Senate Hearing Explores the Role of Private Agreements and Existing Technology in Curbing Online Piracy

Background

On Tuesday, December 15, the Senate Judiciary Subcommittee on Intellectual Property held a hearing titled “The Role of Private Agreements and Existing Technology in Curbing Online Privacy.” The purpose of this hearing was for the Subcommittee to learn more about voluntary measures, standard technical measures, and whether the DMCA effectively incentivizes private agreements and the development of technologies aimed at reducing online piracy.

Opening

Chairman Tillis opened the hearing, expressing how he believes large platforms aren’t doing enough to stop theft from small creators and compared it to the swift action they take against political speech. He chastised Twitter for refusing to participate in the hearing and for providing perfunctory responses to the pre-hearing questions he posed to them.

Panel I

Panel I consisted of Ruth Vitale (Chief Executive Officer, CreativeFuture), Probir Mehta (Head of Global Intellectual Property and Trade Policy, Facebook, Inc.), Mitch Glazier (Chairman and CEO, Recording Industry Association of America), and Joshua Lamel (Executive Director, Re:Create).

Ruth Vitale, Creative Future

Vitale began by explaining that YouTube doesn’t grant many individual creators and small businesses access to Content ID, YouTube’s automated system for identifying rightsholder content on the platform, and will not explain why access to certain copyright owners is denied. Vitale expressed frustration with the fact that the operation of YouTube’s platform is the result of extraordinary engineering and advanced technology, and yet it can’t effectively address copyright infringement. Vitale’s written testimony can be found here.

Probir Mehta, Facebook

Mehta explained how rights holders can report infringements on Facebook and described how its new Rights Manager tool worked. He also said that Facebook is working on proactive measures, like machine learning techniques, to detect and remove copyright violations without needing to involve rightsholders. Mehta’s written testimony can be found here.

Mitch Glazier, Recording Industry of America

Next, Glazier emphasized how the COVID-19 pandemic is having a devastating effect on live music and stressed that the ability to enforce rights online is more important now than ever. Glazier highlighted how the intended balance of the DMCA is askew, with music industry revenues down 50% since the DMCA was enacted, while at the same time, some platforms revenues have increased by 500,000%. Glazier explained how the DMCA’s safe harbors have been interpreted so broadly that platforms don’t have the business incentive to participate in creating a balanced system.

According to Glazier, one solution is to give creators the tools they need to monitor infringement of their own works. This could avoid situations like one Glazier discussed, where 9,000 takedown notices were sent over a 10-month period for the exact same track on the exact same service, which is not an uncommon situation.

Glazier explained how scalable technical measures already exist in the marketplace, like Audible Magic and Content ID. These technologies just haven’t been implemented uniformly or, in many cases, meaningfully. Some platforms charge creators for infringement monitoring, some make sending notices difficult, such as with a new form for each infringement or hidden or difficult to find web forms, and some platforms even required notices sent by fax.

The key, Glazier said, is bringing balance back to the DMCA. Glazier’s written testimony can be found here.

Joshua Lamel, Re:Create

Last to testify on the first panel, Lamel ineffectively attempted to voice concerns of internet users and “new creators” while promoting several platforms. Lamel testified that he supports the continued development of voluntary measures, and urged that the interest of platform users be taken into account in the process.

Panel I Questions

First, Tillis commented that while we have voluntary measures in the DMCA, parties haven’t seen much engagement. He then asked the panel what the role of future voluntary agreements could be in combatting online piracy.

Vitale responded first, stating that there are voluntary measures that all platforms can adopt, which have strong content protection tools, and which they should be able to share with content holders. She explained that a large number of takedown notices shows the system isn’t working, and after all those notices, one would think these platforms would know who the copyright owners are.

Next, Mehta explained how Facebook collaborates with rightsholders to try to improve the IP system. Mehta emphasized the significant amount of work to create these technologies and the continued need for flexibility to do so.

Glazier joined the conversation, explaining how there are two goals in these efforts – encouraging individual private agreements while also creating broader standard voluntary measure process that is equally as important so outliers can’t unfairly compete.

Next, Ranking Member Coons asked Mehta whether all copyright owners can access Rights Manager, and whether Facebook charges for the service. Mehta claimed that Rights Manager is free for all stakeholders, and open to creators of all sizes although there is an application process, which was later refuted by Kupferschmid in Panel II.

Coons then asked Mehta whether Facebook is willing to explore ways to make Rights Manager available to creatives on other platforms. Mehta responded by emphasizing how much effort it took to create Rights Manger, but stated that Facebook is willing to explore and work with other stakeholders to the extent they are willing to talk to Facebook.

Coons then asked Vitale about third party services like AdRev, Noah Becker’s digital rights management service, filling the gap creators face when attempting to address tools. Vitale spoke highly of AdRev but explained how many creatives don’t have the money to use it and similar services. She said that people are doing what they love, living hand to mouth, and they need help.

Coons then turned to Glazier, asking him to what extent Content ID addressed the music industry’s concerns and how that experience compares to other platforms.

