Does The US Copyright Office Not Know That Copyright Policy's Main Stakeholders Are The Public?

from the how-is-this-possible? dept

More than four years ago, the Copyright Office kicked off a project to do a big "study" on Section 512 of the DMCA, better known as either the "notice-and-takedown" section of copyright law, or the "safe harbors" section for websites. The Office took comments, held a few, somewhat bizarre "roundtables" (that we participated in)... and then... silence. Years of silence. Until yesterday when it finally released the report. It's 250 pages and there's a lot in there -- and we're likely to have a few more posts on it as we dig into the details, but to kick it off, I wanted to highlight just how bizarre a report it is, in that the authors don't seem to realize or ever acknowledge that the purpose of copyright law (and even this section) is to create the best possible services for the public.

Instead, the report seems to frame the entire Section 512 debate as a battle between the legacy copyright industry and giant internet companies. From the executive summary:

In enacting section 512, Congress sought to create a balance between two goals. One is providing important legal certainty for OSPs, so that the internet ecosystem can flourish without the threat of the potentially devastating economic impact of liability for copyright infringement as a result of their users’ activity. The other is protecting the legitimate interests of authors and other rightsholders against the threat of rampant, low-barrier online infringement. Congress balanced these interests through a system where OSPs can enjoy limitations on copyright liability—known as “safe harbors”—in exchange for meeting certain conditions, while giving rightsholders an expeditious and extra-judicial method for addressing infringement of their works. Thus, for some types of OSPs, their safe harbors are conditioned on taking down infringing content expeditiously upon notification by a rightsholder.

In the twenty-plus years since section 512 went into effect, the question has often been asked whether the balance that Congress sought has been achieved, particularly in the light of the enormous changes that the internet has undergone. Indeed, that is the question that motivated the Study that led to the present Report.

But the entire framing of that premise is wrong on multiple levels. For proof, let's go back to the legislative record and the the Senate Judiciary Committee's report on why DMCA 512 was necessary, written by long term buddy to the recording industry, Senator Orin Hatch. (As a reminder, Senator Hatch was considered so in the tank for the recording industry that in Rob Reid's satirical sci-fi novel, Year Zero, about the recording industry, he jokes that Hatch is nicknamed "Senator Fido" for his willingness to do whatever the recording industry told him -- so not exactly a defender of the public). Yet, the report makes it abundantly clear that a major stakeholder of the DMCA is the "end-user" and that the DMCA needs to be careful not to be used to take down works that are legitimately placed online. From that report:

The Committee was acutely concerned that it provide all end-users--whether contracting with private or public sector online service providers--with appropriate procedural protections to ensure that material is not disabled without proper justification. The provisions in the bill balance the need for rapid response to potential infringement with the end-users legitimate interests in not having material removed without recourse.

The Copyright Office was told repeatedly both about this clear stakeholder and was given many, many examples of how the DMCA 512 has failed on that front. And, yet very little of that is reflected in the report. Instead, the report mainly focuses on large internet providers liking the safe harbors, and copyright holders wanting it to be worse... and then claims that since only one side is "upset" clearly that means things are out of balance.

Roughly speaking, many OSPs spoke of section 512 as being a success, enabling them to grow exponentially and serve the public without facing debilitating lawsuits. Rightsholders reported a markedly different perspective, noting grave concerns with the ability of individual creators to meaningfully use the section 512 system to address copyright infringement and the “whack-a-mole” problem of infringing content reappearing after being taken down. Based upon its own analysis of the present effectiveness of section 512, the Office has concluded that Congress’ original intended balance has been tilted askew.

It's like the public's interest has just been written right out of the law by the Copyright Office. And that's stunning. And it's also disappointing because our own comments (along with many others) to the Copyright Office highlighted the failing of the notice-and-takedown process in that it frequently censors non-infringing material.

