The Music Industry vs. Google, Microsoft, Verizon, YouTube, Comcast, AT&T…

Exclusive: Copyright Office Discusses DMCA’s Safe Harbor Provisions
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Are DMCA safe harbor provisions working as intended? Yes, according to the most powerful internet and access companies on the planet, who are now vowing to protect the DMCA and fight ‘notice and staydown’.

Jay Rosenthal, partner at Mitchell Silberberg & Knupp LLP who represents music industry content owners participated in both Copyright Office roundtables and has exclusively shared his findings with DMN.  Rosenthal gives us the lowdown on the discussions that took place in Washington and any outcomes (if any) of the study that they conducted on section 512 and the DMCA safe harbors.

From the copyright owners’ standpoint, the system is rigged. It wasn’t a system that was rigged when the DMCA was passed – but over the past 18 years the courts have written out of the law almost all of the protections designed to balance the responsibility to police the Internet between the users and the copyright owners – and the scale of piracy has increased to levels never contemplated when the law was passed.  Now the law is nothing more than a notice and takedown system.  All of the responsibility to police the Internet is with the copyright owners.

Section 512 is outdated and no longer working effectively. When the DMCA was passed, YouTube was not even invented.  The scale of piracy since passage of the DMCA has placed an incredible burden on copyright owners with resources, and has devalued copyright (i.e., the value grab) to a large degree.  For copyright owners with limited resources, the law is a disaster.  The whack-a-mole problem forces copyright owners to notify OSPs (Online Service Providers) about every single infringement.  Because of the amount of piracy in today’s world, the DMCA has become almost unusable for copyright owners with limited resources – and many have stopped using the takedown system altogether.

The system requires proactive policing of the Internet from the likes of Google. This is the message that was delivered to the Copyright Office during the roundtables.  The Copyright Owners proposed a Notice and Staydown approach as the solution.   This could be done by reforming the law, reversing bad judicial decisions and/or adopting voluntary measures.  But for whichever avenue is adopted, the system must require more pro-active obligations on behalf of the copyright users like Google to police the Internet.

No responsibility is taken. The OSPs like Google, YouTube, Microsoft, Verizon, etc., delivered a message to the Copyright Office that the DMCA is working perfectly well.  In fact, Google believes that the incredibly large number of takedown notices (perhaps one billion a year for Google alone), is testament that the law is working, not that it is broken.  They totally reject the idea that the OSPs should monitor or filter for infringement – or that red flag knowledge, representative lists, repeat offender policies, or willful blindness should be changed to add any additional responsibility on the OSPs.

I believe the Copyright Office heard the complaints of the copyright owners, and will try to fashion some modest recommendations that will try to balance the responsibility.  But the OSPs will fight hard against any recommendation to change the law.  They will try to rely on negotiation and voluntary measures.  I do not believe that will be enough.  Without some serious changes to the DMCA, more and more copyright owners will cease using the DMCA altogether and that will be a tragedy.  Copyright Owners will start believing that when they release a product, they may have a right but no real remedy.  In fact, many already believe that.

Abuse of DMCA. The services were discussed at length.  Their indifference to the whack-a-mole problem is by far their biggest contribution to copyright abuse – but their use of the DMCA to enter into below market rates with copyright owners (“the value grab”) was also cited as a major abuse of the system.

The Copyright Owners’ biggest frustration is with the whack-a-mole problem. They blame the law and the courts for forcing them to notify services of each separate infringement – as opposed to providing the OSPs with information that would allow the services to monitor their systems for infringement.  In other words, they want the focus to be on identification of infringed works – not each infringement. One positive measure would be to expand the use of representative lists – thus allowing for a copyright owner to provide the OSPs with information about their works, without the requirement that they must inform them of each infringement. What’s the resolution?

Notice and Staydown is the answer – yet the services and their allies condemn Notice and Staydown as a system that would destroy the Internet.  They will press their position with the Copyright Office, Congress, and with the public.

(The views above are Jay Rosenthal’s, and not the views of any client of MSK.)

26 Responses

  1. Anonymous

    So much for news. Then whole piece is absolutely dripping with bias and you don’t even cover why the ISPs are against stay down policies. They have put out a great deal of detailed information as to why the policy is severely flawed and in reality, impossible.

    • Versus

      No legal system will be perfect, but this one clearly needs improvement, for the reasons given above, and many more (such as the one-side intimidation tactics listed in this article:

      The tech industry argues that there are improper takedown notices. Where is the evidence of the supposedly huge number of improper takedown notices? Give us real numbers. How does that number compare to the number of valid takedown notices, plus the number of infringements that never even get served takedowns because rights holder can’t keep up with the thieves?

      If there are improper takedowns, that has to be addessed as well, but this issue does not negate the far more massive problem of infringement, and the failure of the DMCA to prevent infringement.

    • doos

      From the copyright owner’s’ standpoint, the system is rigged.

      well that’s kind of hard to believe since they were the ones that asked for it. i guess now that the courts did not give them everything they wanted they need to buy another congressman and get the law changed.

