[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
SECTION 512 OF TITLE 17
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
COURTS, INTELLECTUAL PROPERTY,
AND THE INTERNET
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
MARCH 13, 2014
__________
Serial No. 113-86
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio ZOE LOFGREN, California
SPENCER BACHUS, Alabama SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas JUDY CHU, California
JIM JORDAN, Ohio TED DEUTCH, Florida
TED POE, Texas LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
------
Subcommittee on Courts, Intellectual Property, and the Internet
HOWARD COBLE, North Carolina, Chairman
TOM MARINO, Pennsylvania, Vice-Chairman
F. JAMES SENSENBRENNER, Jr., JERROLD NADLER, New York
Wisconsin JOHN CONYERS, Jr., Michigan
LAMAR SMITH, Texas JUDY CHU, California
STEVE CHABOT, Ohio TED DEUTCH, Florida
DARRELL E. ISSA, California KAREN BASS, California
TED POE, Texas CEDRIC RICHMOND, Louisiana
JASON CHAFFETZ, Utah SUZAN DelBENE, Washington
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia ZOE LOFGREN, California
RON DeSANTIS, Florida SHEILA JACKSON LEE, Texas
JASON T. SMITH, Missouri STEVE COHEN, Tennessee
[Vacant]
Joe Keeley, Chief Counsel
Heather Sawyer, Minority Counsel
C O N T E N T S
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MARCH 13, 2014
Page
OPENING STATEMENTS
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Chairman, Subcommittee on Courts,
Intellectual Property, and the Internet........................ 1
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Ranking Member, Subcommittee on
Courts, Intellectual Property, and the Internet................ 2
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Chairman, Committee on the Judiciary 4
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, Ranking Member, Committee on the
Judiciary, and Member, Subcommittee on Courts, Intellectual
Property, and the Internet..................................... 5
WITNESSES
Sean M. O'Connor, Professor of Law and Founding Director,
Entrepreneurial Law Clinic, University of Washington (Seattle)
Oral Testimony................................................. 8
Prepared Statement............................................. 10
Annemarie Bridy, Alan G. Shepard Professor of Law, University of
Idaho College of Law
Oral Testimony................................................. 15
Prepared Statement............................................. 18
Paul F. Doda, Global Litigation Counsel, Elsevier Inc.
Oral Testimony................................................. 31
Prepared Statement............................................. 33
Katherine Oyama, Sr. Copyright Policy Counsel, Google Inc.
Oral Testimony................................................. 42
Prepared Statement............................................. 44
Maria Schneider, Grammy Award Winning Composer/Conductor/
Producer, Member of the Board of Governors, New York Chapter of
the Recording Academy
Oral Testimony................................................. 54
Prepared Statement............................................. 56
Paul Sieminski, General Counsel, Automattic Inc.
Oral Testimony................................................. 59
Prepared Statement............................................. 61
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable Judy Chu, a Representative in
Congress from the State of California, and Member, Subcommittee
on Courts, Intellectual Property, and the Internet............. 78
Material submitted by the Honorable Ted Deutch, a Representative
in Congress from the State of Florida, and Member, Subcommittee
on Courts, Intellectual Property, and the Internet............. 86
APPENDIX
Material Submitted for the Hearing Record
Material submitted by Maria Schneider, Grammy Award Winning
Composer/Conductor/Producer, Member of the Board of Governors,
New York Chapter of the Recording Academy...................... 120
Material submitted by the Honorable Darrell E. Issa, a
Representative in Congress from the State of California, and
Member, Subcommittee on Courts, Intellectual Property, and the
Internet....................................................... 124
Response to Questions for the Record from Sean M. O'Connor,
Professor of Law and Founding Director, Entrepreneurial Law
Clinic, University of Washington (Seattle)..................... 215
Response to Questions for the Record from Annemarie Bridy, Alan
G. Shepard Professor of Law, University of Idaho College of Law 222
Response to Questions for the Record from Paul F. Doda, Global
Litigation Counsel, Elsevier Inc............................... 233
Response to Questions for the Record from Katherine Oyama, Sr.
Copyright Policy Counsel, Google Inc........................... 236
Response to Questions for the Record from Maria Schneider, Grammy
Award Winning Composer/Conductor/Producer, Member of the Board
of Governors, New York Chapter of the Recording Academy........ 239
Response to Questions for the Record from Paul Sieminski, General
Counsel, Automattic Inc........................................ 241
Prepared Statement of the Library Copyright Alliance............. 242
Letter from the Directors Guild of America (DGA)................. 249
Prepared Statement of Cary Sherman, Chairman and CEO, Recording
Industry Association of America................................ 254
Prepared Statement of the Assocition of American Publishers (AAP) 260
Prepared Statement of the Computer & Communications Industry
Association (CCIA)............................................. 271
Prepared Statement of the Future of Music Coalition.............. 276
SECTION 512 OF TITLE 17
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THURSDAY, MARCH 13, 2014
House of Representatives
Subcommittee on Courts, Intellectual Property,
and the Internet
Committee on the Judiciary
Washington, DC.
The Subcommittee met, pursuant to call, at 9:31 a.m., in
room 2141, Rayburn Office Building, the Honorable Howard Coble,
(Chairman of the Subcommittee) presiding.
Present: Representatives Coble, Goodlatte, Marino, Smith of
Texas, Chabot, Issa, Poe, Chaffetz, Farenthold, Collins,
DeSantis, Smith of Missouri, Nadler, Conyers, Chu, Deutch,
Richmond, DelBene, Jeffries, Cicilline, Lofgren, and Jackson
Lee.
Staff Present: (Majority) Joe Keeley, Chief Counsel; Olivia
Lee, Clerk; (Minority) Heather Sawyer, Minority Counsel; Jason
Everett, Counsel; and Stephanie Moore, Counsel.
Mr. Coble. The Subcommittee on Courts, Intellectual
Property, and the Internet will come to order.
Without objection, the Chair is authorized to declare
recesses of the Subcommittee at any time.
We welcome all of our witnesses today. Thank you all for
appearing before the Subcommittee for this important part of
our copyright system, the notice and takedown provisions of
Section 512.
Online piracy continues to grow to scale, harming the
ability of individual artists and companies to add to our
Nation's economy. The notice and takedown provisions of Section
512 are designed to help copyright owners protect their works
from online infringement while enabling good-faith ISPs to
avoid potential liability for the actions of their users.
A review of the written testimony shows disagreement about
the proper role and action of an ISP in independently
identifying and responding to infringing content. While no one
seems to be suggesting that the ISPs routinely seek out
infringing files, it does seem unreasonable that once an ISP
has received thousands of notices for the same content from the
same copyright owner, it then acts at least somewhat
differently than it would after receiving the first notice.
A growing flood of notices is not necessarily a sign of
success either, except perhaps by pirates who deprive the
copyright owners of any income for the work that they have
produced.
In other legislation recently passed by the House, this
Subcommittee has targeted those who have abused the patent
system from their own ends. It appears that some are also
abusing the notice and takedown system in order to remove
speech from the Internet they don't like or the website of a
business with whom they compete. Actions such as these leaves a
negative impact upon the copyright system as a whole, and it
needs to be stopped, in my opinion.
I appreciate all your willingness to appear before our
Subcommittee today, and I will now recognize--well, first of
all, let me officially welcome the gentleman from New York, Mr.
Nadler. Jerry has fulfilled the vacancy created when
Congressman Watt resigned.
It is good to have you as Ranking Member, Jerry, and I
recognize you for your opening statement.
Mr. Nadler. Well, thank you, Mr. Chairman.
This is my first hearing as the new Ranking Member of this
Subcommittee. I am honored to succeed our former colleague, Mel
Watt, who is now serving as Director of the Federal Housing
Finance Agency, and I look forward to working closely with you,
Mr. Chairman, with the full Committee Chairman, Mr. Goodlatte,
with Ranking Member Conyers and all of my colleagues as we
continue the Subcommittee's important work.
Today's hearing is part of our comprehensive review of the
Nation's copyright laws to explore how our copyright system is
faring in the digital age. Section 512 of the Digital
Millennium Copyright Act is a critical piece of this puzzle.
Section 512 limits the liability of online service
providers for copyright infringement by their users. Enacted in
1998 when YouTube, Facebook, Google Search, Bing, and many
other platforms and applications that we enjoy today were still
on the horizon, Section 512 sought to balance the concerns and
interests of rights owners and online service providers by
creating a collaborative framework for addressing online
infringement.
The mechanism established by Section 512 was intended to
provide meaningful protection to rights holders who,
understandably concerned with the increasing ease and speed
with which copyright works could be disseminated to thousands
of users, would otherwise have been reluctant to make their
creative works available over the Internet.
At the same time, Section 512 was also intended to address
service providers' concerns that misconduct by users might
subject them to liability. To find shelter in Section 512,
providers cannot know about infringing material or activity,
cannot receive financial benefit from such infringement, and
must implement procedures that allow them to ``expeditiously''
take down infringing content when they know about it or are
notified by the need to do so by rights holders.
Although Section 512 does not condition protection on a
provider affirmatively monitoring infringement, except to the
extent consistent with standard technical measures, providers
must, among other things, remove material when there is actual
knowledge of infringement or when infringing activity is
apparent--in other words, when the provider has red-flagged
knowledge of infringement.
More than 15 years have passed since the DMCA's enactment,
and new technologies have fundamentally changed the Internet,
bringing many new benefits but also new problems that were not
foreseen in 1998. Among other things, it is now possible for
users to share vast amounts of high-quality content with
thousands of others, and largely on their own terms. As a
result of this and other innovations, online infringement has
skyrocketed.
Last year, for example, Google received notices requesting
removal of approximately 230 million items. This volume is
staggering, even for large companies sending or receiving these
notices. For smaller artists, musicians and businesses, it is a
practical and financial nightmare.
Maria Schneider, a Grammy Award-winning musician and one of
my constituents, who is here to testify today, has been unable
to stop online infringement of her works. The resulting loss of
income, combined with the cost of monitoring the Internet and
sending takedown notices, threatens her ability to continue
creating her award-winning music.
As we will hear today, when infringing activity is
identified and the notice is sent, users simply too often re-
post the material that has been taken down using a different
URL. As in the arcade game Whack-a-Mole, the copyright holder
succeeds in having the material taken down, only to have it pop
back up almost immediately, requiring an endless stream of
notifications relating to the same content.
To deal with this problem, Section 512(c)(3) allows the
sending of a representative list of copyrighted works and
information ``reasonably sufficient provided to locate
infringing material.'' I am interested in hearing from our
witnesses whether these statutory guidelines have proven
sufficient and how best to address this key problem.
Some providers have also expressed concern about potential
misuse of the notice process to take down non-infringing
content. Such claims appear to be a small portion of the
millions of infringement notices that are sent. For example,
Google reports that it removed 97 percent of the search results
specified in takedown requests between July and December 2011.
Nonetheless, Congress sought to minimize the abuse by
penalizing anyone who knowingly misrepresents that material is
infringing, and Section 512(g) provides users with the
opportunity to challenge the removal of content by filing a
counter-notification. But are these protections proving
sufficient?
These are examples of some of the challenges that have
arisen under Section 512. I am also interested in hearing how
courts have interpreted the statute and whether key
stakeholders have come together to develop standard technical
measures for identifying and protecting copyrighted works, as
is required in Section 512(i).
As we undertake this review, however, we should also keep
in mind that along with its challenges, there have been many
Section 512 successes as well. The notice and takedown system
has resulted in the quick removal of infringing content on
countless occasions. Some stakeholders have come together to
develop best practices and have entered into voluntary
agreements to help identify and address online infringement in
a timely and effective manner, and Internet innovation has
continued to thrive, allowing and inspiring greater
collaboration and commerce.
Artists and musicians from superstars to startups now use
various Internet technologies to make, market, and sell their
creative works. Our goal now, just as it was in 1998, is to
preserve incentives for service providers and copyright holders
to work together to address online infringement in a manner
that provides real protection for creators as the Internet
continues to grow and thrive.
Our witnesses today provide a diversity of perspectives and
a wide range of experience with Section 512, and I look forward
to hearing from them. With that, I yield back the balance of my
time.
Mr. Coble. I thank the gentleman.
The Chair now recognizes the distinguished gentleman from
Virginia, the Chairman of the full Committee, Mr. Goodlatte,
for his opening statement.
Mr. Goodlatte. Well, thank you, Mr. Chairman. It is a
pleasure to be here, a pleasure to welcome this great panel of
witnesses, and it is also a pleasure to welcome the gentleman
from New York, Mr. Nadler, as the new Ranking Member on what I
think is a great Subcommittee that I have had the opportunity
to Chair in the past, and I look forward to our work together
on issues related to intellectual property and our courts and
the Internet.
Enacted in 1998 at a time when bulletin boards were still a
popular destination for many Americans, Section 512 was
designed to achieve two important policy goals that were
crucial to the success of the Internet: first, enabling good-
faith online service providers to operate without risk of
liability for the actions of their users; and second, enabling
copyright owners to quickly remove infringing online content
without flooding the courts with litigation.
These two goals have mostly been met with the rapid growth
of the online economy. However, like all legislation related to
technology, issues have arisen that were not anticipated during
the drafting and enactment of Section 512. These issues have
posed challenges that have led some to call for updates to 512.
As the Committee undertakes its review of copyright law, the
time is right to consider these issues and proposed solutions
to them.
Our witnesses today will mention issues of interest to
them, and I am interested in delving into three issues in
particular. The first is referred to as the whack-a-mole game
by copyright owners. By most accounts, good-faith service
providers have acted expeditiously in responding to Section 512
notices by removing or disabling links to infringing content.
However, copyright owners are increasingly facing a
scenario that simply wasn't anticipated during the enactment of
512, the need of copyright owners to send a voluminous amount
of notices seeking removal of infringing content, followed by
the almost immediate reappearance of the same infringing
content. In an interesting twist, different groups point to the
same statistics showing the mammoth amount of notices being
sent today as proof of either the system working as designed or
the system not working as designed.
A second issue that has been raised is the quality of the
notices and the impact upon other important legal doctrines
such as fair use and the First Amendment. While there is little
disagreement over the need to expeditiously remove clearly
infringing content, how Section 512 intersects with these other
legal doctrines is subject to court cases still underway.
Finally, some have begun to engage in behavior that abuses
the rationale for Section 512 by sending outright fraudulent
notices with little risk for penalties being imposed upon them
for their actions. Although the number of such cases appears to
be low percentage-wise, this Committee should consider ways to
reduce such blatant abuse.
Section 512 was the product of balancing a number of
interests to resolve various issues to improve the copyright
system for all. As the Committee conducts its review of our
copyright system, we should keep this consensus model in mind
while examining challenges and potential solutions.
I appreciate the willingness of the witnesses to testify
this morning and look forward to hearing from them.
Mr. Coble. I thank the Chairman.
The Chair now recognizes the gentleman from Michigan, the
Ranking Member of the full Committee, for his opening
statement.
Mr. Conyers. Thank you, Mr. Chairman.
I welcome the witnesses as well and congratulate Jerry
Nadler for his long continuing interest in copyright law and
suggest that the hearings today provide an important
opportunity for us to examine online service provider liability
and the effectiveness of Section 512 of Title 17 of the Code.
Section 512 creates a mechanism that immunizes certain
service providers from liability as long as they don't derive
financial benefit from infringing activity and take down
infringing material that they know about or are notified about
by rights holders through a notice and takedown process. That
process allows copyright owners, without having to go to court,
to request that certain types of service providers remove
infringing material.
So as we examine Section 512 today, there are several
factors to be kept in mind. To begin with, although much has
happened since 512 was enacted in 1998, part of the Digital
Millennium Copyright Act, especially with respect to the
Internet and the online landscape, many of the same concerns
that led to the enactment of this law still remain.
Fifteen years ago, the Internet was in an early stage of
development and extremely different from the way it is today.
For example, there were very few blogs and search engines, and
social media services such as Facebook and Twitter simply
didn't exist. Even then, however, copyright owners were
legitimately worried that Internet users could spread near-
perfect copies of copyrighted works instantly around the world
without first securing permission to use the works.
At the same time, Internet service providers worried that
they would be held liable for actions of their users even if
the service providers themselves were not directly infringing.
In the 15 years since Section 512's enactment, advances in
technology and the globalization of the Internet have presented
numerous challenges for those seeking to apply Section 512 to
the new and evolving digital distribution systems. So it is
important today that we assess how the law has kept up with the
technology. I am concerned that some courts interpreting
Section 512 have done so in a way that may be more restrictive
than we intended when the statute was enacted. The law as
interpreted by some of these courts imposes significant burdens
on copyright owners to monitor the Internet and specifically
identify sometimes millions of infringing files. At the same
time, courts have narrowly interpreted the circumstances under
which providers will be deemed to have sufficient red-flag
knowledge of infringement to trigger the duty to take material
down.
In addition, Section 512 has also generated a large amount
of litigation, particularly with respect to issues presented by
new technologies such as cyber lockers and peer-to-peer file
sharing. These advances in particular have facilitated
copyright infringement in a manner that we in Congress did not
fully envision when we enacted the Section 512 safe harbors in
1998. And as a result, the statute has proven largely, frankly,
ineffective in combatting the massive amounts of infringement
that occurs using these technologies.
We must continue to work to decrease the amount of
infringing content on the Internet. There continues to be an
increase in the number of sites that provide access to
infringing copies of movies, television shows, music, and other
content. Further, we must consider how we can improve the
process for identifying and handling repeat infringers.
When takedowns occur, copies of the same works often are
put up immediately elsewhere, resulting in the whack-a-mole
scenario that forces rights holders into a never-ending cycle
of takedown requests. While some content owners use automatic
systems to locate huge quantities of online infringement, this
generally produces a large number of notices that may include
repeat requests concerning the same infringing file.
We should also consider whether search engines can somehow
prioritize results that don't contain infringed material. In
today's environment, search engines have initiated practices to
demote or alter search results in other contexts, for example,
where users attempt to manipulate their rank or to address
allegations that search results that prioritize a service
provider's own products over those of its rivals is anti-
competitive. Today, however, there has been a resistance to do
so for copyright holders. We here should explore whether these
practices are suitable in this context as well.
So finally, I want to encourage all stakeholders to
continue to develop voluntary initiatives to fulfill the DMCA's
goals to limit copyright infringement. Copyright owners, online
service providers and users are in the best position to assess
practices with respect to online copyright material, and to
that end, the 2013 Copyright Alert System provides a useful
model.
This system is an agreement between major media
corporations and large Internet service providers to monitor
peer-to-peer networks for copyright infringement and to target
subscribers who may be infringing copyright materials. We are
listening carefully for other suggestions that may come from
you that may be helpful in this area and look forward to your
testimony, and I join in congratulating our witness, the
Grammy-winning composer, Maria Schneider.
I yield back my time and apologize for taking more than
should have been allotted me.
Mr. Coble. I thank the gentleman from Michigan.
Without objection, opening statements from other Members
will be made a part of the record.
Prior to introducing our distinguished panel of witnesses,
I would like to swear them in, so I would ask you all to rise,
please, and I will administer the oath to you.
[Witnesses sworn.]
Mr. Coble. Let the record show all witnesses responded in
the affirmative.
Professor O'Connor, I believe, Ms. DelBene, is your
constituent, so I think you would like to introduce him to the
Committee.
Ms. DelBene. Thank you, Mr. Chairman. It is my pleasure to
welcome a fellow Huskie to our hearing today. Sean O'Connor is
Professor of Law and Founding Director of the Entrepreneurial
Law Clinic at the University of Washington School of Law in
Seattle, just outside of my district. His research focuses on
how legal structures and strategies facilitate innovation, and
his teaching and law practice specialize in transactions and
the role of the general counsel in startup companies.
Professor O'Connor received his law degree from Stanford
Law School, a Master's degree in Philosophy from Arizona State
University, and a Bachelor's degree in History from the
University of Massachusetts.
Prior to law school, he was a professional musician and a
songwriter for 12 years, and I understand that he still
performs now and then at IP conferences around the country in a
rock band called Denovo. So we can hear about that more later,
too, possibly.
Thank you very much for being here today.
And, Mr. Chair, I yield back.
Mr. Coble. I thank the lady.
Professor O'Connor, do you also do bluegrass? I am a
bluegrass advocate. [Laughter.]
