Startup and User Reps Square Off with Independent Creators in Panel Two of DMCA Hearing

By Eileen McDermott
June 4, 2020

“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

Jeff Sedlik

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

Kerry Muzzey

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

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

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.”

Moving Forward

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.”

 

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 and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 6 Comments comments. Join the discussion.

  1. Anon June 4, 2020 7:51 pm

    Are there more details to the point number 4. Require that service providers implement a “notice and staydown” procedure, replacing the ineffective “notice and takedown” requirement. that Sedlick mentions?

  2. Eileen McDermott June 4, 2020 10:09 pm

    A bit here, Anon – there may be further detail in the written testimony linked within this article too: https://www.ipwatchdog.com/2020/02/13/senate-ip-subcommittee-kicks-off-year-long-review-digital-millennium-copyright-act/id=118866/

  3. Anon June 5, 2020 6:42 am

    Thanks Eileen,

    From the link:

    A “notice and stay-down” system in which “once a service provider receives a takedown notice for a given work, it should…monitor for re-posted copies of the same work and take down copies proactively. (Schultz)

    And

    Tushnet also said that Schultz’s proposed “notice and stay down” solution is not workable for most companies as it would require unaffordable and inefficient technological mechanisms. YouTube, for example, spent over $60 million on its system to detect and remove copyright infringing works, “which the major record labels say is only 60% effective,” Tushnet said. “My $400,000-budget a year nonprofit can’t do that and doesn’t need to do that. Mandating it will just mean that we’ll be left with only YouTube.”

    The other “devil in the details” is what exactly does “proactively” mean in secondary takedowns?

    Fair Use is a fact intensive inquiry and it appears that this type of powerful “proactivity” runs smack into violations of due process and only makes legitimate Fair Use cases even worse.

    So in view of the other criticism, you have a mechanism proposed that only makes things worse and leaves behind only those in power now.

    What could go wrong with that? (Holding up a sarcasm sign)

  4. jacek June 5, 2020 9:14 am

    Talk, Talk, and Talk only—just the lip service to the problem paid because there is public pressure. After a while, there will be some events, fresh developments diverting our attention, and the stealing of the creator’s content will continue.
    The only question we should ask is: What tactics the bogyman (senator Tillis) will use this time to get rid of the Headache and keep the things as they are? (Same like he did with the recent attempts for patent eligibility reforms – as he said: “participants could not agree – there is no agreement between the sheep and the wolf))

  5. Bruce Berman June 5, 2020 9:39 am

    Eileen: Excellent coverage of DMCA weaknesses. This is an IP issue immediately important to copyright-reliant creators, authors and content providers, but relevant to inventors and patent holders, too. IP rights than cannot be readily enforced cannot be licensed.

  6. Anon June 5, 2020 12:23 pm

    Bruce,

    I noticed that your comment aligns with a further weakness as exemplified by the testimony of Meredith Rose (which I am still digesting).

    In at least one major point though – this is NOT JUST an issue between “copyright-reliant creators, authors and content providers.”

    While no doubt both of these groups ARE important, by only focusing on those two groups, the larger legal implications are stunted, and any ‘resolution’ will necessarily be inadequate.

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