A View to a Shill? On the Frontlines of the Copyright Office Roundtables

Stephen Carlisle May 13, 2016

May 2^nd and 3^rd of 2016 found me in an unfamiliar position: directly addressing representatives of the Copyright Office on the continued viability of the “takedown” provisions of the Copyright Act.

Faithful readers of this blog will undoubtedly be aware of my position on this matter, and I did take the time to file written comments with the Copyright Office. Yet, it was one of my faithful readers who suggested that I take this one step further and sign up to be part of the live “copyright roundtables” to be held in New York City. “Nothing ventured, nothing gained,” I thought, so I tossed my digital hat into the ring to be part of the discussion. Much to my surprise, I was selected to appear on the first and last panels, and the administration of Nova Southeastern University deemed it important enough for me to attend, who I humbly thank for their support.

The heavy hitters were certainly out in force. On the “copyright” side of things were representatives from Disney, Viacom, McGraw-Hill, Warner Bros., BMG, BMI, Sony, NMPA, Getty Images, RIAA, MPAA, Directors’ Guild and so on. On the “tech” side of things were representatives from Verizon, US Telecom, Software and Information Industry Association, Consumer Technology Association, Internet Association, Computer and & Communications Industry Association. There were university-based organizations that were without a direct financial interest in the proceedings but on a definite “side” such as the Center for the Protection of Intellectual Property (copyright) and the UC Berkeley School of Law (tech). Rounding out the panels were a handful of actual working artists, such as authors, musicians and film directors, and a phalanx of attorneys pushing their client’s positions.

And, of course, a few shills, claiming to operate in the “public interest” but taking money from interested parties, like Google.

In fact, conspicuously absent from the panels was anyone from Google or YouTube. Needless to say, both of them were the recipient of numerous daggers and darts from the creative community over the course of two days, though I did spot Google staff attorneys in the audience.

Placed on the very first panel, and totally by chance, I was placed at the very first seat. Copyright Office general counsel Jacqueline Charlesworth, kicked off the session by assuring us that they had read our comments, and wanted answers to specific questions, the first of which was to describe our experiences sending and receiving takedown notices. Since this is not part of my assigned duties at NSU, I did not signal that I was going to offer a response.

Silly me.

This was apparently the opportunity to run out and plant my position flag, which the big players did with gusto, often not answering the question posed in the process. Due to the large number of people on the panel (22), almost all of the allotted time had expired before the conversation wound back to my position. This lead to the Copyright Office greatly restricting the length of future live comments, which certainly allowed us to cover more ground, but meant you really had to focus on a single point in your response, even though you wished to cover several.

Naturally, the elephant in the room was the entire “whack-a-mole” problem: the deliberate and constant posting and re-posting of infringement materials. The copyright side complained loudly and expansively about the waste of time and resources inherent in the process, and how reforms were needed.

To which the tech side responded: “Elephant? I don’t see any elephant around here. I looked for quite a while and failed to find any traces of an elephant in this room.”

Tough to find any solution to a problem when one side fails to admit that any sort of problem exists. And this was a recurring theme throughout the two days. The copyright side complained about the waste of time and resources (the billion notices Google is set to receive this year was mentioned frequently) as well as the enormous amount of money being lost. The tech side assured the Copyright Office that the DMCA was working exactly as Congress intended, carefully “balancing the interests” of internet tech interests and the copyright holders.

In fact, you could have made a drinking game out of how many times the phrase “balance of interests” was uttered, but I’m afraid you’d be on the floor after two panels.

So, I’d have to say that any progress or meeting of the minds with regard to the takedown process was close to nil. Each side has dug its feet in, and I can predict a rather bruising battle in Congress next year, especially if any form of “take down and stay down” is proposed. This pre-supposes, of course, that the new Congress can get its act together on any level at all.

On other fronts (and not surprisingly), the recent Berkeley study ¹ was continuously and repeatedly misrepresented, particularly with regards to it reflecting an analysis of “all takedown notices sent all over the internet” when in fact it is overwhelmingly dominated by the notices sent to Google, particularly Google search. ²

The Copyright Office did seem concerned about artificial barriers being required by web sites and online service providers in order to accept takedown notices. I spoke about my experience with Google’s takedown policy (recounted here ³) while others reported demands for copies of the registration certificate (not required by 512), refusal to accept registrations of compilations (ditto), and requiring that the filer be the copyright owner, when 512 explicitly states that the notice can be filed by the authorized agent of the owner. There seemed to be some consideration by the Copyright Office that the issuance of a standardized form for takedown requests might reduce this problem, which would be welcome.