  2. Wildy

    Articles on this subject are often hit pieces written either from the industry perspective or the artist perspective without taking into account whatever middle ground there may be. And yet there’s a third leg to the stool; that being music consumers. Copywrite law is written to benefit corporations, not artists and certainly not consumers.

    Piracy tends to occur in very specific environments: where a product is illegal or otherwise unavailable; or where a product has become more expensive than it’s market value.

    When CDs were introduced, top selling record albums regularly sold for 7.98 to 8.98. CDs were released with price points at 12.98 to 14.98 even though the discs were significantly less expensive to produce than vinyl. CD pricing reached its zenith for top artists in the 18.98-20.98 range in the US about the time digital started to explode. Digital releases were priced a few dollars below hard copy but it wasn’t enough. People started using file swapping services to expand their access to music.

    This entire issue was complicated by major label abandonment of process of developing artists. Quick hit theology took over the music labels, and a hot single would be packaged with 9 mediocre ones. People couldn’t justify paying $15-20 for essentially one song that they liked.

    The industry, which had put the screws to artist for at least 5 decades was trying to suck everything they could out of consumers while offering declining value.

    This continues. Efforts have been floated to ban the re-selling of hard copy media in the EU, treating products as a revocable license agreement. And if you read the fine print on various digital services that offer music and movies for sale, you’ll find language indicating that your dollars are buying you a license of use that can be revoked at any time.

    So artists are plundered and consumers are plundered and the music available in the marketplace becomes ever more banal. Great model.

    Artists should own what they create, but there are common sense limits to restrictions on intellectual property. There should be consideration given to the free use of intellectual property however. A prime example is radio (terrestrial or otherwise). Artists continually push for increased reimbursement based on spins, but all this does is decrease the number of viable outfits that get your music heard. It’s cutting off your nose to spite your face.

    Exposure leads to website visits, word of mouth and album/ticket sales, if people like the product you’re offering. So the more you choke these sorts of outlets the less you will sell. True indie radio is practically dead due to this, and has led to the conglomeration of radio (and therefore even fewer outlets with any real standing. Blogs and websites dedicated to exposing new music have joined streaming services, but most indie artists I have spoken with don’t see much financial benefit here. There’s too many streams to gain significant exposure. The last bastion of real exposure for the indie set is television/movie placement of songs. This process is as rigged as the music industry, but does allow for the potential of big exposure. The down side is that you may lose the rights to your song in the process.

    Okay. Rant off. The point of all this is that instead of finding ways to tighten current laws, it’s time to recognize that the law is broken. It needs to be thrown out with the bath water and developer anew.

    • Anonymous

      “Copywrite law”

      lol — what’s that, dude?

      “The point of all this is that instead of finding ways to tighten current laws”

      The point is that you literally don’t have a clue.

    • Versus

      “Copywrite law is written to benefit corporations, not artists and certainly not consumers.”

      Not true. Coyright law is intended to find the proper balance between accessibility and ability to profit from one’s work, to create the best possible incentive for creators to create. Those creative works are intended to benefit society, i.e. people (often demoted to mere “consumers”). Without copyright law, creators would not be able to make a living from their work. That would leave creative work a career only for the independently wealthy or those with wealthy patrons, and otherwise, a financially disastrous hobby (sound familiar?).

      • Troglite

        Compulsory licensing would be an excellent example of a relevant aspect of copyright law that is explicitly intended to benefit/protect consumers.

        But the whole post is awash in strawmen and hyperbole that distracts instead of informs. I will reluctantly try to correct that while avoiding a point by point debate.

        The rule of law is considered one of the most important inventions within the history of human beings. Within that context, I think its fair to say that intentionally ignoring the law should be considered a very serious act. Yet, there are times when intentionally violating an unjust law is ethically warranted or even required.

        So, the real question is whether a consumer’s inability to listen to a specific song at a specific moment in time because they perceive the costs or actions required within current copyright law represents an ethical concern that is so great that intentionally violating the law is warranted?

        I would personally assert that the answer to this question is no. No one’s health is endangered. There are no financial damages incurred. As this article describes, opportunities for consumers to influence these laws exist. Radio and a variety of public services (e.g. libraries) provide an alternative outlet for accessing many of these works. From my perspective, the harm just doesn’t seem great enough to warrant ignoring established law, especially at a commercial scale.

        • Versus

          Excellent points. After all, we are not talking about necessities here, like breathable air and drinkable water, but what is essentially an optional consumer good.

          The creator should be able to set the price at will, and distribute as he or she sees fit, with the expectation of the full protection of intellectual property law.

          • Troglite

            Thanks. I enjoyed your posts on this topic, too!

    • Me2

      Stuck in last decade’s propoganda much?
      ‘Copywrite’. Nuff said.

  3. Anonymous

    I agree that the DMCA is broken, and the burden of enforcement of copyright laws shouldn’t fall on the copyright owners in the way it is now. That said, I do think whatever the solution ends up being has to be a workable solution. Let’s say Notice and Staydown goes into effect, and an OSP receives a copyright infringement notice from a copyright owner. What steps can the OSP take to ensure that its users are unable to post that content ever again on the service, so the OSP doesn’t face any liability?

