[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]


                  COPYRIGHT AND THE INTERNET IN 2020:
                  REACTIONS TO THE COPYRIGHT OFFICE'S
       REPORT ON THE EFFICACY OF 17 U.S.C. 512 AFTER TWO DECADES

=======================================================================

                                HEARING

                               BEFORE THE

    SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED SIXTEENTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 30, 2020

                               __________

                           Serial No. 116-90

                               __________

         Printed for the use of the Committee on the Judiciary

[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

               Available via: http://judiciary.house.gov
               
                               __________

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
42-772                      WASHINGTON : 2022                     
          
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                       COMMITTEE ON THE JUDICIARY

                    JERROLD NADLER, New York, Chair
               MARY GAY SCANLON, Pennsylvania, Vice-Chair

ZOE LOFGREN, California              JIM JORDAN, Ohio, Ranking Member
SHEILA JACKSON LEE, Texas            DOUG COLLINS, Georgia
STEVE COHEN, Tennessee               F. JAMES SENSENBRENNER, Jr., 
HENRY C. ``HANK'' JOHNSON, Jr.,          Wisconsin
    Georgia                          STEVE CHABOT, Ohio
THEODORE E. DEUTCH, Florida          LOUIE GOHMERT, Texas
KAREN BASS, California               KEN BUCK, Colorado
CEDRIC L. RICHMOND, Louisiana        MARTHA ROBY, Alabama
HAKEEM S. JEFFRIES, New York         MATT GAETZ, Florida
DAVID N. CICILLINE, Rhode Island     MIKE JOHNSON, Louisiana
ERIC SWALWELL, California            ANDY BIGGS, Arizona
TED LIEU, California                 TOM McCLINTOCK, California
JAMIE RASKIN, Maryland               DEBBIE LESKO, Arizona
PRAMILA JAYAPAL, Washington          GUY RESCHENTHALER, Pennsylvania
VAL BUTLER DEMINGS, Florida          BEN CLINE, Virginia
J. LUIS CORREA, California           KELLY ARMSTRONG, North Dakota
SYLVIA R. GARCIA, Texas              W. GREGORY STEUBE, Florida
JOE NEGUSE, Colorado                 THOMAS TIFFANY, Wisconsin
LUCY McBATH, Georgia
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas

        PERRY APELBAUM, Majority Staff Director & Chief Counsel
               CHRISTOPHER HIXON, Minority Staff Director
                                 ------                                

             SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY,
                            AND THE INTERNET

            HENRY C. ``HANK'' JOHNSON, Jr., Georgia, Chair 
                 J. LUIS CORREA, California, Vice-Chair

THEODORE E. DEUTCH, Florida          MARTHA ROBY, Alabama, Ranking 
CEDRIC RICHMOND, Louisiana               Member
HAKEEM JEFFRIES, New York            STEVE CHABOT, Ohio
TED LIEU, California                 MATT GAETZ, Florida
GREG STANTON, Arizona                MIKE JOHNSON, Louisiana
ZOE LOFGREN, California              ANDY BIGGS, Arizona
STEVE COHEN, Tennessee               GUY RESCHENTHALER, Pennsylvania
KAREN BASS, California               BEN CLINE, Virginia
ERIC SWALWELL, California

                      JAMIE SIMPSON, Chief Counsel
                     BETSY FERGUSON, Senior Counsel
                            
                            
                            C O N T E N T S

                              ----------                              

                           September 30, 2020

                                                                   Page

                           OPENING STATEMENTS

The Honorable Jerrold Nadler, Chair of the Committee on the 
  Judiciary from the State of New York...........................     2
The Honorable Jim Jordan, Ranking Member of the Committee on the 
  Judiciary from the State of Ohio...............................   124

                               WITNESSES

Mr. Jeffrey Sedlik, President and Chief Operating Officer, PLUS 
  Coalition
  Oral Testimony.................................................   126
  Prepared Statement.............................................   128
Ms. Meredith Rose, Senior Policy Counsel, Public Knowledge
  Oral Testimony.................................................   132
  Prepared Statement.............................................   133
Ms. Morgan Grace Kibby, Singer and Songwriter
  Oral Testimony.................................................   141
  Prepared Statement.............................................   143
Mr. Jonathan Band, Counsel, Library Copyright Alliance
  Oral Testimony.................................................   145
  Prepared Statement.............................................   146
Mr. Matthew Schruers, President, Computer & Communications 
  Industry Association
  Oral Testimony.................................................   151
  Prepared Statement.............................................   152
Ms. Terrica Carrington, Vice President, Legal Policy and 
  Copyright Counsel, Copyright Alliance
  Oral Testimony.................................................   157
  Prepared Statement.............................................   158

