Senators and Creators Say Notice and Takedown System is Broken, While Platforms Blame the System’s Failures on Creators

Inside courtroom

Panel 1

On Tuesday, the Senate Subcommittee on Intellectual Property held its third hearing on the viability of the Digital Millennium Copyright Act (DMCA) twenty-two years after enactment. Titled Is the DMCA’s Notice and Takedown System Working in the 21st Century?, the two-panel hearing focused on whether Section 512(c) is an effective tool for creators and copyright owners to combat infringement and whether it truly incentivizes online service providers (OSPs) to expeditiously remove infringing content-one of the requirements to limit OSP liability under 512’s safe harbor provisions. Despite some witnesses’ claims to the contrary, the hearing further exposed the current system as outdated and imbalanced, or as former Eagles frontman and artist advocate Don Henley put it, “a relic of a MySpace era in a TikTok world.”

The hearing began with Chairman Thom Tillis delivering what he described as his longest opening statement, one which he explained was necessary given the urgent need to address the DMCA’s deficiencies. Chairman Tillis stressed that creators find themselves in a particularly dire situation brought about by the combination of the covid-19 pandemic and antiquated copyright laws and that, as the Copyright Office recently concluded in its 512 Report, the “grand compromise” of the DMCA is no longer working. Going further than the recommendations of the 512 Report, Tillis called for the design of a new system to better fight online piracy and noted that he and Senator Leahy have asked the Copyright Office to provide guidance on the construction of a notice and takedown system that better serves the original intent of the DMCA.

After ranking member Chris Coons echoed Tillis’ concerns over the current notice and takedown system, Don Henley delivered oral testimony as a 55-year veteran of the music business and on behalf of the creative community. Describing the purpose of his testimony, he explained that, “I am in the final chapter of my career, but I come here out of a sense of duty and obligation to those artists, those creators who paved the road for me and my contemporaries, and for those who will travel this road after us.”

Henley went on to describe the plight of the individual creators who do not have the resources to fight infringement or platforms to voice their frustrations. Drawing attention to the outdated laws that have been abused by OSPs, Henley was unequivocal that the notice and takedown system does not work for artists and that the platforms that profit off of their work must play a more active role in addressing piracy. Henley explained that the symbiotic relationship between stakeholders that the DMCA envisioned has not developed, and that the safe harbor provisions have allowed platforms to avoid accountability while monetizing infringing content.

Next to testify was Interim President and CEO of the Internet Association (IA), Jon Berroya, who claimed that the DMCA and 512 is working as intended and that proposed changes threaten OSPs ability to innovate and provide services on which users rely. Berroya spent much of his time trying to divert the Senators’ attention from the primary issues. He talked extensively about his days doing enforcement work for the software industry even though he was there to testify on behalf of internet platforms. He said the main piracy problem was coming from international sites, not the enormous U.S. platforms that his organization represents. In doing so, he directly contradicted clear evidence provided by Henley in his testimony moments before and seemingly invited Congress to explore site blocking of those sites.

Berroya also claimed that the DMCA has succeeded in fostering collaboration among stakeholders and the development of copyright enforcement tools-an assertion that is patently contradicted by the accounts of copyright owners and creators. Jeff Sedlik, a photographer testifying on the second panel, said after the hearing that IA members have never sought to collaborate with the visual arts community, and that when invited, some IA members have repeatedly refused to join the PLUS Coalition (with the libraries, museums, publishers, creators, etc.) in which diverse stakeholders groups collaborate on related rights issues.

Further, following a successful meeting a few years ago that brought together the copyright and platform communities, IA and the Copyright Alliance were tasked with setting up future meetings for the two groups. But those meetings died on the vine because IA refused to reply to numerous emails or calls over the course of a year or more. Collaboration requires some form of communication, and the idea that IA has collaborated is patently false.