Mr. O'Connor. I try to be very careful with that.
Mr. Coble. Good to have you.
Mr. Conyers. What about jazz? [Laughter.]
Mr. Coble. Good to have a fellow Huskie with us.
When you mention Huskie, Ms. DelBene, my mind synonymously
thinks of Norm Dicks, and we miss Norm. He was here for a long,
long time. I hope he is doing well.
Ms. DelBene. Yes, he will always be remembered as a Huskie.
Mr. Coble. Pardon?
Ms. DelBene. I said he will always be remembered as a
Huskie.
Mr. Coble. Oh, yes. Thank you.
I will be introducing the remaining panel.
Our second witness is Annemarie Bridy, Professor of Law at
the University of Idaho College of Law. Professor Bridy teaches
courses at the college's Intellectual Property and Technology
Law Program. Professor Bridy received her J.D. from Temple
University School of Law and her Ph.D. and M.A. from the
University of California-Irvine, and B.A. from Boston
University.
Professor, good to have you with us.
Our third witness is Mr. Paul Doda, Global Litigation
Counsel at Elsevier, Inc. In his position, Mr. Doda is
responsible for legislation and copyright enforcement. Mr. Doda
received his J.D. from the Philadelphia University School of
Law and his B.A. from Montclair State College.
Professor, good to have you with us.
If I appear to be reluctant as I am introducing you, I am
having difficulty with my spectacles. I have to get them
changed, but bear with me as I stumble along today.
Our fourth witness is Ms. Katherine Oyama, Senior Copyright
Policy Counsel of Google, where she focuses on copyright,
creativity and policy. From 2009 to 2011, she served as
Associate Counsel and Deputy Counsel to Vice President Biden.
Ms. Oyama is a graduate of Smith College and the University of
California Berkeley School of Law.
Professor, good to have you with us, as well.
Ms. Schneider, good to see you again. I visited with you
briefly yesterday.
Our fifth witness is Ms. Maria Schneider, an American
composer and big-band leader.
No such luck it would be bluegrass, Ms. Schneider. I am not
going to let this die. [Laughter.]
Mr. Coble. She is also a Grammy Award-winning composer and
member of the Recording Academy's New York chapter. Ms.
Schneider received her Master's in Music from the Eastman
School of Music and studied music theory and composition at the
University of Minnesota.
Ms. Schneider, good to have you with us.
Our sixth and final witness is Mr. Paul Sieminski, General
Counsel for Automattic, Inc., best known as the company behind
World Press. Mr. Sieminski received his J.D. from the
University of Virginia School of Law and his B.S. from
Georgetown University.
Professor, good to have you with us.
Folks, you will notice there are two timers on your desk.
They go from green to amber to red. When the amber light
appears, that indicates that you have a minute to go. So if you
can wrap up your testimony in about 5 minutes, we would be
appreciative to you. I will keep a sharp lookout on that. You
won't be keel-hauled if you violate the agreement, but try to
stay within that timeframe if you can.
Let's start with the gentleman, the Huskie from the
University of Washington.
Mr. O'Connor, good to have you with us.
TESTIMONY OF SEAN M. O'CONNOR, PROFESSOR OF LAW AND FOUNDING
DIRECTOR, ENTREPRENEURIAL LAW CLINIC, UNIVERSITY OF WASHINGTON
(SEATTLE)
Mr. O'Connor. Thank you, Chairman Goodlatte, Chairman
Coble, Ranking Members Nadler and Conyers, Members of the
Subcommittee. Thank you for having me in here today to speak
about Section 512. I have already been introduced, so I will
dispense with some of my remarks except to just make clear, of
course, that I am speaking on my own behalf and not on behalf
of any of the organizations or clients that I represent.
I sit at the intersection of artists, copyright owners and
technology entrepreneurs, and this is where Section 512 has
really come to a peak of interest. For example, I have two
clients I have represented over the years, Rhizome.org, which
is a non-profit set up to foster digital arts around the world,
and Kolidr.com, which is a social media platform that allows
people to put together multi-media collages to express
themselves using various content that they can put together.
The interesting thing about both of these companies is that
they were started by artists who respect copyrights and want to
help and make sure that those are respected among their fellow
artists, but who also want to make content widely available. So
they are sitting at the intersection, as I am.
So I would like to make one point, which is that we are
often trying to divide the tech world from the content world,
and at least where I am, working with smaller artists and
startups, there is often quite a lot of overlap there.
Section 512 was an excellent solution to problems in the
1990's, and there was much mention already in the introductions
of the problems today about what was being addressed at that
point. But over time, it has had some unintended consequences,
and I think it has accidentally helped to foster a culture of
copyright contempt, oddly enough, even though that was not its
intent.
Why? Well, because what I see, working with clients and the
kind of advice that they are given when they are doing a
website startup, is that they should not be monitoring for
content for potential infringement. Why? Well, there is no
upside for them. They can. Section 512 allows them to. But
there is no upside. They get the safe harbor regardless of
whether they monitor and check.
On the flip side, there are a lot of downsides for taking a
look and trying to monitor. Why? Well, as was mentioned about
the red flags, if they start looking at any of their content
that their users are posting, then they may have actual
knowledge of an infringing post, or they will have awareness.
If they have either of those, they have to proactively take
down the content even though there has not been a takedown
notice submitted. So why should they look? That is not the
intention of the law but, again, this is the unintended
consequence.
I believe there is a lack of monitoring that has led to the
situation we have now where, as was mentioned, there are
takedown notices now filed on millions of posts every month.
That is clearly unsustainable.
What I wanted to focus on is not trying to take care of the
entire problem but taking care of what I call the relentless
repostings of clearly infringing works. So these are not the
potential transformative use cases. These are not remixes,
mashups and things like that. These are situations where it is
just the book, the movie, the song in its entirety put up with
no pretense of there being a transformative use. That, I think,
is a large chunk of the postings that we could try to reduce.
Since we don't enforce right now and people are told not to
look, that has emboldened, I think, the bad actors. They know
that they can just repost this stuff and that the websites,
even the ones that want to do the right thing, are encouraged
to not look.
So what we would like to do is get the volume down. We
won't eradicate it entirely. There will still be a fairly high
volume of takedown notices. But if we can take care, again, of
what has been described as the whack-a-mole problem for the
infringing works that are not even attempting to be
transformative, I think we can help out our startups and our
artists.
Let's step back for a moment and talk about 512 and how it
came about. It was summarized, but I want to home in again on
the common carrier doctrine. The most pressing concern in the
1990's was that we wanted access to the Internet. We didn't
want the digital divide to get worse, so we needed to be able
to allow everyone, through the telecomm companies, to get
access to the Internet. Those companies, quite rightly, were
concerned that they would be liable for things being sent
through their system.
Let me give a couple of proposals as I am running short of
time. The first one is that there should be notice and stay-
down. This would happen in two stages. First, it would be
voluntary practices among the stakeholders to come together to
come up with a system to stop the repostings, again for the
clearly infringing works, and make some of these tools like
Content ID available to the smaller OSPs that can't afford
them. Google has done a fantastic job in getting a lot of web-
based tools. On my own blog I use Google Analytics. So there
could be a way, then, to help the smaller OSPs get those.
But stage two, if no agreement is reached in a reasonable
time, we could amend the DMCA to add the duty to remove these
reposted works or to lose the safe harbor. This would not be
much different from terminating repeat infringer accounts.
The second proposal is to codify willful blindness. Just
like the safe harbor in some ways, with Congress setting policy
after the Netcomm case, Congress could step in and set policy
around willful blindness that now is being set by the courts in
a confused array, as many of you have mentioned. What would
happen, then, is that a website that had policies against
monitoring and had a high volume of notices would lose the safe
harbor.
In conclusion, I think that these changes could reduce the
volume of takedown notices to a manageable level, would relieve
pressure on both artists and websites, and would help to change
the culture of copyright contempt. No one wants a post-
copyright world. OSPs and artists have valuable IP interests
that they need to protect.
Thank you for your time.
[The prepared statement of Mr. O'Connor follows:]
Prepared Statement of Sean M. O'Connor, Professor of Law and Founding
Director, Entrepreneurial Law Clinic, University of Washington
(Seattle)
Chairman Goodlatte, Chairman Coble, Ranking Member Nadler, Members
of the Subcommittee, thank you for the opportunity to testify today
about the current state of notice and takedown provisions under the
DMCA.
I am a law professor at the University of Washington in Seattle and
the Founding Director of its Entrepreneurial Law Clinic. We deliver a
full range of corporate, IP, and tax services, focusing on business
planning and transactions, to start-ups, artists, and nonprofits. I
have also served as Director of UW Law School's Law, Technology & Arts
Group and its Law, Business & Entrepreneurship Program. I currently
also serve on the Academic Advisory Board of the Copyright Alliance.
Before academia, I was a full time attorney at major law firms in New
York and Boston. I have continued an active private legal practice,
with current social media clients such as Kolidr, and was General
Counsel to Rhizome.org, a nonprofit arts organization for the digital
and net art community. Before law school I was a professional musician
and songwriter for 12 years, receiving airplay on college and
commercial stations in the Northeast. Because of my multiple
affiliations, it is especially important to state that my views here
are my own and do not necessarily represent the views of any of the
organizations I am or have been affiliated with.
introduction
The current litigation over the Innocence of Muslims video provides
a timeliness to the hearing today, as the dispute started with a
takedown notice from the actress, Cindy Garcia, to YouTube demanding
that it remove the infamous video from its site.\1\ Putting aside the
more complicated issues in that case, one of the defenses offered by
Google (the owner of YouTube) was quite telling. Google asserted that
taking down the video from YouTube would provide little relief to Ms.
Garcia because it was so widely available on the Internet. Whatever the
practical truth of this contention, Google's claim that relief from
infringing online content is essentially impossible reflects a common,
disturbing narrative that we live in a post-copyright world where
everything is available everywhere and there is nothing we can really
do about it.
---------------------------------------------------------------------------
\1\ Cindy Lee Garcia v. Google, Inc., Slip. Op. No. 12-57302 (9th
Cir., Feb. 26, 2014).
---------------------------------------------------------------------------
This attitude is both a cause and a result of the main failure of
the notice and takedown system that I want to address today: the
relentless reposting of blatantly infringing material. This is not
material that the poster believes he has rights to, either by
ownership, license, or transformative fair use. It is simply posted as
an end run around copyright law for fun or profit. This end run is
largely made possible by notice and takedown and the safe harbor for
online service providers.
1. The Notice and Takedown system is not working for artists,
copyright owners, or companies in the innovation and creative
industries
The current notice and takedown system under Sec. 512 of the
Digital Millennium Copyright Act \2\ is not working for any of its
intended beneficiaries: artists, copyright owners, or online service
providers. For artists and copyright owners, the time-honored analogy
of a whack-a-mole game sums up the situation. No sooner does an artist
or owner get an infringing copy of their work taken down than other
copies get reposted to the same site as well as other sites. It would
be one thing if these were copies that at least purported to be
transformative. And there are some of those. But holding them to the
side, for many artists and owners the majority of postings are simply
straight-on non-transformative copies seeking to evade copyright.\3\
This is the flagrant infringement facilitated by mirror sites and
endless links. To give a sense of the scope, a recent report showed
that mainstream copyright owners send takedown notices for more than
6.5 million infringing files to over 30,000 sites each month.\4\
---------------------------------------------------------------------------
\2\ 17 U.S.C. Sec. 512.
\3\ For example, one can find the original recording of pretty much
any popular commercially released music title posted to SoundCloud
(www.soundcloud.com). This is not SoundCloud's doing or fault
necessarily. SoundCloud is a legitimate and useful service for
musicians looking to post their own material.
\4\ See Bruce Boyden, The Failure of the DMCA Notice and Takedown
System: A Twentieth Century Solution to a Twenty-First Century Problem
(Center for the Protection of Intellectual Property, George Mason Univ.
School of Law, Dec. 2013), at http://cpip.gmu.edu/wp-content/uploads/
2013/08/Bruce-Boyden-The-Failure-of-the-DMCA-Notice-and-Takedown-
System1.pdf (citing Transparency Report: Copyright Owners, GOOGLE
(Sept. 8, 2013) http://www.google.com/transparencyreport/removals/
copyright/owners/?r=last-month). The Report also notes that printing
out the list of sites for which Google received takedown notices in
just one week ran to 393 pages. Further, for the six-month period
ending last August, member companies of the Motion Picture Association
of America sent takedown notices for nearly 12 million files to search
engines, and over 13 million directly to site operators.
---------------------------------------------------------------------------
If this infringement were restricted to ``pirate'' sites and others
who are positioning themselves outside the legal system anyway, then
this would be a different concern. That is a problem of combatting
piracy and not specifically a problem with notice and takedown. But
many of the infringing posts I refer to are on legitimate online
service provider websites. These sites at least nominally claim to want
to be in compliance. And many of them are truly sincere in this. I have
counseled web start-ups that very much want to do the right thing. But
there are challenges presented by notice and takedown that make this
difficult.
Entrepreneurs starting web businesses that allow user generated
content are generally told two things by attorneys: i) put strong terms
of service agreements and the Sec. 512 copyright information page on
your site,\5\ and ii) do not monitor content.\6\ Those who know the
details of Sec. 512 may find the second piece of advice curious. There
is nothing in the law that prevents a service provider from monitoring
content for copyright infringement. Further, doing so will not push the
service provider outside the crucial safe harbor provided for in
Sec. 512. But the start-up IP lawyer's perspective is that there is no
upside, and some serious potential downside, for the service provider
to monitor content. Because the service provider is shielded from
infringement liability regardless of whether it monitors, then there
are only costs associated with monitoring and no extra benefits. But
even worse, given the ``red flag'' provisions under Sec. 512(c)(1)(A),
any service provider who monitors may well have actual knowledge of
infringement or an awareness of facts or circumstances from which
infringing activity is apparent. When this occurs (and this may be hard
to determine), the service provider must expeditiously remove or
disable access to the relevant infringing material, or else lose the
safe harbor. Monitoring content is a pretty sure way to get actual
knowledge or awareness of facts and circumstances. And then the service
provider must act, even without having received a takedown notice, to
preserve the safe harbor. Thus, the advice is ``don't monitor,'' and
don't even look.\7\
---------------------------------------------------------------------------
\5\ And set up your registered agent with the Copyright Office.
Privacy policies are recommended too, although this gets more
complicated as to form and content.
\6\ The exception is for offensive or obscene material (unless of
course that is the point of the site).
\7\ This is similar to a certain strain of advice from patent
attorneys for patent applicants who want to do a ``prior art'' search
to see what is out there that might affect the patentability of their
invention. Because of the duty of candor to the U.S. Patent and
Trademark Office (USPTO) for patentees and their patent agents/
attorneys, the applicant must disclose to the USPTO any relevant prior
art that it is aware of. But it is under no duty to undertake a prior
art search. Thus, for some patent agents/attorneys, the less they and
their clients know about the prior art, the better. There is no upside
for disclosing, while there is significant downside risk that the very
thing you disclose will be the art the examiner rejects your
application on. The attitude is ``let the examiner do the prior art
search.''
---------------------------------------------------------------------------
At the same time, websites that want to do the right thing fear the
``chump'' factor. If everyone else is playing fast and loose with
copyright--and making money or getting attention for doing so--why
should they walk the straight and narrow path (losing eyeballs and
money along the way)? Further, in an environment glamorizing ``piracy''
and adhering to the updated credo ``everything wants to be free,'' \8\
then the copyright compliant website might look decidedly uncool.
---------------------------------------------------------------------------
\8\ This is of course a play on the ``information wants to be
free'' ethic.
---------------------------------------------------------------------------
Related to this, because copyright infringement is so rampant, and
so many websites are facilitating it, entrepreneurs question their
attorneys' credibility on the law. I cannot tell you how many times a
web entrepreneur has asked me and other internet attorneys I know ``are
you sure about that?'' The follow-up to our affirmative answer on the
point of copyright law is ``but [famous company x] is doing it; their
lawyers must think it is OK.'' I am now old enough to remember this
line of questioning from my start-up clients when ``famous company x''
was Napster, and then Grokster. And we all know how that ended.
Equally important is that web businesses want to focus on business,
not mediating notice and counter notices. Many entrepreneurs are
shocked when I put together the basic legal documents they need for
their site. In particular, they chafe at the formality of the ``DMCA
copyright page'' as we call it. They are also concerned about the flood
of notices that will likely come their way if they host user generated
content, and the requirement to register an agent with the Copyright
Office. The natural response is to want to monitor the site, but this
brings its own costs and downsides as mentioned earlier.
Accordingly, no one seems to be happy with notice and takedown.
Service providers are certainly thankful for the safe harbor. But the
burden it creates on them is significant, especially for small to
medium service providers that cannot afford a compliance staff. At the
same time, artists, content owners, and others in the creative
industries are burdened with the seemingly impossible task of
protecting their lifeblood works through endless takedown notices. Most
problematic is the unintended consequences: the current state of safe
harbors may be contributing to the free-for-all attitude among service
providers as there is little downside for turning a blind eye and a lot
of upside.
2. Original purpose of the Safe Harbors versus current online service
provider protections
For context and potential solutions, it is important to recall
where this all started. The safe harbors were carefully negotiated
compromises among different interest groups solving specific Internet
issues of the 1990s. But, as Bruce Boyden notes, that makes them a
``twentieth century solution to a twenty-first century problem.'' \9\
In particular, there were two kinds of internet service providers that
sought a safe harbor: telecommunications companies that provided access
to the Internet, and websites that ``distributed'' content by hosting
it on their servers. The former arguably had the stronger claim to a
safe harbor. Both are discussed in the following sections.
---------------------------------------------------------------------------
\9\ Boyden, supra Note 4.
---------------------------------------------------------------------------
A. The common carrier doctrine and Internet open access
In the earliest days of public access to the Internet, users'
access was somewhat limited. I remember having my first email and
Internet access as a grad student in the early 1990s, which was a
typical starting point for Internet users in those days. Those
affiliated with universities, the military or government, and some
large businesses, had reasonably easy (and free or low cost) access.
Others had to find relatively obscure Internet service providers. Users
were few, and the online community was small.
As commercial providers such as America Online became more
widespread, however, there was a question of who they would, and
should, accept as customers. The government started calling for open
access (similar to requirements for access in the earlier
telecommunications revolution of widespread telephone service). Indeed,
open access to any paying member of the public seemed ideal for both
business and the growth of the Internet. However, service providers
balked at one implication of open access: If they could not choose
their subscribers, they had limited avenues for ensuring good behavior
online, and thus feared liability for that bad behavior.
The solution to this concern was an update on the common carrier
doctrine that had served reasonably well in transportation and other
regulated industries. If access to a carrier must be open to all, then
the carrier should not have liability for the potential bad acts of
those granted access. But this was generally held to apply only where
the carrier was not directly involved in the activities and instead
merely provided the conduit or vehicle.
This concept led to the safe harbors under the DMCA for Internet
access providers under Sec. Sec. 512 (a)-(b). These providers would not
have material residing on their servers or on websites they hosted.
Rather, they provided access to the pipeline through which subscribers
would send and receive materials to/from other points on the Internet.
Thus, the materials would be transitory through the providers' servers,
routers, and networks. The safe harbor for this activity is under
Sec. 512 (a). Caching of frequently sent/received materials at nodes
could speed up access and functioning of the Internet, and so this kind
of temporary storage of materials solely for the caching function also
was granted a safe harbor under Sec. 512 (b).
B. Online service providers and content distributors
The common carrier logic did not apply as well to those providing
websites hosting other people's content. First, there was no call for
these firms or individuals to allow everyone to use their sites. In
fact, from the earliest days until now there have been many limited
access sites protected by passwords and/or firewalls. Second, the
content on these sites was not just passing through on its way from
Point A to Point B. It was staying there either directly visible
through a browser or downloadable from an FTP directory.
Notwithstanding this, following the discussion of Internet bulletin
board services' liability for user's postings in Religious Technology
Center v. Netcom On-Line Communication Services, Inc.,\10\ website
operators who allowed users to post and download content argued that
they were acting more as content distributors than publishers.
