Re:Create Coalition comments on DMCA safe harbor provisions
Pursuant to the notice of inquiry published by the Copyright Office (the Office) in the Federal Register at 80 Fed. Reg. 81, 862 (Dec. 31, 2015), later extended at 81 Fed. Reg. 11, 294 (Mar. 3, 2016), the Re:Create Coalition submits the following comments on the notice regarding the subject of the DMCA safe harbor provisions contained in 17 U.S.C. § 512.
I: Introduction
Re:Create is a new coalition founded in 2015 to educate and start a conversation on the positive impact the Internet has had on creativity and innovation over the last 25 years. Collectively, the members of Re:Create operate over 100,000 libraries visited by the public 1.5 billion times per year; fight censorship by repressive regimes globally; provide platforms that enable music and video content to reach a global audience; create new and interesting works of art, literature and video enjoyed by wide audiences; invest in new startups and entrepreneurs; and generate billions of dollars in revenue for the motion picture, recording, publishing and other content industries. While our individual organizations maintain diverse views of specific issues, we are united in our overarching respect for copyright and concern for its future.
Our members are the American Library Association, Association of Research Libraries, Center for Democracy and Technology, Computer and Communications Industry Association, Consumer Electronics Association, Electronic Frontier Foundation, FreedomWorks, Harry Potter Alliance, New America’s Open Technology Institute, Organization for Transformative Works, Public Knowledge, and R Street Institute. Most of them are individually or jointly filing comments in this docket and we refer you to all of their comments. We are also filing these comments on behalf of the coalition in response to the Notice of Inquiry.
II: General Effectiveness of Safe Harbors
Section 512 of the DMCA has provided the foundation for the success of the Internet and is a cornerstone of the overall U.S. economy. Today the Internet enables over $8 trillion in ecommerce each year and in 2014, was responsible for 6% of real GDP in the US. But, the benefits of the Internet are not just economic the Internet has democratized and enabled a creative revolution. Its growth has benefited both creators and consumers, who have made it their preferred platform for the distribution and consumption of media. In 2015, overall revenues for the recorded music industry were up by .9% to $7 billion with streaming as the largest component of industry revenues, comprising 34.3% of the market and today, streaming video accounts for over a third of all Internet traffic. Independent artists are also on the rise, seeing a 60 percent increase in revenue. More people are creating more things on more mediums than ever before.
Under Section 512 copyright holders identify infringement and, if they choose, request its removal. Upon notification, online service providers remove or disable access to the infringing material. This is an essential part of the system because only copyright holders know what material they own, what they have licensed, and where they want their works to appear.
This approach rightfully recognizes that Internet intermediaries should not have to be the police or monitor for infringing works. This is because it is often impossible for them to determine if content is licensed, infringing, or if it is a permitted under the exceptions and limitations in copyright law. The risk of being responsible for infringing content would be a huge burden on online intermediaries that host content, like YouTube, WordPress, Facebook and Etsy. The same goes for some basic functions of the Internet like comment sections and blogging platforms that depend on user generated content. Without this balance, it is likely the Internet we know today a place where creativity is thriving would not exist.
Unfortunately, there is growing abuse and mistakes by copyright holders, who are sending notices of infringement in many cases where the use is not a copyright infringement or is a clear fair use. In many cases, the notices are being sent for reasons other than copyright infringement. This includes anticompetitive purposes, to harass a platform or consumer, or to try and chill speech that the rightsholder does not like. According to a recent study of takedown
requests, one in twentyfive were flawed because they targeted content that did not match the identified work and nearly a third had aspects that raised questions about their validity. Part of this is due to the rise of automated processes that search popular online platforms and send notices that do not verify basic criteria such as whether the material was authorized to be posted by a rightsholder. Automated processes have very limited ability to make necessary fair use determinations before issuing a takedown notice. And given the potential liability for a consumer fighting back, the risks associated with filing a counter notice often are too great. We encourage Congress to look at alternatives to deter this abusive and free speechchilling
III: Notice and Takedown
The development of the DMCA in 1998 was a huge improvement for rightsholders. Previously, rightsholders needed to hire a lawyer to compose a ceaseanddesist letter, as well as costs of registering copyrights and proceeding to litigation. The new law established a cheaper, faster alternative to remove content without the need for lawyers, for registration, or for litigation. Today, there is often no need to go to court infringing content is removed with a single notice.