Also, the "conclusion" that the "original intended balance has been tilted askew" also further misrepresents the entire history of the DMCA. Remember, there were two major sections to the DMCA: 512 (the part we're discussing here, which is the notice-and-takedown safe harbors) and 1201 (which is the digital locks/anti-circumvention parts). Part of the "negotiation" to get the DMCA passed (mainly between legacy copyright holders and telcos) was that these two sections were balanced against each other. That is "copyright guys get 1201 if we protect service providers with 512 safe harbors." Some of us already had trouble with how unbalanced a trade that was, but the really ridiculous thing here is to have the Copyright Office pretend that 512 alone was designed to be a "balance" between service providers and copyright holders (ignoring the massively unbalanced 1201).

This is like saying "I'll trade you a bucket of oranges for a watermelon" and then, after that trade is concluded, whining "how come you get all the oranges! That's unfair!"

There are many, many other problems with the report, and we'll likely be digging into those in the coming weeks, but the very fact that the report appears to write the public out of its stakeholder analysis (even ignoring the Constitutional underpinnings and the stated basis for the law) suggests that the entire analysis is very, very skewed.

People within the Copyright Office keep telling me that I'm being unfair to the hardworking team there. And, to be clear, I do think that they really do mean well and actually do want to do the right thing. But if they want to be taken seriously, to put out a report that is so off the rails from the very start, it becomes more and more difficult to take their analysis seriously.

Filed Under: 512, balance, copyright office, dmca, dmca 512, public, stakeholders


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  1. identicon
    Anonymous Coward, 22 May 2020 @ 12:46pm

    Shockingly their bribes are higher than their moral code

    The bribes that the members of this office get from the recording industry dwarf any obligations they ever felt to maintain the public interest in their findings.

    reply to this | link to this | view in thread ]

  2. icon
    That One Guy (profile), 22 May 2020 @ 1:06pm

    By what standards?

    And, to be clear, I do think that they really do mean well and actually do want to do the right thing.

    Given the report overview that statement is rather impossible to buy, unless either those doing the grunt-work have been overruled by their bosses(in which case the fact that they mean well becomes meaningless), or they have been convinced that the only groups that matter are major companies and they are trying to do the right think for them.

    It might just be me, but personally if I said that a group wasn't working in my best interests, they claimed that I was being unfair and then proceeded to stab me in the back the benefit of the doubt given to them would be gone, not just slightly dented. If they really do mean well this is a great way to not show that.

    reply to this | link to this | view in thread ]

  3. icon
    That One Guy (profile), 22 May 2020 @ 1:10pm

    Citation needed there

    Unless you have some evidence of bribes you only undermine your position by throwing out the accusation when you don't actually need to.

    It's entirely possible, if not likely, that they haven't been bought out so much as corrupted, told so often that only the big players count that they've started believing it, with no money changing hands or even needing to.

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, 22 May 2020 @ 1:10pm

    same old, same old

    ... so a government bureaucracy has been 'captured' by special interests and now acts against the public interest.

    has anyone noticed a steady trend in this type of government-failure?

    Luckily, Congress and the Presidency are immune to special interest influence (or maybe it's standard operating procedure)

    reply to this | link to this | view in thread ]

  5. icon
    Not an Electronic Rodent (profile), 22 May 2020 @ 1:16pm

    Re: Shockingly their bribes are higher than their moral code

    Shockingly their bribes are higher than their moral code

    What? Their brides are $10?????

    reply to this | link to this | view in thread ]

  6. identicon
    MathFox, 22 May 2020 @ 1:21pm

    Re: Shockingly their bribes are higher than their moral code

    I don't think the grunt-workers are bribed. They self-select (why else apply to the copyright office) and are keep hearing all that stories why copyright is good and their work protecting and expanding it is important. An institutional echo-chamber. And if you provide a report-writing team with data that supports a specific message it's easy to get the message in the report; especially when the writing team beliefs in the message too.