Accordingly, even though they were not providing access to the
Internet, they argued that they were still a kind of conduit on the
Internet and should likewise enjoy a safe harbor. While this is a less
compelling argument, in my opinion, a safe harbor was nonetheless
included for service providers who stored content at users' direction
and did not participate in decisions to post the content. Given the far
lower speeds on Internet connections and smaller capacity of storage on
users' computers, there was not much concern that users would be able
to routinely post high quality digital images, much less audio or video
back then. Therefore, it may have seemed a safer compromise from the
artists' and content owners' perspective to allow a safe harbor even
for these online service providers who were not performing a critical
Internet access function. Nonetheless, the common carrier rationale
still did not apply, and so there was less of the quid pro quo that
justified the safe harbors for access providers.
---------------------------------------------------------------------------
\10\ 907 F.Supp. 1361 (N.D. CA 1995).
---------------------------------------------------------------------------
But the safe harbor for hosted materials was not a free pass to
allow flagrant copyright infringement on one's site just because a user
had posted it without the operator's participation. Instead, part and
parcel with the safe harbor was the notice and takedown system so that
copyright owners could let website operators know that infringing
material had been posted. As the responsible party and ultimate
controller of what could reside on the website, the operator was a
natural party for such notice. Further, with the incidence of
infringing posts assumed to be relatively low, this was not envisioned
to be a frequently used procedure.
Today, by contrast, we have a number of tools to post large content
files easily, whether we have rights to them or not.\11\ This has
resulted in a mind-boggling array of posts. Within these exist millions
of clearly infringing content items. Notice and takedown, as a somewhat
time-consuming task are not made for this kind of volume of
infringement.\12\ But the lesson we should learn from this problem is
not that copyright is too expansive or that we should simply roll back
notice and takedown to make service providers' jobs easier. Instead,
the lesson we should take is that we need to find a way to reduce the
amount of infringing posts. We do not live in a post-copyright world,
and such a world would not be beneficial to service providers. It is
easy to dismiss the importance of someone else's intellectual property,
but one's own is a different matter. Innovative Internet start-ups hold
intellectual property as core assets just as much as do creative
industries firms. Accordingly, a solution to the overwhelmed notice and
takedown system is in everyone's interest.
---------------------------------------------------------------------------
\11\ Note that the innovation that made YouTube famous was an easy
to use solution to this exact problem. Users could effortlessly post
relatively large video files that they could not before.
\12\ See Boyden, supra Note 4.
---------------------------------------------------------------------------
3. Proposed solutions
Radical solutions to the notice and takedown problem could include
revisiting the whole safe harbor construct and/or eliminating notice
and takedown altogether. However, those could have far-reaching and
unintended consequences. Instead, we should focus on solutions that
simply return some semblance of sanity to notice and takedown. I
propose two solutions.
A. Proposal 1: ``Notice and Stay-down''
The highest volume of notices seem to be for reposted works, i.e.,
ones that have already been taken down on notice, yet reappear within
hours often on the same site. Further, many of these do not even
purport to be transformative or noninfringing. They are not mash-ups,
remixes, covers, etc. They are simply the original work reposted
repeatedly by unauthorized persons. That the posters do not seem to
believe they have any real rights to the works seems supported by the
surprisingly low number of counter notices submitted (relative to the
enormous number of takedown notices).
My first proposal has two stages. In the first stage, service
providers should establish voluntary best practices to monitor for, and
immediately remove, reposted works. We know that Content ID and other
systems are reasonably effective at identifying copyright works
generally. They could be even more effective when used to identify
works that have been taken down under notice. The service provider
knows what the work is now--because it has taken it down--and so it can
add the work to the filter's catalog. Such a system could then automate
a ``notice and stay down'' regime. This would have benefits for all
parties as it would likely result in a dramatic downturn in infringing
postings and, concomitantly, in notices sent. The time and money
savings for all parties could allow them to focus more on the difficult
situations where arguably some transformative use has occurred and fair
use might apply.
The second stage would take place if service providers cannot agree
to or implement a meaningful private ordering notice and stay-down
system. Congress should then consider amending the DMCA to add an
affirmative duty for online service providers to monitor for, and
remove, reposted works that they had already received notice on. In
fact, there is already an analog to this in the DMCA requiring
termination of users' accounts that have been repeat infringers under
Sec. 512 (i)(1)(A). In other words, while we might allow more leeway
for first time infringers, and first posts of infringing works, repeats
should not require repeated notices from copyright owners. In its
strongest version, the proposal would also have Congress amend the DMCA
so that service providers who do not implement a system to remove
reposted works would be taken outside the safe harbor for any reposting
of already noticed works.
B. Proposal 2: Reassert or strengthen ``red flag''
provisions
The ``don't monitor'' advice and glamorization of a piracy culture
means that many websites are in fact turning a blind eye to extensive
infringement on their sites. Courts have grappled with whether the
common law concept of ``willful blindness'' as a kind of constructive
knowledge is consistent with, or abrogated by, the DMCA red flag
provisions.\13\ The Court of Appeals for the Second Circuit recently
found that the DMCA limited, but did not abrogate, the applicability of
willful blindness to online service providers.\14\ The district court
on remand failed to find willful blindness or actual knowledge even
where there was an extremely high volume of apparently infringing works
on the defendant's site (YouTube). Other courts have failed to find
actual knowledge or awareness of facts and circumstances indicating
infringing activity even in situations where significant infringement
was occurring.\15\
---------------------------------------------------------------------------
\13\ See Viacom Int'l Inc. v. YouTube, Inc., 679 F.3d 19 (2d Cir.
2012).
\14\ Id.
\15\ See, e.g., UMG Recordings, Inc. v. Shelter Capital Partners,
LLC, 667 F.3d 1022 (9th Cir. 2011).
---------------------------------------------------------------------------
My second proposal, then, is that Congress consider amending the
red flag provisions to codify a stronger version of willful blindness
than courts are currently using. Willful blindness could be defined to
include any institutionalized policy prohibiting monitoring of content
or consistent discouraging of employee monitoring or investigation of
content posts. Evidence could be internal memos, emails, or other
communications establishing a de facto ``do not look'' culture or
policy in the case where the service provider's site has already
significant takedown notices.
conclusion
The notice and takedown system is not working for anyone--except
possibly those who are posting flagrantly infringing works for their
own purposes. Start-up online service providers are hit particularly
hard as they cannot afford significant compliance staff. Similarly,
independent artists cannot begin to keep up with the volume of takedown
notices they would need to send to keep infringing versions of their
work off the Internet. Returning to the origins of the DMCA safe
harbors reminds us that a major initial justification was the common
carrier doctrine: if we wanted open access to the Internet, then we had
to immunize access providers from the bad actions of their subscribers.
But this perfectly good notion does not stretch to online service
providers who are not obligated to give open access to their sites, and
at any rate are not providing access to the Internet itself.
Accordingly, two solutions were recommended. First, notice and takedown
should mean notice and stay-down in which service providers must take
steps to limit the flagrant reposting of works already taken down under
notice. Second, the red flag provisions should be strengthened by
codifying a strong version of the willful blindness doctrine. Together,
these solutions should reduce the enormous volume of takedown notices,
while strengthening copyright enforcement. This could help reverse the
``post-copyright'' mentality permeating the innovation industry
ecosystem and help artists earn the money they deserve for their works.
The value of both our innovation and creative industries is too
important to allow them to continue in conflict over a system neither
of them support (in its current form). We can fix this, and we should.
__________
Mr. Coble. Thank you, Professor.
Professor Bridy?
TESTIMONY OF ANNEMARIE BRIDY, ALAN G. SHEPARD PROFESSOR OF LAW,
UNIVERSITY OF IDAHO COLLEGE OF LAW
Ms. Bridy. Mr. Chairman and Members of the Subcommittee,
thank you for the opportunity to appear before you today. I
appreciate the opportunity to address the effectiveness of
Section 512 of Title 17. I would like to make two points about
Section 512 that I believe are important to bear in mind as the
Committee contemplates the scope and shape of what Register
Pallante has called the Next Great Copyright Act.
My first point is that the balancing of interests struck in
Section 512 is both sound copyright policy and sound innovation
policy. Section 512 has three groups of beneficiaries: owners
of copyrights in digital content, users of copyrighted digital
content, and online intermediaries that act as conduits and
repositories for that content. Over the years, all three groups
have been well served by the nuanced enforcement framework
embodied in Section 512.
The second point I will make and one that I think may not
be shared by some in the room is that Section 512 has proven to
be resilient in the face of the Internet's evolving culture and
technology. No one doubts that the scale of copyright
infringement online is massive or that willful infringers
online are adept evaders of enforcement. But perfect copyright
enforcement online is a chimera. It is technically impossible
and economically infeasible.
I think what Section 512 facilitates is not perfect
enforcement but fair and workable enforcement. The notice and
takedown regime in Section 512(c) has scaled well for enforcing
copyrights in the voluminous content hosted by online service
providers. Corporate copyright owners and OSPs have cooperated
to automate the notice-and-takedown process to the greatest
extent possible, thereby lowering the significant costs
associated with enforcement for both groups.
For copyright owners who can't afford automated systems,
many of the larger online user-generated content platforms
provide fillable forms that can be electronically submitted. I
think it would be a good idea for this to be expanded beyond
the larger online UGC platforms. It is true that Section 512
has scaled less well for enforcing copyrights over peer-to-peer
networks. Statistics show recently, however, that usage of such
networks has been declining as legal download and streaming
services expand for both music and video.
Under the division of labor created in Section 512,
copyright owners are responsible for investigating and
identifying specific instances of infringement, and online
service providers are responsible for removing or disabling
access to infringing material when they know about it. The
framework imposes significant costs and responsibilities on
both parties, in recognition of the fact that online
enforcement must be collaborative if it is to be effective.
The legislative history of the DMCA frames the statute as a
means of ensuring the continued global growth of the Internet.
If growth of the Internet is a metric by which we can gauge the
success of Section 512, then Section 512 has been successful.
Fifteen years after the DMCA's enactment, there are over 2.4
billion Internet users worldwide, a growth rate of over 550
percent between 2000 and 2012.
As the Internet has grown and thrived, so too have the
copyright industries, which have successfully adapted their
business models to meet robust consumer demand for music and
films distributed online at reasonable prices in digital
formats.
According to the IFPI, global revenue from digital music
sales was $5.8 billion in 2012, which represented growth of 8
percent over the previous year. There were 4.3 billion paid
downloads, a 12 percent global increase.
If the music industry stumbled in its initial transition to
online distribution, it has since returned to a very secure
footing. Thanks in no small part to the workable balancing of
interests accomplished by Section 512, copyright owners, OSPs,
and the American public are all sharing in the fruits of the
Internet's cultural and commercial flourishing.
Thank you.
[The prepared statement of Ms. Bridy follows:]
__________
Mr. Coble. Thank you, Professor Bridy.
Mr. Doda?
Mr. Doda, I think your mic is not activated.
TESTIMONY OF PAUL F. DODA, GLOBAL LITIGATION COUNSEL, ELSEVIER
INC.
Mr. Doda. Thank you, Chairman Goodlatte, Chairman Coble,
Ranking Member Conyers, Ranking Member Nadler, and Members of
the Subcommittee. I appreciate this opportunity to address the
Committee on Elsevier's behalf.
Elsevier is a 130-year-old publisher of books and journals.
We also create technology-driven products that allow
researchers to leverage massive amounts of data to pursue
science and medical breakthroughs.
I have been a lawyer for 23 years, the past 7 at Elsevier.
During that time, I have become familiar with the challenges
that Elsevier faces addressing online infringements under the
DMCA. There are many challenges for a company like Elsevier.
With global content and a large portfolio of works to cover, we
can't possibly search for all of our content all over the
Internet. We focus on sites with the most Elsevier content.
The main challenges we face with these sites are a growing
volume despite having issued notices for years, the need to
repeatedly send notices for the same infringing works, and the
speed at which infringing copies are re-uploaded. It has truly
become impossible for Elsevier to keep pace.
Elsevier issued over 240,000 takedown notices for book
infringements in 2013, with zero counter-notifications. That is
because we take our DMCA responsibilities seriously. We take
three steps to verify that entire copies of our books are being
offered before issuing notices, but there is a cost for playing
by the rules. It makes it more difficult to keep pace with the
infringements.
Here are some examples from 2013. The main sites that
comply with takedowns continue to have 500 to 1,000
infringements monthly without any significant drop-off. Many of
these infringements are for the same books re-uploaded to the
same sites. On a site called 4shared, we found a book re-
uploaded 571 times, and another book 384 times. On a site
called Uploaded, we found a book re-uploaded 231 times and
another book 112 times. It takes, on average, seven to 9 days
to have books taken down. During that time, the books are
exposed to millions of users for download.
I have one final example beyond book piracy. It shows the
damaging ripple effect that can occur from piracy. Elsevier
publishes confidential exams used to prepare nursing students
for national licensing requirements. In some instances, the
exams have been stolen from schools and offered on the
Internet. We have issued takedown notices to certain sites with
little effect. We have not been able to prevent the stolen
exams from being sold by the same sellers because takedowns
have not been uniformly honored and repeat infringer policies
have not been adequately enforced.
When stolen nursing exams are shared freely, it hurts not
only Elsevier; it undermines the academic process itself. It
also affects the quality of nurses trusted with patient care.
We think these examples show that the system is out of
balance and breaking down. But the question, of course, is how
can we make improvements to address these challenges without
going too far, without stifling creativity and freedom of
expression. We think the answer is in reasonable technical
measures like filtering, which is not a new idea but one that
we think should be revisited urgently by all good-faith
stakeholders.
The most successful filtering solutions have resulted from
collaboration between rights holders and sites with significant
user-uploaded content. In the book publishing industry, we
think the website Scribd is a good example of how targeted
filtering can be applied in good faith and work in a fair and
effective manner. Scribd uses fingerprinting that involves the
creation of a digital reference database containing unique
characteristics of copyrighted books. User uploads are checked
for matches against the reference database. The fingerprint
system uses best practices that we endorse. It only catches
matches, and users are promptly notified so that they can
dispute the rejection of their uploaded content.
But while Scribd is a good example of what works, we need
more examples of collaboration in the publishing industry. That
is why we would urge Congress to help bring together all
relevant stakeholders to work on standard measures to reduce
online infringement. Without that intervention and oversight,
there are not sufficient incentives for the parties to come
together in a timely way.
Elsevier remains concerned, however, that notwithstanding a
government-mandated process to create voluntary measures, some
sites that need them the most will drag their feet. If these
sites refuse to consider reasonable measures that peer
companies are adopting, it may be necessary for Congress and
the courts to step in to provide remedies to copyright owners.
Today, Elsevier sends hundreds of notices to the same sites
for the same books year after year. It does so in good faith in
compliance with the DMCA as it exists today. If these sites
will not meet us halfway, in fairness, we should not be left
without a remedy.
Thank you for the opportunity to testify today.
[The prepared statement of Mr. Doda follows:]
__________
Mr. Coble. Thank you, Mr. Doda.
Ms. Oyama?
TESTIMONY OF KATHERINE OYAMA,
SR. COPYRIGHT POLICY COUNSEL, GOOGLE INC.
Ms. Oyama. Thank you, Chairman Coble, Ranking Member
Nadler, Chairman Goodlatte, Ranking Member Conyers, for
inviting me to testify today. It has never been a more exciting
time for creativity on the Internet. With the Internet as a
global distribution platform, more musicians, filmmakers and
artists are creating more content than ever before. And with
that in mind, I just want to emphasize two points today.
First, the technology sector has been the engine of U.S.
economic growth and job creation. Online services have created
new markets and generate billions of dollars for the content
industry, and this has only been made possible because of the
legal foundation that is provided by the DMCA.
And second, Google's experience shows that the DMCA's
notice and takedown system of shared responsibilities strikes
the right balance in promoting innovation and protecting
creators' rights online.
The DMCA's key principle, that Internet platforms are not
held liable for every comment, post or tweet by their users, is
an essential feature on which every Internet company today
relies. Before the DMCA became law in 1998, companies like
Yahoo, Google, eBay, they faced the prospect of crushing
statutory damages for providing their services. And today on
YouTube, more than 1 million creators are earning revenue from
their videos. And in the last several years, Google has sent
more than $1 billion to the music industry alone, including new
revenue streams for user-generated content. Companies like
Netflix who use Spotify and Pandora have transformed the
ability of creators to grow new audiences, and this is just the
beginning. With more than 5 billion users coming online in the
next decade, the market for digital entertainment is expanding
rapidly.
The foresight Congress showed in crafting the DMCA has
helped enable this economic success. The notice and takedown
process creates legal certainty to incentivize venture capital
investment and new services, and it protects rights holders.
Only copyright owners know what material they own and where
they want their works to appear, and when they send takedown
notices, online platforms disable access to infringing content
in response. This cooperative process allows for innovation and
encourages investment, and hugely popular platforms like
Facebook, Twitter, Pinterest would not be possible without
these.
As for Google, we take our responsibilities under the DMCA
very seriously. We have made our takedown process faster and
easier for rights holders to use than any other online
platform. And despite a dramatic increase in the volume of DMCA
takedown notices that we receive, our average turnaround time
for removing content from search results has actually decreased
to less than 6 hours. And even now, the notices that we receive
cover far less than 1 percent of all of the content that we
index.
There are, unfortunately, abuses of the system, and we work
hard to detect and reject them. Attempts to use the DMCA to
censor criticism, attack a business competitor, or gain
political advantage are relatively rare but are very important
to guard against.
The legal certainty provided by the DMCA has allowed
companies like Google to develop innovative systems that
generate new revenue for rights holders. For example, YouTube's
Content ID system enables rights holders to choose in advance
whether they want to track, monetize, or remove user-uploaded
videos that match their content. All of the major record labels
and movie studios use Content ID, and most of our partners are
choosing to monetize their content rather than having it all
come down.
We are also devising new ways to highlight legal content in
order to make it easier to find. When you Google a TV show like
``Game of Thrones,'' or a film like ``12 Years a Slave,'' we
provide a prominent link on the right-hand panel for you to buy
that show or movie instantly through services like Amazon and
Google Play. If you search for a film playing in theaters, the
first result you will likely see is going to include local show
times, a link to purchase tickets, and other things like
trailers.
We recognize that despite all these steps, piracy remains a
serious problem. The most effective way to combat rogue sites
is to attack their sources of revenue. For our part, we have
expelled over 73,000 rogue sites from our advertising services
over the past 2 years, mostly based on our own detection
efforts.
In conclusion, I urge the Committee to preserve the current
DMCA framework to ensure that the U.S. Internet industry
remains at the forefront of the global economy, and we should
incorporate DMCA-like safe harbors in our trade agreements to
encourage the innovation and growth in other countries that the
DMCA has enabled in the United States.
Thank you.
[The prepared statement of Ms. Oyama follows:]
__________
Mr. Coble. Thank you, Ms. Oyama.
Ms. Schneider?
TESTIMONY OF MARIA SCHNEIDER, GRAMMY AWARD WINNING COMPOSER/
CONDUCTOR/PRODUCER, MEMBER OF THE BOARD OF GOVERNORS, NEW YORK
CHAPTER OF THE RECORDING ACADEMY
Ms. Schneider. Chairman Goodlatte, Chairman Coble, Ranking
Members Conyers and Nadler, and Members of the Subcommittee, my
name is Maria Schneider. I am a composer, bandleader, and
conductor based in New York City, a three-time Grammy-winner in
the jazz and classical genres, and a board member of the
Recording Academy's New York Chapter. The Recording Academy is
the trade association representing individual music creators. I
am deeply honored to speak with you this morning about my
personal experiences with the notice and takedown provisions of
the DMCA.
I come here as an independent musician in the prime of my
career, grateful for a steadily growing fan base and critical
acclaim. But my livelihood is threatened by illegal
distribution of my work, and I cannot rein it in.
The DMCA creates an upside-down world in which people can
illegally upload my music in a matter of seconds, but I must
spend countless hours trying to take it down, mostly
unsuccessfully.
It as a world where the burden is not on those breaking the
law, but on those trying to enforce their rights. It is a world
with no consequences for big data businesses that profit from
unauthorized content, but with real-world financial harm for
creators.
Like most artists, I love technology. I became a pioneer in
online distribution when my release ``Concert In the Garden''
became the first Internet-only album to win a Grammy, and it
also heralded the age of fan funding.
