Senators and Creators Say Notice and Takedown System is Broken, While Platforms Blame the System’s Failures on Creators
[This post is the second of two covering this week’s Senate Subcommittee on IP hearing, titled Is the DMCA’s Notice and Takedown System Working in the 21st Century?. For a summary of the first panel, click here.]
The second panel before the Senate Subcommittee on Intellectual Property began with testimony from Abigail Rives, IP Counsel at Engine, an organization which claims to be the voice of startups but is funded by and advocates for the interests of Google. Rives testimony focused on the need of startups to be able to avail themselves of Section 512’s safe harbors in order to innovate and grow without fear of liability. Like the other witnesses representing platforms, she followed the party line by insisting that the DMCA is working as intended and fosters innovation and competition. For someone who allegedly represents startups in an industry that has come to be dominated by a few incredibly wealthy and powerful companies, her statements sought to deflect from the glaring imbalance of the DMCA’s safe harbor provisions. Rather than foster a vibrant and competitive marketplace for startups, the DMCA’s safe harbors have allowed entrenched players like Google to further secure their dominance over certain aspects of the internet.
Rives also insisted that any increased accountability in monitoring for infringement or changes to the red flag knowledge standard would harm small startups that can’t afford advanced filtering technologies. While it may be true that smaller OSPs may not be able to implement effective monitoring or filtering tools, that doesn’t mean that the DMCA standards shouldn’t be modified for internet behemoths like Google and Facebook who already employ some of the most sophisticated technologies in the world.
Kerry Muzzey, an independent classical and film composer, then testified on his years-long, exasperating experience attempting to use to the notice and takedown system to address rampant piracy of his compositions. He explained that his plight as an independent artist has revealed the blatant inadequacies of the DMCA to provide reasonable remedies for creators of his size and scale, describing himself as “a tiny David in a sea of big tech Goliaths.”
Although Muzzey established that he is one of the few independent artists with access to YouTube’s Content ID system, he testified that he still struggles to remove the over 110,000 infringing videos that Content ID has helped him identify. Muzzey also pointed out that these infringing videos are not harmless cat videos or potential fair uses; they are commercial advertisements for car dealerships, hotels, and other fortune 500 companies. After identifying these infringing videos and sending notices, Muzzey explained that companies can too easily issue counter-notices with illegitimate fair-use defenses. Muzzey and others like him then only have 10-14 days to file a costly, federal lawsuit before the platform and the uploader can reinstate the infringing work online. He concluded by asking the pivotal question: “Copyright law says I have the ownership of the music I create, but if I don’t have a legal remedy, do I really have that right?”
Next to testify was Meredith Rose, Policy Council for Public Knowledge, an organization that promotes policies that would weaken or do away with copyright in the name of an open internet. Rose used her time to talk about internet users and their right to broadband access, almost completely avoiding a discussion of the DMCA’s notice and takedown system, which was clearly the topic of the hearing. In his review of the hearing, David Newhoff describes this diversion.
[I]t is also a distraction in context to the matter at hand because most of the online activity to which Rose alludes has nothing to do with copyright and, therefore, nothing to do with the DMCA. Ordering a pastrami sandwich or doing one’s banking over the internet does not implicate the DMCA, and the Committee is unlikely to be confused about this distinction.
When Rose did speak to notice and takedown, she claimed that an enormous amount of takedown notices are sent in bad faith and chill free speech by removing content without oversight. Her support for claims made about abusive or bad faith notices is found in her written testimony, which cites a Google-funded study whose methodology and results have been discredited and debunked.
Last to testify was Jeff Sedlik, a photographer with 35 years of experience and owner of copyrights in hundreds of thousands of visual works, who expressed exhaustion similar to Muzzey’s from the never-ending burden of online enforcement of his copyrights. Sedlik described his process of spending days and nights searching for instances of infringement, taking screenshots to document infringing material, drafting notices, and answering follow-up questions from online service provides-all of which distract him from his own creative pursuits. He also explained that his livelihood as an artist depends on his ability to legitimately license his photographs, but because he must compete with pirated unlicensed copes of his own works, the market value for his work is diminished significantly.
Sedlik then reiterated a point made earlier by Don Henley: the fact that millions of takedown notices are filed each day is not a sign that the DMCA system is working, but rather an indication of an imbalanced and broken system. In conclusion, Sedlik offered a series of possible solutions to update the antiquated DMCA system, such as revising and clarifying the red flag knowledge requirements, requiring the use of Êimage recognition and metadata search technologies for identifying and filtering infringements, requiring a notice and stay-down procedure, and enforcing and defining repeat infringer measures.
Chairman Tillis then began the question and answer portion of the panel by asking Rives if she understood the concerns of creators who feel like OSPs are resisting changes to the DMCA in order to maintain a system that allows them to profit from creators’ life work. Rather than answer the question, Rives responded with the questionable assertion that most OSPs experience “an extraordinary small amount of infringement” and that forcing them to filter and monitor for infringement would threaten their existence.
Tillis then asked Muzzey and Sedlik if they had known how difficult it would be to make a living as a composer or photographer in the face of such overwhelming piracy, would they have chosen to pursue careers as artists. Muzzey responded that while he is often frustrated with the DMCA’s inability to help him hold infringers and the platforms that enable infringement accountable, he’s dreamed of being a composer since the age of seven and is optimistic about the future. Sedlik was slightly less hopeful, saying that, as a photography professor, he knows that even the most talented of his students have only a slim chance at professional success due to the failure of the DMCA to address ubiquitous infringement.
Senator Coons then asked Rives if she could be more specific about the difficulties OSPs would encounter if more was required of them to root out infringement. Reverting to the same suspect talking points, Rives claimed that “so many” of the companies she works with don’t experience high levels of infringement and so imposing additional duties upon them wouldn’t result in any real decrease in piracy. Of course, she conveniently avoided any discussion of the largest and most influential company that funds her organization and has built an empire on the unauthorized content of others, as well as the possibility that any additional duties could be made to apply only the largest platforms and not to startups and other small businesses she supposedly represents.
Senator Coons then asked Rose whether an alternative dispute resolution system for instances of infringement would be preferable to the high cost litigation that often surrounds copyright lawsuits. Rose responded that while it depends on the design and execution of any such system, she believes that an alternative dispute system could be beneficial and that there is merit to the idea.
The hearing ended with Senator Tillis thanking both panels of witnesses for their testimonies and saying that as lawmakers look to redesign the notice and takedown system, they must do so in a way that acknowledges the reality of the current scale of infringement, which is beyond what the DMCA could have possibly anticipated. The next DMCA hearing will be held in late July, when the Senate Subcommittee on IP will consider the intersection of the Section 512 and fair use.