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Materials submitted by the Honorable Jerrold Nadler, Chair of the 
  Committee on the Judiciary from the State of New York for the 
  record
  A statement from Emily R. Florio, President, American 
    Association of Law Libraries.................................     5
  A letter from the American Intellectual Property Law 
    Association..................................................     7
  A statement from Mary Rasenberger, Executive Director, The 
    Authors Guild, Inc...........................................    10
  A statement from Cloudflare, Inc...............................    22
  A statement from Consumer Technology Association...............    30
  A statement from Digital Media Association.....................    31
  A statement from Corynne McSherry, Legal Director, Electronic 
    Frontier Foundation..........................................    33
  A statement from Engine........................................    43
  A statement from the Independent Film and Television Alliance..    48
  A statement from Jared Polin, Small Business Owner.............    53
  A report by the Music Workers Alliance.........................    54
  A statement from Don Henley....................................    91
  A statement from Elizabeth ``Betsy'' Rosenblatt and the 
    Organization for Transformative Works........................    94
  A statement from the Society of Composers & Lyricists..........   109
  A statement from the Songwriters Guild of America..............   112
  A statement from Stephen M. Wolfson, University of Georgia 
    School of Law................................................   122
Materials submitted by the Honorable Andy Biggs, a Member of the 
  Subcommittee on Courts, Intellectual Property, and the Internet 
  from the State of Arizona for the record
  Testimony from a Subcommittee on Intellectual Property hearing 
    by Rick Beato, July 28, 2020.................................   180
  An article entitled, ``When a Guitar Lesson Becomes 
    Controversial,'' OZY.........................................   182

                 QUESTIONS AND RESPONSES FOR THE RECORD

Questions to witnesses submitted by the Honorable Greg Stanton, a 
  Member of the Committee on the Judiciary from the State of 
  Arizona for the record.........................................   208
Questions to Ms. Morgan Grace Kibby and Mr. Matthew Schruers 
  submitted by the Honorable Guy Reschenthaler, a Member of the 
  Committee on the Judiciary from the State of Pennsylvania for 
  the record.....................................................   211
A response to questions from Mr. Jeffrey Sedlik, President & 
  Chief Operating Officer, PLUS Coalition for the record.........   213
A response to questions from Ms. Meredith Rose, Senior Policy 
  Counsel, Public Knowledge for the record.......................   217
A response to questions from Ms. Morgan Grace Kibby, Singer and 
  Songwriter for the record......................................   221
A response to questions from Mr. Jonathan Band, Counsel, Library 
  Copyright Alliance for the record..............................   224
A response to questions from Mr. Matthew Schruers, President, 
  Computer & Communications Industry Association for the record..   226
A response to questions from Ms. Terrica Carrington, Vice 
  President, Legal Policy and Copyright Counsel, Copyright 
  Alliance for the record........................................   231

 
                  COPYRIGHT AND THE INTERNET IN 2020:
                  REACTIONS TO THE COPYRIGHT OFFICE'S
                REPORT ON THE EFFICACY OF 17 U.S.C. 512 
                           AFTER TWO DECADES

                              ----------                              


                     Wednesday, September 30, 2020

                        House of Representatives

             Subcommittee on Courts, Intellectual Property,
                            and The Internet

