Third Senate IP Subcommittee Hearing on DMCA: The ‘Grand Bargain’ is No Longer Working

By Eileen McDermott
June 2, 2020

“The DMCA is a relic of a MySpace era in a TikTok world. Our nation’s countless creators, most of them small businesses, deserve a better system that recognizes the needs of online participants in a procedure that properly applies the rules and implements today’s technology with an eye toward tomorrow.” – Don Henley

In the first part of a two-panel hearing today on whether the Digital Millennium Copyright Act (DMCA) is working for the 21st Century, Senate Judiciary Committee, Subcommittee on Intellectual Property Ranking Member Senator Chris Coons (D-DE) said he was struck by the conclusion of a recent Copyright Office report that found that Congress’ original intended balance for section 512 “has been tilted askew.” And Subcommittee Chairman, Senator Thom Tillis (R-NC), said that fixing the problems may require designing an entirely new system, as “the grand bargain of the DMCA is no longer working and not achieving the policy goals intended.” This was the third in a year-long series of hearings aimed at reviewing and modernizing the DMCA.

Senator Chris Coons

Tillis began the hearing by recognizing the larger issues the United States is presently facing—the murder of George Floyd by Minneapolis police and the Coronavirus pandemic.This hearing is not distracting from the larger issues of police brutality and the horrific circumstances that led to the murder of George Floyd and the senseless deaths of so many of our African American brothers and sisters,” Tillis said, noting that Senators Graham and Feinstein will soon hold a full Judiciary Committee hearing on policing in America.

Likewise, Tillis and his colleagues will continue to address the COVID-19 crisis, but in light of the heightened economic challenges gripping the nation as a result of it, “it is crucial Congress continue its important work” on issues like intellectual property, he said.

The Scale of the Problem

Small creators, independent artists, authors and musicians have particularly suffered during the COVID-19 crisis. “Retail sales have plummeted, but online piracy has not slowed down,” Tillis said. “More than ever they’re dependent on the online ecosystem.”

While the first two hearings held this year on the DMCA were academic in nature, today’s hearing focused on practical challenges and solutions—specifically, the DMCA’s notice-and-takedown provisions, codified in Section 512.

Section 512 of the DMCA was viewed as a “grand compromise”—in exchange for limited liability, online platforms were meant to take steps to curb piracy. However, the DMCA was written in a time of dial-up internet connections, and long before 81% of Americans owned smartphones. In order to keep up with the amount of infringing content online, copyright owners send hundreds of millions of takedown notices each year, only to see infringing material reappear on the same website, sometimes just minutes later, Tillis said. This entails “countless hours of manpower” to reply to takedown notices. “From both user and creator perspectives the current system is failing badly,” Tillis added. “We may need to design an entirely new system.”

[[Advertisement]]

Like Being Mugged Everyday

Don Henley

Representing the views of artists and authors were musician Don Henley of Eagles fame and Douglas Preston, an author and President of The Authors Guild. Both emphasized the impossibility of policing infringing content for creators—under section 512, the burden of identifying and providing notification of infringing material is placed on users, rather than platforms. “I’m present today out of a sense of duty and obligation to those artists and creators who paved the road for me and my contemporaries and those who will travel it after us,” Henley began. He noted that The Washington Post – owned by Amazon’s Jeff Bezos – had published an op-ed on Friday that Henley viewed as an attempt to intimidate him by Big Tech. “I’ve been targeted by the digital gatekeepers. Big Tech was probably hoping this hearing would be canceled or that I’d be intimidated and not testify,” he said. “I’ve enjoyed success, but for me this is a matter of principle. I’m speaking out for those who are struggling to make a living, particularly now.”

Henley noted that, given the current ban on large social gatherings and the indefinite pause in live performances, income from licensed digital music services is “maybe the only real source of revenue that music creators can rely on for the foreseeable future, so it is imperative that the devaluation of music, which is a direct result of the DMCA, ceases, and that creators are paid a fair market rate.”

Douglas Preston

Today, more than 500 hours of video is uploaded to YouTube every minute, more than 1 billion videos are viewed on TikTok everyday, and there are 500 million daily active users on Instagram, Henley continued, illustrating that online services are “flourishing.” He dismissed the notion that asking platforms to implement systems and tools to police infringement more proactively was unrealistic and blamed their inaction instead on greed. “Many of the platforms have the tools to do it—it’s just beyond their desire. These tech giants are afraid that blocking infringing content will decrease traffic.” Courts have “facilitated this world view” by broadening application of the safe harbor provision, watering down obligations of online services and eliminating consequences, resulting in an anemic notice-and-takedown system, said Henley. “We simply cannot continue like this…. The DMCA is a relic of a MySpace era in a TikTok world. Our nation’s countless creators, most of them small businesses, deserve a better system that recognizes the needs of online participants in a procedure that properly applies the rules and implements today’s technology with an eye toward tomorrow.”