Yet today, I struggle against an endless number of Internet
sites offering my music illegally. After I released my most
recent album, I found it available on numerous file-sharing
sites. I am an independent artist, and I put $200,000 of my own
savings on the line and years of work for this release, so you
can imagine my devastation.
Taking my music down from these sites is a frustrating and
depressing process. The DMCA makes it my responsibility to
police the entire Internet on a daily basis. As fast as I take
my music down, it reappears again on the same site, like an
endless whack-a-mole game.
The system is in desperate need of a fix, and I would like
to propose three commonsense solutions.
First, creators of content should be able to prevent
unauthorized uploading before infringement occurs. We know it
is technologically possible for companies to block unauthorized
works, as YouTube already does this through its Content ID
program. But every artist should be entitled to this service,
to register their music once and for all. Just like the
successful ``do not call'' list, creators should be able to say
``do not upload.'' If filtering technology can be used to
monetize content, it can also be used to protect it.
Second, the takedown procedure should be more balanced.
Most of my fans who upload my music probably have no intention
of harming me. But to upload my music, one simply has to click
a box. On the other end of the transaction, I must jump through
a series of hoops, preparing a notice for each site, certifying
documents under penalty of perjury, and spending hours learning
the sites' unique rules for serving the notice. Creators should
have a more streamlined, consistent process to take content
down.
Internet services should be required to put consumers
through a series of educational steps to help them understand
what content can be lawfully uploaded. If consumers had to go
through a more robust process to upload others' content, the
system would be more efficient for everyone.
Third, takedown should mean stay-down. Once a service has
been notified of an infringement, there is simply no excuse for
the same work to show up again and again on the same site.
Mr. Chairman, my fellow creators and I have an important
job. We create art, the fabric of life for our citizens. It is
our greatest ambassador to the world. Our Founding Fathers gave
authors the right to copy and distribute their own work in
order to incentivize creation. It is such a powerful concept
that it is in our Constitution.
But I must tell you that the current environment does not
fulfill that constitutional mandate. The majority of my time is
now spent simply trying to protect my work online. Only a small
fraction of my time is now available for the creation of music.
So instead of the Copyright Act providing an incentive to
create, it provides a disincentive. The simple changes I have
outlined would make great strides in fixing a broken system.
Mr. Chairman, our Founding Fathers showed great wisdom in
seeking to protect creators. I have hope that you and your
colleagues will also show great wisdom in ensuring that this
protection will soon apply to the digital age.
Thank you.
[The prepared statement of Ms. Schneider follows:]
__________
Mr. Coble. Thank you, Ms. Schneider.
Mr. Sieminski?
TESTIMONY OF PAUL SIEMINSKI, GENERAL COUNSEL, AUTOMATTIC INC.
Mr. Sieminski. Thank you, Mr. Chairman, Members of the
Committee. I am General Counsel of Automattic and appreciate
the opportunity to testify to you today about our experiences
with the DMCA notice and takedown process. In particular, I
would like to talk about ways that we have seen the DMCA
process misused and how this misuse can harm companies like us,
our users, and especially freedom of expression on the
Internet.
Automattic is a small company that has a big impact on the
Internet. We operate the popular WordPress.com publishing
platform where anyone can create and publish a website for free
in minutes. WordPress powers some of the largest media
properties in the world, as well as millions of small business
websites, law firm homepages, and family blogs that are used to
share updates with friends and family. We host more than 48
million websites that receive over 13 billion page views a
month, and we reach this huge audience with only 232 employees
and one lawyer. That is me.
The DMCA's safe harbor provisions provide important legal
protections to us as a small and growing company, and its
systems work reasonably well overall. However, we have recently
seen a troubling rise in the misuse of the DMCA takedown
process.
The most egregious cases we have seen are notices from
those who fraudulently misrepresent that they own a copyright
at all in order to strike content from the Internet that they
simply don't agree with. Other examples include DMCA notices
sent by companies to remove articles that are critical of their
products or copyright holders who send overly broad blanket
DMCA notices to take down content even though it is being
legally and fairly used.
At Automattic, we do our best to review and weed out
abusive DMCA notices, and given our limited manpower, these
efforts, on top of the time we spend processing our volume of
legitimate notices, take resources away from other important
pieces of our business. More importantly, DMCA abuse suppresses
legitimate free expression and erodes trust in our system of
copyright enforcement overall.
We certainly appreciate the frustrations that rights
holders voice about the DMCA system. Piracy is a real issue on
the Internet, but we see abuses by those who submit takedown
notices as well.
The DMCA gives copyright holders a powerful and very easy-
to-use weapon, the unilateral right to issue a takedown notice
that a website operator like us must honor or risk legal
liability. Under the DMCA safe harbors, the safe thing for an
Internet service provider to do is to comply with the notices
it receives with no questions asked. Unfortunately, this puts
the full burden of defending content on users of Internet
platforms who themselves are often small, independent artists,
musicians, and amateur publishers. Very often, these
individuals don't have the resources or the sophistication to
fight back.
To make matters worse, unlike the large statutory damages
that exist for copyright infringement, there are no real
deterrents under the law for misusing the DMCA. So most
instances of abuse result in successful takedown of targeted
content and on repercussions to the abuser.
The only counter-measure available is an action for
misrepresentation under Section 512(f) of the DMCA. We recently
joined with some of our users who were victimized by abuses in
filing two such lawsuits. These suits were expensive to bring,
time-consuming to prosecute, and we expect very little
compensation in return. Still, they are the only resource
available under the current statute, and the only deterrent
that we saw to prevent future abuse.
In closing, the DMCA has succeeded in its goal of fostering
a vibrant social Internet on a scale that no one could have
imagined. Today you can create a Facebook page, Twitter
account, or your very own WordPress website for free. These
innovative tools allow anyone to publish a cooking blog, build
a business as an independent publisher, or even organize a
democratic, grassroots overthrow of an oppressive regime in the
Middle East.
The Internet's communication and sharing tools are used by
literally billions of people, and all of them grew up under the
DMCA. For the most part, the statute has worked to encourage
the growth of innovative platforms and businesses like ours,
but we should be mindful of the ways that the law doesn't work
for everyone and can be abused to suppress the freedom of
expression that it has been so successful in fostering.
Automattic is very focused on trying to correct the issues
we see in our own corner of the Internet, and I would urge the
Committee to keep companies like us and our community of
creators in mind as we think about the laws governing copyright
on the modern Internet.
I thank you again for the opportunity to talk to you today
and I look forward to your questions.
[The prepared statement of Mr. Sieminski follows:]
__________
Mr. Coble. I thank all of the witnesses for your
contribution today. I commend you that you did not abuse the 5-
minute rule, and for that we are appreciative. We will try not
to abuse it on our end, as well.
I will start with Professor O'Connor. Professor, your
testimony suggests several changes to Title 17 to modernize its
impact. To the extent that changes are warranted, should such
changes be written in detail or left to broad parameters in
order to account for the future technological changes?
Mr. O'Connor. Yes, thank you for your question, Chairman
Coble. I am always a little nervous about getting too detailed
in a statute because, as you mentioned, technology will change.
That is why in the first stage of my first proposal I suggested
again that we have a voluntary stakeholder process to try to
come up with it, and only if that doesn't happen to then move
on to some changes. I know that the USPTO and the Copyright
Office are both trying to work through some of these voluntary
arrangements. It could very well be that Congress could do a
change to the statute that would then authorize the Copyright
Office to then do some regulations around it.
Mr. Coble. I thank you, Professor.
Mr. Doda, should there be a numerical threshold of notices
or other measures above which ISPs are required to undertake
more action related to online infringement and below which
ISPs' obligations should be more limited?
Mr. Doda. Thank you, Chairman Coble.
Mr. Coble. Pull that mic a little closer to you, Mr. Doda,
if you will.
Mr. Doda. We do not think there should be limits on the
number of notices so long as, of course, the notices are issued
in good faith and there is sufficient vetting that the copies
are infringing. We would not support limits on the number of
notices.
Mr. Coble. I thank you, sir.
Mr. Sieminski, do you think that the provisions currently
in Section 512(f), which create liability for damages, costs
and attorney fees in the case of misrepresentations, is notice
to adequately protect against the likelihood of abusive
takedown notifications? How have courts interpreted this
provision?
Mr. Sieminski. Thank you for the question, Mr. Chairman.
And I think the answer is we don't really know, and I think the
reason is the volume of cases that have been brought under
512(f) have been so low. The reason for that is there is just a
great imbalance of power between, I think, those that are
sending the notices and those that are receiving them. By that
I mean the companies that are sending takedown notices are
often big corporations. The people on the receiving end are
often individual users. So in order to bring a case, we have
only seen a few of them, and I think we, as I mentioned in my
testimony, brought a couple recently alongside our users.
Without, I think, our intervention, those cases would not have
been brought.
So I think the number of cases that we have seen and the
amount of case law we have on 512(f) is just very small, so it
is very hard to say.
Mr. Coble. Thank you, sir.
Professor Bridy, should Congress create incentives for
voluntary systems to be created to address infringement? And if
so, what types of incentives would be most appropriate?
Ms. Bridy. Thank you, Chairman. I think that the market has
created sufficient incentives as evidenced by the fact that we
have seen some really meaningful voluntary agreements entered
into recently. I think also, at the behest of the Office of
Intellectual Property Enforcement Coordinator, which has taken
a role in trying to encourage these voluntary best practices
agreements. One, as I think you may have mentioned, is the
Copyright Alert System between copyright owners and ISPs,
Internet access providers. We have also seen some voluntary
best practices agreements with ad networks, as Ms. Oyama
discussed. (Google has entered into that voluntary best
practices agreement.) And also payment processors, online
pharmacies.
So I think that the industries have been working together
cooperatively without statutory incentives to do so. So I am
not sure they would be necessary. Thank you.
Mr. Coble. Thank you, Professor.
Ms. Schneider, are there other areas besides technical
measures that Congress could create incentives to reduce
infringement?
Ms. Schneider. I think that all I have come up with, my
ideas, are the three points that I have put forth here, and I
think those kind of measures, maybe lawyers are better
equipped--we have five of them here--to come up with that. I
don't know.
Mr. Coble. Does anybody else want to weigh in on that?
[No response.]
Mr. Coble. If so, I see the red light has been illuminated,
so I will recognize the gentleman from New York, Mr. Nadler.
Mr. Nadler. Thank you, Mr. Chairman.
Ms. Oyama, we have heard that one of the biggest problems,
maybe the biggest, certainly from the content provider's point
of view, is the whack-a-mole problem. You serve notice on an
infringing thing, it gets taken down, it reappears instantly,
and this can go on over and over and over again, and you never
catch up.
Professor O'Connor suggested a notice and stay-down
procedure. Would you comment on that proposal as a solution or
a possible solution to the whack-a-mole problem?
Ms. Oyama. Yes, thank you. I think all service providers
are also very sensitive to this issue because the service
providers haven't done anything wrong, and we are also working
extremely hard to rid our systems of any of this type of bad
content. And I understand why the notion of a stay-down notice
and stay-down might be attractive.
I think you really have to look across the products. I
think Congress got it right. When they created the DMCA, they
did not impose these types of pre-filtering and pre-monitoring
obligations on service providers. So companies like Facebook,
Twitter, Google, we can allow our users to post content in real
time without having to filter every comment and tweet.
I also think we have to think about the scale of the entire
Internet. So there are something like 60 trillion web
addresses, and almost anything on the Internet can be
copyrighted.
Mr. Nadler. Let me focus in a bit more. Ms. Schneider
writes a song. That song is improperly posted. She sends you a
takedown notice. You take it down. Somebody else immediately
re-posts the exact same song. Is there the technology so that,
having received a takedown notice on that song or that nursing
exam or whatever and taken it down, that the moment someone re-
posts exactly the same thing it can be automatically taken down
again? That is what I take it you mean by ``stay-down.''
Ms. Oyama. The notice and takedown system is the best
system for that because the copyright owners themselves are the
ones--they know what they own, not the service providers. They
know where it is authorized and where it is not.
Mr. Nadler. They have notified you, somebody has notified
you that this song is unauthorized. You have taken it down. The
exact same song gets re-posted. You don't need a second notice.
Is the technology available, and is it easy to use or terribly
hard to use, so that you could say that the moment something
that has already been taken down gets posted in exactly the
same thing, it automatically doesn't go up or it gets taken
down automatically without the necessity of a second takedown
notice? Is that practical?
Ms. Oyama. It depends on the platform. It is not practical
as a technical mandate on all service providers because if
somebody says this is my song and it can only be on two sites,
everything else has to stay down, that does not account for
fair uses in U.S. law. Members have content of news clips that
go up on their websites. There is a lot of different uses for
content, and the intermediaries in the middle don't actually
know who are the rights owners and where is the content allowed
to be.
So this notice of the cooperative approach, where we get a
notice and it comes out as the right way, I think there have
been some great models in the private sector. On YouTube,
because we have Content ID, because these are hosted platforms,
we have copies of all of the files that are uploaded, we have
copies of reference files, businesses can build on top of that
and build new systems.
In our hosted platforms, there is a way rights holders in
advance can give us their files and tell us before anything
goes up what they want to have happen.
Mr. Nadler. Okay. Thank you. Thank you very much.
Professor O'Connor, Congress also did allow for red-flag
knowledge triggering obligations. So at what point should
repeat notices trigger some obligation on providers' part? And
in answering that question also, if you feel it is advisable,
you might want to comment on Ms. Oyama's answer to my question
about your proposal.
Mr. O'Connor. Thank you, thank you. The issue on the red
flags is the way the courts have been addressing it is to use
this doctrine of willful blindness, but willful blindness is
not in the statute. So we are seeing quite a division among the
courts. So I think that what would be very helpful is for
Congress to decide on policy, on what willful blindness should
mean, and then put it into the statute.
I would also then respond respectfully to Google about the
situation with identifying content with my own anecdote, which
is that I had videos where I was demonstrating copyright, about
how songwriters should think about copyright, using my own
guitar, although not playing bluegrass but playing ZZ Top
songs. I had posted it on YouTube, and very quickly it was
taken down.
I was impressed. First I thought that it was because of my
rendition of ZZ Top's La Grange the electronic algorithm picked
it up, but I think it was because I also played a little
recorded snippet.
So again, the important thing is that those kinds of fair
use transformative uses, those are a different category. I
think the technology--again, I am not at Google, so I certainly
can't speak for them. But I believe, from my experience, the
technology is strong enough to recognize that here is the
entire song. So again, if it has been already noticed and taken
down, then that could stay down.
Mr. Nadler. Thank you.
Mr. Coble. The gentleman's time has expired.
Mr. Goodlatte. Mr. Chairman?
Mr. Coble. Chairman Goodlatte?
Mr. Goodlatte. Thank you, Mr. Chairman, and I want to thank
everyone on this panel. It is an excellent panel of witnesses
and excellent presentation of a number of ideas.
About 16 or 17 years ago, then-chairman of the Judiciary
Committee, Henry Hyde, asked a relatively junior Member of the
Committee to sit in a very hot hearing room--it is no longer a
hearing room; I think staff has to use that room now--with
about 30 representatives of various interests on this issue,
content community representatives and Internet service provider
and technology community representatives, and some with a foot
in both camps. I was that junior member, and I had literally no
idea what I was getting into.
But my job was not to figure out how to solve this problem
of getting great content onto the Internet in a digital format
but to keep everyone in that room until we succeeded. All of
these representatives succeeded in coming up with the notice
and takedown provisions and the safe harbor, which were
incorporated into the DMCA.
So now, nearly two decades later, how does one measure the
success of Section 512? Is it by, as some might suggest, the
number of notices sent, or is it, as some others might suggest,
by the amount of infringing content that not only is taken down
but stays down, or by some other measure?
Let me start with you, Professor O'Connor.
Mr. O'Connor. Thank you, Chairman Goodlatte. And again, I
want to make very clear that we all very much appreciate the
work that was done to put Section 512 in place in the first
place. It has on many counts for many years been very
successful.
Mr. Goodlatte. I have a very limited amount of time, so can
you get to the question? What is the best measure of success?
Mr. O'Connor. Okay. I think the best measure of success is
whether it is a balance between the parties, whether you have
artists feeling like they can, in fact, get their material
taken down and it stays down and that they don't have to engage
in the whack-a-mole.
Mr. Goodlatte. Professor Bridy?
Ms. Bridy. Thank you. I think the best measure of success
is in terms of empirical numbers about the growth of the
Internet and the growth of the industries that distribute
content over the Internet. I think those numbers are good news
on both sides.
Mr. Goodlatte. Ms. Oyama, I want to come at the issue that
the gentleman from New York was asking about but from a
different perspective. Should ISPs be required to respond
differently to a takedown notice when it is the 50th or the
50,000th notice of the same content?
Ms. Oyama. I think generally you want to have a consistent
set of obligations. So we have YouTube. We have over 100 hours
of content that is uploaded in an hour, a vast amount of
content. We need to know each time whether the use is
appropriate or not. So just looking at the specific quantity
wouldn't be enough.
Mr. Goodlatte. Mr. Doda?
Mr. Doda. Certainly in some circumstances. I think the key
is that one size does not fit all, and I think my written
statement and Google's written statement share that sentiment.
Where sufficient matching can occur, I think it is appropriate
for stay-down. So Google provides, as I understand it,
flexibility through the Content ID system, that when sufficient
matches occur, they can either be monetized or the rights
holder can direct that they be taken down. So I think it is a
question of collaboration and coordination in order to achieve
that goal.
Mr. Goodlatte. All right. And the last question I want to
ask I will let all of you answer, and that is on this whole
issue of whether appropriate penalties exist for those who
abuse the notice and takedown system. So I will start with you,
Mr. Sieminski. Do you think appropriate penalties exist? And if
not, what should the penalties be?
Mr. Sieminski. I would say, from our standpoint, I would
say no, just because of the volume of these abusive notices
that we are seeing and really just the fact that----
Mr. Goodlatte. Do you have a solution? Because I am down to
a minute, and I have five more people to answer.
Mr. Sieminski. No. I mean, I think we have statutory
damages for copyright infringement. We should have----
Mr. Goodlatte. Something like that.
Ms. Schneider?
Ms. Schneider. I think that if the proper things are in
place to keep improper uploading, once it is up and I say it is
down and it goes down, we don't have to worry about punishing
people because there are stops to bad Internet behavior.
Mr. Goodlatte. But you would say there are not adequate
penalties now?
Ms. Schneider. Absolutely not, because----*
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*The witness inserts the following text to complete her response:
. . . abuse of the current notice and takedown system is
very rare and the issue is used as a distraction from the
real issue of rampant online infringement. Congress should
focus its efforts in this area of the law on making the
notice and takedown process meaningful and effective for
creators and copyrights owners.
Mr. Goodlatte. Ms. Oyama?
Ms. Oyama. I think we want to incentivize transparency. We
have Google's copyright transparency report by showing actually
which sites are targeted and who is sending them. That has
helped, I think, everybody in the system figure out who are the
best vendors here, how does automation help, and then who are
the bad actors. News reporters have looked at this, as well.
That constantly improves the system to make it more efficient
and more accurate.
Mr. Goodlatte. Mr. Doda?
Mr. Doda. First I think that it has to be placed into
context. The number of abuses and mistaken notices are
exceedingly, exceedingly rare.
Second, I think the statute itself, as I understand it
through the counter-notification process, already provides that
if a response to the counter-notice is not made, that in fact
the content can be put back up.
In terms of 512(f), we are certainly in support of a level
playing field in terms of abuses being addressed, whether it is
in the nature of an abuse of a notice or an abuse of a counter-
notice.
Mr. Goodlatte. Mr. Chairman, I know my time has expired,
but if we could allow Professor Bridy and Professor O'Connor, I
would like to hear them.
Mr. Coble. Without objection.
Ms. Bridy. I think the remedies that currently exist are
not adequate, and I think statutory damages or some enhanced
measure of damages might be appropriate.
Mr. O'Connor. I think that they are adequate now for the
abusive notices, as we have seen in some of these cases where
services have denied actually taking down things.
Mr. Goodlatte. Thank you very much.
Thank you, Mr. Chairman.
Mr. Coble. The gentleman's time has expired.
The distinguished gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman.
I congratulate all of the witnesses on their testimony. It
has been very important.
