A Dozen Bad Ideas That Were Raised At The Copyright Office's DMCA Roundtables
from the not-looking-good dept
Unlike the House Judiciary Committee roundtable that was held in Silicon Valley last year, where the Representatives surprised many of us by actually asking good questions and listening to the answers, the Copyright Office's roundtables were bizarre and troubling. First, the whole setup of the two two-day events was problematic. The Copyright Office wanted to make sure that everyone who applied to speak was allowed to participate in some manner, so for each set of roundtables, they set up 7 roundtables of 20 people each on pre-defined topics, where each roundtable was only 90 minutes.
This was problematic in many ways, because the very fact that the Copyright Office already assigned the topics of each "panel" suggested the preconceived notions that the Office came into the hearings with. Second, 20 people in 90 minutes meant a kind of soundbite culture, rather than an actual discussion. Basically, 4 people from the Copyright Office sat up front and would declare the topic and ask a single (usually general) question to kick off the panel. Then anyone who wanted to respond would turn their name placards on the side. Each person speaking was told they had 2 minutes, and a Copyright Office person would hold up cards counting down the time until finally holding up a giant STOP sign when time ran out. If the Copyright Office people felt like it, they might pepper you with follow up questions, or just move on to the next upturned placard. Only a few times during two full days of everyone locked in a courtroom was there any real discussion or attempt at moving the ball forward on issues. Instead, there were a lot of 2 minute speeches, often totally contradictory, and sometimes with people saying blatantly false things.
The hearings were not livestreamed, though there was a court reporter who apparently is creating a transcript that will be distributed at some point (hopefully soon). While anyone could sign up to participate, the public was definitely a big missing factor. The Copyright Office itself repeatedly seemed to act as if copyright law is about two industries at war with each other -- "content" v. "tech" -- and unfortunately seemed to think that all content creators who mattered were against the tech industry. While the public could, in theory, have attended, there was very little seating available for non-participants, and we were all quite literally locked into a courtroom in San Francisco (getting out was always fun as we had to wait for the doors to unlock).
If I had to summarize the most general theme throughout the hearings, it was this: many individuals and businesses that relied on a certain way of doing business in past decades have not been able to adapt to the changing internet world, and they're very upset about this. They see that companies like Google (especially) are now making lots of money, and assume that somehow that money belongs to them. This ridiculous chart was waved around by one of the participants. It's basically the old way of doing business lashing out at the new way. Attempts to point out that there are many more new content creators today, and many more ways to make money, were dismissed, ignored or ridiculed. Attempts to point out that the "obvious" solutions weren't at all obvious and might cause more harm than good were similarly ignored. There were many attempts to "blame Google" and to use copyright law to "force Google" to do... something. Many of the things that people were asking for, Google actually already does, but people wanted more.
With that as background, here are twelve really troubling ideas that were raised during the hearing, many (though not all) by representatives from the Copyright Office itself:
- Notice & Staydown: If there was one overarching theme to the hearings it was the idea that many kept pushing for a "notice and staydown" regime to replace the current "notice and takedown" regime in the DMCA today. There would be weird alternating comments from people where a recording industry person would say something like "look, we need notice & staydown!" and then someone who actually understood the technology or the law would explain the problems of a notice & staydown regime, only to have the next person ignore all of that and say "what we truly need is notice and staydown." Concerns raised about abusive takedowns were mostly ignored. The Copyright Office kept arguing that people can just counternotice abusive takedowns, and didn't seem to care that evidence suggests many people are too afraid to counternotice. They also totally ignored the fact that if you move to a notice and staydown regime, there won't be notices to counter in many cases.
Related to this, there seemed to be little willingness to recognize that copyright is context specific, and that the same content in one realm may be infringing, while in another may be non-infringing. Which brings us to:
- Notice & Staydown For Full-Length Content: This appears to be the "compromise" solution that the Copyright Office kept pushing during the discussions, repeatedly bringing this up as an option. Their argument is that "okay, some people are worried about notice and staydown interfering with fair use, but 'full-length content' isn't fair use, so perhaps we just say that if it's 'full-length' movies, books and music, then any platform needs to have a notice & staydown setup."