Preston echoed many of Henley’s points and added that, in his own experience, the impossibility of policing infringement of his works has been “like being mugged every single day.” He noted that, in the last 10 years, full time authors have experienced a 42% drop in their writing income, much of that due to rampant piracy, with sites like eBay and Google Shopping openly offering thousands of illegal ebooks for download. “The internet has become a virtual candy store for the wholesale stealing of the creative work of authors,” Preston said.

Working Well

Jonathan Berroya

Jonathan Berroya, Interim President and CEO of the Internet Association, and David Hansen, Associate University Librarian and Lead Copyright & Information Policy Officer at Duke University, provided perspectives that were largely aligned on the side of maintaining the status quo. Berroya said that the DMCA and Section 512 are working as intended and should be viewed as a baseline upon which companies have been free to innovate and build in order to develop more efficient ways to target and remove infringing content. He said that the DMCA has led to the current “golden age of content creation,” that tech companies have created tools that go beyond the DMCA’s requirements, and that since deciding whether something is infringed requires knowledge of the underlying work, it is correct that users should be responsible for policing their works. But to impose additional burdens would threaten innovation, Berroya added. “The digital ecosystem is thriving thanks to this law,” Berroya said. “It gives platforms the legal certainty necessary to host user generated content, and users can enjoy and create a wealth of legal content that has been embraced.” Berroya added that the Copyright Office report on section 512 incorrectly concluded that the notice-and-takedown system has been tilted askew, and that the finding is “inconsistent with my experience as an enforcement attorney and as a representative of service providers.” Berroya emphasized the positive impact of collaborative measures proactively taken by ISPs to help users, the changing landscape of the digital ecosystem, and “well-reasoned judicial decisions.”

Berroya added that the overwhelming majority of infringement takes place outside the United States, not on his members’ platforms, which may necessitate DMCA-style requirements in treaties with other nations to solve the problem.

David Hansen

Hansen said that section 512 works well for research libraries and universities as well, though some changes could be made—mostly to weaken existing requirements, such as terminating repeat infringers. Hansen would favor a system that keeps content up unless there’s strong evidence of infringement, giving the example of hundreds of thousands of takedown notices issued to a site called ResearchGate, which features content by academic authors sharing their own research with the world, and the fair use problems posed by automated takedown systems. “The provisions in section 512 that require service providers to implement termination plans for repeat infringement can be potentially debilitating,” Hansen said:

I’d encourage the Subcommittee to think hard about whether termination is appropriate in today’s world. I understand some stakeholders think 512 needs significant change. I hope this committee realizes the unintended consequences it could have. A net cast to address legitimate piracy concerns for some copyrighted works should not drag down teaching as well.

Seeking Solutions

Pushing back in the Q&A, Tillis asked Berroya why the tech sector would want to continue to be governed by a law that couldn’t possibly have anticipated the environment we’re in today. “Why not look at aspects of modernization you would consider to be helpful?” Tillis asked.

Berroya responded that “there’s been a great deal of innovation on the side of platforms and ISPs [and] a legal change is not necessary to create incentives for work already being done.”

But Preston balked at the notion that platforms are collaborative: “Internet companies collaborate with only a few of the largest companies and do not cooperate with writes and creators. Many authors I know have tried in many ways to engage with Google, etc. and it’s an absolutely frustrating experience.”

Henley also pushed back on the idea that platforms cannot police content:

There are currently about 6 billion posts on YouTube. About 1 billion unclaimed. 84% contain music. At two minutes per claim it would take 200 million hours to claim them and take them all down. It’s an endless game of whack-a-mole…. Our job is to create music and art, not to police the internet. That’s the job of the huge platforms. They claim they’re just a conduit – but they engage with that content, can curate it, identify likes and dislikes, but can’t seem to identify copyrighted material.

Henley and Preston both suggested implementing a “notice-and-stay-down system” to help fix the problems, while Berroya continued to underscore the role of collaboration. “Lack of collaboration is at the heart of the current problem,” he said:

Pooling of resources to deal with the scale of global piracy is the only way to deal with it –the reality is until there is an effort to collaborate more, pool resources – it will continue to be a game of whackamole. Platforms don’t want infringing content on their platforms. Old fashioned dialogue is really important.

Later, Senator Blumenthal said that “old fashioned collaboration seems to be for an old fashioned process that no longer really is appropriate to present technology.”