But since I don't question Grammy winners too often, I
would like to ask Ms. Schneider and attorney Doda about 512
that places primary burden of finding online infringement on
rights holders, and because of the rapid increase and
availability of infringing material we have gone through some
changes, and I noticed that we got two recommendations from
Professor O'Connor, and then we had two more recommendations
from Professor Bridy, and then we got three recommendations
from Ms. Schneider.
What do you think of these? How do we ensure, especially
for the smaller artists and musicians and businesses? Because
those are the ones I am mostly concerned with, because the big
corporations are going to usually take care of themselves. But
give me any views that you have on this kind of an approach,
and then I will open it up for everyone else.
Ms. Schneider. I would like to share with you what I
encounter on the Internet when I find an abuse.
Mr. Conyers. Please do.
Ms. Schneider. This is what it takes and what typically you
see when you upload material. [Witness holds up poster.]
Now, you probably can't read it, and actually you can
barely read it when you are on a computer either. It has a
little thing you can click talking about Terms of Use or
something. But basically, it says nothing about accountability
whatsoever.
Now, when I find the abuse, this is what I am given.
[Witness holds up poster.]
It is in larger print from the same site. I have not
enlarged the print. This is telling me all the hoops I must
jump through in order to take it down.
Mr. Conyers. Quite a few?
Ms. Schneider. Yes, I will say so. It is pretty
frustrating.
Now, I will say, I want to congratulate YouTube because the
takedown procedure is such a relief now. It is just so much
better, but there is one issue. I took down something the other
day, and now this is what the link sends to you. [Witness holds
up poster.]
Can you read it? It says, ``This video is no longer
available due to a copyright claim by Maria Schneider,'' and
then there is a sad face. Now, I find that that is designed to
turn animosity toward me. That is, you know, when you put
something up on YouTube, all you have to do is put a user name.
I don't know who the person is. And now suddenly I have been
exposed as the meanie. I think this should absolutely be
changed. But otherwise, I like their takedown procedure. It is
much better. I think they need work when people upload. It
needs to be very robust.
Mr. Conyers. Attorney Doda? Thank you.
Mr. Doda. Thank you, Mr. Conyers. We accept that the onus
is on the rights holder at the outset. I think one way to
reconcile the relative burdens when you are dealing with a
large corporation with resources or an individual creator
obviously diverted from their creative endeavors if they have
too much of a burden is, again, through the filtering process,
and I would endorse what Ms. Schneider suggested, which is a
contribution appropriately verifying that she owns a work, a
contribution to a referential database, for example.
I think another factor would be if a notice is sent and
there are no counter-notices or objections and it is deemed
valid, that her work should stay down. In terms of the
difficulties that individuals have in navigating the notice
requirements and the shame, if you will, I think those types of
issues are properly addressed in a process like the PTO, as I
understand, is undertaking to discuss the nuts and bolts, if
you will, of the takedown system and improvements that can be
made.
Mr. Conyers. Well, do you think, in closing, that the
smaller artists, the non-Grammy winners, the musicians and
businesses, aren't they even in a more restricted position than
other more successful people in the field, Professor O'Connor?
Mr. O'Connor. Yes, I think they are. If you are a smaller
artist, you are a small web startup, you don't have the
compliance staff to try to get in the middle of the notice and
takedown ping-pong match. That is why I do think that if we
could have tools made available at reasonable cost to help
them, again to stay-down the really infringing stuff, it would
take down the volume and they wouldn't have to have a
compliance staff of that magnitude.
Mr. Conyers. That is where I am going to put my emphasis,
out of all of the things that I have heard in this hearing, and
I thank all of the witnesses.
I thank the Chairman.
Mr. Coble. Thank you, Mr. Conyers. Your time has expired.
The gentleman from Ohio, Mr. Chabot, is recognized for 5
minutes.
Mr. Chabot. Thank you very much, Mr. Chairman. I thank you
for holding this hearing. I think it has been very good so far,
and I want to applaud, first of all, the efforts of Google and
other online service providers, what they have done to address
the copyright infringement by voluntarily working with content
providers. The development of the content idea in similar
systems is a testament to a free-market solution, protecting
the interests of copyright owners, certainly not perfect, and
businesses alike.
This is a step in the right direction, but there is
obviously still a lot more to be done, as we have heard here
this morning. Only a collaborative effort between the content
service providers, payment processors, and advertisers will
ensure the development of a more finely-tuned technical system.
It is my belief that the best solutions to this problem will be
developed not by the government but rather by free-market
collaboration.
Clearly, copyright infringement takes an economic toll on
both content and service providers alike. For example, Ms.
Oyama, you mentioned that YouTube could never even have
launched as a startup back in 2005 if it had been required to
implement a Content ID system. In what ways and methods has
this negatively impacted your businesses and other startup-type
companies, and how has copyright infringement stunted growth
and development for other online startups? And finally, what
collaborations do you hope to see as you move toward a
technological solution in addressing copyright infringement?
Ms. Oyama. Thank you. It is something that all providers
face, as well as a challenge. It is something at Google we
spend tens of millions of dollars investing systems to root out
infringers and eject them from our services. But I think the
overall picture is extremely positive, and the DMCA has
provided a foundation of legal certainty that has allowed
online services to thrive, and then it has also created an
incentive to innovate, and we have a lot of mutual business
incentives.
So today on YouTube, we have licenses with all the major
labels and all of the studios, and we have worked together to
build a system of Content ID where rights holders now, when a
user uploads content, rights holders can decide what to do. So
they can remove it or they can monetize it. Actually, more
often than not, the majority will actually now choose to leave
the content up and share in the revenue. So they get the
majority of the revenue as the rights holder, and then the user
gets to keep their content up, and the platforms are also doing
well and able to share this.
So I think incentivizing those kind of business
partnerships and collaborations so that everyone can kind of
grow this pie together and get more content out there with
users is the right way to go.
Mr. Chabot. Let me ask you another question. You had
mentioned that you had identified and gotten rid of 73,000
rogue sites. Over what time period was that again?
Ms. Oyama. Those were in the last 2 years, ejected from our
advertising programs.
Mr. Chabot. The last 2 years? How many of those would you
estimate were outside the U.S., originated outside the U.S.
versus in the U.S.?
Ms. Oyama. A large, large number are internationally based.
Mr. Chabot. Okay, so outside the U.S.
Ms. Oyama. It's a mixture.
Mr. Chabot. The vast majority would you say?
Ms. Oyama. I would have to go back and check on the
percentage.
Mr. Chabot. Okay. If you wouldn't mind at some point, I
would be interested in seeing that.
Ms. Oyama. Sure.
Mr. Chabot. Ms. Schneider, let me ask you, if I can, I
understand and sympathize very much with what you are saying. I
think there are a lot of other people out there, maybe college
students, maybe younger people, and older people as well, who
sort of look like a lot of people in your position as being,
well, they are really wealthy and they ride around in limos,
and I am just a poor college student and I am really not
hurting anybody, and this may be an opportunity for you--and
you have, I think, quite eloquently thus far, but is there any
message that you would like to say on the other hand, that
there is another side to this?
Ms. Schneider. You mean about the young college student?
First of all, I am not driving a limo, you know. I am still
$100,000 in debt, and that three-time Grammy-winning album that
I made that should have long paid for itself if it wasn't being
pirated all over the Internet. And I do talk to young students
all the time when I teach in business conferences at colleges.
They ask how can I have what you have, and a lot of the
conclusions that young musicians are coming to now is what is
hurting us is that we are so diluted by being splashed all over
the Internet.
So we are slowly, as a community, coming to the conclusion
that all this exposure is not coming to us in money. What it is
really doing is diluting us, and once somebody sees us all over
YouTube in a dozen different performances, they aren't coming
to our website and buying the record, and this is what people
are finding, and they are hurting. Young people are really,
really scared. I am telling you, I hear from them all the time.
They ask me what can I do, and you know what I say? I say get
educated, start advocating, and write to your congressman.
Mr. Chabot. Thank you very much.
I yield back.
Mr. Coble. I thank the gentleman, the gentleman from Ohio.
The gentle lady from California, Ms. Chu.
Ms. Chu. Thank you, Mr. Chair. Before I begin my
questioning, I would like to submit two items into the record.
First is the op-ed that was co-authored by myself and Congress
Member Marino, a member of the Creative Rights Caucus, about
the notice and takedown. This editorial came out in today's
editorial section in The Hill, and it essentially talks about
how our digital copyright system is not working for smaller and
independent creators who are ultimately victims of theft but
have to fight tooth and nail to protect their property and how
we need to take a closer look to improve the notice and
takedown notice under DMCA.
The second item I would like to submit is Chris Castle's
article in The Trichordist that talks about how the safe harbor
is not a loophole and documents five things that we could do
right now to make notice and takedown work better for
individual artists and creators.
Mr. Coble. Without objection.
[The information referred to follows:]
__________
__________
Ms. Chu. Okay. Thank you so much.
Well, MPAA did a study which showed that search engines are
the main means by which people get pirated content, so I would
like to ask Ms. Oyama some questions about this.
We felt that it was such a positive step in 2012 when you
changed your algorithm by taking into account the number of
takedown notices for any given site in the ranking system for
search. This change could have resulted--it should have
resulted, that is, in sites with high numbers of removal
notices, takedown notices, appearing lower in the Google search
results, therefore helping users find legitimate, quality
sources of content more easily.
Yet, several months later, studies show that the sites for
which Google received hundreds of thousands of infringement
notices are still appearing at the top of search returns.
Actually, while we were sitting here and I was listening to
your testimony, I decided to see for myself whether I could
watch ``12 Years a Slave'' for free, or ``Frozen'' for free. So
I had my iPad here, and I just input into it on the Google
search, and I input ``watch 12,'' and I only got to ``12''
before something popped up that said ``Watch 12 Years a Slave
online free.'' So that was the number-two search term that came
up.
And then I wanted to see if I could watch ``Frozen'' for
free, and so I input ``watch Frozen'' and clicked that one on,
and the number-one site that comes up is ``Mega Share Info
Watch Frozen Online Free,'' and the number-two site is ``Watch
Frozen Online, Watch Movies Online, Full Movies.''
So there seems to be no real improvement in this algorithm
change. Why do we continue to see your search engine ranking
the illegitimate sites high?
Ms. Oyama. Thank you for the question. I think there has
been a lot of improvement. When we started working on this
problem, what we heard from rights holders was they were
concerned, when they were searching for movies and music
content, that there were certain results that they were unhappy
with. The vast, vast majority of users who are using Google
search, they search for movie titles, they search for artists'
names, they search for artists' song titles.
So if you go to Google Search Trends--it is a public, open
database--you can actually type in the terms and you can see
relatively how popular are certain queries. So if you go in and
you type ``12 Years a Slave,'' that is going to be a very
highly, highly frequented query, and the results there, because
of these signals and other things, working with rights holders,
they are clean. They are to movie trailers. There are links to
purchase, information about the film or its website.
You can also type into the Search Trends ``12 Years a
Slave, watch free.'' You can add those other terms that we are
talking about. And I just want to make sure that we are
informing this conversation with data and being very clear that
there are still conversations happening about those very
specific queries that end in ``free'' and ``stream'' and
``watch'' and ``download.'' I think there is a lot of
collaboration there. It involves a lot of technical steps about
optimizing things that are legitimate, and part of that is
working with retailers to make sure that the pages there have
words like ``stream'' and ``free'' and ``download'' so that
those will also surface.
But if you look at actually what users are looking for, the
vast majority are looking for artists and songs. They are
looking for the types of queries that you can go to Google
today, look at those results, they are clean. We are talking
about a very relatively small set of queries that we are still
working on together.
For those queries, we need something legitimate to surface.
So if a film is not available online, it is hard for us. We
also lose money if someone goes to pirate sites. We have Google
Play, where we would love to rent and----
Ms. Chu. Okay. I wanted to make this point. I didn't put
the word ``free'' in any of my search terms. I just said
``watch Frozen,'' or ``watch 12 Years a Slave.'' So the
``free'' wasn't in there at all, and yet it came up as number
one or two in the search results.
Ms. Oyama. But the search engine will show what people
actually look for, regardless of what you see in the auto-
complete.
Ms. Chu. Okay. Well, then I would like to follow with this,
which is what I understand your algorithm to be, which is that
the takedown notices must exceed 5 percent of the total
transactions on that site or there is no algorithm change. And
that means that an infringing company could, say, have 500,000
movies uploaded for free. Five percent equals 25,000. So if the
number of the takedown notices is less than that--say, 20,000
takedown notices--then it doesn't qualify for an algorithm
change. And yet, to me, 20,000 takedown notices is a lot, and
it would seem that it could qualify to at least go down on the
search.
So my question is, does such a policy exist? And if so, how
do smaller and independent creators with limited resources
expect to have any impact when sending notices with regard to
the search rankings?
Ms. Oyama. There is no minimum threshold to trigger that
part of data. So we are using as a constant feed the copyright
removal notices that we get kind of into the algorithms. So
there is no baseline threshold of a 5 percent. I think when we
are talking about those smaller set of queries, we are actually
talking about piracy, which is something we all want to prevent
against. We are heartened to see more creativity online. We are
heartened to see revenues for these industries increasing and
for creators to be using the web tools.
But we also have to realize if we are actually talking
about truly bad actors, if we are talking about sites that are
popping up that are dedicated to illegal content, we also need
to be targeting them at their source, and I think that is where
some of the ``follow the money'' strategies and other things to
get them off of the web are really going to be more effective.
So targeting the problems, and then making sure we are all
working together to direct consumers as much as we can to great
content that they are happy to pay for.
Ms. Chu. Thank you. I yield back.
Mr. Coble. The gentle lady's time has expired.
The gentleman from Texas, Mr. Farenthold.
Mr. Farenthold. Thank you, Mr. Chairman.
I would like to start with Ms. Schneider. I appreciate that
you own some songs and some rights. Let's say I want to put up
a video of my cat and put some music behind it. How easy is it
for me to get a license to put your music, or somebody else's
music, under my cat video? I mean, how many hoops are there to
jump through on that?
Ms. Schneider. You know, anybody who wants to use my music
for something, all they have to do is ask me for permission,
and that is up to me to give you permission.
Mr. Farenthold. Okay. So I then have to go Google your
name, find out who you are. Then I have to go Google the
performer and find out who they are. I mean, this is a very
complicated process.
Ms. Schneider. Not really. Why don't you just go to
MariaSchneider.com, my ArtistShare website? You can contact me
there.
Mr. Farenthold. I guess the point I am trying to make is we
saw a dramatic drop--we actually saw Napster and some of these
peer-to-peer really drop when legitimate music became much more
viably available. Isn't there an opportunity for your industry
and some of your artist groups to come up with a way to make it
easier for innovators or somebody who wants to create
derivative works to license your content and do it legally?
Ms. Schneider. That is legalese to figure out how to do it.
But I am telling you that if my music is used in many different
ways without my permission, that is violating my copyright.
Mr. Farenthold. And I appreciate that, and I want to
respect your copyright, but I might also want some music on my
cat video.
Let me go to----
Ms. Schneider. Public domain.
Mr. Farenthold.--Ms. Oyama. I am sorry if I got your name
wrong.
I am a little bit concerned that search engines, not Google
in particular but any search engine, is an enabler for
copyright infringement, and I am wondering if your industry
might be better served to take a lesson from the MPAA, the
content creators. When Congress was threatening to go in and
regulate movie content, they created the rating system
voluntarily. Isn't a good corporate citizen something that
maybe your industry should work together on and finding a way,
especially on this whack-a-mole? I can get Shazam in a noisy
room and identify a song. It seems like large companies like
you guys and Bing, the big companies ought to have the
technology to do something more about that and maybe not be
required to but do it on a voluntary basis.
Ms. Oyama. I think there is a lot of ways that we are
always working to address this. One of the biggest things that
we have done for search is use automation to improve this
process so that rights holders can, as easily as possible, let
us know. So we have very simple-to-use web-based complaint
forms across all of our products.
For search, we are actually processing public information
on the transparency page, more than 20 million notices per
month, so that is every 30 days.
Mr. Farenthold. I am just curious about the other side of
that. Of that 20 million takedown notices you get, how many do
you get a counter-notice on?
Ms. Oyama. Small. We say on the transparency report that we
process about 99 percent. So the remaining 1 percent were
rejected because they were either erroneous or because there
was a counter-notice.
One more thing just on the search?
Mr. Farenthold. Sure.
Ms. Oyama. We absolutely agree with you on wanting to
direct users to legitimate content. So if you look for
something like ``Frozen,'' you may also see at the top a very
new feature that we have added, which would be some advertising
services to direct people on one click to go purchase it. There
are also the knowledge panels on the right, which is authorized
content.
I just wanted to be clear, we do not want infringing links
in search, and as much as possible we are always trying to
direct them to YouTube or Play and platforms that make money
for everybody involved.
Mr. Farenthold. And I think we have to be careful as we
draft regulations on this. Expecting something of a large
company like Google is very different from expecting something
from a small, independent website owner or even smaller ISP. On
your YouTube platform you will have the technology and
expertise to do this screening, but if I have a bulletin board
up and somebody uploads a copyrighted photo, I don't think I
would have the resources to go check to see whether or not that
was copyrighted or not. I could easily deal with a takedown
notice.
So again, I encourage the industry to cooperate with the
artist to find a way to end that.
I am out of time. I had plenty more questions, but in
respect for the 5-minute rule, I will yield back.
Mr. Coble. I thank the gentleman from Texas.
The gentleman from Florida, Mr. Deutch, is recognized for 5
minutes.
Mr. Deutch. Thank you, Mr. Chairman. Mr. Chairman, I would
like to request that a letter from the Copyright Alliance be
submitted for the record.
Mr. Coble. Without objection.
[The information referred to follows:]
__________
Mr. Deutch. Thank you. I think this letter highlights some
of the problems that creators have with the way that the DMCA
is currently working. As we look at the strengths and
weaknesses of the current system, it is important to keep in
mind, as I think so much of this hearing has done, the
experience of artists and creators, especially independent
artists, Ms. Schneider, who rarely have access to the resources
and infrastructure that are needed to keep up with this
Internet piracy whack-a-mole. That is the difficulty that you
face.
I agree with, I think, most of the witnesses that the
balance struck by the DMCA to encourage cooperation and to
preserve protections for technology companies acting in good
faith is the right one. As many have already said today,
without the DMCA protections, it would be hard to imagine the
growth of the Internet and other digital services that we have
seen over the past decade.
This hearing and the Committee's subsequent work examining
copyright law will be a much needed opportunity to ensure that
the current balance of the DMCA is working for creators and
technology providers without imposing undue burdens on either
side for takedown notices, and it is this balance that I am
concerned about. I think the letter of the law was clear that
the DMCA was designed to protect good-faith actors from
liability but not to protect people who were benefitting
financially from pirated content. But the reasonable division
seems to have become obscured as courts have looked at it.
Ms. Oyama, I just wanted to ask you about that. It is my
understanding--and I would like to give you the opportunity to
help me understand how we are coming at this issue--that Google
has intervened as a friend of the court in a number of cases,
including those against infringing file-sharing and cyber
locker sites, to press the view that the DMCA is available as a
defense not only for innocent service providers but also for
those who are actively inducing copyright infringement, which
is surprising to me. As the Supreme Court defined inducement,
it applies specifically to people who act with, and I quote,
``an unlawful objective to promote infringement, and premises
liability on purposeful, culpable expression and conduct.''
In one of these cases, the district court described
inducement liability and the safe harbor as inherently
contradictory and how there is no such safe harbor for such
conduct. But my understanding is that Google has strongly
rejected that view, arguing instead that the DMCA protects
qualifying service providers against all claims of
infringement, including inducement.
So something would seem to be wrong if the safe harbor
offers liability protection to people who are engaged in
purposeful, culpable expression and conduct with an unlawful
objective to promote infringement. I would like to hear your
views on that. Help me understand where you are coming from to
clarify the issue.
Ms. Oyama. I am not aware of the specific briefs there, but
I think the DMCA, the critical purpose there was to incentivize
providers to participate in this cooperative process to give
them legal certainty so that they can grow their services, and
today we are seeing tremendous boost to the creative industries
based on these platforms.