Of course, there are numerous problems with this as well. First off, such filtering platforms are both expensive and often not very good (see: ContentID, which cost $60 million to build, and still sucks). A requirement for such a filtering system would basically stop all new entrants into the market and lock the big players (YouTube, Facebook) in as the dominant platforms. It also doesn't make sense for all kinds of content. A lawyer from Wikimedia pointed out that a technology filter mandate would be insane for Wikipedia, since its human editors already seemed to be better and more efficient at removing infringing stuff.
Most importantly, plenty of full-length content may be non-infringing. I mean, we just had the Google Books ruling not too long ago, which found that scanning, indexing and storing full-length books was fair use. Or there's the Bloomberg/Swatch case where full-length recordings of investor conference calls were used in a way that was fair use. Or what about people backing up their own movies? After all, one of the most famous copyright lawsuits ever, the Betamax case over the legality of home video recordings, found that recording full-length video... was fair use. Creating a bright line rule saying that full-length content isn't fair use would go against settled law and harm many forms of innovation.
And that brings us to:
- One-size-fits-all tech mandates and carve-out attempts: Because of the points above, the Copyright Office and some others kept trying to see if there were ways to write the rules so that they would only target certain players (i.e., "Google"). This makes little sense for a variety of reasons. First, as Google itself noted, when you're talking about something like YouTube, it already offers a notice-and-staydown tool in the form of ContentID, but many people choose not to use the staydown portion, because Google also offers an option to "monetize" those works. Whether or not we agree with how ContentID works, it's clear that it already provides a lot more than what the law currently says YouTube needs to do, and people still aren't satisfied.
But it's nearly impossible to create mandates for technology in a way that doesn't (1) harm many other companies in the space and (2) create weird and dangerous incentives. The most common suggestion was some sort of special safe harbor for "small" companies, so that the next startup wasn't burdened with having to build or buy a filter... until they reached a certain size. But that doesn't work either. Both Wikimedia and the Internet Archive noted that in terms of traffic, they're both pretty big... but they're also both non-profits with limited funding and where a mandated tech filter would be both prohibitively expensive and total overkill. So, then the Copyright Office suggested maybe a carve-out for "non-profits." But, as someone from eBay pointed out, that still creates problems for a site like eBay. eBay notes that it doesn't have a huge issue of copyright infringement, but there is always some that happens -- usually in the form of people using photographs for an auction without having a license. But, as eBay notes, the "harm" here is pretty minimal, and the idea that eBay should need to purchase an expensive tech filter to weed that out is clearly overkill.
- Only some kinds of content matter: Perhaps the most frustrating thing was how clearly the Copyright Office and many of the participants who had experience in the legacy content creation world seemed to totally dismiss the idea of new content creators, new kinds of content and new content business models. When lawyer Cathy Gellis mentioned that she was an amateur singer who was able to make some money today, whereas in the past she'd be totally out of luck, the Copyright Office's immediate response was to basically say, "but that doesn't count" for content creators who need to invest in their content creation. Similarly, one musician did the "get off my lawn" style of complaint, saying that all the music today sounds the same, and blamed piracy and Google for that happening (which is incredible, since there is so much more music, including so many different kinds of music, more widely available than ever before). Over and over again people suggested that their own content mattered much more than anyone else's.
Too often, panelists absolutely dismissed amateur content or even professional content from new kinds of content creators. People dismissed YouTube as just being about "cat videos." And, again, the Copyright Office seemed to support this idea. In fact, somewhat astoundingly, at one point, someone from the Copyright Office tossed out the suggestion that political content could get extra rights, compared to other kinds of content, suggesting that maybe political related videos could get a carve-out such that it would get put back up online faster if it gets a bogus takedown, whereas a "dancing baby" doesn't matter enough. That would clearly violate the First Amendment in determining that some kinds of speech get extra rights compared to other kinds of speech. Update: In the original post, I wrote that Copyright Office General Counsel Jacqueline Charlesworth made the comparison between political speech and "dancing baby" speech. It turns out that it was another Copyright Office employee, Karyn Temple Claggett. I apologize for the error.
