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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.