Glazier explained how there is always room for improvement in transparency and education, creating dashboards, and leakiness of the system. But, he said, courts have repeatedly written out some of the key pieces of the DMCA, such as the information subpoena. Creators can have their rights, but if they can’t enforce them, they’re useless.

Glazier said that a voluntary process should be voluntary, but added that only works if you provide the right incentives, and it is those incentives that have to be fixed.

Next, Tillis addressed Vitale and Glazier, explaining how he heard from many stakeholders that Content ID leaves some copyright holders in a difficult situation, choosing to enter into agreement and thereby monetize work at a below market rate or stay out of Content ID and retain a licensing value that has been discounted because of infringement. Tillis asked whether they had experience with this.

Glazier explained how, in licensing environment, having the safe harbors as the context around the marketplace does not create a fair marketplace: if there were no safe harbors, there would be a fully voluntary system. But now, with government intervention, some aspects of the marketplace are voluntary and some aren’t. The playing field needs to stay level without safe harbors or, if there are safe harbors, be made level.

Vitale shared how there are various levels of Content ID but most legitimate copyright holders aren’t entitled to any of these levels except the basic webform. Content ID is given to movie studios and record labels, but very few individuals; even further, if a party decides to work with YouTube, they take at least 30% of revenues, so rates are well below market values.

Next, Senator Hirono asked Glazier and Vitale what steps should be taken to combat piracy on the internet, along with what additional requirements ICANN (Internet Corporation for Assigned Names and Numbers) should be imposing to ensure it is addressing copyright infringement and other cybercrime.

Glazier explained that there is a huge problem with domain name registrars and their role in allowing piracy through their systems, which these companies doing very little at both the registrar and registry levels. He explained that, for the most part, registrars are allowing known pirate services to create their domain names while receiving funds for setting those up. According to Glazier, when a domain name registrar is approached and asked for help finding the pirates, they assert that they must keep these entities anonymous, citing privacy law; but privacy laws are meant to protect consumers, not criminals; obligated to help us find the pirate.

Vitale agreed with Glazier, sharing how domain name registrars choose to do business with companies that they know are illegal.

Next, Hirono commented on how Tillis tried to get a witness from Twitter, and how she heard from a number of creators that Twitter has not been a willing partner in addressing copyright infringement on its platform. Hirono asked Glazier what his experience has been and what additional steps he recommends.

Glazier explained how over the past two years, the music industry has sent Twitter countless notices, with piracy on the platform at an industrial, massive scale. Unlike Facebook and YouTube, Twitter has done nothing to build tools or help prevent a viral system where piracy can spread in microseconds. Further, Twitter doesn’t offer an ability to search their platform for infringements and wants to charge for that service. Yet it can take between four hours and four days to take one work down from the platform.

Glazier explained how this situation exists because platforms can hide behind these safe harbors that have been so broadly interpreted.

Hirono then asked about the Twitch platform, explaining how one impact of the COVID-19 pandemic was a massive 80% increase in live streamed content. She expressed surprise that  Jeff Bezos—the CEO of Amazon, which owns Twitch— recently stated that he didn’t know whether Twitch allowed users to stream unlicensed music. And although Twitch has taken some steps to address infringement, Hirono wanted to know what additional steps Glazier believed need to be taken.

Glazier stated that there are several steps Twitch should be taking. He explained that right now, Twitch has chosen to shift the burden to its users, but users expect that Twitch has taken care of licensing and administrative tasks like other platforms do; that’s why users go to Twitch as a legitimate service. Glazier hopes that, like other platforms, Twitch is taking its obligation to license content seriously.

Tillis closed the panel by stating how he sent Twitter very specific questions to answer yet received very specific non-answers. He expressed hope that Twitter will recognize that they need to come to the table.

Panel II

Panel II was formed by Katherine Oyama (Global Director of Business Public Policy, YouTube), the Copyright Alliance’s Keith Kupferschmid (Chief Executive Officer), Noah Becker (President and Co-Founder, AdRev), and Dean S. Marks (Executive Director and Legal Counsel, Coalition for Online Accountability).

Katherine Oyama, YouTube

Oyama’s testimony focused on how YouTube works closely with the creative community to expand their reach and monetize their creative content. Oyama insisted that YouTube ensures there is a way for rightsholders to manage and earn revenue from their work. Oyama’s written testimony is available here.

Keith Kupferschmid, Copyright Alliance

Kupferschmid described how the common thread that underlies voluntary agreements and technological solutions is cooperation among stakeholders, but this cooperation is exactly what is missing. Further, he explained that section 512 has been so misinterpreted by the courts that most service providers know they have little risk of liability and use this provision as a shield to do the minimum required under the DMCA, while copyright owners are being devastated by online infringement. Kupferschmid’s written testimony is available here.

Noah Becker, AdRev

Becker focused on how searching for infringements of a work is like looking for a needle in a haystack – it is impossible without the right technology. This technology is cost-prohibitive, so access should be democratized to ensure rightsholders can effectively enforce their rights. Becker’s written testimony is available here.