- Service providers shouldn't be allowed to reject takedown notices: This one was pretty incredible (especially combined with the next one). The Copyright Office's General Counsel seemed taken aback by the idea that service providers might choose, of their own volition, to reject DMCA takedown notices. She came back to this point multiple times on day one, suggesting that she was somehow uncomfortable with the idea that a service provider might choose to "adjudicate" whether or not a takedown notice was valid. This was surprising, because the law is pretty clear. The DMCA does not say what a service provider must do. It just describes steps that are necessary to keep the safe harbors. That doesn't mean that if you don't follow the safe harbor requirements you're violating the law, it just means that if you're sued, you don't get an automatic pass on liability. But Charlesworth seemed really disturbed by that idea. And that's problematic, because if you talk to various platforms that receive lots of takedowns, they need to be able to reject some to avoid completely bogus takedowns.
- Service providers should lose their safe harbors based on a single decision to reject safe harbors over a single takedown: This one could potentially be lumped together with the one above, but it's so crazy that it deserves its own bullet point. Basically, Charlesworth suggested that if a service provider decides to forego the safe harbors for a single item (e.g., refusing to take down content based on an obviously frivolous takedown notice), it might mean that they've removed safe harbors for the entire site. This came up during a direct discussion with a lawyer from Google, in which she interrupted him to ask why a service provider would refuse to take down content, and it was explained that if the takedown was obviously bogus, a site shouldn't take it down. Charlesworth then questioned the lawyer about whether or not the safe harbors only applied to each individual instance, or to the site as a whole, leaving many people in the audience stunned that this was even a question -- including the Google lawyer, who basically said that "obviously" the safe harbor question applied to each individual takedown.
Put these two things together and the suggestion is that service providers should never be allowed to question a takedown, no matter how bogus, and if they do, they automatically lose the DMCA's safe harbors entirely. Talk about a recipe for mass censorship.
- Punishment for false counternotices: Another bizarre idea that came up during these discussions was adding punishment for false counternotices. This is crazy. The system is already totally imbalanced in favor of the person sending the takedown. They get to remove content in most cases based on a single email, and there's no real punishment for false takedowns at all. But after one person complained about false counternotices (a problem that I find it difficult to believe actually exists at any type of scale that warrants further corrective action), suddenly the Copyright Office suggested that maybe there could be additional punishment for bogus counternotices (but without suggesting there should be any punishment for false notices). This makes no sense. There's already punishment for false counternotices, which is that the copyright holder gets to sue the person for up to $150k per infringed work.
And, indeed, as various studies have pointed out, the fear of such a lawsuit already greatly chills the willingness of many people to file counternotices at all. The idea of chilling the counternotice process even further, especially without fixing the problem of abusive takedowns, is crazy.
- Artists struggling to make money have piracy/Google to blame: Over and over again speakers and the Copyright Office kept pointing out this or that content creator who is struggling to make money as proof of "the problem." But that's a massive logical leap. I'm sure that some content creators are losing some earning opportunities because of infringement, but making money as a content creator has always been incredibly difficult. Most musicians don't make very much money. Most movies don't make much money. And it was that way before the internet was even around, and it's still true today. It seems ridiculous to assume that single examples of artists struggling must be a result of piracy. The author TJ Stiles, who is on the board of the Authors Guild, literally claimed that because of infringement he was less creative and wrote less, saying piracy meant he couldn't pay healthcare or his mortgage.
Yet, I can just as easily point to new authors or other content creators who are now making a living entirely because of these new platforms that so many people at last week's hearings were angry about. These days, there are new business models using Kickstarter, Patreon, IndieGogo, YouTube, Vine, Instagram, Snapchat, Amazon and many, many more. And many of the artists making money from those platforms wouldn't even have been able to create content in the old world. So those seem to wipe out the claims that it's "piracy" undermining the ability to make money. It seems to suggest that it frequently is a number of other factors from (1) a lack of an audience, (2) an audience that is no longer interested, (3) an inability to go where the audience wants to go these days or (4) an unwillingness to adapt to new business models. One filmmaker even claimed that he didn't think the law should allow "new media" business models to upend "old media" business models. That's an interesting viewpoint, given that under that thinking, film shouldn't have been allowed, since it undermined the market for theater.