    It could be that some in management pulled some strings when selecting the team and selecting the data infuenced by "external incentives" like personal friendships, previous or future employers or other lobbying.

    reply to this | link to this | view in thread ]

  7. icon
    Not an Electronic Rodent (profile), 22 May 2020 @ 1:25pm

    Re: Citation needed there

    Unless you have some evidence of bribes

    Kinda depends whether you're going for the political definition of bribe, which seems to limit the definition to "This specific pile of money for this specific service that is specifically prohibited...

    Or the rather more dictionary definition:

    dishonestly persuade (someone) to act in one's favour by a gift of money or other inducement.

    ... in which case, provision of favours, junkets, fund raisers, donations, etc.etc, which are done in the public eye and indeed in the public record are just as much "bribes", just "legal" ones - mostly because the people who receive them write the laws

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, 22 May 2020 @ 1:37pm

    'the purpose of copyright law is to create the best possible services for the public.'

    Who on Earth yold you that? As far as the USA is concerned, nothing is ever for the public! It doesn't matter whether it's copyright, in whichever field you're talking about or it's a service. Everything here is done for the benefit of the industry, company or top man! The public are last, not first on the list, expected to do nothing except continuously choke out money for whatever, while never complaining that ee are getting screwed from the time we're born until after the hole has been filled in or the fire dies out after the end of life! And every single member of whichever government is in power at the time ensures that nothing ever changes to make it better for the public, for us!

    reply to this | link to this | view in thread ]

  9. icon
    Ehud Gavron (profile), 22 May 2020 @ 1:49pm

    Re:

    Who on Earth told you that?

    https://www.law.cornell.edu/uscode/text/17/chapter-1 *

    Clear enough for ya?

    E

    • Not sure if that's who "told" the original poster, but it is the law. This is complicated to understand but it generally means "This is the law." If you are confused about who told me that just google search "the law." (Without the period at the end, Dunsel.)

    reply to this | link to this | view in thread ]

  10. icon
    That Anonymous Coward (profile), 22 May 2020 @ 1:52pm

    They also do not know -
    Water is Wet
    Fire is Hot
    Fair Use is a thing
    Not everything needs to be owned for 500 years
    Things should move into the public domain
    Lopsided punishments make for a shitty system
    The AA's send faulty notices to Google despite Google not hosting the content as required by law
    The
    AA's lie about losses
    The AA's lie about earnings
    The
    AA's talk a good game about the poor ripped off workers, leaving out they were already paid & aren't earning more
    The AA's lied when they said VHS would kill them
    The
    AA's are more focused on imaginary losses than caring about consumers
    The **AA's keep pushing to steal pennies from each other & the "feel" of music belongs to no one
    Dead men's 5th generation of off-spring shouldn't be empowered to veto someone building upon our culture

    To depressed to carry on....

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, 22 May 2020 @ 2:16pm

    Re: Shockingly their bribes are higher than their moral code

    Well,

    I did pitch a business model at one point of lobbying individuals to promote XXAA interests in public and private organizations from a true grass roots perspective.

    Why shadow fund an organization that's going to be traced back to your industry, when you can fund the individuals responsible for the organization, which will be almost impossible to track.

    Consulting fees, gig work type pay, various methods to do the funding to make it happen.

    or that could just be fiction...

    reply to this | link to this | view in thread ]

  12. icon
    ECA (profile), 22 May 2020 @ 2:39pm

    Just a question.

    How many fake/mis-applied/WRONG DMCA notices have been sent.? in the last years?
    HOW many of them MEANT anything/were real/were from the CR holders/were done properly??

    How much of the automated BS, has done more damage To the agencies and Any DMCA sent, then actually Helping the Rights holders?
    How many sites have been taken Down for the wrong/bad indiscriminate reasons of a Computer program Just wondering the net looking for something to Shoot/DMCA?

    reply to this | link to this | view in thread ]

  13. icon
    That Anonymous Coward (profile), 22 May 2020 @ 3:20pm

    Re: Just a question.

    https://www.lumendatabase.org/

    Of course the cartels threatened to sue them out of existence for making it easy to see how screwed up the notices are so they added capthcas and made it less useful.