The case law that I am aware of has been very good in
distinguishing bad actors, sites where they have been found to
be committed to engaging in piracy, things like the Hot Files,
from legitimate services like YouTube and Google. We have also
been targeted by these types of lawsuits. We have had to spend
a lot of money defending ourselves, and today these are the
platforms that are helping more than a million different
creators earn revenue, sending more than a billion dollars just
back to the music industry.
Mr. Deutch. So the law shouldn't be used to shield those
engaged in copyright infringement and inducement from
liability. That is not the purpose of the law, is it?
Ms. Oyama. No. The law should be--if you are a good actor
and you are abiding by the DMCA in your responsibilities, I
think you don't want to be the target of litigation. If you are
not, there are bad sites that don't operate within the DMCA,
they are pursuing----
Mr. Deutch. I just want to be clear, though. It is not a
question of operating within the DMCA. It is whether the
purpose of the site is to induce infringement of copyright.
Then that site and those site operators shouldn't be entitled
to the safe harbor provisions of the DMCA whether they are
technically falling within them or not.
Ms. Oyama. That sounds reasonable. Sometimes in amicus
briefs there are many different issues that come up. I would be
happy to follow up with you on that.
Mr. Deutch. In the last few seconds I have, if others on
the panel have thoughts on this? Professor?
Mr. O'Connor. Well, I think one thing that should be clear
here is that there are mechanisms, then, to allow content to be
legitimately licensed. So I think the issue is that we should
not be using the safe harbor to shield people who are just
putting up clearly, blatantly infringing material. There are
easy ways to get at it legally.
Mr. Deutch. Thank you.
Thank you, Mr. Chairman. I yield back.
Mr. Coble. I thank the gentleman. The gentleman's time has
expired.
The distinguished gentleman from Pennsylvania, Mr. Marino.
Mr. Marino. Thank you, Chairman, and thank the panel
members for being here.
I hear dozens and dozens of war stories from creators who
have come to personally see me and they have shared their
nightmares with me, almost exactly the way Ms. Schneider has
genuinely and eloquently stated what she has been going
through. So with that in mind, Mr. Sieminski, I see that you
mentioned in your statement that you have seven people that are
devoted to addressing the notice and takedown requests full
time. So pursuant to that, if you receive hundreds of notices
and takedown requests for content posted by the same user on
your site, is there a process of how you can interact with that
user? Number one.
Number two, do you put a hold on their account? Number two.
And number three, do you relay some sort of warning against
posting more content in the future?
And if you need me to repeat any of those, just tell me.
Mr. Sieminski. Thank you for the question. To answer your
question, yes, as required by the law, we have a repeat
infringer policy, as most websites do, and if a user does
receive over a certain amount of notices for their site, their
account is suspended permanently. So the answer is yes.
Mr. Marino. All right. Thank you.
Ms. Oyama, you and I had the opportunity a couple of weeks
ago to talk about many issues, this being one of them, and it
was very enlightening. I mean, you showed me a lot of what was
being done. I guess I am looking at this from a proactive
approach. We talked about the red light/green light system a
little bit by which a provider would denote in a search result
those sites which may have been tagged as likely to contain
infringing content with a yellow or red light or some
explanation.
Would you be willing to create with the providers that you
can work with, or you at Google create a method to implement
this type of system? And further, would you be willing to move
these authorized, legitimate results to the top of the page?
Ms. Oyama. I think we always want to have authorized,
legitimate results appear. We have done a lot of great work,
especially using the signal and other things, working with
rights holders to make sure that for the vast majority of
queries that are related to media and entertainment content,
the ones that I discussed earlier about looking for films, that
the legitimate results are surfacing.
I think the red light/green light concept that we talked
about was in the context of kind of flagging for users that
sites might be good or they might be bad. I think we just have
to remember that DMCA applies to all service providers. There
are 66,000 or more.
Mr. Marino. I understand that, but I am really one that
does not want the Federal Government to get involved in what it
is involved in now. I am a states' rights guy, and I want to
see less Federal Government in my life. But we need to ramp
this up a little bit, and I am looking toward the industry. I
am having some faith, for the time being, in the industry and
the providers to come up with methods. I mean, Google, you are
a smart operation over there. I am very impressed. But I am
looking to you to create a system whereby people like Ms.
Schneider are not damaged as they are.
For example, when someone types in a ``movie free,'' can
you not do something? I can't believe you cannot. I think we
can. If we can put a man on the moon and we can transplant a
heart, we certainly can say that when someone shows up
``free,'' do something about that. Help me out. Give me some
suggestions, please.
Ms. Oyama. Yes, okay. So I think we cannot strike the word
``free'' from search. There is a lot of legitimate free music
and movies, and that is good for everybody. It is good for
consumers. Some artists, the first thing they want is they want
people to know about who they are. They want to get their name
recognition out, and from there they use popularity. Songs go
viral. They go number one on iTunes. They travel the world.
These are good things to have the Internet available to have
distribution of music.
I think the key place here that we all can continue to work
together is how do we surface legitimate content. So if we want
to fight piracy, we need to increase the availability of
legitimate offerings.
Mr. Marino. Let me stop you there for a moment. I mean,
there has got to be a process by which, when certain words come
up--``free,'' ``I don't want to have to pay for it''--that that
can be flagged.
Ms. Oyama. Right, yes.
Mr. Marino. My 18-year-old daughter, my 14-year-old son
make these little programs to do some things that I just can't
believe they are doing.
Ms. Oyama. One of the places we have had some good
conversations with folks about is if you want legitimate pages
to surface for a query for ``free,'' the pages should have the
word ``free.'' So you could say ``free music sample,'' anything
with that word ``free'' that would help it surface.
We are also trying to use additional space in search on the
knowledge panel and the advertising to get customers to
purchase.
Mr. Marino. Let me get to another question concerning
mobile apps. Malicious and----
Mr. Coble. Very briefly. The gentleman's time has expired,
but one more question would be fine.
Mr. Marino. The mobile app.
Thank you, Chairman.
There have been quite a few high-risk Android apps and
growing, from 6,000 in the first quarter of 2012 to 1,100,000
in 2013. Malware in apps is a huge concern. What can we do
about it?
Ms. Oyama. Apps is a tremendous space. We have Google Play.
As folks move to mobile, being able to purchase legitimate
content, we are really hopeful that is going to grow
opportunities for artists, from independent creators to the
biggest companies. We are super, super excited about the
direction of mobile.
For apps, the biggest thing there I can just tell you in
terms of DMCA, we have notice and takedown procedures. We
kicked out about 20,000, 25,000 apps last year under this
notice and takedown system.
Mr. Marino. Chairman, thank you.
Mr. Coble. You are welcome. The gentleman's time has
expired.
For the information of all the Members, we will have 5
additional days for the Members to submit appropriate questions
and for the witnesses as well to respond, so nobody is being
cut off.
The gentleman from Louisiana, Mr. Richmond.
Mr. Richmond. Thank you, Mr. Chairman.
Let me just say that, especially in my time in the state
legislature, sometimes we are forced to act, and I acknowledge
that we are probably not the best people to act on this because
technology changes so fast. But if we are forced to act, I
don't think anybody is going to like what we do because it
wouldn't be a comprehensive solution. So I would suggest that
stakeholders get together and figure it out.
But let me just start with you, Ms. Oyama. You mentioned
the auto-complete. I guess my question is can you all
manipulate or manage the auto-complete? Because someone who is
just going to Google about ``12 Years a Slave,'' once you get
to ``12 Years'' and you see all of them come up, and one says
``free'' or ``watch for free,'' then you are pushing them to
that space even if they didn't want to go there.
I am thinking of my mother, who is probably not an Internet
sophisticated person. So if I can get her to go Google ``12
Years a Slave,'' and she sees ``free,'' you kind of are
enticing her to go that way. So can you all manipulate auto-
complete at all?
Ms. Oyama. I just want to be clear on the interaction
between auto-complete and search results. You can go into
Google Search Trends today and you can actually see what real
users are actually typing in, and you can see that it is the
movies and artists. You can go into Google, type those queries,
and there are clean results. On any links that are a problem,
we will take them out. We take out more than 23 million----
Mr. Richmond. No, no, I understand the results. But I am
strictly speaking of the auto-complete.
Ms. Oyama. The policy that we have, actually, it has been a
good ongoing conversation with rights holders. So our policy is
we will accept terms. If rights holders are concerned that
these terms are closely associated with piracy, we have
accepted them. We have actually accepted almost every term we
have received.
But a word like ``free,'' you can't strike. A word like
``music,'' things like that, there is actually a lot of
legitimate content offerings. But if they pass that threshold,
there has been a good amount of coverage on this. There are
definitely terms and words, services that have been removed,
and it is not a finished conversation. So if there are more
words that are concerning to folks, that should be an open
conversation. There are always new services popping up or new
bad actors, and we want to make sure that that does stay
updated in real time.
Mr. Richmond. Well, let me ask your opinion on something. I
represent New Orleans, which is a hotbed of creativity, whether
it is independent filmmakers, whether it is musicians, and
whether it is small authors who self-publish. What advice would
you give them in terms of protecting their copyright,
considering they are probably not a big corporation and they
are just someone who loves music and would like to earn a
living singing, whatever they are singing about?
Ms. Oyama. Yes. You know, some of the advice I actually get
from them, which is how excited they are about the web and how
important it is for them to be looking at new distribution
models. So I think 5 years ago if we were having this
conversation, everyone, probably even in the industry, was very
focused on takedown, things we don't want on the web, or we
want total control, and today we are seeing tremendous
opportunities. When users are getting excited about music, that
is awesome for the original creator, and they are, in turn,
being able to monetize that, get revenue, grow their audience.
So I would really encourage them to stay focused on the
enforcement, and different people are more focused on that than
others, but to also think about the other ways that they can
use the Internet to enable their businesses. There was an op-ed
that I read this morning by Jo Dee Messina, a really well-known
country artist, and it was titled ``How the Internet Saved My
Career.'' It is about how she used things like analytics that
would show her where users are based who are watching her
videos or listening to her music, and you can actually add
those to your tours. So for the creators that you are working
with there, they may not even realize that there was a
population of fans in Canada, and they could add that city to
their tour, things like that, things about collaboration.
So different artists working together on the web and
joining different fan bases together, figuring out I think
pretty quickly what it is you want as your monetization
strategy. So for YouTube, we have the ability to run
advertising around the content so that the rights holder gets
the majority.
Mr. Richmond. Right. But I would just ask that you use your
legal mind and pretend that the artist is your client and think
about how you would advise them in protecting their copyright
and making sure that others are not making money off of
something that they shouldn't, especially when you look at the
investment sometimes that people put out in life savings. We
don't want others to just come in and take it.
Ms. Oyama. Absolutely.
Mr. Richmond. So it is a delicate balance, and I would just
ask that everybody look at it from the other person's side so
that we can get to a good place here where everybody is maybe
not happy but content and pleased that we are understanding
each other.
With that, Mr. Chairman, I yield back.
Mr. Coble. I thank the gentleman.
The gentleman from Missouri, Mr. Smith.
Mr. Smith of Missouri. Thank you, Mr. Chairman.
Mr. Chairman, I want to express my thanks again for holding
these copyright hearings. It has been very beneficial and
helpful to get down to the point.
And I want to thank all of you for appearing here today.
And I also want to thank all the stakeholders for working
together to help solve this problem outside of this room, and I
think you can do a lot of that upon your own work.
But my question is for Mr. Doda. In your written testimony,
you mention the need for the private entities to enter into
voluntary agreements to help combat infringement in some sense,
and I definitely agree with you, as I mentioned earlier. I tend
to be a fan of less government involvement in most of our way
of life, but we have already seen some of these agreements, and
for that I applaud the parties involved in those agreements.
But I would like for you to briefly elaborate on some of
the key components of what you think these agreements should
look like.
Mr. Doda. Thank you for the opportunity, Congressman. We
are encouraged at Elsevier by some of the voluntary private
agreements, particularly with respect to ad services and
payment providers. The difficulty we see with some of those
agreements are that they, in effect, are a bit cumbersome to
accomplish their task. I could follow up in more detail, but my
recollection of the voluntary agreement with respect to ad
services, for example, essentially imposes another layer of
notifications. So that would be one issue.
The voluntary measure that I am aware of in the payment
sector is one that unfortunately is not well suited to a
problem that we experienced with these host sites that are
overrun with user-uploaded content. That mechanism, by virtue
of the way that program operates, would not, in fact, we think,
adequately capture those types of sites in terms of stopping
the payment processing.
Mr. Smith of Missouri. All right. Thank you.
Ms. Oyama?
Ms. Oyama. Yes.
Mr. Smith of Missouri. We heard a lot today about Google's
Content ID program. Could you briefly highlight for us how and
why this tool was able to be produced, and do you think there
are ways of improving on it?
Ms. Oyama. Yes, thank you. I think the DMCA played a big
role in providing the foundation for companies like YouTube to
develop really great tools like Content ID. So YouTube is a
well-known brand today, but it did start also as a couple of
guys in their garage with a great idea, and what the DMCA does
is it provides this playing field, it provides a system that if
you are a new company and you are launching your service, you
are launching your startup, you can be clear on what the rules
of the road are. You can get investment and you can start to
build, and then over time maybe your business gets bigger and
maybe you become more well known, it becomes more
sophisticated. When YouTube became a part of Google, we really
injected a huge amount of effort, so more than $60 million,
more than 50,000 engineering hours went into building this
system.
What it does today is it allows us to get fingerprint files
from rights holders. So they will give us the technical
fingerprint of their film or their song, and then that allows
us, when users are uploading their content, we scan more than
15 million fingerprints, and if there is a match we go back to
the rights holder and we ask them what they would like to do.
They can take it down if they want, they can track and use
analytics, or they could monetize. The vast majority actually
choose to monetize.
We sent more than a billion dollars just back to the music
industry alone in the last couple of years. But many more
independent creators are also making easily six figures on this
through those channels. This is the way that they grow their
audience, the way that they reach new fans, and actually how
they get revenue.
So from people like songwriters to artists to filmmakers
alike, they are using this system extremely well.
Mr. Smith of Missouri. All right. Thank you.
Thank you, Mr. Chairman.
Mr. Coble. I thank you, sir.
The gentle lady from Washington.
Ms. DelBene. Thank you, Mr. Chair.
And thanks to all of you for being here today.
One thing we haven't quite talked about as much yet is that
there are really no borders on the Internet, and we know that
as we discuss what we do here domestically, we still are going
to be impacted and content will be impacted internationally.
So I wanted to get feedback from all of you on what you
think might be doing well in other places, what issues we
should be aware of as we look at the impact we are going to
have from international laws, international content or people,
international websites and how they deal with content.
So I just wanted to start with you, Ms. Oyama, since you
deal with this already, on how you see what the challenges we
face or what we need to keep in mind.
Ms. Oyama. Thank you. So on the enforcement side, a couple
of places. One is when we know that sites are based in foreign
countries, sometimes they are with countries where we don't
have very good diplomatic relationships. Other times we
actually do. They could be an allied country. So I think
figuring out how to better apply and coordinate some
international diplomatic pressure to target bad actors would be
a good place. We have also endorsed ``follow the money''
strategies, that if we can actually get to those foreign sites,
drying up any U.S. ties or any incentives to help them with
their revenue is super smart. We are really happy to have the
ad networks best practices in place.
There are actually hundreds of other ad networks in the
ecosystem. So although the leading ones have now stepped up, we
love to see that spread further so that the real financial
incentives of those business models isn't just to get a new ad
network but actually to have no advertising.
The third thing I would add on the foreign policy side is I
think there is an increasing awareness that there are
tremendous amounts of the U.S. economy that are economically
reliant on these other parts of U.S. law. So the exclusive
rights have been extremely important for creators. We want to
continue to press on them. But things like fair use and these
safe harbors, many U.S. companies, every Internet company
relies on these to exist. So if we see those safe harbors
threatened or eroded in foreign countries, that means we
wouldn't be able to deliver our services like Play or YouTube
into those countries. That wouldn't be good for the creators
for making revenue or for the American companies.
So I think having that ongoing conversation with new
companies that are starting to build up their Internet policy
frameworks would be fantastic.
Ms. DelBene. Ms. Schneider, how about you in terms of I
don't know if you have had any interaction there.
Ms. Schneider. Well, one thing I would say is that
sometimes I hear people say, oh, we don't have to do anything
really because the whole world is such a mess, and I just feel
like we should set the bar as an example to the world about how
to go ahead protecting artists. I mean, a company that is
making billions on their own patents, thousands of patents, and
on artists' intellectual property, now look at me and my
community and what we represent. We are hemorrhaging red ink on
our intellectual property. There has to be something that
brings these two sides together and makes it sustainable.
I want to feel good about this whole world. I want it to
benefit me. I don't want it just to benefit the big players.
And like Ms. Oyama said, there was somebody on YouTube that did
so great and had millions of views. That is like going into a
poor neighborhood and finding one person that won the lottery
and saying, wow, look, you won the lottery, while everybody
else is suffering. So that is my view.
Ms. DelBene. Thank you.
Professor O'Connor, you talked about the kind of blurriness
between what we think of as content creators and providers. So
as we look around the world, do you have feedback on what we
need to do and what we need to keep in mind and not have just
pure categories of industry players who are either just content
creators or are just service providers?
Mr. O'Connor. Yes, thank you for that question. As Ms.
Oyama was saying, there are a lot of exciting platforms now for
artists to try to promote their careers, so more and more
artists are stepping over into being entrepreneurs themselves.
So what we need to do, though, is to allow them an environment
in which they do know that they can do the right thing, respect
rights, and not be taken advantage of by people who then will
just relentlessly repost.
So, in other words, if we don't give them the right space
and tools to be able to do the right thing, then they will have
to start acting like the other side that just relentlessly
infringes.
Ms. DelBene. Thank you.
My time has expired. I yield back, Mr. Chair.
Mr. Coble. I thank the gentle lady.
The gentleman from Georgia, Mr. Collins.
Mr. Collins. Well, thank you, Mr. Chairman.
You know, we are talking about songs and your deep love of
bluegrass. I am from the north Georgia mountains, and also
remember that you helped a gentleman named Earl Scruggs. Here
you go, Mr. Chairman, here is some bluegrass.
[Music.]
Mr. Coble. Pardon my immodesty, but I was invited to
present Earl Scruggs with his Grammy Award, oh, I guess five or
6 years ago, and I will never forget. He reached over and
touched my shoulder. He said, ``Thank you, man, for coming out
here.'' Thank you for that.
Mr. Collins. I wanted to bring back good memories for you,
Mr. Chairman.
As many of you know, I try to bring it back to what the
bottom line is. That is the user and that is the person, that
is the creator, that is the formats. And again, that is just
from our Chairman's perspective, but we all have those
memories.
Ms. Bridy, I have a question for you. In your written
testimony you say that it is reasonable for cost of enforcement
to fall more heavily on content owners. But what about the
individual songwriters and the independent filmmakers? They
often have limited or no technical expertise or software at
their disposal to ease some of these costs to make enforcement
meaningful.
We met with the Directors Guild, 15,000 independent
directors, true creative incubators. These are small players
who can't afford to absorb those costs with those practical
mechanisms to operate within the DMCA framework.
How do you address the small creator issue?
Ms. Bridy. I think it is a great question, and I think it
really is important to remember on all sides of this issue that
the different actors are differently situated, right? There are
large corporate rights owners and small creators; there are
also large Internet service providers--online platforms like
Google, and then also very much smaller ones.
So I think that one key would be to make it easier for
people like Ms. Schneider to navigate the takedown process by
having fillable forms like Google does. I think it is probably
not that expensive for most smaller Internet companies to just
have a fillable form for DMCA compliance so that there can be
electronic submission of takedown notices. I think that is
probably a fairly easy place to start.
But I think it is also important to remember that companies
like Google have the money to be able to make the investments
to have these really sophisticated tools. We also have to be
careful to think about the startups that don't have that money
and to be careful when we are imposing burdens to make sure
that they are not going to be felt disproportionately by small
Internet companies.
Mr. Collins. And I appreciate that because that is a
concern.
Ms. Oyama, we have talked before, and I am glad you are
here, and these are interesting issues. But in a follow-up to
that discussion, again concerned about the smaller creator in
this, you mentioned just a few moments ago that YouTube was
once a small startup; Google was as well. Now it has grown to
the point where my folks in northeast Georgia have the world
literally at their fingertips as far as access not only to your
platform but others.