Tillis summed up by reiterating his view that modernization must be possible:

I have to believe that in a world where these platforms have the technology to virtually anticipate the next song you want to hear or thing you want to buy, that there’s a way for us to come up with something that’s sustainable, not disruptive and helpful to our creators.

The Subcommittee also sent a letter to the Copyright Office last week that in part asked the Office how they would design section 512 from scratch, in an effort to get additional views.

IPWatchdog will have a report on panel two of today’s DMCA hearing, which featured Abigail Rives of IP Engine; Kerry Muzzey of Kirbyko Music LLC; Meredith Rose of Public Knowledge; and Jeff Sedlik of Sedlik Photography in the coming days.

 

The Author

Eileen McDermott

Eileen McDermott is the Editor-in-Chief of IPWatchdog.com. Eileen is a veteran IP and legal journalist, and no stranger to the intellectual property world, having held editorial and managerial positions at several publications and industry organizations. She has acted as editorial consultant for the International Trademark Association (INTA), chiefly overseeing the editorial process for the Association’s twice-monthly newsletter, the INTA Bulletin. Eileen has also served as a freelance editor for the World Intellectual Property Organization (WIPO); as senior consulting editor for the Intellectual Property Owners Association (IPO) from 2015 to 2017; as Managing Editor and Editor-in-Chief at INTA from 2013 to 2016; and was Americas Editor for Managing Intellectual Property magazine from 2007 to 2013.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 8 Comments comments.

  1. Appearance of ... June 2, 2020 8:27 pm

    I had thought that the present DMCA was overly restrictive because it essentially kills “fair use”. However, it looks like big money is on the side of making it still more restrictive.

  2. Anon June 3, 2020 6:54 am

    Appearance of,

    …and I came away with the exact opposite view — that it is Big Money that is saying that if anything, the DMCA provision works fine and may need to be made less restrictive.

    Maybe your “Big Money” and my “Big Money” are in reference to opposing sides…

    Can you clarify who it is that you think Big Money is? My view of Big Money are the operators of the platforms that most benefit from the state of things as they are now.

  3. Appearance of ... June 3, 2020 10:50 am

    Anon,

    Good point. We have “big money” major media companies, and “big money” platforms. Small-time artists are suffering both ways. Some artists are having their work appropriated, while other artists are plagued with improper take-down notices caused by ownership misrepresentation, and lack of fair use exemptions.

    I think that we need to strengthen “fair use”, possibly by codifying exactly what is and is not permissible. We should also upgrade the copyright office so that the chain of exactly who owns what rights can be automatically established for each takedown notice.

    Blockchain is a fad, but this might be one way to do it. If you are going to try to extinguish someone else’s rights, then at a minimum, your own right to do so should be well documented and open to rapid and automatic verification.

    I agree that the DMCA needs reform. But given the lack of fair use exemptions and the difficulty in automatically verifying the “real” chain of ownership, the present reform efforts are likely to further damage small-time artists.

  4. Anon June 3, 2020 3:20 pm

    Fair Use is NOT connected to any chain of ownership.

    I am not seeing the question that you want with that ‘answer.’

  5. JLynn June 4, 2020 10:50 am

    I would argue that blockchain is not a fad, but a legitimate tool, and accurate ledger that could shift the industry back into the hands of creators. The technology just isn’t simplified or explained in a way that makes sense to creatives.

  6. Aannonn June 23, 2020 9:46 am

    Just get Asmongold in front of congress to testify asap. He sums is up nicely. Must music use in twitch content creation is in the background and not causing a loss to the owner of the music, rather giving them free exposure. And if platforms were to negotiate a simple reasonable price for a creator license to use popular mainstream music, then most creators wouldn’t mind paying a license fee.

  7. Chuck Brodsky July 5, 2020 7:57 pm

    I’m a singer-songwriter who performs only my own songs, which are all registered with BMI and which I own all of the copyrights to. My 4 most recent live streams to YouTube were flagged because BMI filed copyright infringement claims against me with YouTube…for singing 4 of my own original songs, which have all been in their database in my name for the past 25 years. BMI fraudulently listed themselves as the copyright holder. I copyrighted all of them at least 25 years ago when I first released them on CDs. I’m getting flagged for playing the music I created and own all rights to. I’d say the system needs to change, alright.

  8. Guy Daniels July 17, 2020 5:53 pm

    To Chuck Brodsky: Chuck that is a damn shame. Sorry for all the Q’s, but by ‘flagged’ do you mean your live streams got taken down? Is this common practice with BMI? And are you pursuing legal action against them? This is an Artist’s nightmare…please let me know what happens next.