    I know on TorrentFreak there were a few stories about how some computers just made pages up they assumed shoudl exist but didn't.

    They were all excited to announce they had sent a billion notices, but its really sad when only 10 were legit.
    Now a notice generated by a company paid from the proceeds of the lawsuits some courts consider to be evidence of repeat offenders b/c the law doesn't define what the term means so just dressing up your accusations with "technolgies" is enough to get a court to assume the target is the offender without hearing any evidence.

    reply to this | link to this | view in thread ]

  14. icon
    ECA (profile), 22 May 2020 @ 4:00pm

    Re: Re: Just a question.

    Iv read some of the stories in the past..
    A few sites taken down, and NOT returned, even tho the Site was sponsored by the artists they were showing... 1 took over 5 years to get the site back and up.
    YT gets hit so much and over 50% of it is faked, or a Bot going nuts..

    reply to this | link to this | view in thread ]

  15. identicon
    Anonymous Coward, 22 May 2020 @ 7:01pm

    It's like the public's interest has just been written right out of the law by the Copyright Office

    The Copyright Office made that abundantly clear when it all but supported the RIAA for fucking up their own PR.

    reply to this | link to this | view in thread ]

  16. icon
    Wendy Cockcroft (profile), 23 May 2020 @ 12:29am

    Re: By what standards?

    I'll bite. We here on TD are among the few who understand that copyright was supposed to be about the public interest. Due to relentless lobbying and to ideological considerations, other people don't.

    Two examples:

    On the right, a friend who said that since copyright is intellectual property it should be held in perpetuity to benefit the heirs of the copyright creator. I asked if title deeds would go with that, and pointed out that creators aren't necessarily the copyright holders.

    On the left, an actual socialist who came up with the "hand and brain" argument, i.e. "Sweat of the brow." He wouldn't be swayed.

    So yeah, the lobbying has been so successful we appear to be in the minority.

    reply to this | link to this | view in thread ]

  17. icon
    Wendy Cockcroft (profile), 23 May 2020 @ 12:30am

    Re: same old, same old

    ROFL!

    reply to this | link to this | view in thread ]

  18. icon
    Wendy Cockcroft (profile), 23 May 2020 @ 12:31am

    Re: Re:

    Ehud, that post was dripping with sarcasm. He already knew.

    reply to this | link to this | view in thread ]

  19. icon
    Ehud Gavron (profile), 23 May 2020 @ 1:12am

    Wendy knows

    I'm going to have to ask this in the simplest way possible. Wendy writes about AC:

    He already knew.

    How do you, Wendy, know what AC has knowledge of and what he does not?

    Asking for a friend.

    Ehud
    P.S. You caught sarcasm in my post? Seriously? Would you swear to that under oath in a court of law in front of a judge. Because that part would be true.

    reply to this | link to this | view in thread ]

  20. identicon
    Anonymous Coward, 23 May 2020 @ 4:29am

    Re: Just a question.

    Contentid systems, a side effect of the DMCA are doing a lot of damage to people who play classical music online; like classical musicians moving online because live concerts have been halted.

    reply to this | link to this | view in thread ]

  21. icon
    Anonymous Anonymous Coward (profile), 23 May 2020 @ 6:56am

    Re: Re: Just a question.

    In looking for an imbalance the Copyright Office has overlooked a potential source, and maybe due to being a co-opted organization. Zealousness in practice of what they see as their duty, protecting their IP, and your Slashdot article and its source discuss a prime example of something that has been discussed on Techdirt before, for example. It is acts like these and many others that the Copyright Office are ignoring when they fail to take the public into account and focus only on the 'rights holders' who rarely have created anything.

    reply to this | link to this | view in thread ]

  22. identicon
    Crafty Coyote, 23 May 2020 @ 9:03am

    Re:

    If the public interest is no longer relevant to the Copyright Office, then the Copyright Office will no be longer to the public.

    reply to this | link to this | view in thread ]

  23. icon
    That Anonymous Coward (profile), 23 May 2020 @ 10:17am

    Re: Re: Re: Just a question.