Dean S. Marks, Coalition for Online Accountability

Marks explained how voluntary measures rarely emerge quickly. He said that Voluntary measures shouldn’t be conflated with technical tools – some of them involve technical tools, and some of them don’t. Marks believes that relationships of trust, respect, and confidence are key to implementing voluntary measures, but the more parties that are at the table, the longer and harder it is to build that trust, respect, and confidence. Marks’ written testimony is available here.

Panel II Question

Tillis asked Oyama why YouTube has invested such large sums of money into its technology and whether Content ID can be one of the first STMs other platforms can consider and implement. While he said that he understood YouTube wanting to preserve its investment, Tillis asked Oyama about the rationale behind not making Content ID generally available to all legitimate copyright owners.

Oyama replied with how YouTube invested over $100 million in Content ID, which began as a rights management tool and shifted over time to become very important to their business. Oyama stated that while Content ID has eligibility requirements, YouTube built an entirely new tool for smaller creators, Copyright Match, which runs on Content ID itself. She claimed that Content ID is such a powerful tool that, if used improperly, it will take down other rightsholders’/users’ content.

Tillis next asked Kupferschmid what the Copyright Alliance’s members have experienced with Content ID. Kupferschmid explained that even though Oyama said everyone has access to suite of tools, the statement is illusory because in fact it is exceedingly difficult to get access to Content ID.

Kupferschmid explained that the Copyright Alliance represents millions of individual creators, and it is very difficult, if not impossible, for them to get access to Content ID technology. Kupferschmid stated that while these creators don’t expect the same Content ID technology that big studios have, creators should be entitled to some type of access to it and a lot of them are being denied access: a larger movement in that direction is needed.

Next, Coons wanted to further explore the question of how more of creative community can have access, asking Oyama who should bear the burden of policing this online content.

Oyama responded that Congress made the policy choice that policing content is a shared responsibility, with copyright owners informing platforms when there’s infringement but also with platforms taking steps and working with copyright holders in advance.

Coons next asked whether it is possible to make progress on closing this gap without legislative or regulatory change.

Kupferschmid said that he likes to think he can, and copyright owners would like to sit down with not only YouTube but also Facebook and Twitter. But, that hasn’t happened as getting online service providers to the table has been impossible, as evidenced by Twitter not responding to a subcommittee’s request.

Kupferschmid explained that what parties need here is cooperation, to sit down and come up with voluntary agreements, and to address STM provision. On the copyright holder side, Kupferschmid continued, we’re ready willing and able to sit down and talk with OSPs, but we have heard nothing but talk.

Coons stated how, in his testimony, Kupferschmid suggested that the reason things haven’t come together was misinterpretation by the courts that watered down and made less urgent otherwise potential pressure to reach consensus. Coons asked whether steps forward can be made in the courts or whether legislative action the only way forward?

Kupferschmid replied that voluntary agreements take a role but can’t address everything: legislative action is appropriate in certain circumstances and we’re in one of those circumstances now as service providers aren’t being cooperative. As a result, Kupferschmid explained, service providers believe they can rest on their laurels and do the absolute minimum – Twitter’s letter to the Subcommittee is an example of that.

Coons then addressed Becker, stating that he found his testimony particularly compelling. Coons asked Becker what the next steps are, especially as advocating for broader access to sophisticated tools might reduce his own customer base.

Becker explained his business’ revenue-sharing proposition is a better fit for copyright holders that don’t want to use YouTube’s monetization tools. In addition, YouTube’s Content ID is for YouTube creators, requiring participation on the YouTube platform in order to use that tool.

Becker then echoed Kupferschmid’s point, responding that platforms are not incentivized to collaborate because the DMCA provides them with the safe harbor – we do need legislation to act. Becker believes, at the very least, there should be some sort of support for the concept of a list of approved vendors (like Audible Magic, AdRev) to be able to access copyright APIs on massive platforms. This access creates a large cost and technology burden that can be reduced if open APIs are available to scan, making takedowns more affordable for creators.

Oyama rebutted Becker’s statement, stating how copyright holders don’t need to have their works on YouTube to use Content ID – the works can be in private mode. She claimed You also don’t need to be monetizing your work on YouTube or a YouTube partner.

Becker quickly retorted that he was reading that information directly off YouTube’s website.

Finally, Coons asked which entities the witnesses believe are best positioned to combat infringement and how we encourage them to cooperate with rightsholders.

Marks responded, saying that some of the dominant market players are just not willing to cooperate.

Closing

Tillis closed the hearing by saying that it “seems like what we have here is a failure to communicate.” He said that if parties can’t get people to engage at this level to potentially avoid a legislative overreach, it makes one wonder what an individual creator would have to do to get an audience.

Tillis explained that today’s hearing has shown that tech companies must do more to combat online piracy – platforms have tools and resources but have to find ways to get greater engagement and create voluntary paths to prevent congress from paving less voluntary paths. Participants should view this as a sign that this committee will stay on this issue, and tech has to catch up, preserve copyright, and end piracy.