The DMCA has also provided an important legal framework for online services such as service providers, search engines, social networking platforms, file hosting sites, online marketplaces, cloud services, and instant messaging. Popular companies like Google, Amazon, Salesforce, Cloudflare, eBay, Wikimedia, Mozilla, Facebook and Snapchat rely on the DMCA safe harbors to offer their services. Individual users benefit from the safe harbors when they comment on a social media page, write a blog post, perform a search online, share a video with a friend or borrow a digital book from their local library.
As a result of the flexibility enshrined in the DMCA, online providers have each innovated on the notice and takedown process to make it more efficient, effective, and manageable for all stakeholders. Within the current framework, smaller providers are able to build tools that are appropriate for their platform and larger providers are able to create systems that are built for scale. Solutions that work for a Twitter or Facebook should not be imposed on smaller providers or they will be crushed by the costs of compliance. Startups will not even have a chance because of this burden.
In addition, a thriving vendor system has also been built to automate the notice process. While we have highlighted some of the abuses and mistakes made by vendors and the limitations of automation, these services also often make it faster, easier, and more efficient for rights holders of all sizes to find and remove infringing content. The growth of notices has been linked to the falling cost and growing capacity of large stakeholders to produce and handle notices. As this market grows, we are also seeing more and more low cost solutions emerge.
Some commenters are likely to suggest that the Section 512 notice and takedown regime be replaced with a type of content filtering they call “notice and staydown”. Such a system would replace the current process with a far more injurious provision to force online platforms to proactively filter content on the web. This is something that Congress squarely rejected. Notice and staydown presupposes ubiquitous monitoring of all users and content on an online service and would be burdensome, disproportionate, and invasive of the privacy interests of legitimate users.
Additionally, the content filtering proposed by advocates of a “notice and staydown” system would impose an undue burden on platforms of all types and would severely limit new and emerging forms of creativity. Not only would it require a platform to monitor and automatically remove all future instances of the identified work, but it would also require the platform to singlehandedly determine each time whether a use is infringing, licensed, or protected under the exceptions and limitations in copyright law. It is clear that this type of system would chill perfectly legal speech and creativity on the web. It would ask platforms to act as the judge, jury and executioner at the risk of expensive lawsuits that could easily seek millions of dollars and chill financial investment, due to presence of statutory damages, absent the protections of the safe harbor. This is an ability they simply do not have.
Such a fundamental change to a bedrock principle of American jurisprudence would also have absurd consequences. Imagine a world where just the mere allegation of infringement would permanently keep that content down. This would have huge implications for everyone when it comes to sharing a video on Facebook or quoting song lyrics. That’s because social media networks would be forced to suppress user generated content, as they would not know if it was licensed or not. Parents can forget posting videos of their kids dancing to music and candidates would not be able to post campaign speeches because of the music that plays in the background. Remix culture and fan fiction would likely disappear from our creative discourse. Live video streaming sites would cease to exist. Notice and staydown might seem innocuous, but in reality it is content filtering without due process.
IV: Conclusion
In conclusion, the current Section 512 Notice and Takedown system and corresponding safe harbors are doing a good job of balancing the requisite interests of consumers, online service providers and content providers. It may not be perfect, and we certainly have some issues with certain aspects, but to undo this balance would have a detrimental impact on free speech, access to knowledge, innovation, creativity, consumer access and the two-way nature of the Internet that is a great success story.
