Senate Hearing Explores the Intersection of Fair Use and the DMCA: Part I

The Senator's Microphone

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.

Photo Credit: Wallentine/iStock

get blog updates