                       Committee on the Judiciary

                             Washington, DC

    The Committee met, pursuant to call, at 12:07 p.m., in Room 
2141, Rayburn Office Building, Hon. Jerrold Nadler [Chair of 
the Committee] presiding.
    Present: Representatives Nadler, Lofgren, Johnson of 
Georgia, Deutch, Cicilline, Swalwell, Raskin, Jayapal, Demings, 
Correa, Scanlon, Garcia, McBath, Stanton, Dean, Murcarsel-
Powell, Escobar, Jordan, Chabot, Gohmert, Roby, Biggs, 
Reschenthaler, Cline, Armstrong, Steube, and Tiffany.
    Staff present: David Greengrass, Senior Counsel; Madeline 
Strasser, Chief Clerk; Anthony Valdez, Clerk and Professional 
Staff Member; Moh Sharma, Member Services and Outreach Advisor; 
Cierra Fontenot, Staff Assistant; John Williams, 
Parliamentarian; Jamie Simpson, Chief Counsel, Courts, 
Intellectual Property, and the Internet Subcommittee; Rosalind 
Jackson, Professional Staff Member, Courts, Intellectual 
Property, and the Internet Subcommittee; Chris Hixon, Minority 
Staff Director; Tyler Grimm, Minority Chief Counsel for Policy 
and Strategy; Ella Yates, Minority Director of Member Services 
and Coalitions; Kiley Bidelman, Minority Clerk; and John Lee, 
Minority USPTO Detainee.
    Chair Nadler. [Presiding.] The Committee on the Judiciary 
will come to order.
    Without objection, the Chair is authorized to declare 
recesses of the Committee at any time.
    We welcome everyone to this afternoon's hearing on 
Copyright and the Internet in 2020: Reactions to the Copyright 
Office's Report on the Efficacy of 17 U.S.C. 512 After Two 
Decades.
    Before we begin, I would like to remind the Members that we 
have established an email address and distribution list 
dedicated to circulating exhibits, motions, or other written 
materials that Members might want to offer as part of our 
hearing today. If you would like to submit materials, please 
send them to the email address that has been previously 
distributed to your offices, and we will circulate the 
materials to Members and staff as quickly as we can.
    I would also remind all Members that guidance from the 
Office of Attending Physician states that face coverings are 
required for all meetings in an enclosed space, such as 
Committee hearings. Everybody attending this hearing is 
required to follow this guidance, and I will not recognize 
Members to speak who are not in compliance with these rules. If 
you do not wish to put on a mask, you have the option to 
participate in this hearing remotely.
    Finally, I would ask all Members, both those in person and 
those appearing remotely, to mute your microphones when you are 
not speaking. This will help prevent feedback and other 
technical issues. You may unmute yourself at any time that you 
seek recognition.
    I will now recognize myself for an opening statement.
    Today's hearing will examine how a key provision of 
copyright law that guides how copyright and parts of the 
internet interact with each other has fared in today's digital 
age. This provision, section 512 of title 17, was enacted in 
1998 as part of the Digital Millennium Copyright Act. Back 
then, internet activity was in its nascency. Many of the online 
platforms that we consider universal today had yet to be 
formed. eBay had been around for just 3 years, Google was 
founded that same year, and Facebook's birth was still 6 years 
away. With the burgeoning ways for people to share and 
distribute content through the internet, in enacting section 
512, Congress sought to balance two goals: On the one hand, 
promoting the growth and innovation of online networks, and, on 
the other hand, protecting intellectual property rights and the 
incentive system for promoting the creation of new expressive 
works.
    At the heart of section 512 is the notice and takedown 
system. Broadly, under notice and takedown, a copyright owner 
can send a notice to an online service provider when a third 
party has used allegedly infringing material through or on the 
provider's services. The online service provider must then take 
that material down. If the online service provider complies 
with the notice and takedown process, its liability for 
infringement is limited. Twenty years have passed since section 
512's enactment, and it would be an understatement to say that 
the internet has changed rapidly during that time.
    The internet has gotten faster and more accessible, and the 
number of ways to share and view copyrighted content has 
increased dramatically. In tandem with these increases, we have 
also seen a dramatic increase in the volume of infringing 
materials being shared and viewed online. Our copyright laws 
must keep up. Today we seek perspectives on whether section 512 
is working efficiently and effectively for this new internet 
landscape and whether the balance that Congress sought in 1998 
is still being achieved in 2020. Our discussion is guided by 
the Copyright Office's recent report that studied this very 
question.
    I want to applaud the Copyright Office for the care and 
diligence with which it undertook this study. Their work began 
two Congresses ago when this Committee requested that it study 
section 512 in light of all the changes the internet had 
undergone. The Office's review is exhaustive. They reviewed 
more than 90,000 comments, held public roundtables in 
Washington, New York, and San Francisco, and conducted an 
extensive review of case law on this issue.
    Turning to the report's substance, the office concluded 
that the balance that Congress originally sought in enacting 
section 512 is now askew. The Office found that online service 
providers and user groups were generally satisfied with section 
512's operation, but copyright owners typically disagreed, 
finding section 512 ineffective in the face of the current 
scale of infringement. To address this imbalance, the Copyright 
Office includes recommendations in areas that Congress may wish 
to fine tune or clarify, as well as voluntary measures that the 
Office considers valuable for increasing the efficacy of 
section 512.
    To better understand the Copyright Office's 
recommendations, staff of the Committee held a series of 11 
listening sessions over the summer, hearing directly from over 
90 panelists, including creators, and artists, and 
representatives of public interest groups, libraries, online 
service providers, internet service providers, legal 
practitioners, and the sports, live entertainment, music, film, 
television, software, newsprint, and photography industries. I 
want to thank the many people who participated and all those 
who followed up with written statements for this hearing. 
Without objection, I will place those statements into the 
record.
    [The information follows:]
      