Doug Preston, best-selling author and President of the Authors Guild, was next to testify, and he began by describing the shock and dismay he felt when in 2008 he found his entire life’s work on a pirate site. While he initially tried to have his books removed from pirate sites, he lamented that it was a frustrating and ultimately a herculean task. Preston explained that OSPs are only required to takedown a specific pirated work (from a specific URL provided), and that the same works immediately reappears under a different URL on the same website. This constant whack-a-mole problem represents the experience of so many copyright owners and creators, and Preston implored the Subcommittee to adopt a notice and stay-down system that would more faithfully serve the goals of the DMCA.

The final witness on the first panel was David Hansen, Associate University Librarian for Research, Collections and Scholarly Communications Lead Copyright & Information Policy Officer at Duke University. As a University librarian, Hansen admitted to having relatively little experience with the DMCA notice and takedown process, but also towed the party line that Section 512 is working for universities and research libraries and that teaching and the distribution of research could be hampered by any changes to the DMCA. He warned that automated content ID systems could lead to the unnecessary removal of legitimate content and said that he favors a system in which content is allowed to stay online unless there is a strong showing of infringement.

Senator Tillis then opened up the question and answer session by asking Berroya why his members would want to continue to be governed by a law that is based on outdated technology and an internet that would be unrecognizable today. In response, Berroya explained how the DMCA works great for his members but largely skirted the issue of how advances in technology have made infringement possible on a scale never imagined by the drafters of the DMCA, and instead he chose to shift blame to copyright owners for not doing their part to work with OSPs.

Henley then addressed the ever-increasing amount of infringing content on platforms such as YouTube, explaining that there are entire teams of people whose one job is to send takedown notices directed at infringement of his and the Eagles’ works-only to see the targeted content immediately reappear online. He also detailed the problems with tools such as Content ID, which are offered by platforms only to a select few copyright owners and even then do not capture the sheer magnitude of infringement.

Ranking member Coons then posed a three-part question to the entire panel, asking why the voluntary agreements envisioned by the drafters of the DMCA have not materialized, how piracy can be addressed without threatening free speech, and what one change would each panelist make to the DMCA. Both Henley and Preston stressed the need for a system of notice and stay-down in which OSP’s make a good faith effort to ensure that targeted works do not immediately reappear after being taken down.

Berroya claimed that the lack of collaboration among stakeholders-not the provisions of the DMCA-is the biggest challenge to fighting piracy and that copyright owners need to be more willing to work with OSPs to develop meaningful mechanisms to fight piracy. Preston directly refuted this contention, explaining that many authors and creator organizations have reached out to Google and other platforms in an attempt to engage with them on ways to address piracy, only to be ignored.

Berroya’s claim also directly contradicts accounts from copyright owners that OSPs and platforms have not negotiated in good faith to bring about effective voluntary agreements. And while OSPs unwillingness to work with stakeholders to develop standard technical measures and other mechanisms to fight infringement is unfortunate, it is not surprising given that they are flourishing under a system bereft of accountability and therefor have little-to-no incentive to negotiate with copyright owners.

Senator Blumenthal then asked if there was anyone on the panel who thinks that the status quo is working and that the DMCA should be left alone. Berroya responded with the bold assertion that the DMCA is working as Senators Leahy and Hatch had intended in the late 1990s and that collaborative efforts to fight infringement are properly incentivized. Senator Blumenthal then rebuffed Berroya’s claim that collaborative efforts are working, explaining that his statements directly contradict the accounts of the Senator’s creator constituents, who spend incredible amounts of time and resources fighting infringement of their works online.

In response to ranking member Coons’ closing question on whether the most technologically sophisticated OSPs should shoulder at least some of the burden of monitoring for infringement, Berroya once again claimed that any failure in the development of effective mechanisms to combat infringement is the fault of copyright owners who have not collaborated with platforms. He said that platforms have and will continue to reach out to creators and copyright owners in an attempt to “pool resources” and address piracy. This claim of a willingness on behalf of OSPs-and an unwillingness on the side of other stakeholders-to engage in discussions and collaborative efforts could not be further from the truth. Indeed, the testimony and accounts of countless creators, copyright owners, and artist advocacy organizations reveal the exact opposite to be the case.

The first panel concluded with Senators Tillis and Coons thanking the witnesses, and then the next panel was called. The Copyright Alliance’s review of the second panel is forthcoming.

Second panel

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