    The only thing I can think of is to employ the same technology that Shazam uses, and whenever something gets posted, the OSP compares the audio wave data in that file to a large database of wave data pertaining to copyrighted recordings, and when there is a match, the post gets rejected. That would be a workable solution, but it wouldn’t necessary eliminate liability. What if the audio is altered in such a way that it doesn’t get matched? What if a notice is sent for the underlying composition, and a cover version gets posted with completely different wave data? It seems like there would always be some way for previously-noticed content to get posted that wouldn’t be caught by an automated system, making it impossible for an OSP to operate without incurring at least some liability. This would lead to the nightmare apocalyptic scenario where the OSPs have no choice but to shutdown, which would, as they say, “break the internet”.

    I think when an OSP receives a DMCA notice, they should be forced to employ the Shazam technology I mentioned above for that copyrighted content, so if the wave data shows up in a future post, that post gets rejected. However, if for whatever reason the Shazam technology isn’t able to catch it in future posts, the OSP shouldn’t suddenly become liable to litigation. Instead, the copyright owner should be able to add that revised wave data to the database of copyrighted data that new posts are matched to, and only if the OSP fails to do that in a reasonable amount of time should they become liable.

    I’m sure there are countless things I’m not considering here. What am I missing?

    • Anonymous

      The problem is that it would be a never ending battle. There are so many ways to alter a song file that sites like Youtube would be overrun with piracy just like they are now. The other problem that remains is search engine linking piracy. Google has no way of knowing that the webpage they are linking to is hosting an infringing file and currently there isn’t a solution available to detect that.

    • Troglite

      You mean like Google’s ContentID?

      The problem is that instead of choosing to use that technology in the manner you described, they used it to force artists to agree to have their works monetized. You can only be protected if you agree to be exploited.

      • Anonymous

        Exactly, and that’s where the DMCA law should be changed. Google (and other OSPs) should be forced to use it in the manner described above, where they receive a notice to do so by the copyright owner. Google just shouldn’t immediately be held liable if that method doesn’t happen to catch all occurrences of the infringing content.

        • Troglite

          You seem to have concluded that Google is “immediately liable if that method doesn’t happen to catch all occurrences of the infringing content”.

          What facts/basis caused you to reach this conclusion?

          Most interpretations of the law I have seen simply require Google/OSP’s to demonstrate a reasonable effort to prevent copyrighted works from being exploited on their platforms and a reasonable process by which claims can be contested (e.g. because an artist finds a work that was missed by a technology like ContentID or a consumer believes their work represents a valid “Fair Use” claim).

          Does your interpretation/understanding differ from what I have outlined?

          • Anonymous

            No, your interpretation is correct under the current law. I’m talking about what could potentially happen if “Notice and Staydown” were to be implemented. We need to make sure if the DMCA is amended, it significantly reduces the burden on copyright owners with respect to issuing takedown notices, but still allows the OSPs to operate if the method they use doesn’t result in a 100% “staydown”, provided that they can demonstrate a reasonable effort to enforce the staydown through the use of ContentID or other means.

          • Troglite

            Thanks for the clarification!

            There is a fairly well defined legal standard commonly referred to as a “commercially reasonable effort” that I believe will almost certainly prevent your concern becoming an actual risk. The OSP’s will retain adequate protections in this regard, even if stay down is added to the equation. As long as the OSP doesn’t infringe willfully or as the result of gross negligence, at least.

      • Me2

        And they don’t make ContentID available to everyone. Because not everyone has the same rights. There’s some secret rain dance and then the all mighty might just decide to offer ‘protection’. And yes I mean that in the racket sense. I try to keep it civil, but when it comes to YouTube, fuck them. Fuck them. Fuck them FUCK THEM!!!

  4. Anonymous

    “All of the responsibility to police the Internet is with the copyright owners”

    And don’t forget we’re not even allowed to do that automatically anymore — we’ve been forced to consider if every fucking pirate site listing was Fair Use since the Prince case.

    • doos

      oh so sad that you can’t just have free riegn to stomp all over people’s rights like you have been doing through the years. waah waah.

  5. Anonymous

    haha like the government is going to do anything to help musicians.

    You work for Google now, whether you like it or not.

    Bend over.

  6. Versus

    What about TV and film industries?
    Why aren’t they more active in this fight? They have far deeper pockets, after all, and just as much of a stake in the battle.

    Interesting that there do not seem to be many TV episodes and movies illegally uploaded to YouTube. If this is correct, why is this so?

    Film/TV have somehow done better about this entire piracy disaster than music, presumably learning from music’s tragedy. For example, Netflix is a massive success, even able to produce original content, and people willingly pay for the service, not to mention that people still pay huge monthly fees for premium cable channels.

  7. Versus

    Let’s also talk about DIGITAL RIGHTS MANAGEMENT.
    I believe we need a return to DRM for music. Why was DRM removed for music, but remains in place for film and TV? See the iTunes store, for example; film and TV purchases and rentals are protected and linked to specific accounts and devices which can play them. Music, on the other hand, is a free-for-all. Why?

    • lol

      please keep coming up with ways to show you hate your customers.