Regrettably, there were also statements recounting persons filing takedown notices receiving personal threats from the targets of the takedown notices, due to the fact that their personal information must be disclosed in the takedown notice. So much for the high moral ground of these “freedom fighters” so often defended by the Electronic Frontier Foundation.

Truly, the most surreal moment and a perfect example of the stone deaf “nothing’s wrong here” stance of the tech industries was holding up the example of the shutting down of Grooveshark as a “victory” for the DMCA, and showing that it is working. As recounted by this blog post, Grooveshark hid behind the DMCA for ten years. ⁴ It was only after years of expensive litigation that Grooveshark’s illegal activity was exposed. ⁵ This was a site that had at its peak 35 million users sharing 15 million files, illegally streaming material more than 36 million times without proper licensing or royalties. ⁶ None of this was discovered as a result of the DMCA. All of it was discovered during expensive (and extensive) litigation.

The same could be said for the recent judgement against Cox Communications. ⁷ The fact that Cox was intentionally ignoring its own policies was not uncovered by anything in the DMCA, it was only uncovered by (here we go again) years of expensive litigation.

This repeated invocation of the success attributed to Grooveshark’s “death” led to Chair Jacqueline Charlesworth musing rather glumly that Grooveshark’s ultimate death was “a slow and tortured death.” Nice to know she gets the point.

There was an effort to push the idea that internet access is “a basic human right,” akin to food and shelter, and that any removal of internet access was equivalent to solitary confinement. Gosh, I thought, does this mean the U.S. Government should issue “internet stamps” to those who cannot afford internet access? Again, Ms. Charlesworth cut to the chase, asking an ISP, “would you cut off someone’s internet access if they didn’t pay their bill?” To this there was much hemming and hawing, and ultimately a dodge of the question saying that they would have to ask that question of the sales department. In other words, certainly they would terminate a subscriber for non-payment, but not for copyright infringement. Just like Cox Communications, ⁸ who for some reason failed to have a speaker on any panel.

There were more than a few assertions of “users are creators too,” without any explanation of how their rights somehow trump the rights of the original authors that they are copying from. On the final panel, I made the point that unless one were to read section 115 out of the Copyright Act, a cover version is not “fair use” and unless one were to read section 114 out of the Act, a remix was not a “fair use.” To this I added that I had done a Westlaw search both for the word “remix” and the word “mashup,” and I failed to find one case in which a court ruled that either a remix or mashup was in fact “fair use.” Yet, the Berkeley study contends just that when it includes takedowns of remixes, mashups, and cover versions as examples of “problem notices.” There is simply no case law supporting this position that I have been able to find.

Some panelists criticized the DMCA takedown process based upon what YouTube does when it receives a takedown notice, including placing “strikes” against a YouTube account. To me, this is a problem with YouTube, not the DMCA. You agree to YouTube’s arbitrary policy when you sign up and agree to the Terms of Service, as I have written about previously. ⁹ Complain to YouTube. Not that it will get you anywhere, but you could complain.

I did stick my neck out with the statement that “we are killing off an entire generation of artists” and asking the assembled panelist to show us where the next Prince was coming from. This yielded some follow-up questions from the Copyright Office, but interestingly enough, no one came up with the name of the game changing artist of the current generation.

And then, there’s this point I made in my final comments. If the DMCA is really working as Congress intended, then Google wouldn’t be using it as a bargaining chip in negotiations. This point was recounted several times in others panelists’ remarks (and as I did in a previous blog post ¹⁰), how not doing what Google wants will get you threatened with being thrown into DMCA whack-a-mole hell. As others have remarked, it’s like an old fashioned mob “protection” racket: “nice song you’ve got there, it would be a shame if anything bad happened to it.”

I did get dinged once, for asserting that under the Constitution, copyright is supposed to promote the progress of “the useful arts.” ¹¹ In response, it was archly pointed out that in fact, it is the term “science” of that clause that refers to copyrights and the “useful arts” refers to patentable material. This is indeed correct, though bizarre enough to our ears that the Supreme Court readily admits that this point is “counterintuitive…for the contemporary reader…” ¹² But when I’m wrong, I’m wrong, and on that point, I stand corrected.

But what remains unchanged by that panelists’ rather pedantic counter-point is my ultimate assertion that we measure the success of the Copyright Act by how many artists can earn a sustainable living, a living that for many small independent authors, musicians and film-makers is rapidly becoming out of reach.

Otherwise what does the word “progress” of that very same clause mean?