble imagining a five-justice majority accepting Google’s argument that API’s cannot be copyrighted.” The article went on to quote a copyright scholar from Cornell University who said that, in arguing that Oracle’s code should not be protected by copyright, Google’s attorney “did an abysmal job.” The article noted that “there were at least four justices-Kavanaugh, Alito, Thomas, and Gorsuch-who seemed skeptical of Google’s position that APIs can’t be copyrighted. If all four voted for Oracle, the best Google could hope for is a tie. A tie would still be a loss for Google, since it would leave in place Oracle’s win at the appellate level but wouldn’t set a nationwide precedent.” While the article noted that some Justice’s seemed sympathetic to Google’s arguments at times, it concluded that “[f]rankly, there seems to be a good chance that Oracle will prevail.”

IP Watchdog

Also reporting on the oral arguments was IP Watchdog, a leading resource for news and commentary on intellectual property law matters. On the merger question, the article noted that “the justices struggled to understand why Google could not have just written its own declaring code, as others, like Apple and Microsoft, have done.” While the article explained that Google’s attorney tried to argue that forcing Google to develop its own code would be inefficient and contrary to the goals of copyright, it observed that Gorsuch, Sotomayor, and Kavanaugh appeared skeptical and continued to press him on the merger issue. As to copyrightability, the article noted that Sotomayor questioned Oracle’s attorney, Joshua Rosenkranz, about circuit court holdings that she claimed found declaring code not protectable by copyright. Rosenkranz responded by challenging Sotomayor’s interpretation of the lower courts findings and reminding the Court that not a single case “has ever said that you can copy this vast amount of code into a competing platform to use for the same purpose.” The article went on to provide reactions from prominent IP lawyers who posited that the Court would affirm that Oracle’s code is in fact copyrightable. Finally, IP Watchdog’s founder and CEO, Gene Quinn, said that “it seems to me that unless the Supreme Court fundamentally changes the law, Google will lose.”

The Verge

Reporting two days after the hearing, an article on The Verge detailed the sometimes-confusing analogies and comparisons that many of the Justices attempted to make regarding software code. It quoted a line from of a copyright law professor, who tweeted “Prediction: The side that wins the metaphor battle will win the case.” Though it wasn’t quite clear who “won” the metaphor battle, the article noted that both sides declared victory afterwards, with a top Google executive claiming the Court “confirmed the importance” of the legal rights protecting software interoperability. Conversely, the article quoted an Oracle representative who said the court “agree[s] with us that all software is covered by copyright.” Discussing copyrightability, the article noted that the Justices “didn’t necessarily seem convinced that Oracle’s API wasn’t protected by copyright.”

Marketplace

Stanford Law Professor Mark Lemley was interviewed by Marketplace Tech after the hearing and observed that “Oracle’s arguments seem to get a lot of traction with a lot of the justices.” Speaking to issues of copyrightability and merger, Lemley noted that “a number of the justices seemed to think that the fact that Oracle had written this code, even if this code was now necessary to make programs work with Java, meant that it was the copyright owner and had an entitlement to protection.” When pressed on a potential outcome in the case, Lemley said that “many and maybe most of the justices were inclined to take Oracle’s side and to say it was copyrightable. Justice [Stephen] Breyer, and maybe Justice [Sonia] Sotomayor and [Elena] Kagan, were more skeptical of that claim. If Google prevails, I think it might prevail not on the grounds that you can’t protect this information at all, but on a narrower ground that the [U.S. Federal Appeals] Court was wrong to overturn the jury’s finding of fair use, that Google’s particular use of this was permissible, or at least that there was a factual dispute and the jury could legitimately find it permissible.”

Center for the Protection of Intellectual Property (CPIP)

Antonin Scalia Law School’s Center for the Protection of Intellectual Property (CPIP) also posted a blog recapping the oral arguments and analyzing the key issues discussed. As to the question of copyrightability, the article pointed out that the Justices sometimes struggled to analogize the copyrightability of computer code to a number of different scenarios but that they ultimately “did not seem convinced by Google’s assertion that Oracle’s method of writing code was the only way to create the function Google wanted for its Android platform.” Turning to fair use, the article noted that “Mr. Rosenkranz pointed out that Google conceded that every line of code copied serves the same purpose in Google’s Android platform as it did in the original software-there was no alteration or transformation of the original code.” The article also highlights an exchange between Goldstein and Kavanaugh in which the Justice said that the sky has not fallen since Google’s fair use defense was rejected years earlier.

Conclusion

As many of those reporting on the hearing pointed out, it can often be a futile exercise to predict how the Supreme Court will rule in a given case. Simply because the Justices had more tough questions for one side than the other or seemed skeptical about a particular argument doesn’t mean that their views won’t change in the coming months when considering the case more deeply. But it is worth noting that most commenters seem to think-based on what they gleaned from the oral arguments-that it is highly unlikely the Court would issue a ruling that holds (1) Oracle’s declaring code has always been uncopyrightable or (2) that the merger doctrine has rendered the code uncopyrightable. To the extent there seemed to be any ambiguity in how the Court might rule, some articles noted that it was less clear how some Justices might rule on the standard of review for fair use cases. As if that wasn’t enough uncertainty, there’s also the fact that only eight Justices heard the case and there could be a 4-4 split in which Oracle’s appellate level win would be confirmed, but no Supreme Court precedent would be established on the key copyright issues. Whatever the Court decides, all those interested in the intersection of copyright law and technology will be anxiously awaiting the opinion, which is expected no later than the end of June 2021.

Photo credit: Fedor Kozyr/iStock

Last week, the House Judiciary Committee held a hearing titled Copyright and the Internet in 2020: Reactions to the Copyright Office’s Report on the Efficacy of 17 U.S.C. ¤ 512 After Two Decades. Picking up on the ongoing Senate IP Subcommittee hearings on the Digital Millennium Copyright Act (DMCA), the hearing gave Committee members an opportunity to dive deeper into the Copyright Office’s Report on Section 512 and get feedback from lawyers, copyright policy experts, and creators on how the DMCA is holding up twenty two years after its enactment. And while the hearing’s witnesses did not all agree on what exactly needs to be done, it was clear that parts of the law governing online copyright infringement are in need of updating.

Judiciary Committee Chairman Jerry Nadler (D-NY) opened the hearing by explaining that the DMCA was enacted in 1998 when internet companies were in their nascency, and that there has been a dramatic increase in online infringement over the past two decades that has led to questions over whether the balance intended by Congress has been maintained. Nadler noted that “our copyright laws have to keep up” with changes to technology and the growth of the internet, and that the Committee was interested in determining whether the recommendations in the Copyright Office’s 512 Report would help the law keep pace.

Ranking Member Jim Jordan (R-OH) also delivered brief opening remarks in which he spoke of the many stakeholders who have alerted Congress over the past decade to the shortcomings of the DMCA. Jordan spoke of the massive harm caused by infringement in the digital age-which he noted is much more damaging and far reaching than pre-internet problems like bootleg music recordings-and he made it clear that online service providers (OSPs) must do more to address online infringement.

Witness Testimony

Jeffrey Sedlik, an advertising photographer with over 35 years of professional experience and President & CEO of the PLUS Coalition, was first to testify and used his time to describe his experience as both a artist and developer of technologies that help copyright owners deal with infringement. Sedlik described how service providers continue to take advantage of his and others’ copyrighted works while hiding behind Section 512’s safe harbors. He went on to explain that, like many other artists, he must dedicate far too much of his limited time to searching for infringing materials and combing through websites for DMCA agent information. Sedlik expressed frustration with the fact that OSPs don’t enforce repeat infringer policies and emphasized that the enormous number of takedown notices being sent isn’t a sign of success – it’s a sign of failure and strain on the system.

Next to testify was Meredith Rose, Senior Policy Counsel at Public Knowledge, who focused her comments on the user groups that she claimed have been absent from the Section 512 conversations. This was a familiar refrain by Rose and others, but it should be noted that her organization, as well as others purporting to represent user groups-such as the Electronic Frontier Foundation (EFF), Re:Create, and Fight for the Future-are all cited to in the 512 Report and their representatives participated in the 512 roundtables at every step throughout the study. Claims that user communities have been left out of the report seem to be in response to the Copyright Office disagreeing with the positions of these organizations or the Office not being offered enough evidence to conclude that their suggestions are worthy of further study or consideration.

Rose went on to argue that copyright has been “weaponized” to censor user-generated content and that copyright infringement claims should never result in the disconnection of someone’s internet service. She claimed that broadband access is a basic human right, and that even those convicted of child sex offenses have not had their internet access cut off. It wasn’t clear whether Rose thinks that criminals should never be deprived of internet access, but surely there are instances in which egregious crimes perpetrated over or facilitated by the internet should result in termination of service.