    The problem is the system is designed with the assumption that no one would misuse it.
    There is nothing in the law to protect citizens in this, just to terrorize platforms into doing it now now now.

    The 5yr story IIRC is DaJazz1 (forgive if my memory is slightly off) the RIAA claimed all the bad things, provided no evidence at all, got the site seized. The site was able to show they "stole" no music, that it was all sent by the labels begging for coverage, but the RIAA claimed they had proof. The proof never appeared & after lying to the feds & courts they just tucked their tail and walked away from the whole thing. (something something that guy who didn't "deface" the website in jail forever facing millions in damages but the RIAA can get the Feds to steal a website & not even an oops sorry required).

    YT has multiple problems.
    The basic problem with YT is it is assumed if they make a claim they own it.
    Bad actors stealing ad money over & over & over.
    Try to fight back, your name home address other details are handed over to who made the claim.
    YT never ever makes a sanity check on the claims, which is odd as their search engine now verifies every complaint url (which legally they don't have to do as they don't host the content targeted on their servers).

    They claimed 3 min of silence meant they owned several silent uploads.
    They claimed a bird tweeting in a forest was their rock song & then doubled down and claimed they double check it and the tweeting WAS their music.

    Just because they stole MEGA & then made sure it could NEVER be restored (denying innocent people their property legally stored on MEGA) & managed to destroy BACKPAGE (as their own notes prove what they were claiming in court was not true) its not like the Government cares more about corporations than taxpayers... er wait..

    reply to this | link to this | view in thread ]

  24. icon
    That Anonymous Coward (profile), 23 May 2020 @ 10:23am

    Re: Re: Just a question.

    ContentID is built on the premise that all content is owned by a corporation.

    While they might own the rights to a specific performance of a classical work, they do not own the rights to the classical work.
    If someone does a cover of a Prince song, the Prince estate might be able to make some sort of legal claim (which would be stupid).

    Classical music is MEANT to sound the same each time it is played, but whoever puts their recording of a performance of it in ContentID is assumed to be the one true owner of the piece.

    The system is unbalanced and fscked, but it is a high holy sacred cow that we can't dare touch b/c it would kill an entire industry that is somehow losing trillions of dollar at the same time they are earning record profits...

    reply to this | link to this | view in thread ]

  25. identicon
    Anonymous Coward, 23 May 2020 @ 11:59am

    Re: Re: Re: Just a question.

    If someone does a cover of a Prince song, the Prince estate might be able to make some sort of legal claim

    Unless they have paid the compulsory mechanical license, which apples to all songs under copyright.

    reply to this | link to this | view in thread ]

  26. icon
    That One Guy (profile), 23 May 2020 @ 12:33pm

    Re: Re: By what standards?

    You might be right that those that see copyright as meant to benefit the public may be in the minority compared to those that have been conditioned to think otherwise, however I suspect that both groups are in the minority when it comes to people who simply do not care about the law, and who would likely be quite surprised if someone told them that sharing that pic/song/clip on social media carried insane penalties if the owner cared to bring them.

    reply to this | link to this | view in thread ]

  27. identicon
    Bobvious, 23 May 2020 @ 4:23pm

    Re: To (o) depressed

    reply to this | link to this | view in thread ]

  28. identicon
    California Animator, 23 May 2020 @ 5:26pm

    As a film creator with a clearly available online copyright with the Copyright office I am constantly trying to get one particular film of ours, which plays illegally on sites with our copyright line, taken off.
    In one case I had it removed but the offender claimed they had a contract to run it and the site said they would put it up again because the other side claimed they had a contract. The offender didn't have to show their claimed contract or even give details as to who made the supposed contract. We own and distribute our own stuff and it wasn't us, if this supposed contract even exists. You have my sympathies dealing with the big legacy guys but there are little creators like us who can't afford the $20,000. it would take to get a court injunction each time someone steals from us. We need help. The big legacy guys have lawyers. We individual creators don't.

    reply to this | link to this | view in thread ]

  29. icon
    Ehud Gavron (profile), 23 May 2020 @ 5:36pm

    Clarification request

    California Animator: you wrote:

    As a film creator with a clearly available online copyright with the Copyright office I am constantly trying to get one particular film of ours, which plays illegally on sites with our copyright line, taken off.

