“If I don’t enforce my copyrights, my work has no value and my business is not sustainable, but if I dedicate the time, I have no time left to create new works. It’s an untenable situation. Certainly, this is not the effective, balanced system envisioned by Congress.” – Jeff Sedlik, Photographer
Earlier this week, the Senate IP Subcommittee met to hear from two panels of witnesses about whether and how to reform the Digital Millennium Copyright Act for the 21st Century. In the first panel, representatives for big tech and academia were juxtaposed with successful artist Don Henley of the Eagles and prolific author and Authors Guild President Douglas Preston—with tech arguing that changes to the DMCA to strengthen copyright protections would cripple the internet as we know it, and Henley and Preston painting a grim future for musicians and authors if the system is not significantly overhauled. The second panel was divided along similar lines.
Panel two featured Abigail Rives of Engine; Kerry Muzzey of Kirbyko Music LLC; Meredith Rose of Public Knowledge; and Jeff Sedlik of Sedlik Photography. Muzzey and Sedlik are independent artists—a composer and photographer, respectively—while Rives was representing startups, and Rose the 229 million American users of the internet.
An Untenable Situation
Both Muzzey and Sedlik pleaded with the Subcommittee to fix the DMCA for creators. Muzzey explained that he was testifying despite fear of retaliation from Google and YouTube because he feels strongly that the “Goliaths” must be held accountable. Muzzey has access to YouTube’s Content ID tool, which to date has located 110,000 videos that have used his music without permission. “These are not cute little kitten videos, these are commercial uses of my music for car companies and luxury hotel chains, Fortune 500 companies, pharma companies, and dozens of international series that used my music as underscore,” Muzzey said. He explained that despite the effectiveness of the Content ID tool, he has to spend hours issuing takedowns as per the DMCA and invariably receives counter notifications arguing fair use, even though “100% of the time”, they are not fair uses. Worse, in order to avoid the infringing work going back up online and continuing to be monetized, copyright owners must file a lawsuit within 10 days:
I am a small business of one person. The DMCA remedy isn’t really a remedy. [The Goliaths] all feel insulated from liability because of the way the DMCA has worked. The mental and emotional toll it has taken is extreme. Tech companies and digital services companies assure us it’s working; I challenge them to tell me that with a straight face. They need to face this reality and dedicate themselves to fix this problem.
As an independent photographer who makes a living creating and licensing photographs, Sedlik said his photos receive very little protection under the current DMCA. “I’m forced to dedicate my days and nights to searching for infringements, making screen shots, collecting URLs, drafting and submitting takedown notices and responding to inane delay tactics, such as follow-up questions from service providers,” Sedlik explained in his testimony. “If I don’t enforce my copyrights, my work has no value and my business is not sustainable, but if I dedicate the time, I have no time left to create new works. It’s an untenable situation. Certainly, this is not the effective, balanced system envisioned by Congress.”
Sedlik proposed 12 fixes, including a notice-and stay-down system, which was advocated by witnesses in the first panel; clarification of the knowledge requirements for liability “deeming that willful blindness and negligent blindness are the equivalent of actual knowledge”; more proactive approaches to seeking out infringement, except for small service providers; and defining “repeat infringer” as a user who receives two or more takedown notices.
Exchanging a Tank for a Nuke
Abigail Rives of Engine argued that many of the most widely used internet platforms today would not exist but for the DMCA and said that overall Section 512 is working well. “Changing the DMCA, even in ways that might seem minor, would shift the ground underneath today’s startups,” Rives said. Imposing a duty to monitor based on a reasonableness standard would be “unworkable” and would male litigation impossibly expensive. “Since startups would not be able to afford to prove reasonableness, such a safe harbor would have little value,” she said. Rives added that there is decidedly little infringement overall, giving the example of Tumblr, which received fewer than 5,000 DMCA notices in the first half of 2019. Bad faith takedown notices can be “devastating” to startups, since content isn’t restored for two weeks, and imposing an affirmative duty to monitor “would create new costs and risks that startups would be unable to bear.”
Asked by Senate IP Subcommittee Chair Thom Tillis (R-NC) whether she could understand the argument that “resisting any change seems to only benefit a segment that’s done really well at the expense of an entire population,” and whether she could see any path for striking a balance for revising and modernizing section 512, Rives replied that online service providers like Patreon, Bandcamp, Etsy, Redbubbleand Tumblr have already created new avenues for creators, paying out billions, and none of them could have existed but for the DMCA.
Meredith Rose of Public Knowledge was concerned about the effects of other legislative changes, like the end of net neutrality laws, that make it possible to slow down or cut off broadband access, on average users. “This is not about content versus tech,” Rose said. “It’s about 229 million American adults who use the internet to pay bills, to learn, to work, to socialize, to receive healthcare, but they are missing from the copyright section 512 report and too often missing from this debate.”
Rose said that three of the major problems from a user perspective are bad DMCA notices, shortcomings in algorithmic enforcement, and the inappropriateness of giving private third parties the power to remove a family’s access to broadband. She cited a study showing that “after examining a set of over 108 million takedown requests, researchers concluded that approximately 30% of the requests were ‘potentially problematic’ and that 4.5 million of those requests were ‘fundamentally flawed.’” She added: “Asking for greater power and fewer safeguards is akin to discarding a tank and asking for a nuke.”
Summing up, Tillis said that the hearing had reinforced what he said at the beginning of the day—that it’s necessary to “acknowledge the realities of the scale we’ve experienced today which is orders of magnitude beyond what the DMCA could have possibly anticipated” in order to create a “path forward that allows copyright owners to flag pirated content, have it quickly taken down and for it to stay down” but also that it doesn’t burden businesses or individual consumers. “I’m not sure what that looks like at the moment but that’s something I’m going to be working on with my colleague and Ranking Member Senator Coons, and our staff will keep moving forward toward our December DMCA reform discussion draft.”