Professional singer and songwriter Morgan Kibby then testified on the impact that Section 512’s flaws have on middle level creators like herself. Kibby explained that enforcement issues are systemically undercutting the next generations of artists and sabotaging the online marketplace. She went on to admit that because trying to enforce her rights under Section 512 is a largely futile endeavor, she simply doesn’t do it. Responding to the argument that notice and takedown results in censorship of user-generated content, Kibby explained that the true censorship is what results from stripping creators of their rights to agency and control over their creations. Finally, Kibby lamented that the existing system devalues creators and has caused a shrinking of creative cultural identity.

Next, Jonathan Band, Counsel for the Library Copyright Alliance, testified that he and the libraries he represents believe the Copyright Office’s 512 Report was correct in not recommending a notice and stay-down system-and in doing so he seemed to ignore completely the fact that the Report acknowledges that notice and stay-down may be a workable solution and that more study is needed. Band also said that he agreed with the Report’s conclusion that abusive takedown notices are a serious problem. But the Copyright Office Report stops short of any such conclusion, saying instead that “it is difficult to ascertain, in the notice-and-takedown system as a whole, either the true rate of inaccurate notices or the relative frequency of merely inaccurate or incomplete notices versus notices sent containing knowingly false misrepresentations.” Band concluded by implying that because we live in a golden age of content creation and distribution, we shouldn’t “disturb” the system by making adjustments to the DMCA.

Matthew Schruers, President of the Computer & Communications Industry Association (CCIA), followed with testimony claiming that many OSPs go above and beyond the requirements of the DMCA to fight infringement, but that these “DMCA Plus” efforts often result in censorship. Schruers also said that Congress can prevent infringement by enforcing existing laws against offshore actors, which was surprising given that some CCIA member companies continue to index foreign piracy websites despite the requests of the copyright community.

The final panelist was Terrica Carrington, Vice President, Legal Policy & Copyright Counsel at the Copyright Alliance. Carrington described how the problem of online piracy has grown enormously, with the burden of fighting infringement placed solely on copyright owners’ shoulders. Carrington listed three main problems with the current Section 512 configuration: (1) the ineffective notice and takedown process; (2) the effective elimination of the red flag knowledge standard; and (3) ineffective repeat infringer policies. While she said that there is no silver bullet solution to these problems, a combination of efforts should be considered, including adjusting the statute to clarify the differences between actual and red flag knowledge, enactment of the Copyright Alternative in Small-Claims Enforcement (CASE) Act that would provide an alternative dispute system for small creators and users, and the transparent development of effective STMs.

Question & Answers

Chairman Nadler then began the question and answer segment of the hearing by saying that the sheer volume of takedown notices now being sent does not seem like the hallmark of a system functioning as intended, and he asked Carrington whether she thought the magnitude of notices is a sign or success or failure. Carrington said that the vast number of notices being sent is an indication of a system-wide failure and that copyright owners are overburdened by having to send notice after notice for infringement that is not being dealt with by OSPs as required by the DMCA. When asked about a solution, Carrington reiterated that there are number of potential fixes, including incentivizing OSPs to work towards the development of effective standard technical measures (STMs), passing the CASE Act, and amending the statute to clarify the red flag knowledge standard.

Nadler then asked Kibby about creators who do not have the time or resources to monitor for infringement and what Congress could do to help them get a fair return for their work. Kibby again explained that as a self-employed artist, she had given up trying to combat online infringement because she just didn’t have the time to devote to it and that even if she did, she has little confidence the DMCA enables her to make a difference due to the pervasive whack-a-mole problem.

Shifting the conversation to STMs, Nadler then asked Sedlik what Congress could do to encourage the development and implementation of effective technologies that identify and deal with infringement. Sedlik said that Congress could help by facilitating a system in which stakeholder groups can easily access and recognize STMs once they have been developed. He also stressed that technology is readily available to communicate rights information between OSPs and copyright owners and that the only missing piece is education and the ability to identify the STMs.

Roby

Ranking Member Martha Roby (R-AL) then used her time to talk about a recent legislative proposal that would assist copyright owners in the fight against piracy by closing a loophole in the law that allows only for misdemeanor penalties in cases involving violations of rights associated with streaming. She explained that these inadequate penalties are inconsistent with those that apply to similar violations of the reproduction and distribution rights implicated when content is illegally downloaded. Roby said she was encouraged by progress made over the last few months by a wide range of stakeholders, many of whom were represented on the panel, to come to an agreement on the text of a draft bill that she hopes will be passed before the end of the year. She concluded her comments by asking Carrington, Rose, Band, and Schruers to confirm that their organizations remain either supportive of the bill or neutral, and they all said that they were.

Lofgren

Representative Zoe Lofgren (D-CA) then used her time to ask Rose whether the red flag knowledge standard identified as problematic in the 512 Report should be adjusted, and if so, might there be unintended consequences. When Rose admitted she was not familiar with the red flag knowledge issue, Lofgren turned to Band who said that courts have interpreted the standard correctly but then failed to explain why he felt that to be the case. He argued that any changes to the red flag knowledge standard would have the unintended consequence of requiring a filtering or notice and stay-down system that could in turn threaten free speech, once again without supporting his conclusory statements. Perhaps not surprisingly, Band did not mention that the current system already threatens the First Amendment rights of creators and copyright owners by compelling speech in some instances and stripping them of their ability to control their works.

Biggs

Representative Andy Biggs (R-AZ) then asked Rose what makes online, user-generated content creators different from more traditional creators. Rose explained that these creators use a different method of getting content out to the public and they rely heavily on fair use. Biggs then asked Rose how she believes Section 512 can be strengthened to deter frivolous or abusive notices. Rose said that using an objective, rather than subjective, standard to determine whether a notice was sent in good faith would be a good first step. She also claimed that abusive or fraudulent notices are a serious problem. Unlike Band, she did try to support her conclusory statements, but in doing so she relied on very questionable data that has been debunked numerous times and also completely ignored the fact that the counter notice system already provides users with the tools to challenge flawed notices.

Next, Biggs asked Band whether he believes government enforcement is needed to deal with abusive notices and, if so, what kind. Band claimed that something outside the DMCA is needed, suggesting that the FTC or another government agency could step in to bring the weight of the government and go after and deter bad actors. One has to wonder whether Band would support the concept of government intervention if the “bad actors” in the question were the infringers or counter-notice senders. We think not.

Johnson

Representative Hank Johnson (D-GA) was next to question the panel, first speaking to how crucial it is that creators are able to rely on copyright law protections to make their living. When asked by Johnson about the extra burdens OSPs sometimes impose on rightsholders, Sedlik explained that he submits DMCA notice forms manually because online service providers all have different and sometimes complex web forms. Further, when a platform does take down his infringing work, Sedlik said that it is not expeditious as required under the statute-it can take up to a month or longer. Sedlik suggested that copyright owners be able to create an account with an OSP, save their address and phone information, and input specific details about particular takedowns when they submit notices.

Johnson asked Schruers the same question, and he responded by explaining that it is important to recognize that many platforms have entirely different interfaces across which content can’t be easily shared. Regarding the takedown process, Schruers argued that the ease with which takedowns are filed in bulk is one reason why it seems like the system isn’t working and he made the questionable claim that upwards of 80% of the content targeted by takedown notices are not on the platform in the first place. It’s unclear where Schruers got this figure, and it is not explained in his written testimony. Schruers also chose to disregard the fact that the counter notification system and the provisions of 512(f) are in place to guard against faulty or abusive notices.

Cline

Representative Ben Cline (R-VA) then steered the discussion toward standard technical measures, asking Sedlik to describe what STMs are already available and why they haven’t been widely adopted. Sedlik explained that there is a misperception that STMs will be used to stifle expression and free speech that in turn has led to a hesitancy on the part of OSPs to develop and implement STMs. Sedlik also reminded the Committee that the statute does not require the existence of a formal standards body or the consensus of every last stakeholder. Rather, it requires the participation of a broad consensus of online service providers and copyright owners.

When asked the same question, Schruers said that there is a huge variation in systems online – what technology may work for one type of service is not necessarily going to work for another. Cline also asked Schruers whether he agrees that the development and implementation of STMs doesn’t require the consensus of all stakeholders across every industry, just a broad consensus. Schruers said that he believes achieving STMs in a way that complies with the statute is feasible, but market participants have yet to reach that consensus.