Because of your success, we need your continued help with
the Internet ecosystem. The small creator needs your help, and
I don't want Congress to have to legislate. It has been talked
about that this is something that we can work on. I want the
industry to be able to use voluntary agreements to effectively
fight online piracy, and you guys are doing a pretty good job
at that. But I am afraid the volunteer agreements may not be
taking into account the quieter voices of some of the smaller
creators.
Is there anything that Google can do to help navigate
Section 512? And I have a follow-up to that, as well.
Ms. Oyama. Sure. I actually really very much agree with
what Professor Bridy said. So making this process as simple and
automated and low cost as possible for everyone I think is a
place where automation can play a big role, so the web forms
that we have across our products.
The second piece would be there is actually a very thriving
vendor market in this space, so people that are becoming very
specialized in sending these notices. So no one is touching
keyboards. It is automated on one side, it is automated on the
other side, and many different people can use those services.
Those folks that have specialties in this area are getting
smarter and faster about it because it is their expertise.
So if we can also bring them into the conversation, if they
have tips and tools about how to find piracy and how to quickly
send so it is quickly removed.
Mr. Collins. And very quickly, most of your requests are
taken down within a matter of hours, but there is a small
percentage that do not get taken down quickly, and one of the
reasons given is you need additional information. While we are
talking about this, what is the additional information? And if
we are looking at making changes here, how could we incorporate
that into the discussion here? Why is there an additional
information lag?
Ms. Oyama. I think the web forms have a pretty simple place
to fill those out. So if they are rejected because of a lack of
information, it would be a deficiency that someone hasn't
filled in the basic requirements of the form. So one example
could be if you were unclear about who was the owner of the
copyright.
So the notice and takedown regime I think rightly, as
Congress set it up, gives rights holders, the creators, the
owners of the work the ability to send, but you wouldn't want
somebody else in the public saying what to do with Ms.
Schneider's work.
So if it is not clear, you are not saying you are the
authorized person----
Mr. Collins. And we are just trying to figure out how can
we help make it clear to say this is what you need to do. But I
appreciate it.
Thank you, panel.
Mr. Chairman, I yield back, Earl Scruggs and everything.
Mr. Coble. I want to say to the gentleman from Georgia,
thank you for that intro.
And for the benefit of the uninformed, the late Earl
Scruggs, the late North Carolinian Earl Scruggs was generally
recognized as the world's premier five-string banjoist.
Thank you again, sir.
The gentleman from New York.
Mr. Jeffries. Thank you, Mr. Chairman.
Let me thank the witnesses for what I think has been a very
informative discussion.
Let me begin with Professor Bridy. The Supreme Court in the
1975 decision--I believe it was written by Potter Stewart--20th
Century Music Corporation v. Akin, made the statement, ``The
immediate effect of our copyright law is to secure a fair
return for an author's creative labor. But the ultimate aim by
this incentive is to stimulate artistic creativity for the
general good,'' a statement made by the Supreme Court about the
underpinnings of our copyright law.
Would you agree with the sentiment that was expressed by
the Court in this opinion?
Ms. Bridy. I do very much agree with that. I think that it
is very important to secure to creators a return on their
investment so that they are incentivized to create more
creative content for the public, but that ultimately the system
is designed to deliver creative works to the public. So I very
much agree with that statement, and I think that the DMCA has
really worked a good balance to try to help that policy
objective to thrive in the digital environment.
Mr. Jeffries. Now, I agree with your observation that the
DMCA should be or is correctly about promoting a balance
between sound copyright policy on the one hand and sound
innovation policy on the other. And in the context of sound
innovation policy, is it fair to say that a robust safe harbor
provision is important to allowing for innovation to continue
to flourish in the digital age?
Ms. Bridy. I think it is crucial. I think there is no
question.
Mr. Jeffries. Now, as it relates to the applicability of
the safe harbor provision to Internet companies, it is my
understanding that if there is either actual knowledge or red-
flag knowledge of infringement activity, then that safe harbor
provision is no longer applicable; correct?
Ms. Bridy. That is right. It puts them outside the safe
harbor.
Mr. Jeffries. Now, in the context of how courts have
defined red-flag knowledge, could you provide for us some
clarity as to what the current state of the law is in this
area?
Ms. Bridy. Sure. I think we are going to get some more
guidance in not very long from the Second Circuit on this issue
because the Viacom v. YouTube case is on appeal for the second
time in the Second Circuit, and one of the issues that is live
before the Circuit now is what the interaction is between red-
flag knowledge and this doctrine of willful blindness about
which Professor O'Connor spoke earlier.
So I think that most of the courts that have decided this
issue have said that red-flag knowledge is knowledge of facts
or circumstances from which infringing activity is apparent and
that the knowledge in question can't just be generalized
knowledge. It has to be red-flag knowledge of specific
instances of infringement on a service provider's system.
Mr. Jeffries. Thanks.
Now, Professor O'Connor, in your view, have the courts
provided either sufficient guidance as it relates to red-flag
knowledge? And, as they have defined this area, has it been
sufficiently robust to make this particular provision
meaningful?
Mr. O'Connor. Thank you, Representative Jeffries.
Respectfully, I don't think they have adequately taken care of
the doctrine. I think that, as Professor Bridy is saying, they
really are limiting it. Well, she might not be saying that, but
to where you have actual knowledge of that particular work. So
it gets narrowed and narrowed, so that even if you have a sense
that there is lots of infringement going on, you can still
essentially turn a blind eye to it, and I don't think that was
the intent.
So I do again suggest respectfully that Congress could
consider setting the policy on what willful blindness should
be. If you are aware there is infringement going on on your
site, you should take some steps to mitigate it.
Mr. Jeffries. Now, I would note that in other areas of the
law, you have a commonly understood principle of either actual
knowledge or constructive knowledge. The term ``constructive
knowledge'' doesn't appear in the DMCA, but presumably that is
part of what Congress had intended in terms of bringing this
particular provision to life.
But, Ms. Oyama, I would also note that perhaps there is a
reasonable argument that the Internet context is different. In
the fraud instance, for instance, constructive knowledge
requires a duty of inquiry which it appears the DMCA explicitly
did not impose in this particular instance.
What are your views as it relates to whether red-flag
knowledge should be more broadly defined?
Ms. Oyama. I think, actually, the Internet context makes
the requirement of knowledge of specific infringing acts even
more important because of the diversity and the ecosystem and
the different ways that creators are engaging with content.
So just because--imagine we were even able to say this is a
song and this is all the places that it appears. Artists have
very different standards on where they want it to appear, who
they are authorizing, who is not allowed, who is allowed, and
so that is why we need that cooperative process where they
specifically tell us this one is okay, this one is not okay,
this one I didn't know about but actually that is really cool,
that one can stay up.
I think you want to make sure that we are not giving the
wrong incentives to online services and platforms to build and
innovate in this space. So if you narrow the safe harbors and
you make it more risky for providers to be innovating in this
space or building on their own above the law, filtering and
monitoring and things like Content ID, you are going to make
everybody very fearful that they are going to hit up against
this legal liability. So I think creating a very clear and
certain platform that then allows people to experiment and
build better systems so that all of the businesses can be
licensing and earning revenue from the content is the right
direction to go.
You don't want to inject a lot of fear and confusion into
the ecosystem, especially with small companies that are trying
to get investment. They don't want to get sued out of
existence. If you start to impute more things of you might be
taking actions and this will show you are willfully blind, no
one understands what those standards are. They are very vague.
That is going to be the wrong incentive, because they are not
going to be trying to fix these problems voluntarily.
Mr. Jeffries. Mr. Chair, if I could just ask one brief
follow-up question.
At the beginning of my remarks I referenced the Supreme
Court decision that notice and principles, laws that can be
boiled down to fair return and stimulating artistic creativity
as underpinnings of our copyright law. Would you agree that
those still remain, even in the Internet context?
Ms. Oyama. Absolutely.
Mr. Jeffries. The value of the innovation economy is a
strong thing for us to consider?
Ms. Oyama. Yes. I think incentivizing creativity is the
place that we should all be looking toward and kind of working
backwards from in terms of policies that we would support. It
is an exciting time. There are more creators that are able to
gain access to the tools of creation, to distribution, and to
monetization. These industries are changing, but I think that
is an exciting thing. There is more creativity out there than
ever before.
Mr. Jeffries. Thank you, Mr. Chair.
Mr. Marino [presiding]. You are welcome.
The Chair recognizes the Congressman from Texas, Judge Poe.
Mr. Poe. I thank the Chairman.
Thank you all for being here.
As a former judge, I don't like stealing, sneaking around
and taking somebody else's property. It is just bad, especially
car thieves. My Jeep was stolen, and I was mad until they found
the outlaw who stole it. But that is what we are dealing with
in this whole thing, Internet thievery, piracy, if you will. It
is a little different than most crimes in that generally in
criminal situations you have law enforcement involved. Here, we
are trying to solve this problem through the private sector. I
think that is the biggest difference. And hopefully we can move
down the road so people quit stealing from Ms. Schneider and
Willie Nelson and everybody else.
I have some questions for all of you. I will just see how
far I can go before he gavels me.
I want to thank Ms. Oyama and Google for what you have done
on Internet trafficking issues and what you have done on the
sites and helping stop this scourge, especially of child
trafficking. Google and others are to be commended for this
because it is just dastardly, and I hope we can solve that
issue and catch those folks.
Going to a specific thing while we are here, apparently we
have all been on our iPhones looking up things on the Internet
while this has been going on. I preferred to go to ``House of
Cards'' to see, fantasy House of Cards. How does Google rank
people who are--I think I am a typical person that uses the
Internet. You go to one of the first three sites, you don't
even have to go to the second page, and it seems to me like the
first, maybe the first one was valid, but the second two I was
kind of suspicious.
Is there a way you can do this with your algorithms to make
sure that the bad guys aren't at the top of the page when you
look up House of Cards?
Ms. Oyama. Yes. I think the system that Congress set in
place, the notice and takedown system, is extremely well suited
for that, because as soon as we are alerted, link 2 and 3 were
bad, those are gone. So our average turnaround time is----
Mr. Poe. How did they get to be 2 and 3 to begin with? That
is my question.
Ms. Oyama. Well, I think ``House of Cards'' is a great
example. It feeds into the conversation we were talking about,
what types of results are showing up. So if you Google ``House
of Cards,'' take a look at what is there, it is going to be
legitimate stuff. It is going to be the show's website and
hopefully the knowledge panel and things about the actors.
Just in terms of kind of feeding back into the Search
Trends conversation----
Mr. Poe. Just a second. Let me interrupt, because you have
already lost me. I pull up ``House of Cards,'' I think I see
the valid ``House of Cards,'' but I think I see some thievery
going on, like the 2nd and 3rd, maybe the 4th one. How does
that happen? Is there a way to prevent that from ever getting
to be in those places without having to take them down? That is
my question.
Ms. Oyama. You could attack the people that are putting
that up at their source. So sometimes it is a mistake, and I
think the notice and takedown process is a good place there.
Mr. Poe. Okay. I am a thief. I am stealing ``House of
Cards.'' How do I get it to be number 2 when you pull up
``House of Cards?'' That is my question.
Ms. Oyama. It is not number 2.
Mr. Poe. Okay, 3, 4, right up near the top.
Ms. Oyama. It is not near the top for ``House of Cards.''
Mr. Poe. Those are all legitimate sites.
Ms. Oyama. They are going to be legitimate results, and
``House of Cards'' is something like 121 times more popular
than ``Watch House of Cards.'' So my point is the users are
searching for ``House of Cards.'' Those are the types of shows
they look for, and then you can look in Google search results.
Those are legitimate, clean sites because they are popular and
we have done a lot of strong work there.
If it is a really bad actor, so if it is a company that is
dedicated to spreading this kind of content and that is what
has appeared, there is a role for intermediaries, and we are
always working on building better and faster tools so that
those will be removed. All we need to know is know that there
is a problem, there is a link, we will take that out very
quickly, 6 hours or less. You don't have to go to a court. It
is a very special power.
But if there is really a rogue actor out there that is
determined to just keep resurfacing these, we have to figure
out how to also direct our strategy to the source of the
problem so that all of the service providers aren't in the same
situation as the rights holders. We are all here together
trying to scrub this stuff out. You have to disincentivize them
and strike their business model or use civil law enforcement.
Mr. Poe. I am going to reclaim my time. I have two more
questions.
Seventy-three thousand takedowns in 2 years; is that right?
Ms. Oyama. Just out of the advertising system. Total, it is
about 230 million last year.
Mr. Poe. Okay. How much does that cost? How much does that
cost? Make it so I can understand it.
Ms. Oyama. It is pretty much unquantifiable because we have
hundreds of folks that work on it. We have invested tens of
millions of dollars into these systems. It is a huge burden.
Mr. Poe. So you don't know.
Ms. Oyama. A total number, no. It is lots of people and
lots of----
Mr. Poe. Okay. Take 6 hours to take down one site. How many
people do you have reviewing those sites to take them down
within 6 hours?
Ms. Oyama. That is a great question. So for the most part
at this point, because of the engineering effort that we have
invested in, the tools, the bulk submission tools, trusted
users, where we realize 95 percent of the requests that we were
getting are actually from a fairly limited number, like 50
major rights holders, we have developed faster tools to do that
better.
Across the company we have hundreds of people that work on
these things, from engineering to legal, developing our
policies, making them really clear. We prohibit infringement on
our products. We don't want that. We have the same incentive as
the content industry and the rights holders in that we are
building businesses like Google Play and YouTube that are
licensed. They are licensed with the studios, the labels.
Independent creators can use these. We share revenue if
creators are getting revenue. No one is making any money if
somebody clicks on something in search and they are going to a
bad place. So we are all losing money there.
Mr. Poe. You don't know how many people, just hundreds of
people?
Ms. Oyama. Hundreds of folks, yes.
Mr. Poe. Okay. Well, I hope you all can figure out a way to
solve the problem without really getting a whole lot of
government involved in this. Sometimes the government makes it
worse, not better, no examples to be used. So I understand the
problems and I hope we can figure out a way to solve this so
people like Ms. Schneider stay in business and the thieves quit
stealing.
And I will yield back to the Chairman, who has let me go
over. I appreciate it. Thank you.
Mr. Marino. Thank you.
The Chair now recognizes the gentleman from Rhode Island,
Congressman Cicilline.
Mr. Cicilline. Thank you, Mr. Chairman, and thank you to
the witnesses.
I think that protecting the creative products of artists
and creators and the long-term success of the Internet and
technology are more closely aligned than maybe we all realize.
So navigating through these issues I think is particularly
important. I am new to this Committee, so this hearing was very
useful to me.
But one thing I wondered is, in the very creation of
Section 512, I mean, I have seen in the past safe harbor
provisions that are created often after an actor is required to
try to do something and has tried in good faith but has been
unsuccessful, and so they are offered safe harbor. Section 512
doesn't require that at all.
So I guess one remedy would be to add a section that says
the service provider has engaged in a good-faith or reasonable
effort to prevent infringement of copyright. I think the reason
that that was included--and I wasn't here--was we wanted to
protect the certainty and the growth of the Internet and not
put that burden on the service provider, and I think for all
good reasons.
But in light of what we have seen over the last several
hours of testimony and what we know, it seems as if this kind
of re-posting problem has made the notice and takedown
provision a bit of a mockery. While there has been a lot of
conversation about how we have improved it to make it easier to
file it and quicker to respond to it, if you can just re-post
it instantaneously, that is all well and good but it is not
really having the effect we would want.
So I suppose one other remedy we could provide is in this
Subsection C where it says ``obtaining such knowledge or
awareness, acts expeditiously to remove or disable access to
the material,'' and we could add ``and prevent its re-
posting.'' So that is another mechanism that would seem to me
an obvious solution.
I recognize that it is much better if the industry figures
this out, and I hear that from artists, and I hear that from
creators, and I hear that obviously from technology
entrepreneurs. But it does seem to me that if the technology
exists when notice is provided that this is a copyright
infringement, that we ought to have the ability not only to
have it taken down but to prevent it from reoccurring. That
doesn't solve all the problems, but I think it is what
Professor O'Connor spoke about, Mr. Doda spoke about. But isn't
that the responsibility of the industry to figure out how you,
as Judge Poe said, not put all of this burden on the victim of
the crime? And isn't it at least saying once you go through the
burden of identifying it, notifying us, we will at least honor
your request by not requiring you to do that non-stop all day?
I don't know who wants to respond to that, but it seems to
me like a pretty obvious solution.
Ms. Schneider. May I again make these points? Okay, I think
what could really solve and save companies like YouTube a lot
of takedown is just to have for the person uploading some
educational steps that they go through, not just clicking one
box but asking them certain--are you sure? Is this something
you wrote? Okay, if not, et cetera. Who knows? I mean, that has
to be worked out.
Mr. Cicilline. Right.
Ms. Schneider. And then the streamlined, I applaud
definitely the streamlined takedown. But, you know, the other
thing is the Content ID, stopping it before it is there, like
they do. I mean, if you didn't have Content ID for those big
companies, I can't even imagine how big your takedown numbers
would be. They would be insane. So imagine if Content ID worked
for everybody and if we all then could find other ways to
either stop or monetize.
Mr. Cicilline. Thanks.
Mr. Doda?
Mr. Doda. Thank you, Congressman. I think hand in hand with
what you identified is that many times the re-uploaders are
repeat infringers. So another way that we can attack the
problem is to have strengthened repeat infringer policies,
clearer policies, clearer parameters around tracking repeat
infringers and ensuring that those actors are kept out, because
they contribute substantially to the re-upload problem.
Mr. Cicilline. Professor O'Connor?
Mr. O'Connor. I want to follow up on Ms. Schneider's
comment and make it clear, too, that one of the educations that
could be done would be directing people who want to upload
things to copyright clearance centers, licenses. There are a
number of mechanisms that, as Representative Farenthold was
curious about before, is it hard? Do they have to contact Ms.
Schneider directly? There are many mechanisms to do this
legally to put up the content you want.
Mr. Cicilline. Ms. Oyama, I just want to say thank you for
all the work that Google has done in this area. I know that
there is--while you are not the only one, there are obviously
thousands and thousands of providers and search engines, but
certainly the leadership of Google matters a lot, and I hope
this is an issue that you will take on and lead to really
figure out how we prevent this sort of re-posting and protect
the creative products of artists and musicians and writers in a
more effective way, and this sort of re-posting problem, which
has really been identified as a serious one, I hope Google will
help be part of the leadership that solves this problem.
Ms. Oyama. Thank you. I think the education points you made
are really well taken. It is something we worked really hard
on. We have a YouTube Copyright School. If you get a strike
against you, we send you to Copyright School to kind of learn
some of the basics and earn your strike off. We have a very
strong repeat infringer policy where if you are a repeat
infringer you get ejected.
I just do want to flag, I think some of the language that
you read in the beginning, I can understand why that would
sound attractive to impose on all service providers this
requirement to prevent re-posting, but those service providers,
they don't know if it is infringing or not if they don't hear
from the rights holder. So that kind of duty, if it was enacted
into legislation, it would require a service provider who has
linking or comments or tweets on their system to somehow,
before that user is able to add a link and a comment, somehow
filter that out, know who was the rights holder, who was
authorized. It would really chill the same services that are
sending hundreds of thousands and hundreds of millions of
dollars back into the content industry.
So I just think we need to be careful when we are thinking
about what those types of words would do on innovation.
Mr. Cicilline. No, I think that is exactly right, which is
why I think all of us are very hopeful that the industry will
come together with all the stakeholders and develop good
standards and good, responsible actions so that we don't
attempt to try to solve this problem, because I think you are
right, we may do more harm than good in the end.
I thank all the witnesses and yield back.
Mr. Marino. The Chair recognizes the gentle lady from
California, Congresswoman Lofgren.
Ms. Lofgren. Thank you very much, Mr. Chairman. I think
this has been an instructive morning. I am thinking back to
when we crafted the DMCA, and clearly, without safe harbor
notice and takedown, there would not be an Internet. It
wouldn't exist. So I think it is important that we recognize
that and, as with the doctors, first do no harm.