    Can you clarify if the issue is that they're "distributing" your video, or "making available" your video... because what I see is you are saying "... our copyright line, taken off." Is that a watermark?

    Can you clarify what exactly the legal violation is.
    NOTE: I'm trying to understand what you mean from a legal perspective. I'm not "judging" your claim or your rights or your ability to defend yourself ... so there you go.

    Happy Saturday,

    Ehud Gavron
    Tucson AZ

    reply to this | link to this | view in thread ]

  30. icon
    That One Guy (profile), 24 May 2020 @ 7:52am

    Re:

    While unfortunate if true weakening what it takes to remove content online is not the solution, and one need only flip the script to see how.

    Rather than someone posting your movie instead it's you, and a bot decides for whatever reason it's infringing and sends a takedown request. Overnight it's gone thanks to the law being utterly one-sided, and now it's on you to prove that it's actually your film, which, assuming the host doesn't take your word on it is going to take the lawyers you said you can't afford, except now instead of hypothetical lost sales they're real ones, as you are no longer able to sell your own stuff.

    However, after enough work you finally get that claim cleared, and your movie is back up. Except there's absolutely nothing preventing someone from making the claim and taking it back down in the future, because there's no penalty for bogus claims, and therefore no incentive for accuracy.

    Taking content down, potentially silencing someone's speech is supposed to be hard, it's supposed to take going to court and showing that someone is posting something they don't have a legal right to, and if that means that infringers aren't as easy to squash as you may want that's a better option than the alternative where it's so easy that those that aren't infringing are silenced on nothing more than accusation. Things are already bad enough, they most certainly do not need to be made worse by weakening an already bad law.

    reply to this | link to this | view in thread ]

  31. identicon
    Anonymous Coward, 24 May 2020 @ 8:31am

    Re:

    Obsessing over lost sales to piracy is a pointless exercise, and the energy is much better spent attracting people to your own site, as that will likely generate more sales that simply taking down the pirate copies..

    reply to this | link to this | view in thread ]

  32. identicon
    Anonymous Coward, 25 May 2020 @ 5:36am

    Re:

    You know what you guys have that the big legacy guys don't? The reputation of sleazy big legacy guys, which allows you to talk about these issues and put a name to your rant.

    The moment you hide your name is a sign that suggests "I don't want to sound like I'm guilt-tripping people for not liking John Steele so I'll double down on my anonymity for none of the drawbacks".

    reply to this | link to this | view in thread ]

  33. icon
    Scary Devil Monastery (profile), 25 May 2020 @ 7:07am

    Re: Re: By what standards?

    "We here on TD are among the few who understand that copyright was supposed to be about the public interest."

    But...it never was. That's the whole point. The whole "public interest" is window-dressing tacked right on top of Queen Anne's old censorship statutes to make the outright handout to the major publisher houses at the time look just a little more palatable.

    And the US implementation of it may mention the progress of science and the arts as grounds for the protection but the implementation is STILL nothing more than information control and censorship law in the hands of private rather than government hands.

    Your examples of how even well educated people have normalized the ownership of ideas is far more illustrative of how just how badly we've been screwed by the lobby.

    reply to this | link to this | view in thread ]

  34. identicon
    PatrickH, 26 May 2020 @ 3:52am

    Government as a whole has forgotten it's existence is in service to the people not corporations.

    reply to this | link to this | view in thread ]


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