Demings

Representative Val Demings (D-FL) next asked Kibby what she believes Congress should do to ensure that they are future-proofing Section 512 updates. Kibby stressed that it’s about simplifying: platforms should take down things that infringe on artistic integrity. Kibby said she refuses to believe that there isn’t a way for creators and service providers to come together for this conversation, but right now musicians are left holding the bag. Sedlik added that the number of abusive takedowns pales in comparison to the abuse of the fair use exception. While fair use is vital to copyright law, he said that it’s not a license to steal.

Demings then asked Carrington whether she agrees with the USCO conclusion that the lines are being blurred between actual knowledge and red flag knowledge. Carrington stated that she completely agrees with the USCO conclusion – a number of court cases conflated red flag knowledge with actual knowledge, effectively reading red flag knowledge out of the statute.

Chabot

Representative Steve Chabot (R-OH) asked Kibby how her ability to produce new creative works has been affected by efforts to protect existing works. Kibby again admitted that she just doesn’t have the time or resources to monitor for and fight infringement. She said that she’s so demoralized, and she frankly does not know many other musicians in her small circle that consider it worth doing.

Chabot then asked the panelists whether platforms’ automated filtering tools are effective. Schruers answered first, claiming that filters can be a valuable tool, but they are both site and media specific and require a lot of investment. Carrington took the conversation a step further, explaining that underlying technologies already exist, but that there must be an incentive for OSPs to implement them.

Deutsch

Representative Ted Deutsch (D-FL) was next to question the panel, recognizing first that enacting the CASE Act would be an important first step towards easing the burden on small creators to enforce their copyrights. He then asked Sedlik how else the weight of the burden could be shifted off of individual creators, which gave Sedlik the opportunity to once again stress that the red flag knowledge standard must be revised and clarified to hold OSPs more responsible.

Deutsch then asked Schruers what more can be done to address the problem of repeat infringers who represent the lion’s share of the piracy problem and how they can be distinguished from legitimate users. Schruers pointed out that 512 already requires OSPs to implement repeat infringer policies, and that the recent Sony Music v. Cox case showed just how dangerous it can be if services do not abide by them. And while Schruers insisted that meaningful enforcement is already occurring across a range of platforms, transparency regarding the details of the repeat infringer policies and their implementation remains a problem.

Armstrong

Representative Armstrong (R-ND) was then recognized, and he focused his time on questions surrounding the representative list element of a notification under Section 512(c)(3)(ii). In response to Armstrong’s question as to whether providing specific URLs is burdensome, Sedlik said that URLs are not required by the statute nor needed by OSPs to locate infringing material. He also explained that he provides detailed information in his notices about the works infringed, and that OSPs have sufficient technology available to then identify all copies of his works across a range of platforms.

Armstrong then asked Schruers and Rose whether larger OSPs should be required to find and remove infringing content that is reasonably identifiable without being provided a specific URL. Schruers argued there are inherent challenges in identifying all iterations of a work that has been infringed or reproduced across a variety of platforms, while Rose said that even though some larger OSPs may have the capability, she worried that a mandate to filter would be harmful to smaller platforms.

Before his time was up, Armstrong explained that from an enforcement perspective, technologies already exist and are being used to do similar monitoring for and removal of illegal drug analogs online, and he believes more can be done to fight piracy.

Swalwell

Representative Eric Swalwell (D-CA) shifted the discussion back to repeat infringer policies, asking Schruers how they vary amongst different service providers. Schruers said that it’s difficult to say, but that broadband services often employ strict policies and that users are at risk of having “strikes” against them by bad-faith notices. Of course, whether these policies are truly strict or applied consistently is unknown given the lack of transparency regarding their parameters.

Swalwell then asked Kibby to describe for the Committee how the lack of better protections against infringement affects her financially. Kibby said that the music industry has been completely turned on its head due to the Covid-19 pandemic and that although royalties from streaming and other online uses isn’t much, it sometimes means the difference between keeping the lights on in her studio or not. She reminded the Committee that most musicians are working class and not famous rock stars, and that piracy makes it difficult for these creators to do what they love.

Cline II

Swalwell then yielded the remainder of his time to Representative Cline, who asked Kibby whether there are some platforms that cooperate better in order to more fairly compensate her for her work. Kibby said that Twitter makes taking down infringing content very difficult and YouTube requires her to go through an intensive process just to prove that she is the owner of the work infringed.

Cline then asked Schruers what incentives to OSPs have to remove content when they are drawing advertising revenue from hosting that material. Schruers said that he does not agree with the contention that OSPs rely on infringing content to drive traffic to their services, and that they engage in voluntary efforts to both remove infringing content and allow copyright owners to monetize legitimate uses of their works. But Schruers failed to mention that copyright owners often reluctantly enter into deals to monetize their content because the payouts are meager-they are simply better than the alternative of getting ripped off completely.

Carrington was then asked what problems copyright owners face when confronted with a counter notice and how the system can be changed to better serve them. She explained that copyright owners often see infringing works put back online due to the fact that users can very easily file a counter notice and make a general fair use assertion that requires no explanation or support. After that, their only recourse is to file a lawsuit in federal court within a short timeframe, which is simply not possible for most small-scale copyright owners and creators. Carrington also noted that enacting the CASE Act, which the House passed overwhelmingly in a 410-6 vote, would allow for an alternative dispute system to resolve notice and counternotice issues.

Scanlon

Representative Mary Scanlon (D-PA) then asked Sedlik what solutions there may be to the knowledge standards and willful blindness issues identified by the 512 report. Sedlik said that OSPs and the content delivery services they use should be required to maintain databases with right information provided by copyright owners in order to identify infringing material and thereby not be able to claim that they do not have knowledge. He also added that under the current system, the next generation of artists has little chance of commercial success.

Raskin

Next to question the panel was Representative Jamie Raskin (D-MD), who asked Kibby how copyright protects the interests and integrity of artists whose works are used without authorization by political campaigns. Kibby stressed that agency and control over one’s work is just as important as the ability to commercialize, and that it can be incredibly damaging to creators to have their work associated with a message or political ideology that they do not agree with. She also seconded Sedlik’s concern about the next generation of artists who do not have to the tools to protect their work and establish a financial foundation.

Raskin then asked Rose about instances in which entities abuse the takedown system to censor speech and how serious she believes the problem to be. Rose said that she is only aware of a few egregious examples, but that because users now rely so heavily on the internet as a platform for speech, any potential DMCA fixes must take their concerns into account.

Correa

Representative Lou Correa (D-CA) then asked Kibby and Sedlik whether the notice and takedown system is robust enough to handle an even greater shift to the online environment. Kibby said that because it is not currently working, there is not reason to believe that it will work better if there are even more notices being sent in the future. Sedlik agreed, saying that that the DMCA gives creators the opportunity to pull down some but not most of infringement occurring online and that it’s ultimately an untenable situation.

Correa than asked the panel whether the detection technologies that have been developed by large OSPs will ever be available for all stakeholders, including content owners and other smaller platforms. Rose said that most technical measures have been established by entrenched industry players who may be unwilling to share proprietary systems with other companies. Carrington then explained that until and unless these tools are made available to individual creators and small businesses, their effectiveness will be limited.

McBath

Representative Lucy McBath (D-GA) used her time to ask Kibby to elaborate more on her experience working with emerging artists and helping them navigate the online infringement landscape. Kibby said that it’s terrifying for young artists, especially at a time when the pandemic has made touring impossible, to try to figure out ways to commercialize their works. She recounted the stories of young artists she works with who have had to move back in with their parents and have no viable income streams on the horizon.

Stanton

Next to question to the panel was Representative Greg Stanton (D-AZ), who asked whether changes to Section 512 might create barriers to new or small businesses entering the market and how these concerns could be alleviated. Schruers said that Section 512 is not the “low-hanging fruit” of the Copyright Act and that modernization the copyright system to make licensing information more easily accessible would be a better first step. Carrington noted that no one is expecting new or small OSPs to implement the same anti-piracy mechanisms as industry giants and that requirements can be based on the size of the company and the amount of piracy attributable to its service.

Mucarsel-Powell

The last Committee member to address the panel was Representative Debbie Mucarsel-Powell (D-FL), who shifted the discussion towards measures that other countries are taking to fight piracy and whether the U.S. should look to them for a potential road map. Rose pointed out that the EU Copyright Directive is in a process of implementation that could take years, but that the U.S. has the benefit of watching as the process unfolds and seeing what works and what doesn’t. Mucarsel-Powell then asked Schruers whether holding technology companies more accountable for infringement could lead to negative externalities and might inhibit innovation. Schruers said while there are some problems, he believes the current system strikes the right balance.

Photo credit: Rex_Wholster/iStock

On Wednesday, the Senate IP Subcommittee held a fifth hearing in its ongoing investigation into the viability of the Digital Millennium Copyright Act (DMCA) twenty-two years after its enactment. Titled Are Reforms to Section 1201 Needed and Warranted?, the hearing featured two panels of copyright experts from government, industry, and academia discussing the current state of Section 1201 of the DMCA, which deals with the circumvention of copyright protection systems.

Subcommittee Chairman Thom Tillis (R-NC) opened the hearing by explaining that the goal of the meeting was to explore potential reforms of the “self-help provision” of the DMCA, which gives copyright owners a cause of action when someone circumvents the technological protection measures (TPMs) employed to prevent unauthorized access to copyright protected works. Stressing the importance of Section 1201 in striking a balance between the needs of copyright owners and consumers, Tillis said that he was particularly interested in hearing from the witnesses about ways to streamline 1201’s triennial rulemaking process and the possibility of amending the statute to permit expanded exemptions for third-party assistance.

Ranking Member Chris Coons (D-DE) also delivered brief opening remarks, echoing Tillis’s concern for balancing the needs of copyright owners and consumers. Coons also explained that the drafters of the DMCA had the foresight to craft a flexible framework to establish reasonable exemptions, and he welcomed input from the witnesses about whether the existing flexibility is sufficient.

Regan Smith

After opening remarks, witness testimony began with Regan Smith, General Counsel and Associate Register of Copyrights at the U.S. Copyright Office. Smith was the sole witness on the first panel, which was designed to allow the Subcommittee to draw on the deep experience of the agency in charge of administering the 1201 rulemakings. Describing the protections of Section 1201 as integral to discouraging piracy over the past 20 years, Smith also explained that the law has allowed innovative companies to provide consumers with a wide array of content delivery systems at a variety of price points.

Smith also recognized that much has changed since the enactment of the DMCA, and 1201 now applies to a number of activities not previously implicated by copyright. Notwithstanding advances in technology that could not have been anticipated in 1998, Smith explained that 1201 was designed to be flexible and that the triennial rulemakings were put in place to ensure that lawful uses are not impeded. Smith referenced the Copyright Office’s comprehensive 2017 policy study on Section 1201, after which the Copyright Office implemented a streamlined renewal system for non-controversial exemptions. The study also considered narrowing the statute to require a nexus between circumvention and copyright infringement, but ultimately found the overall scope and structure of 1201 remains sound and did not recommend any legislative reform. (see the Copyright Alliance’s comments in response to the Copyright Office 1201 study here and here)

Smith went on to say that the Copyright Office recommends that Congress provide discretion in the rulemaking to adopt exemptions that would permit third-party assistance at the direction of an intended user-an exemption that would benefit those who lack expertise to lawfully circumvent protection measures themselves. Finally, Smith explained that the Copyright Office has recommended new permanent exemptions for activities that have been repeatedly found to be exempt or where there is a broad base need, including access for the visually impaired, the repair of computer programs, and the unlocking of mobile devices. Smith’s written testimony can be found here.

Questions

Tillis then opened up the question session by asking Smith if she was aware of any suggested changes to 1201 that the Copyright Office does not believe would be beneficial. Smith said that the Office does not believe a change to the overall structure of 1201 to require a nexus between circumvention and copyright infringement is needed, as it does not fit with Congress’s intent in creating an independent anti-circumvention right that complies with the World Intellectual Property Organization (WIPO) internet treaties.

Tillis then asked if there was anything Congress should consider in order to lessen the burden on the Copyright Office and the participants in the 1201 rulemaking process. Smith said that the Copyright Office believes the newly implemented streamline procedures have gone a long way towards lessening the burden on those seeking exemptions and that it would be helpful if the law was amended to provide for a burden shifting framework so that there is a presumption of renewal for exemptions adopted in the previous rulemaking cycle.

In response to Tillis final question on how the rulemaking process has changed in the five years since she has been with the Copyright Office, Smith said that there has been a large increase in exemptions being sought related to interoperability and the Internet of Things, and that this shift resulted in the streamlined procedures now in place.

Ranking Member Coons then asked Smith what safeguards are in place to prevent third parties from exploiting a possible loophole in an exemption meant to allow them to assist with legitimate circumvention. Smith said that the Copyright Office’s recommendation is that it have discretion to make proposals to the Library of Congress on a case-by-case basis, rather than create an across-the-board exemption that may be subject to abuse.

Coons followed up by asking what policy concerns influenced the Copyright Office’s decision not to permit a blanket exemption for “any lawful or non-infringing use.” Smith said that the Copyright Office looked into what Congress intended in enacting 1201’s separate rights and found that ultimately the rulemaking is set up to provide specific, rather than blanket, exemptions. She noted that the rulemaking has been largely successful, that exceptions like fair use are always applicable, and there are serious concerns that broad exemptions may undermine the ability of 1201 to provide a separate anti-circumvention right.

Coons then asked how else the Copyright Office would suggest streamlining the rulemaking process for stakeholders who have to participate every three years and for the Office charged with managing the rulemakings. Smith responded by again referencing the presumptive burden rule that may make the process more efficient for stakeholders as well as the possibility of expanding some permanent exemptions in order to focus the rulemakings on new technological and marketplace developments. She also reiterated that allowing the Copyright Office discretion to make recommendations to the Library of Congress with regard to third party assistance would help the exemptions reach their intended beneficiaries.

Senator Blumenthal then shifted the discussion towards election security, asking Smith whether a permanent exemption for research involving voting machines and election technology should be considered in an attempt to guard against cybersecurity threats from foreign adversaries. Smith responded by reminding the Subcommittee that 1201 already includes an exemption for security testing and that Copyright Office has recommended statutory exemptions for security research generally.

Blumenthal then asked whether 1201’s limitations on the use of consumer products have expanded beyond the scope of what Congress intended and how the Internet of Things has changed how consumers approach circumvention. Smith explained that 1201 was purposely structured to a be flexible in the face of changing technology and innovative consumer products, and that it has been largely successful in addressing questions of interoperability and the repair of consumer products-specifically through exemptions granted for the repair of agricultural machines in the most recent rulemaking. Smith also noted that existing exceptions to copyright law, including fair use, accommodate many of the new circumvention activities related to computer software and consumer products.

Tillis concluded the first panel by thanking Smith for her testimony and noting that the Subcommittee members may submit additional questions for the record.

Vanessa Bailey

The second panel began with testimony from Vanessa Bailey, Global Director of Intellectual Property Policy at Intel Corporation. Bailey opened her remarks by explaining that, as a leading manufacturer of high-quality digital content protection technologies, Intel relies on Section 1201 to effectively guard the content ecosystem. She stressed that the combination of technological protections measures (TPMs) and the legal protections provided by the anti-circumvention provisions of Section 1201 allow companies like Intel to broadly distribute their products without fear of infringement.

Bailey also suggested ways that Section 1201 could be improved, including granting the Copyright Office discretion to remove the requirement that petitioners justify the renewals of the same exemption. She also recommended that after two consecutive exemptions are granted, the Copyright Office should have the power to suspend additional petitions and create a continuing exemption absent objections. Finally, Bailey made clear that Intel is strongly opposed to any expansion of exemptions to anti-trafficking provisions, as users can already employ tools through existing exemptions, and any change would be a “risky solution to a non-existent problem.” Bailey’s written testimony can be found here.

Blake Reid

Next to testify was Professor Blake Reid, Director of the Samuelson-Glushko Technology Law & Policy Clinic at the University of Colorado School of Law. Reid argued that 1201’s primary effect has been to chill the activities of people involved in non-infringing activities and that participation in the triennial review is overly burdensome. He also claimed that there should be a nexus requirement between copyright infringement and circumvention activities, which, as Regan Smith pointed out during the first panel, was rejected by the Copyright Office after thorough examination of Congress’s intent in enacting Section 1201.

Reid also said that the current 1201 framework does not effectively take into consideration the needs of security researchers, whose work depends on overriding digital protections to fix vulnerabilities in voting machines. But, as Smith noted in her testimony, 1201 already provides permanent exemptions for voting machine related circumvention under 1201(e) for “Law Enforcement, Intelligence, and Other Government Activities.” Reid’s written testimony can be found here.

Matthew Williams

Matthew Williams, a Partner at Mitchell, Silverberg & Knupp specializing in copyright and entertainment industry matters, testified next on behalf of the Entertainment Software Alliance (ESA), the Motion Picture Association (MPA), and the Recording Industry Association of America (RIAA). Williams focused on the tremendous benefits Section 1201 has created for copyright owners and consumers by providing protections against piracy while at the same time allowing for the development of innovative business models and a variety of content delivery systems at different price points. He explained that it is critical that the right against unauthorized access continue to stand alone and independent from acts of traditional copyright infringement, as unauthorized circumvention often does not involve acts of infringement.

Williams also stressed the critical importance of anti-trafficking provisions, which prevent the growth of businesses designed to profit from enabling unauthorized access to copyright protected works. He strongly recommended against any weakening of these provisions that would result in the widespread availability of tools that would enable mass infringement. Ultimately, Williams said that the organizations he represents do not recommend any legislative changes to the current rulemaking process or other provision of Section 1201. Williams’ written testimony can be found here.

Seth Greenstein

Next to testify was Seth Greenstein, a Partner at Constantine Cannon LLP, who began by stating that his views on Section 1201 have been informed by his representation of clients who have both benefitted from and been harmed by an “effusive” statute. Greenstein claimed that 1201 has been misused by manufacturers to prevent lawful diagnosis or repair of consumer products, and that the problem will get worse as software becomes ubiquitous in the Internet of Things. Arguing that Congressional action is needed, Greenstein suggested that the Librarian of Congress should be authorized to make certain exemptions permanent after two consecutive approvals.

Greenstein also claimed that Section 1201 “suffers a legal fiction” that an exemption to circumvent somehow bestows the ability to circumvent, arguing that ordinary users often lack the expertise create and make use of circumvention tools. But Greenstein’s testimony failed to recognize that the intent of Section 1201 was never to provide users with the easiest possible avenues to override protection measures, but rather to ensure that the use of certain technologies will be exempted from violations when used for a lawful purpose.

Finally, Greenstein suggested Congress provide a deterrent and remedies for DMCA misuse by making 1203(c)(2) provision on actual damages reciprocal, yet no evidence that 1201 misuse is a problem worthy of Congressional intervention was cited in his oral testimony or written remarks, which can be found here.

Morgan Reed

Morgan Reed, President of ACT (or The App Association), then testified on behalf of the roughly 5,000 small-to-mid sized software and connected device companies his organization represents. Reed explained that ACT members rely on strong copyright laws to protect their businesses, and they rely specifically on Section 1201 to secure their software and provide safe products to customers and consumers. Turning to technological protections measures, Reed said they have taken on an even greater importance during the global pandemic when data activities related to health care, education, and finance have moved almost entirely online.

Reed went on to list a number of leading software companies located within members of the Subcommittee’s home states, emphasizing that their innovative growth is dependent upon the flexible and effective 1201 rulemaking process. In Reed’s view, Section 1201 continues to work as Congress intended, and he made no recommendations for change. Reed’s written testimony can be found here.

Aaron Lowe

Last to testify was Aaron Lowe, Senior Vice President of Regulatory and Government Affairs for the Auto Care Association, who argued that Section 1201 is being used by manufacturers to prevent lawful vehicle software repairs. Lowe claimed that DMCA could never have contemplated current vehicle control software systems, and 1201 is now being wielded offensively by manufacturers to stop competition in the vehicle repair marketplace. He recommended that Congress amend the DMCA to ensure that Section 1201 cannot be used to stop otherwise lawful use of software by allowing for broad exemptions for third party assisted circumvention. In Lowe’s view, the exemptions granted in the triennial rulemaking are limited, and Congress should consider making exemptions related to auto repair permanent absent any challenges. Lowe’s written testimony can be found here.

Questions

In an abbreviate question and answer session, Ranking Member Coons began by asking Matthew Williams the extent to which the industries he represents rely on 1201 to thwart piracy and how he responds to those who say 1201 interferes with free speech. Williams answered that 1201 has enabled creative industries to protect against unauthorized access through the use of TPMs, and that has in turn led to the continual roll out of innovative products while at the same time deterring piracy. He also noted that while First Amendment concerns have been raised in multiple lawsuits, courts have so far found Section 1201 to be constitutional.

Coons then asked Vanessa Bailey and Morgan Reed whether the Librarian of Congress should be provided the flexibility to allow consumers to seek third party help. Reed said that a robust ability for customers to hack devices already exists through authorized repair centers, and that opening the door to further legislative action would threaten a flexible system that is already working. Bailey agreed that legislation isn’t necessary given the existing exemptions that serve the needs of users and private ordering that continues to solve real word problems. Both Reed and Bailey reiterated that any expansion to the anti-trafficking provisions is unwarranted and the negative effects on the marketplace would be permanent.

Senator Blumenthal then returned to the election security issue, asking the panel whether in light of the threat to voting machine integrity, that promoting research on election security warrants granting a permanent 1201 exemption. Blake Reid responded by claiming that voting machine vendors interfere with good faith security research, and that a permanent exemption is critical to cybersecurity. Morgan Reed then said that while ACT would ultimately be supportive of voting machine exemptions, it could be handled by the Copyright Office and there is no need for a legislative fix. After Bailey said that the current triennial rulemaking process should be respected, Reid argued that the issues related to election integrity are too urgent to wait for the next rulemaking. Finally, Williams said that while his clients would likely be supportive of broader exemptions related to voting machine technology, any proposed statutory change would need to be carefully considered for unintended consequences.

The question and answer session was cut short due to a vote, but Tillis concluded by thanking the witnesses and assuring the panel that he would follow up with written questions for the record.

Photo credit: izanbar/iStock

This week, the Copyright Alliance submitted comments to the Copyright Office in response to its Notice of Inquiry (NOI) for public comment on the extent to which copyright owners experience infringement by state entities that are largely immune to copyright claims due to the doctrine of state sovereign immunity. To assist the Copyright Office in its study, the Copyright Alliance launched a public survey soliciting feedback from copyright owners on their experiences with infringement by states and conducted interviews with a number of individual creators and organizations that have encountered state infringement. As a result of this research, compelling evidence was compiled showing that remedies against state infringement are inadequate or non-existent and that state copyright infringement is a frequent and damaging occurrence that will increasingly threaten the goals of the copyright system unless corrected.

Survey Responses

The responses to the Copyright Alliance survey, which asked many of the same questions listed in the Copyright Office NOI, revealed that creators and copyright owners have encountered thousands of instances of infringement by state entities, resulting in lost revenue of countless millions of dollars. Over the brief time that the survey was open, 115 respondents answered that they had experienced infringement by a state or state entity-with the vast majority experiencing multiple infringements. Of the respondents who said they have encountered state infringement, 52% described multiple instances of state infringement, using words such as “countless,” “at least a dozen,” “thousands,” and “infinitely many.”

The survey asked respondents to select the year (between 1976 and 2020) that they discovered infringement by a state entity, and although infringement was reported as far back as 1978, a trend of increased infringements is apparent, starting in the mid-to-late 90s and increasing yearly through the 2000s and 2010s, with the most instances occurring in 2019. The consistent rise over the last twenty years corresponds not only to the growth of the internet, but with a pair of cases of at the turn of the century that challenged the validity of the Copyright Remedy Clarification Act (CRCA)-a 1990 law that abrogated state immunity from copyright claims-and effectively opened the door to a new era of unchecked state infringement.

The Copyright Alliance survey also asked respondents to identify the type of work(s) infringed, allowing them to choose as many categories as appropriate from a list of fourteen. Photographs were the most commonly infringed works, with written materials-such as books, poems, blogs, or articles-coming in second place. Instances of infringement involving sound recordings, television programs, and motion pictures were also identified, as well as some less-common infringements involving other categories shown in the figure below.

The states in which alleged infringement was most frequently reported were Texas, New York, California, and Illinois, but instances of infringement were reported in all fifty states. When asked what type of state entity infringed, an overwhelming majority of respondents identified state universities or institutions of higher learning. Other state entities identified by respondents included state tourism boards, departments of natural resources, and museums.

Importantly, 68% of copyright owners responded that they believe they’ve lost revenue or licensing opportunities due to state infringement. Many of the respondents went on to describe the losses they incurred, including lost book sales, lost subscription and licensing fees for photographs and video footage, and also more intangible losses, such as careers cut short due to lost revenue and time spent trying to stop the infringement.

State Copyright Ownership

One of the glaring injustices related to state sovereign immunity is the fact that state entities continuously reap the benefits of the copyright system by registering and enforcing their own copyrights while at the same time enjoying immunity from monetary damages in infringement claims. To help show the extent to which state entities own copyrights, the Copyright Alliance conducted keyword searches using the Copyright Office’s public catalog of registrations. Searches were run using the “Name Claimant” option that combined keywords, such as “university,” “department,” “hospital,” “commission,” and many others, with the names of large and heavily populated states, such as New York, Texas, and California.

The keyword search that returned the most results in each case was the state name combined with “university.” For the state of Texas, there were 6,095 registered works, with a variety of entities associated with the University of Texas, Texas A&M University, Texas Tech University, and other public institutions of higher education listed as the copyright claimant. Running the same search for the state of New York returned 9,994 registered works, and a state of California search returned over 10,000 registered works. While additional research should be done to explore the scale of state copyright registrations, the results are indicative of states’ reliance on the copyright system to register and protect works.

Creator Stories

In addition to the survey, interviews were conducted with a number of Copyright Alliance members and individual creators whose stories provide insights into increasingly harmful instances of state infringement and the inadequacy of available remedies. The comments detail the experiences of photographers, authors, documentary filmmakers, and other copyright owners, all of whom have encountered infringement by state entities over the past twenty years.

While the specifics of the individuals’ experiences varied, a number of common themes emerged. Nearly all of the creators interviewed said that they had encountered infringement by state school districts, universities, or other institutions of higher learning-and many of them identified infringement by these educational entities in more than one state. The creators also noted that they do not actively monitor for infringement and found out about the unauthorized uses by accident, which indicates the amount of infringement identified is only the tip of the iceberg.

All of the individuals interviewed pursued claims against the infringing state entities, resulting in sometimes protracted legal battles that cost hundreds of thousands of dollars of their own money. In addition to money spent on lawsuits, lost profits, and spoiled licensing opportunities, the creators spoke of the time lost attempting to monitor for and stop infringement-time that should have been spent on creative endeavors.

Finally, the creators all expressed deep frustration with a copyright system that is allowing state entities to infringe without meaningful consequence and thereby robbing them of the exclusive rights guaranteed by copyright law. For best-selling author Dr. Keith Bell, the experience of feeling powerless to control his works and combat infringement led directly to his decision to stop writing. While it’s impossible to measure the cultural losses incurred as a result of those who have abandoned creative pursuits due to overwhelming state infringement, these losses are completely counter to the goals of the copyright system to incentivize the creation of new works.

Lack of Adequate State Remedies

In response to the Copyright Office NOI, the Copyright Alliance also looked into the availability and adequacy of state remedies to address the needs of copyright owners. Our research, combined with the survey results and creator interviews, revealed that the availability of state remedies is limited due to a number of issues, including federal preemption of state claims, the absence of tested causes of action under state law, and immunity from suits in their own courts that states enjoy as a result of statutory or constitutional provisions. The patchwork of varying state laws is also testament to the incapability of states to provide the type of uniform protection traditionally afforded copyright owners under federal law.

The Copyright Alliance’s research also found that injunctions, while theoretically available to copyright owners when confronted with state infringement, are neither an adequate remedy nor an effective deterrent to infringement. Not only can they be prohibitively expensive, but injunctions offer only prospective relief and do nothing to remedy past injury. Injunctions have been described by experts as a “poor substitute” for the recovery of damages, and by themselves do not allow copyright owners to obtain the complete relief otherwise provided for under the Copyright Act.

Recommendation for Abrogating State Sovereign Immunity

The evidence gathered by the Copyright Alliance shows that instances of state infringement have increased exponentially over the twenty years since the validity of the CRCA was thrown into question, and copyright owners now find themselves navigating an uncertain system comprised of inadequate remedies that deprive them of the exclusive rights guaranteed to them under Section 106 and Section 1201 of the Copyright Act. In the Supreme Court’s recent Allen v. Cooper decision, the Court laid out a path for legislative action, suggesting that if Congress can develop a legislative record that demonstrates the necessary evidence of unconstitutional state conduct and link the scope of its abrogation to the redress or prevention of unconstitutional injuries, abrogation of state sovereign immunity would be appropriate pursuant to Section 5 of the Fourteenth Amendment. Based on the findings of our study and information that other commentators will provide to the Copyright Office, the Copyright Alliance believes there is sufficient evidence to support legislation following the Court’s guidance in Allen v. Cooper that would abrogate state sovereign immunity in copyright infringement cases.

Photo credit: Denys/iStock

Yesterday, the Senate IP Subcommittee held a fourth hearing in its ongoing investigation into the viability of the Digital Millennium Copyright Act (DMCA) twenty-two years after its enactment. Titled How Does the DMCA Contemplate Limitations and Exceptions Like Fair Use?, the hearing featured two panels of copyright experts from industry and academia, as well as artists and users of copyright protected works, discussing the interplay between the fair use doctrine and sections 512 and 1201 of the DMCA. This summary will focus on the first panel, with part two highlighting the second.

Subcommittee Chairman Tom Tillis (R-NC) opened the hearing by explaining that the goal of the meeting was not to discuss the fair use doctrine generally, but to investigate how the DMCA accounts for fair use and to consider whether any potential DMCA reform legislation should address questions surrounding fair use as it applies to sections 512 and 1201. Chairman Tillis also welcomed comments from the witnesses on whether Congress should consider new categories of fair use related to political speech and campaign activities and also on whether the DMCA provides effective mechanisms for contesting takedown notices on fair use grounds.

Ranking Member Chris Coons (D-DE) also delivered brief opening remarks, reminding the panel that “our nation’s copyright system has fueled the most incredible creative economy on earth.” Coons also explained that while fair use is an important part of our copyright system, it is not a license to misappropriate entire works for commercial purposes and that it must be balanced to protect the interests of authors, songwriters, musicians, and other creators in the age of the internet.

After opening remarks, witness testimony began with Sherwin Siy, Senior Public Policy Manager of the Wikimedia Foundation, which operates and maintains Wikipedia and Wikimedia Commons. Siy explained that fair use and the DMCA’s safe harbors are vital to Wikimedia Foundation’s operations but went on to say that certain aspects of the notice and takedown process threaten fair use and create tension with the DMCA.

Despite the fact that Wikipedia is updated constantly with user uploaded content, Siy said that it only receives around 30 takedown notices a year-one third of which result in content being removed. Siy chalked up the low number to a community editing process that is extremely risk adverse and employs a 10-factor fair use test, which is in part due to the fact that Wikipedia and Wikimedia Commons operate globally, and U.S.-style fair use has only been adopted by a few other countries. While it may not have been his intention, Siy’s account of Wikimedia’s low number of take down notices may actually represent an instance in which the notice and takedown process is working, as the platform ensures that it’s users and editors are aware of red flags and are educated on fair use-style factors.

Siy went on to claim that the notice and takedown process can easily and cheaply be used by copyright owners who want to selectively enforce their rights in order to silence speech or block content they don’t like. But while most would agree that a copyright owner should not be able to misuse the DMCA to censor legitimate fair uses, Siy failed to mention that a user can just as easily and broadly claim fair use-a claim that is not required to be reviewed by anyone-and the content will be put back online. The burden then shifts back to the copyright owner to bring infringement claims in federal court within a short 14-day window, a costly and time-consuming option that would certainly deter questionable or censorship-driven claims.

Next to testify was Mickey Osterreicher, an award-winning visual journalist and General Counsel of the National Press Photographers Association (NPPA). Osterreicher began by stating that for visual journalist, “being able to protect our intellectual property rights is of paramount importance if we are to maintain our livelihoods and continue to play an invaluable role in upholding democracy.” Calling attention to recent situations in which lower courts have misconstrued all four of the fair use factors, Osterreicher explained that fair use analyses are complicated and difficult even for legal experts to get right, let alone creators and those who wish to appropriate the work of others.

Osterreicher testified that pervasive misconceptions surrounding fair use among both users and online service providers (OSPs) make visual journalists’ jobs harder when attempting to fight infringement. Their only recourse is the notice and takedown system in which a user can easily claim fair use and have the content put back online. And even in the case of a clear non-fair use, infringing content often immediately appears back online, making it nearly impossible to effectively fight unauthorized uses.

Osterreicher then explained that pervasive infringement devalues visual journalists’ intellectual property, thereby threatening incentives and abridging the freedom of press by discouraging participation in the field. He concluded by saying that “fair use is meant to protect those who stand on the shoulders of others when creating new works,” not to allow others “to build their wealth on the uncompensated backs of small businesses and creative professionals, such as photographers.”

Testifying next was Professor Jane Ginsburg, a preeminent copyright law scholar and the Morton L. Janklow Professor of Literary and Artistic Property Law at Columbia Law School. Ginsburg’s testimony focused on how the structure of section 512 accommodates fair use by putting the onus on copyright owners to identify infringing content but not requiring them to send a takedown notice for every content match. She explained that the DMCA also allows users to file a counter notice claiming fair use and have content put back online, and that section 512(f)’s misrepresentation provision is meant to deter abusive takedown notices targeting legitimate fair uses.

