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More Monkey Business at the Copyright Office’s DMCA Roundtable

More Monkey Business at the Copyright Office’s DMCA Roundtable by Keith Kupferschmid

April 15, 2019

On Monday, April 8, as part of its ongoing study of section 512 of the Copyright Act, the U.S. Copyright Office held a one-day public roundtable to continue its evaluation of the impact and effectiveness of the Copyright Act’s safe harbor provisions for online service providers enacted in the Digital Millennium Copyright Act (DMCA) over 20 years ago.

It’s been a while since the Office last solicited comments from the public. In fact, it was way back in February 2017 that it last accepted written comments on these important issues. So, it held another roundtable discussion to address relevant domestic and international developments that have occurred since then, in order to have a more complete record to consider when it eventually drafts and publishes the results of its study.

On one hand, the Office seemed to accomplish its goal by getting input on the various domestic case law developments since 2017 interpreting section 512 safe harbors, as well as the international legal and policy developments since 2017 that relate to online service provider liability. However, on the other hand, in spite of the best intentions of and the very good questions from the Copyright Office staff, the input wasn’t very different from what the Office heard from the written comments or roundtables that took place two and three years ago.

Essentially, the roundtable consisted of participants from the copyright community continuing to say that online piracy remains a huge problem, due in large part to the DMCA’s notice and takedown process being ineffectual; and participants from the internet platform community saying that that same process is working wonderfully, and they see no reason to make any changes. After participating in and watching the four roundtable sessions, it finally struck me why they call these events “roundtables” even though we were actually sitting in a rectangle. It’s because everyone talks in circles without ever moving closer to what could be considered to be a step forward.

From my perspective, as someone who represents the copyright community, and sees first-hand the daily struggles of individual creators as well as larger copyright owners who are trying to piece together careers and livelihoods in the face of insurmountable theft of their works, I have no sympathy for those large platforms that — like the “three wise monkeys” who “speak no evil, see no evil and hear no evil” — continue to cast a blind eye toward their plight.

I am sick and tired of hearing about the great innovations these platforms are working on and bringing to consumers every day but then, when the copyright community tries to discuss with them what they might be able to do to help stem the tide of piracy even a little bit, they hit an innovative brick wall. During the April 8 roundtable, we heard big platforms (e.g. Google) and their representatives (e.g., the Internet Association and Public Knowledge) and outside counsel talk about how screening for illegal copyrighted content isn’t possible. A driverless car? Doable! Indexing the entire internet? No problem! Answering questions before the person can even ask them? Done! Preventing a pirated song or photo from being re-posted? Sorry, but that’s a bridge too far.

To be clear, I am not suggesting something like takedown and stay down (a loaded term that means different things to different people). Nor am I suggesting that Congress should start monkeying with the DMCA. But what is reasonable to expect is for some recognition by these internet giants that participated in the roundtable that the DMCA is not working as intended for America’s creators, and to help us determine what more we all can do to improve the situation by working together.

But when I reached out to engage the platforms on behalf of the copyright community many months ago, we were largely ignored and given the stiff arm. They simply don’t care about our piracy concerns because our concerns are not their concerns.

At the April 8 roundtable, like the roundtables held years ago, we heard more of the same – that there is no need to do anything because the DMCA is working swimmingly and the things that the copyright community is asking for are just too gosh darn hard to create or implement. This isn’t new. For years, this has been the response of these platforms. But what is new, is that while the platforms were telling the U.S. Government not to do anything, someone decided to take the leadership ball from the U.S. and run with it. That someone is the EU.

For years, the U.S. had been the leader on intellectual property policy. The rest of the world largely looked to it for a model on how to address new and important copyright issues. But the U.S. largely abdicated its copyright leadership role when – thanks to years of platforms telling it not to take action – the EU slipped in and took action. And the platforms uniformly detested the action taken by the EU.

At the recent roundtable, the participating platforms made it clear that they don’t like many of the provisions in the new Directive that the EU has developed. But, once again, I have no sympathy for these internet behemoths, because they had the opportunity to take action here in the United States, which could have resulted in something more to their liking. Then, the U.S. could have used that as a model for the rest of the world to follow. Instead, they refused to engage the copyright community or U.S. policymakers in these discussions and now find that the EU has taken the lead (with the U.S. possibly following the EU’s lead on these issues).

When the U.S. passed the DMCA back in 1998, it was way ahead of the rest of the world. In passing Section 512 of the DMCA, Congress intended to appropriately balance the interests of content owners, service providers, and users by incentivizing “service providers and copyright owners to cooperate to detect and deal with copyright infringement” online. That balance has not been achieved. While platforms are routinely shielded from liability under the DMCA, the problem of online copyright infringement has grown enormously.

Let’s put it in terms that a tech company might understand. For the past 20 years, we have been working on version 1.0 of the DMCA. During that time, there have been no patches or updates. Twenty years! Version 1.0 of the DMCA is outdated. Isn’t it time we have version 2.0?

In our view, the best way to reach that goal is not through Congressional action or the Copyright Office study, but rather through the use of cross-industry collaborative efforts that include a diversity of large and small stakeholders aimed at addressing the online piracy problem. These efforts ought to focus on, among other things, reducing and equitably apportioning the burden of reducing infringement, removing profit from infringement, and educating users about legal alternatives. There have been numerous successful voluntary initiatives in the past and we think the time is ripe (over-ripe really) to develop new ones. We urge the platforms to stop monkeying around and come to the table to discuss ways we can all work together to combat the rampant online piracy problem plaguing America’s creative community.

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