Thinking about what Google has done with YouTube, it is
really impressive to spend that amount of money, $60 million,
50,000 hours of engineering time, so that you can actually give
a tool to artists to protect themselves. I want to commend you
for that. Not all the artists know about that. So there may be
some efforts that you might want to make to further publicize
the opportunity, because sometimes I meet artists and they
don't know.
But the other thing that I think is interesting is that you
own the data. I mean, you own YouTube, and you can take the
fingerprint, and you can match it against your files, and that
is entirely different than search and information that is out
there. So as I am thinking about Content ID, I mean, it is a
trivial matter to make a minor change to encryption or
something else on re-posting. There is no way technologically
that you could use the Content ID system to automatically scan
on re-posting, is there, Ms. Oyama?
Ms. Oyama. In a context like search, no, because the basic
differences between the hosted platforms and something like
search, the hosted platforms, we have two sets of data. So we
have the reference files from the rights holders.
Ms. Lofgren. Right.
Ms. Oyama. We have the user-uploaded content. For search,
we don't have either of those. We definitely don't have the
content of every website. We might have some text. We might be
able to copy text on the pages, but we don't have the embedded
videos or other content. So there is no match on that side.
And then without the cooperation of the rights holders, we
wouldn't know what the rights are in this setting.
Ms. Lofgren. But let's say you get a notice and takedown
and you have the technological information on the file. You
could just re-encrypt and upload and that would defeat the
information that you were provided. Isn't that correct?
Ms. Oyama. Yes, and that is why on the notice and takedown
system it is important to continue to work on how to make that
easier, more simple, faster, better for everyone. But that
cooperative, kind of shared risk/responsibility piece, it is a
delicate balance and incorporates a lot of different equities
and has been the foundation for the Internet economy.
Ms. Lofgren. Well, I remember when we went into the SOPA
battle. One of the things that it is important for us to keep
in mind is to not suggest things that are technologically
impossible and that might actually destroy the inner workings
of the Internet, some of which have been discussed here today.
I want to talk also about Google is a big company with lots
of money. You spend a lot of money to deal with piracy. I thank
you for that. I think you are probably going to do more. I
thank you for that, as well.
On the other hand, WordPress has 48 million websites. I
think, according to your testimony, in the month of February,
740,000----
Mr. Sieminski. New sites.
Ms. Lofgren [continuing]. New sites were established. The
idea that you could provide the same kind of scrutiny--I mean,
each post, it could be part of a poem, it could be a link to--I
mean, how would you possibly accomplish what YouTube has done
with millions and millions of people who are also creators?
They are creating websites, commentaries, poems and the like.
How would you address that?
Mr. Sieminski. That is a great question. Thank you. I
think, number one, it is important to point out that YouTube,
as you said, did great work in developing Content ID with $60
million and with hundreds of engineers, which is many times the
size of our entire company. So what they can do technologically
I think is very different than what we can do technologically,
and there are thousands of companies that are much smaller than
us that are also subject to the DMCA.
But to your second point, I think that is a very important
one, because even if we could develop technology to identify a
file as copyrighted or what-have-you, that doesn't answer the
question of fair use or other rights that someone may have to
post that to your website. You can't answer that question with
technology.
Ms. Lofgren. Let me just do a final question because there
was testimony both from Ms. Oyama and also you, sir, about
abuse of notice and takedown. When we wrote the DMCA, that was
an issue that I talked about publicly because if you are the
ISP and you get a notice and takedown, you don't have an
incentive to stand up for the First Amendment rights of the
people whose stuff you are taking down. Your entire incentive
is just to take it down and not cause a problem. I saw from
your testimony that you have seen cases where, for example,
someone criticized a poem, and the poet who didn't like the
criticism did a notice and takedown which was improper.
What percentage are you seeing of those kind of improper
uses, both Ms. Oyama and yourself, and do you think that some
kind of--I mean, there is a disincentive that is financial for
someone who flouts the notice and takedown. Should there be the
same kind of financial disincentive for somebody who blatantly
abuses it from a fair use point of view?
Mr. Sieminski. Yes. I think the answer is yes to your
second question. As I mentioned, there is statutory damages for
copyright infringement, but there is no penalty at all for the
other side of that equation. So, yes, I think there should be
those penalties.
We do see--it is not by any means the majority of the
notices we get. It is a small handful. But even a little bit of
censorship isn't okay in our opinion, and I think that relative
to the kind of whack-a-mole problem or the other large-scale,
the other types of issues we have been hearing about on the
panel today, we don't see any of that on our platform because
we are not a filing-sharing platform. We are like most other
sites on the Internet where we are providing a platform for
people to post original content, and in that context the
problem that we see is these abusive notices. It is not the
majority of them, but it is the majority of the issues that we
see.
Ms. Lofgren. Thank you, Mr. Chairman.
Mr. Marino. The Chair recognizes the gentleman from
California, Congressman Issa.
Mr. Issa. Thank you, Mr. Chairman. This is an important
hearing, and sometimes these hearings are d?j? vu all over
again. We have been here before, and I am sure we are going to
be here again. But let me go through a couple of questions that
I think will help make at least this moment in time accurate to
the status quo.
Professor O'Connor, happy St. Patrick's Day.
Mr. O'Connor. Thank you.
Mr. Issa. But more importantly, you are a law professor. I
assume you went through law school some years ago?
Mr. O'Connor. Yes.
Mr. Issa. Did you ever get a Xerox copy of something that
was presented to you as a student?
Mr. O'Connor. You mean from my professor?
Mr. Issa. Yes, a photocopy at a class.
Mr. O'Connor. Yes.
Mr. Issa. And if he gave it to everybody in the class and
it was a substantial portion of a copyrighted material, isn't
that a copyright violation?
Mr. O'Connor. Well, there are interesting questions about
classroom use and fair use, and I have to be quite honest that
I don't think I ever got something that was the majority of,
say, a book. It was usually just a few pages or an article, so
I don't know that, especially my being a law student then, that
I had the ability to say whether it was classroom fair use or
not.
Mr. Issa. Okay. But you went through law school or to
undergraduate school in the 1980's or 1990's? When was it?
Mr. O'Connor. Eighties.
Mr. Issa. Eighties. So at that time, there was no Google,
right?
Mr. O'Connor. Correct.
Mr. Issa. Well, let's just bring ourselves up to date a
little bit.
Ms. Oyama, if today in the online world the equivalent is
occurring--in other words, somebody is using it in an online
class, they are posting it on a website, et cetera--and let's
just say that the professor here now wants to find out if
somebody is doing the right or wrong thing, isn't to a great
extent what Google provides to the copyright community a
virtually unlimited instantaneous ability to find copyright or
potential copyright violations or abuses in the open web?
Ms. Oyama. I think that is right. Actually, there is this
vibrant market that is growing of vendors that specialize in
this. Sometimes I think they use these same tools to find where
the problem is so they can then go on and attack them.
Mr. Issa. Well, Ms. Schneider, obviously as a composer, I
would sort of do the same thing, a composer, writer, producer.
You are much younger, of course, than the professor, but three
or four decades ago you wouldn't have known that somebody was
ripping off your music unless somebody happened to report
because they could photograph it, photocopy it. I can remember
that the Catholic Church and other churches finally got called
on using sheet music by simply mimeographing it and handing it
out, but for generations they had not been held accountable to
pay, and it wasn't fair use but they would have implied that
giving everyone in the choir a copy of somebody's sheet music
was okay. Do you remember hearing about that?
Ms. Schneider. Do I remember hearing about that?
Mr. Issa. Yes.
Ms. Schneider. Yes.
Mr. Issa. So a vast amount of this was going on, and for
the most part it was impossible to track. Do you agree that
today one of the disadvantages that leads to takedown is that
it is fairly inexpensive for people to put things on the
Internet? But isn't one of the advantages the fact that you now
can quickly, you or a service can quickly find infringers on
the Internet where you couldn't have found them, they were just
copying for church on Sunday in Tuscaloosa?
Ms. Schneider. You know, the digital age opened it up to
such an expansive point. And I would like to point out that you
were saying three or four decades ago. I mean, I don't know,
maybe we were talking about cassettes at a certain point, which
weren't very good quality, and then----
Mr. Issa. I want you to know I was selling 8-tracks in
college, so please do not lecture me on how bad they were.
[Laughter.]
But they were great in trucks when you couldn't hear
anyway.
But the point is you are arguing that somehow this new
opportunity, which is, of course, creating a huge amount of
sales--the majority of songs soon will, if they are not
already, be sold online. Aren't we dealing with a balance of
takedown allows for somebody to be essentially tried and
convicted by an accuser? That is the current law, that you
accuse. I am the copyright holder, I want to take him down. You
get an immediate adjudication, effectively, and takedown, and
yet I am being asked periodically to do more. SOPA and PIPA
obviously was a discussion about doing more, having the Justice
Department go out and criminalize this and do the work for
copyright owners and so on.
Isn't it today, unlike 10 years ago, 20 years ago, 30 years
ago, the fact that you now can find and instantaneously, even
automated, find and potentially accuse infringers and cause
takedown notice? Isn't that the status quo? I just want to
establish not right or wrong, not whether there could be more
done, but isn't that really the status quo, that when the
professor was in school, nobody knew whether his professor was
making copies under fair use or not? It just wasn't available.
The music, those 8-tracks, the bootleg 8-track industry, nobody
knew how many were sold and whether a truck stop had legal or
not legal.
You know, or at least have the ability to know, don't you?
Ms. Schneider. I can tell you that--I am just going to take
a little step back.
Mr. Issa. But the only thing I want you to do is----
Ms. Schneider. The answer is no, it is not good, because
there is so much of my music out there now compared to 8-track
cassettes.
Mr. Issa. Ma'am, I only wanted you to answer the question,
and then you can talk as long as the Chairman lets you.
Ms. Schneider. Okay.
Mr. Issa. Isn't it true you now can find that out, where
you couldn't have when the 8-track was being sold at Pop's
Truck Stop 30 or 40 years ago?
Ms. Schneider. Of course that is true. I can find it now.
Mr. Issa. Okay.
Ms. Schneider. But the quantity that is out there is just
so vast. Now, I will tell you, in 2003 when this thing started,
I happened to be--I consider myself the most well-equipped
musician I know in the age of the Internet because I just
happened to get on-board as the first artist with this company
called ArtistShare. The whole idea was that we are going to
connect directly with our fans. I am going to make a record,
fan funding, and I am going to share my process.
So I am a very insulated artist compared to most artists
because I have established these questions. But even amidst
this, with all these sites, there is so much of my content out
there. The other night, in 20 minutes, I found 11 sites with
just endless songs of mine that popped up again and again and
again.
So the ease and the scope at which people can do things
now, it is impossible to rein it in, and it is so financially
damaging to us. One point I want to make about this is that the
vast, vast majority of artists now are paying for their own
records. In the age of recording companies, the good part of
recording companies is that when they invest, they took on the
financial risk of a record. Now we are taking on the financial
risk. All the record companies are done, and we are trying to
pay back our loans, our mortgages on our houses, whatever we
are doing to make these records in an age when everybody is
stealing. It is really--I can't tell you how impossible it is
to negotiate this.
Something has to change, and I am asking, please, Congress,
do something to change this.
Mr. Issa. Mr. Chairman, if I could ask Ms. Oyama if she had
anything to comment on, on the ability, the speed of takedown
and the automation, if she has an answer to that.
Mr. Marino. The Chair recognizes her for 30 seconds.
Ms. Oyama. I think we are seeing the volumes of takedowns
going up because the World Wide Web is expanding, but the
takedowns are going down. The turn-around times are going down,
and that is the place where you want to incentivize more folks
to do the right thing when they can develop automation and
things like that.
Mr. Issa. Thank you, Mr. Chairman.
Mr. Marino. The Chair now recognizes the gentle lady from
Texas, Congresswoman Lee.
Ms. Jackson Lee. Again, I would like to as well acknowledge
this hearing as a very important hearing.
Ms. Schneider, let me thank you for framing a very large
issue for not only yourself but so many talented artists. Those
of us who have served on this Committee for a period of time,
we can recollect traveling to places such as Italy and Spain
and China with then-Chairman Hyde on the issue of the question
of intellectual property, and at that time it was in films and
music.
So I think this panel is very good because we have an
appropriate balance and we have contributors to a solution to
what you have just assessed. I want to find a solution.
We are blessed to be in a new age, and I think I have heard
quite a bit of compliments for Google. I will add mine because
we need the continued technological inquiry to be able to keep
moving and to find ways to address the respect for intellectual
property, as well as for the new technology that we have.
And that is why I want to go to Professor O'Connor and have
him lay out for us, in Stage 2 of your first proposed solution
that was in your testimony, you would have Congress add an
affirmative duty to monitor for and remove re-posted works. Can
you expound on that solution for a moment?
I want to come back to Ms. Oyama again for a very
exciting--I would just like to hear how it would work. The
monetizing thing is a very exciting concept. Will it grow? Will
you look for new technology to make it even more refined and
more accessible? Because as I listen to the sophistication of
Ms. Schneider, she is indicating that there may be rooms full
of individuals that are not that sophisticated.
But, Professor O'Connor, if I could.
And I have a question for you, Mr. Sieminski, as well.
Yes, Professor O'Connor?
Mr. O'Connor. Thank you, Representative Jackson Lee. I
appreciate this opportunity. I want to point out a couple of
things. One is that we live in a digital world now, and so the
content can be reproduced so much more quickly that simple
mimeographs, as Representative Issa was talking about, really
is not the world we live in now. So the reason why I want to
have the red-flag provisions strengthened is because I believe
that for the things that are the entire work and they are just
being flagrantly re-posted, and because we do have Content ID,
but as I mentioned before, it picked up even my song when I was
playing a small snippet of a ZZ Top song, that is impressive
technology.
So I believe that we can do this. Again, let's just target
the flagrantly infringing material and try to get that taken
down, lower the volume of takedown notices.
Ms. Jackson Lee. And who are you going against when you do
that? Because we have to be sympathetic to the providers versus
those who have content. Where is that going to be focused?
Mr. O'Connor. So I think everyone would agree that we
really want to get the people who are posting in the first
place. But at the same time, why I focus on strengthening
willful blindness is because we can't have this culture of
copyright contempt where even startups are saying, look, I
guess this is the game. The game is that I have to just turn a
blind eye and let everyone post whatever they will. I can't
monitor or I will get myself into trouble. I think we have set
up the incentives exactly backwards.
Ms. Jackson Lee. So I think what we would want is a really
intense discussion listening from both sides of that.
Ms. Oyama, you have made--well, let me just say, you all
have looked for answers, as we understand it. So how far can we
take that monetized approach that you are using, which I think
is very interesting? I like the billion-dollar number. I like
the partnership. How far can we take that?
Ms. Oyama. I think the sky is the limit. We are seeing a
really big uptick in the number of consumers globally, so not
just in U.S. consumers but globally that are trending toward
mobile and other devices. So as markets expand, as there are
more users, more consumers of music, movies, other types of
content, the question I think we are all grappling with is how
do you direct legitimate content to those users. So one of the
things that we have really always believed is the best way to
fight piracy is to increase the availability of legitimate
offerings.
So there are data that show in markets where Spotify has
entered the market, rates of piracy have dropped like 25
percent. So those are the kind of things that we want to
harness, how do we figure out our services. But there are also
great innovations in the TV and film space that are getting
into the home entertainment as well. How do we encourage rights
holders to be comfortable getting their content into the
digital space? How do we make consumers aware of it in
compelling ways? And how do we all grow the pieces together?
I think the one, just bringing it back to the safe harbors,
these services are providing new and really tremendous
opportunities for the industries. Their revenue continues to
grow, as well as creators who can now access these types of
tools that they wouldn't have been able to independently. They
can now do that on their own at lower cost.
So we have to think broadly about what kind of policies
stimulate more services like that, more license services that
will be paying rights holders, that will be feeding revenue
back to the content industry. The safe harbors there, they have
been critical for every U.S. Internet company that exists. And
in other countries, places like Europe, they don't have the
startup economy that we have. Southeast Asia, same thing.
Silicon Valley is a precious part of the U.S. economy because
of Congress' foresight in the DMCA.
So I would just urge folks to be very careful when we think
about whether or not we would want to start tinkering with that
very careful balance.
Ms. Jackson Lee. Mr. Sieminski, if I might, you indicated
that your company received in the neighborhood of 825 takedown
notices last month. How many counter-notices did you receive as
a result of that?
Mr. Sieminski. We received four last month on those 825.
Ms. Jackson Lee. How do you assess that?
Mr. Sieminski. I think----
Ms. Jackson Lee. Because you are here to solve a problem.
Mr. Sieminski. Yes. I think the counter-notice system has
many of the same problems that we see with the notice system. I
think the counter-notice procedures are very difficult to
navigate, especially for the average user, and I think a big
problem with it is even if you receive a notice for content
that you legally have the right to post, if a website takes
that down, and even if you go through the counter-notice
process, there is a 10-day period when that content is down for
good under the statute.
So the notice process provides for content to be taken down
for at least 10 days, and then there is a complicated process
for counter-noticing that most people can't navigate.
Ms. Jackson Lee. I have just a follow-up question, Mr.
Chairman, for Professor O'Connor, if I might, and I will
conclude with Ms. Schneider on a yes-or-no answer.
I wanted Mr. Sieminski to speak because he indicated that
there are no damages available for those who misuse the notice
process. While there may not be statutory language in 512(c),
the statute does provide for damages and fees if someone is
found to have abused the process.
Mr. O'Connor. Courts can craft remedies, yes.
Ms. Jackson Lee. So is there a damage process, or do we
need to make that more clear? Or do you believe there should be
one, or believe there is one?
Mr. O'Connor. I think it is not clear enough, and I think
we should make sure that we can take care of the abuses if they
are happening, although they should be happening on a
relatively small scale.
Ms. Jackson Lee. I just want to read this and conclude with
Ms. Schneider. I think it is important. You may have said this,
Ms. Oyama, but this sort of crafts the difficulty that we are
in.
This is really, really a good one in terms of the
experience of notice and takedown. A physician claiming a
copyright in his signature sent a takedown notice aimed at a
document related to the suspension of his license to practice
medicine. So I wanted to leave us on that note because this is
in your testimony about takedown notices, that sometimes it can
get really off center.
But I want to agree with Ms. Schneider and simply say as
you listen here to the testimony around the table, monetize,
talking about trying to find a balance, are you seeing that as
being helpful to you by looking at a way to balance these
issues?
Ms. Schneider. The takedown notices?
Ms. Jackson Lee. No, not the takedown notices, just the
idea of the utilization of your intellectual property monetized
as a technology, looking at clarifying the law. Is that going
to be helpful to you?
Ms. Schneider. No, because it is such small quantities of
money for so many views, advertising on Google and various
things. I mean, the thing that is frustrating from a musical
standpoint is that if you imagined music here with this much
volume of money that was coming in, we refer to it now as
content, and the content is being used by a number of companies
on the Internet to draw people, to draw eyeballs, and the more
eyeballs they get, the more data they collect, the higher
paying the advertising is.
Ms. Jackson Lee. So your answer is what? Your final answer
is what, to the solution?
Ms. Schneider. For me, the solution is that DMCA has to
have a more robust upload, stay-down means takedown, and there
should be a Content ID for every company so that everything is
filtered, so that at least I can control what is being
illegally uploaded out there.
Ms. Jackson Lee. Mr. Chairman, thank you for your
indulgence and courtesies, and to the Ranking Member as well. I
do think there is a call for us to work together.
I yield back.
Mr. Marino. This concludes this hearing. I want to thank
all our witnesses for attending. I want to thank our guests in
the gallery for being here.
Without objection, all Members will have 5 legislative days
to submit additional written questions for the witnesses or
additional materials for the record.
This hearing is now adjourned. Thank you.
[Whereupon, at 12:29 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Material submitted by the Honorable Darrell E. Issa, a Representative
in Congress from the State of California, and Member, Subcommittee on
Courts, Intellectual Property, and the Internet
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EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
EXHIBIT F
EXHIBIT G
EXHIBIT H
EXHIBIT I
EXHIBIT J
EXHIBIT K
EXHIBIT L
Response to Questions for the Record from Maria Schneider, Grammy Award
Winning Composer/Conductor/Producer, Member of the Board of Governors,
New York Chapter of the Recording Academy