Unfortunately, as Ginsburg testified, the notice and takedown system has not always worked out as intended largely due to the fact that the vast number of user-generated postings have surpassed anything Congress could have imagined in the late 1990s. This has resulted in an overwhelming burden on copyright owners to monitor for infringement and send takedown notices for every specific instance. Ginsburg also explained that the time window for users to file a counter notice and have content reposted and for copyright owners to file infringement claims is a narrow one, and she suggested that an alternative dispute resolution system should be considered to make notice and takedown more responsive to both users and copyright owners.

Ginsburg then addressed section 1201 of the DMCA, saying that it was her opinion that 1201’s goal of preventing the proliferation of illicit circumvention technologies while allowing for certain exemptions to their prohibition has largely succeeded. She concluded by endorsing the Copyright Office’s recommendation that section 1201’s anti-trafficking prohibition be modified in order to allow third party services to perform the triennially permitted circumventions on behalf of beneficiaries who cannot themselves undertake them.

Panel one’s final witness was Chris Mohr, Vice President for Intellectual Property and General Counsel of the Software & Information Industry Association (SIIA), which represents technology platforms, financial information providers, newsletter and journal publishers, and educational technology companies. Mohr testified that in the view of SIIA, fair use is alive and well and that sections 512 and 1201 have fundamentally worked as intended to make digital content more widely available. He explained that this is partly because Congress left fair use out of both sections 512 and 1201.

Mohr went on to say that while piracy still remains a problem, section 1201 has been successful in preventing the wide availability of technologies designed to crack digital locks and that 512 provides necessary tools to have infringing content taken down. He explained that fair use considerations are built in “safety valves” that allow material to be put back online at the direction of a user after sending a counter notice and that fair use influences 1201 defenses such as reverse engineering, protecting personal privacy, encryption research and law enforcement use. Ultimately, Mohr said that SIIA is agnostic on amendments to either statute at this time, and that any proposed amendments should be focused on specific problems identified in a focused legislative record.

Chairman Tillis then opened up the questions and answer section of the panel by asking Ginsburg and Siy the extent to which online service providers need to consider fair use and what happens if they reject a takedown notice because they believe the use to be fair. Ginsburg responded by saying that OSPs have no duty to consider fair use when a takedown notice is received, and that avoiding any such determinations allows them to remain mere conduits and avail themselves of the DMCA’s safe harbor provisions. Siy agreed with Ginsburg, adding that the both the DMCA and Wikimedia policy incentivize the company to respond to takedown notices because there is no penalty for honoring the notice and not honoring the notice could result in a loss of safe harbor protection.

Chairman Tillis then asked Osterreicher whether he believes that there are misunderstandings surrounding the fair use of woks of visual journalism due to the newsworthy nature of the works. Osterreicher responded that he does believe it’s a common misunderstanding that newsworthy content can be used more freely and it influences fair use claims made by users in the counter notification process. He also stressed that there is an immediate and limited-time value associated with works of visual journalism, and that when infringing work reappears even after takedown notices are sent it seriously devalues the work and spoils legitimate licensing opportunities.

Ranking Member Coons then asked Osterreicher to expand on the ways that the current DMCA framework is or is not effective in balancing competing interests in the visual journalism profession. Osterreicher detailed many existing problems with the current system, including that creators feel the notice and takedown process of the DMCA is not working due to the inability to keep infringing content down after an initial takedown is sent and the financial burdens that pursuing claims in federal court puts on individual creators. He added that recent court decisions have revealed a misunderstanding of the fair use factors that in turn influences user behavior and result in questionable fair use claims.

Senator Coons then asked Ginsburg how recent expansion of the fair use doctrine by courts has affected creators’ ability to enforce their copyrights. Ginsburg said that although some lower courts have accepted broad brush assertions of fair use when there was no reworking of the content, higher courts have been more critical and corrected the misguided decisions. She also added that she does not believe there should be a legislative solution to any perceived fair use problem because courts are better suited to analyze an intentionally flexible doctrine.

Coons’ last question went to Mohr, asking why Congress didn’t include in section 1201 a blanket fair use exemption back in 1998 and whether one should be adopted now. Mohr explained that the legislative decision to leave out a blanket exemption was a conscious one and that section 1201(c) explicitly states that nothing in the statute shall preclude a fair use defense.

Tillis concluded the first panel by asking all the witnesses to identify areas of the DMCA that Congress should take a closer look at as it considers a consensus reform bill. Siy did not propose that any specific areas of fair use be addressed by a reform bill, saying instead that 512 is too intricate of a system and should only be reconsidered holistically. Osterreicher suggested clarifying 512’s red-flag knowledge standard and representative list requirements, and he also encouraged the adoption of an alternative dispute resolution system for notice and takedown. He also reminded the Subcommittee that the CASE Act, which passed through the House with an overwhelming majority but is now being blocked by one Senator, would create an alternate venue for individual creators to efficiently and effectively enforce their copyrights.

Ginsburg would not advocate for any legislative changes, but instead recommended keeping a close eye on efforts in the European Union to require OSPs to block or filter infringing content. She reiterated that the current notice and takedown system is overly burdensome to individual creators and that the EU system may present a better balance. Finally, Mohr said that while the SIIA remains skeptical of amending sections 1201 and 512, he believes alternatives to the short time window for counter notices and filing federal claims could be considered and that the Copyright Offices could expand its educational efforts surrounding fair use.

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Photo Credit: Wallentine/iStock

On May 29, the U.S. Copyright Office issued a Notice of Inquiry (NOI) for public comment on the extent to which copyright owners experience infringement of their works by states or state entities that are largely immune to copyright claims. The notice comes in response to a request made by Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) in a letter to the Copyright Office asking it to conduct the study so that Congress can evaluate whether legislative action is needed to adjust a sovereign immunity doctrine that has resulted in increased instances of state infringement in recent years. In its notice, the Copyright Office is asking the public to provide written comments in response to a number of questions on state copyright infringement. To assist the Copyright Office with its study, the Copyright Alliance created a survey soliciting feedback from creators and copyright owners.

What prompted Senator Tillis’s and Leahy’s letter and the Copyright Office study was the Supreme Court’s March 23^rd decision in Allen v. Cooper, which unanimously held that the Copyright Remedy Clarification Act (CRCA) of 1990 does not validly abrogate state sovereign immunity. State sovereign immunity is a legal doctrine derived from the Eleventh Amendment that limits copyright owners’ ability to sue states in federal court without the state’s consent, and it has been invoked by states and state entities to avoid liability for copyright infringement. But in the late 1980’s, a Copyright Office study found that “copyright proprietors have demonstrated they will suffer immediate harm if they are unable to sue infringing states in federal court,” and Congress relied on its Article I, Sec. 8, cl. 8 (the Copyright Clause) powers to sign the CRCA into law and thereby allow copyright owners to override state sovereign immunity. It’s important to note that in enacting the CRCA, Congress did not rely on its powers under ¤5 of the Fourteenth Amendment, which allows Congress to adopt legislation to ensure that a state cannot deprive a person of property without due process of law nor deny a person the equal protection of the laws.

But while the CRCA was well intentioned and meant to provide copyright owners with adequate remedies when confronted with state infringement, it wasn’t long until a series of cases called into question it’s constitutionality. In 1996, the Supreme Court in Seminole Tribe of Florida v. Florida held that Congress cannot use its Article I powers to abrogate state sovereign immunity. Three years later, the Supreme Court in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank voided a patent abrogation bill, again holding that Congress could not abrogate state sovereign immunity pursuant to its power under either Article 1 or ¤ 5 of the Fourteenth Amendment. A year later, the Fifth Circuit in Chavez v. Arte Publico Press found the CRCA unconstitutional in light of Florida Prepaid.

In the twenty years since Chavez, state infringement cases have been on the rise. While the Supreme Court held unanimously in Allen v. Cooper that the CRCA cannot be sustained under either Article I, ¤8, cl, 8 or ¤5 of the Fourteenth Amendment, it recognized the inequities and harm associated with allowing states to infringe copyrights with impunity. The decision states that “something is amiss” with the current state of sovereign immunity and suggested that Congress consider creating a statute that can prevent “States from behaving as copyright pirates.”

In laying out a path for legislative action, the Supreme Court made clear that its decision “need not prevent Congress from passing a valid copyright abrogation law in the future.” The opinion seems to suggest that if Congress can develop a legislative record that demonstrates the necessary evidence of unconstitutional state conduct and link the scope of its abrogation to the redress or prevention of unconstitutional injuries, abrogation of state sovereign immunity would pass muster pursuant to ¤5 of the Fourteenth Amendment.