- Public comments are a "denial of service" attack: As mentioned earlier, it was somewhat distressing how frequently the public was ignored in all of this. The Copyright Office was clearly not entirely happy with the fact that Fight for the Future and the YouTube creators (yes, actual content creators!) urged the public to file comments with the Copyright Office on the problems with bogus takedowns. But perhaps the most ridiculous comment came from (known Techdirt hater) Jonathan Taplin, who suggested that because the Copyright Office's servers couldn't handle the ~87,000 inbound comments, it might be considered a "denial of service attack." Really? Helping the public to comment is a denial of service attack?
On one of the panels that I was on, I raised the issue of the public being left out of all of this, and the focus on tech v. content -- neither of which might have the public's best interests in mind. The Copyright Office asked about how to better engage the public, and I suggested that encouraging more public comments, rather than dismissing them or labeling them "zombies" or a denial of service attack, might be a good start.
- Gov't-supported "Voluntary measures" as a panacea: Repeatedly this was one area where the Copyright Office kept claiming "we have some agreement!" where both tech and the legacy content players kept insisting that "voluntary measures" between these parties could solve many of the issues. Representatives from Microsoft and Google excitedly talked up all the great "voluntary measures" that were going on in working with the content industries to come up with solutions that went beyond what the law required. Others talked up various efforts to stop ad networks or payment processors from working with "pirate sites."
But, again, this seems dangerous to me. Voluntary measures between two giant industries leave the public and the public interest out of the discussion. Attacking "pirate" sites sounds great until you ask, "how is that list made?" Considering that the Internet Archive, personal blogs and even 50 Cent's personal website have been called pirate sites in previous attempts to build such lists, it's not quite as obvious as some would have you believe.
On top of that, lots of brilliant innovations look like piracy when they're first created, but later turn out to be revolutionary. As I noted in my 2-minute soundbite opportunity, radio, the photocopier, cable TV, the VCR, the DVR, the mp3 player and online video were all decried as nothing but piracy tools when they first came out. And yet all of them turned into significant business opportunities for content creators. Cutting those off in the early days through the collusion of "voluntary measures" could stifle all sorts of powerful innovations that actually would help content creators make more money and reach a wider audience.
- The Lumen Database as a rogue site: One filmmaker was particularly concerned about the fact that Lumen Database (formerly known as ChillingEffects.org) archived DMCA takedown notices that were forwarded to the site. The claim was that people seeking infringing versions of content would search through Lumen to find the URLs listed for takedown. Someone else pointed out that there's no evidence that this is happening at any sense of scale, but someone from the Copyright Office substituted anecdotes for data, and claimed, "well, it's come up a lot." The suggestion was that perhaps Lumen should be required to redact the details of takedowns, and that only certified researchers should be allowed to access the full corpus.
This is troubling on any number of levels. One of the things that was clear throughout the discussion is that we need more data and more research into what's working and what's not working. And you don't do that by locking up important data and then suggesting that only a special class of people should be allowed in. Though, I guess it fits with the idea that only some kinds of content creators matter. Apparently only some kinds of researchers might matter as well.
- Technology is magic: Over and over again, folks who actually understood the technology pointed out why technology is no magic bullet. You can't automate understanding what is and what is not infringing. But someone from a lobbying group for the legacy copyright players pulled out the "you're all so smart, nerd harder" card by saying that if Silicon Valley can build a self-driving car, surely it can build a technology that can determine what is and what is not fair use. This has echoes of the debate over backdooring encryption, which is another of these "nerd harder" situations, in which non-technologists assume that technology is magic and doing x and doing y are somehow equivalent. All I can say in response to that is obligatory xkcd: