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Copyright Holders Dominate Closed-Door DMCA Hearings


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As discussions over DMCA reform continue, a number of closed-door hearings have taken place in San Francisco. Representatives from Fight for the Future and YouTube's Channel Awesome were there and they report that discussions were dominated by copyright holders seeking new powers to permanently disappear content and even whole sites from the Internet.

 

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Earlier this year the U.S. Government ran a public consultation to evaluate the effectiveness of the DMCA’s Safe Harbor provisions. These include issues such as ‘notice and takedown’ plus short-comings and abuses that arise from the current system.

 

In the final days of the consultation Fight for the Future (FFTF) and popular YouTube channel Channel Awesome launched a campaign urging the public to get involved. What followed was a massive response to the U.S. Copyright Office coordinated via the associated TakedownAbuse site. But that was just the beginning.

 

In the final days of the consultation Fight for the Future (FFTF) and popular YouTube channel Channel Awesome launched a campaign urging the public to get involved. What followed was a massive response to the U.S. Copyright Office coordinated via the associated TakedownAbuse site. But that was just the beginning.

 

Thanks to the huge support FFTF and Channel Awesome (CA) were able to convince the U.S. Copyright Office (USCO) to give them seats at the table in a series of closed-door meetings on DMCA reforms held in San Francisco last week. Jeff Lyon (FFTF) and Mike Michaud (CA) attended and they report that discussion was heavily skewed in favor of copyright owners.

 

“Unfortunately, the hearings appeared to be rigged against the public interest, and unless we step up our game, it’s looking very likely that the USCO will make the DMCA even worse, with major giveaways to the copyright industry that put SOPA-style restrictions on independent content creators,” Lyon reports.

 

The FFTF CEO says that while Google, EFF and Mozilla were in attendance (pdf), they were outnumbered by pro-copyright groups including the MPAA, RIAA, Copyright Alliance (who previously labeled FFTF’s campaign participants as “zombies“), Creative Future, Disney, Paramount and NBCUniversal.

 

Speaking with TorrentFreak, Lyon says that one of the key copyright industry demands is for a “take down, stay down” system which would require platform owners to proactively police user-uploaded content.

 

“I can say for sure that there was overwhelming consensus in favor of ‘take down, stay down’ from members of the discussions affiliated with the copyright industry,” Lyon says.

 

“The idea is that once a copyright holder files a DMCA takedown for a particular piece of content, for example a music clip, it should then become the responsibility of the website operator to proactively scan everything uploaded by users and block that content from being posted in the future.”

 

Lyon says that this would effectively eliminate a user’s right to file a counter-notice, since they would be unable to post any content with a copyright claim against it, even in a fair use situation.

 

“Being unable to post copyrighted content also means users would be less able to sue copyright holders to assert a fair use right, since the content would be blocked by the website, instead of being taken down by a legal claim made by the copyright holder,” he explains.

 

TorrentFreak asked Lyon if copyright holders had made any suggestions on how such a complex system could work in practice. Apparently some feel it is Google’s problem.

 

“Keith Kupfershmid of Copyright Alliance said something to the effect of ‘I’m not a techie, but if they can make self driving cars, they can surely figure out how to keep copyrighted material from being posted,” he said.

 

However, also in attendance was Tony Rodriguez of anti-piracy outfit Digimarc. Lyon says that Rodriguez suggested that his company has the ability to deal with the job.

 

“It was strongly implied that Digimarc’s scanning technology could be adapted for use by website owners to comply with staydown requirements. I think Digimarc is practically salivating at the prospect of being in control over a government-mandated copyright protection racket, where they can serve both copyright holders and website owners who are held hostage by new staydown rules,” he explained.

 

“Overall the attitude was that it should be the tech industry’s problem to figure out how to do it and pay for it. Nobody had a good answer for determining fair use scenarios programmatically.”

 

While physically outnumbered by copyright holders, Google senior copyright counsel Fred von Lohman agreed with Jeff Lyon that content filtering technology is extremely expensive and burdensome for website owners to develop, noting that Google had spent over $40 million and deployed 100 software engineers to develop its Content ID system. Others weighed in too.

 

“One of the best points was made by Daphne Keller from Stanford Law,” Lyon says.

 

“She backed up my and von Lohman’s claims that content scanning systems are generally expensive, but added that good content scanning algorithms that could protect fair use rights will be very expensive. Thus if sites are required to implement content scanning, they will be incentivized to use cheap options that would err on the side of filtering out lawful content and fair use.”

 

Interestingly, sitting right next to Lyon in one of the sessions was MPAA attorney Dean Marks. He appeared to have SOPA on his mind.

 

“After some light-hearted joking banter with the regulators, the MPAA attorney suggested new legislation to take down entire websites (aka SOPA) for suspected copyright infringement,” Lyon explains.

 

“He spoke briefly and near the end of the meeting, so it was really almost in passing. He did not get into specifics about overseas websites [per SOPA], only mentioned that torrent sites only exist to spread pirated material and should be taken down completely.”

 

Overall, Lyon says he gets the impression that rather like with the SOPA debate, these DMCA discussions are being framed as “copyright industry vs. tech industry”, something which undermines the public interest. Nevertheless, FFTF and groups including EFF are putting up a fight.

 

“The general public is more affected by the DMCA than they even know. Copyright holders are abusing the process to censor negative reviews and commentary from the Internet. Creators are discouraged from fighting back, facing lost revenue and permanent bans from online platforms,” Lyon says.

 

“The sheer number of copyright holders at the meetings allowed them to push the discussions toward their ‘take down, stay down’ agenda, and they repeatedly tried to discredit nearly 100,000 comments sent by the public calling them out for mass censorship and abuse of the existing DMCA takedown rules. The copyright industry is clearly engaging in a massive lobbying effort to bring new SOPA-style legislation back in front of Congress.”

 

FFTF acknowledge that their opponents are powerful lobbying forces but they believe they have the tools and the public backing to put up a fight.

 

“We’ve beat them before and we can do it again. The copyright industry was blindsided by nearly 100,000 comments sent to the Copyright Office in the span of one day. When the next round of public commenting opens up, we will be ready, and our voices will be impossible to ignore,” Lyon concludes.

 

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In More Detail from Techdirt

 

The Copyright Office has been holding a series of "roundtable discussions" on copyright reform that it's going to use to produce a paper supporting certain changes to copyright law. We already know that some sort of copyright reform bill is expected in the near future, and what comes out of this whole process is going to be fairly important. Unfortunately, the roundtables are not encouraging. There was one held in NY a few weeks ago, which Rebecca Tushnet blogged about in great detail, and I attended the ones last week in San Francisco and I've gathered up my tweeted commentary, if you feel like reading through it.

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:

  1. 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:
     
  2. 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:
     
  3. 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.
     
  4. 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, the Copyright Office's General Counsel, Jacqueline Charlesworth, tossed out the suggestion that political content should 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.
     
  5. 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.
     
  6. 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.
     
  7. 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), 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.
     
  8. 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.
     
  9. 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.
     
  10. 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.
     
  11. 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.
     
  12. 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: All in all, the two days of hearings was somewhat frustrating. I had hoped that it might be a way to actually have some productive discussions that actually focused on what was best for "promoting the progress." Instead, it seemed to involve the Copyright Office coming in with preconceived notions, mainly focused on how copyright law can be changed to better prop up legacy business models, at the expense of the public and innovation -- including all of the new creators who rely on that innovation.

 

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