With the ball thrown from the Supreme Court to Congress, leaders of the Senate IP Subcommittee have now effectively tossed the state sovereign immunity inquiry to the Copyright Office. In an effort to assist the Copyright Office and Congress in establishing the record that the Supreme Court says is needed, the Copyright Alliance has increased its own efforts to collect public comments by launching a state sovereign immunity survey. By collecting data and anecdotal evidence through the survey and direct outreach to copyright owners and creators, the Copyright Alliance intends to show the extent to which state infringement is a problematic occurrence and that sovereign immunity must be reconsidered in light of its harm.

The Copyright Alliance is interested in collecting responses from as many creators and copyright owners before the survey’s deadline on Friday, August 7th. Any questions regarding the survey or requests for additional information on the Copyright Office’s sovereign immunity study can be sent to info@copyright.alliance.org, or directly contact the Copyright Alliance’s VP of Legal Policy and Copyright Counsel, Kevin Madigan. Public comments in response to the Copyright Office’s NOI are due no later than Wednesday, September 2nd.

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Photo Credit: trekandshoot/iStock

Panel 1

On Tuesday, the Senate Subcommittee on Intellectual Property held its third hearing on the viability of the Digital Millennium Copyright Act (DMCA) twenty-two years after enactment. Titled Is the DMCA’s Notice and Takedown System Working in the 21^st Century?, the two-panel hearing focused on whether Section 512(c) is an effective tool for creators and copyright owners to combat infringement and whether it truly incentivizes online service providers (OSPs) to expeditiously remove infringing content-one of the requirements to limit OSP liability under 512’s safe harbor provisions. Despite some witnesses’ claims to the contrary, the hearing further exposed the current system as outdated and imbalanced, or as former Eagles frontman and artist advocate Don Henley put it, “a relic of a MySpace era in a TikTok world.”

The hearing began with Chairman Thom Tillis delivering what he described as his longest opening statement, one which he explained was necessary given the urgent need to address the DMCA’s deficiencies. Chairman Tillis stressed that creators find themselves in a particularly dire situation brought about by the combination of the covid-19 pandemic and antiquated copyright laws and that, as the Copyright Office recently concluded in its 512 Report, the “grand compromise” of the DMCA is no longer working. Going further than the recommendations of the 512 Report, Tillis called for the design of a new system to better fight online piracy and noted that he and Senator Leahy have asked the Copyright Office to provide guidance on the construction of a notice and takedown system that better serves the original intent of the DMCA.

After ranking member Chris Coons echoed Tillis’ concerns over the current notice and takedown system, Don Henley delivered oral testimony as a 55-year veteran of the music business and on behalf of the creative community. Describing the purpose of his testimony, he explained that, “I am in the final chapter of my career, but I come here 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.”

Henley went on to describe the plight of the individual creators who do not have the resources to fight infringement or platforms to voice their frustrations. Drawing attention to the outdated laws that have been abused by OSPs, Henley was unequivocal that the notice and takedown system does not work for artists and that the platforms that profit off of their work must play a more active role in addressing piracy. Henley explained that the symbiotic relationship between stakeholders that the DMCA envisioned has not developed, and that the safe harbor provisions have allowed platforms to avoid accountability while monetizing infringing content.

Next to testify was Interim President and CEO of the Internet Association (IA), Jon Berroya, who claimed that the DMCA and 512 is working as intended and that proposed changes threaten OSPs ability to innovate and provide services on which users rely. Berroya spent much of his time trying to divert the Senators’ attention from the primary issues. He talked extensively about his days doing enforcement work for the software industry even though he was there to testify on behalf of internet platforms. He said the main piracy problem was coming from international sites, not the enormous U.S. platforms that his organization represents. In doing so, he directly contradicted clear evidence provided by Henley in his testimony moments before and seemingly invited Congress to explore site blocking of those sites.

Berroya also claimed that the DMCA has succeeded in fostering collaboration among stakeholders and the development of copyright enforcement tools-an assertion that is patently contradicted by the accounts of copyright owners and creators. Jeff Sedlik, a photographer testifying on the second panel, said after the hearing that IA members have never sought to collaborate with the visual arts community, and that when invited, some IA members have repeatedly refused to join the PLUS Coalition (with the libraries, museums, publishers, creators, etc.) in which diverse stakeholders groups collaborate on related rights issues.

Further, following a successful meeting a few years ago that brought together the copyright and platform communities, IA and the Copyright Alliance were tasked with setting up future meetings for the two groups. But those meetings died on the vine because IA refused to reply to numerous emails or calls over the course of a year or more. Collaboration requires some form of communication, and the idea that IA has collaborated is patently false.

Doug Preston, best-selling author and President of the Authors Guild, was next to testify, and he began by describing the shock and dismay he felt when in 2008 he found his entire life’s work on a pirate site. While he initially tried to have his books removed from pirate sites, he lamented that it was a frustrating and ultimately a herculean task. Preston explained that OSPs are only required to takedown a specific pirated work (from a specific URL provided), and that the same works immediately reappears under a different URL on the same website. This constant whack-a-mole problem represents the experience of so many copyright owners and creators, and Preston implored the Subcommittee to adopt a notice and stay-down system that would more faithfully serve the goals of the DMCA.

The final witness on the first panel was David Hansen, Associate University Librarian for Research, Collections and Scholarly Communications Lead Copyright & Information Policy Officer at Duke University. As a University librarian, Hansen admitted to having relatively little experience with the DMCA notice and takedown process, but also towed the party line that Section 512 is working for universities and research libraries and that teaching and the distribution of research could be hampered by any changes to the DMCA. He warned that automated content ID systems could lead to the unnecessary removal of legitimate content and said that he favors a system in which content is allowed to stay online unless there is a strong showing of infringement.

Senator Tillis then opened up the question and answer session by asking Berroya why his members would want to continue to be governed by a law that is based on outdated technology and an internet that would be unrecognizable today. In response, Berroya explained how the DMCA works great for his members but largely skirted the issue of how advances in technology have made infringement possible on a scale never imagined by the drafters of the DMCA, and instead he chose to shift blame to copyright owners for not doing their part to work with OSPs.

Henley then addressed the ever-increasing amount of infringing content on platforms such as YouTube, explaining that there are entire teams of people whose one job is to send takedown notices directed at infringement of his and the Eagles’ works-only to see the targeted content immediately reappear online. He also detailed the problems with tools such as Content ID, which are offered by platforms only to a select few copyright owners and even then do not capture the sheer magnitude of infringement.

Ranking member Coons then posed a three-part question to the entire panel, asking why the voluntary agreements envisioned by the drafters of the DMCA have not materialized, how piracy can be addressed without threatening free speech, and what one change would each panelist make to the DMCA. Both Henley and Preston stressed the need for a system of notice and stay-down in which OSP’s make a good faith effort to ensure that targeted works do not immediately reappear after being taken down.

Berroya claimed that the lack of collaboration among stakeholders-not the provisions of the DMCA-is the biggest challenge to fighting piracy and that copyright owners need to be more willing to work with OSPs to develop meaningful mechanisms to fight piracy. Preston directly refuted this contention, explaining that many authors and creator organizations have reached out to Google and other platforms in an attempt to engage with them on ways to address piracy, only to be ignored.

Berroya’s claim also directly contradicts accounts from copyright owners that OSPs and platforms have not negotiated in good faith to bring about effective voluntary agreements. And while OSPs unwillingness to work with stakeholders to develop standard technical measures and other mechanisms to fight infringement is unfortunate, it is not surprising given that they are flourishing under a system bereft of accountability and therefor have little-to-no incentive to negotiate with copyright owners.

Senator Blumenthal then asked if there was anyone on the panel who thinks that the status quo is working and that the DMCA should be left alone. Berroya responded with the bold assertion that the DMCA is working as Senators Leahy and Hatch had intended in the late 1990s and that collaborative efforts to fight infringement are properly incentivized. Senator Blumenthal then rebuffed Berroya’s claim that collaborative efforts are working, explaining that his statements directly contradict the accounts of the Senator’s creator constituents, who spend incredible amounts of time and resources fighting infringement of their works online.

In response to ranking member Coons’ closing question on whether the most technologically sophisticated OSPs should shoulder at least some of the burden of monitoring for infringement, Berroya once again claimed that any failure in the development of effective mechanisms to combat infringement is the fault of copyright owners who have not collaborated with platforms. He said that platforms have and will continue to reach out to creators and copyright owners in an attempt to “pool resources” and address piracy. This claim of a willingness on behalf of OSPs-and an unwillingness on the side of other stakeholders-to engage in discussions and collaborative efforts could not be further from the truth. Indeed, the testimony and accounts of countless creators, copyright owners, and artist advocacy organizations reveal the exact opposite to be the case.

The first panel concluded with Senators Tillis and Coons thanking the witnesses, and then the next panel was called. The Copyright Alliance’s review of the second panel is forthcoming.

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Second panel