                       CHAIR NADER FOR THE RECORD

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[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    Chair Nadler. Here with us today, we have six Witnesses to 
provide the Committee with a representative set of reactions to 
the Copyright Office's report and recommendations and ultimate 
conclusion that section 512 is out of balance. Today's 
Witnesses reflect the diverse interests at stake when copyright 
and the internet intersect, and their perspectives are 
invaluable. A lot has changed since 1998, and today's dialogue 
will mark an important step forward in ensuring that our 
copyright laws are keeping pace with reality. I thank our 
Witnesses for joining us today, and I look forward to their 
testimony.
    I now recognize the Ranking Member of the Judiciary 
Committee, the gentleman from Ohio, Mr. Jordan for his opening 
statement.
    Mr. Jordan. Thank you, Mr. Chair. I, too, want to thank our 
Witnesses for being here today. The Digital Millennium 
Copyright Act, or DMCA, was a landmark piece of legislation 
when it was enacted in 1998. It provided needed certainty for 
stakeholders in the copyright system and a framework that 
contributed to more than 2 decades of explosive growth and 
innovation online. As important as the DMCA was and continues 
to be, 2 decades is an eternity when it comes to the internet, 
as you expressed in your opening comments as well.
    Many of the ways in which Americans access content online 
today had not been invented or developed when the DMCA was 
enacted. For example, YouTube, Facebook, Twitter, Pandora, 
Spotify, and Hulu all started years after this legislation was 
passed two decades ago. Over the past decade, Congress has 
begun to look more closely at how the copyright system and the 
DMCA is interacting with this shifting landscape online. The 
stakes are critical to our economy and to our country. The 
creative industry contributes hundreds of billions of dollars 
to our economy each year and employs millions of Americans.
    Today, creative content is primarily produced and 
distributed and consumed digitally over the internet. As a 
result, writers, musicians, filmmakers, photographers, and 
other artists depend on online service providers to reach their 
audiences and earn a living. They are not alone. Creative works 
also represent the talents and skills, engineers, researchers, 
editors, and countless others, all of whom depend on the 
economic success of those creative works online. This is why 
DMCA is important, and particularly section 512.
    Section 512 protects online service providers but requires 
them to implement procedures intended to allow copyright 
holders to protect and control their creative work on those 
services. Over the past decade, though, many stakeholders have 
come to Congress to alert us they feel that this section is not 
working as it was intended. The problem facing many creators 
today is not a few dozen fake CDs or DVDs sold on the street, 
but instead illegal uploads on multiple websites where they are 
accessed or downloaded millions of times. The economic harm of 
millions of unauthorized downloads to a creator is obvious 
since each download is potentially a lost sale, but the true 
impact may be much wider. By some estimates, online piracy 
costs our economy around $30 billion a year and affects 
everyone in the creative industry.
    For their part, service providers must advance the purpose 
of section 512 to protect copyrighted works online in order to 
benefit from its safe harbors, but they must also balance the 
rights of users, including freedom of expression. That can be a 
difficult task, particularly considering the vast amount of 
content uploaded to the internet each day. For example, YouTube 
alone sees 500 hours of video uploaded every minute. Every 
single minute. Fortunately, technology exists to help in that 
task, and additional advancements in years to come will help 
further. While the government should not become more involved 
than necessary, we must continue to monitor this area of law 
and play a constructive role by making any necessary 
adjustments to the section 512 framework and by incentivizing 
innovation to better address online copyright infringement. The 
system must do a better job protecting the rights of copyright 
holders while balancing the interests of the public. That is 
why I'm pleased the Committee has convened this hearing in 
exploring these issues that are vital to our economy and to our 
country.
    I want to thank all our Witnesses for participating, as I 
said earlier, and assisting us in this hearing. Mr. Chair, I 
would yield back.
    Chair Nadler. Thank you, Mr. Jordan. Without objection, all 
other opening statements will be included in the record.
    I will now introduce today's Witnesses.
    Jeffrey Sedlik has been a professional advertising 
photographer in Pasadena, California for 35 years. He has been 
a professor at the Art Center College of Design for 25 years, 
teaching courses on copyright law and licensing. Additionally, 
as the President of the nonprofit PLUS Coalition, he manages 
the successful development of multiple standard technical 
measures for visual arts. Meredith Rose is the policy council 
at Public Knowledge where she specializes in technology, 
telecommunications, and intellectual property policy. 
Previously, she worked on consumer policy issues at the Federal 
Communications Commission, the Transatlantic Consumer Dialogue, 
and Knowledge Ecology International. Ms. Rose received her 
bachelor's degree and law degree from the University of 
Chicago.
    Morgan Kibby is a classical pianist, cellist, and vocalist. 
In addition, as a writer, producer, and performer, she has both 
created solo works and works produced in collaboration with 
many other artists, which have garnered critical acclaim and 
award nominations. More recently, she has scored projects for 
several online streaming services and for films in competition 
at major film festivals. Jonathan Band is counsel for the 
Library Copyright Alliance. He is also an adjunct professor at 
the Georgetown University Law Center, has written extensively 
on intellectual property and the internet, and has many years' 
experience in private practice. He is a graduate of Harvard 
College and Yale Law School.
    Matt Schruers is President of the Computer and 
Communications Industry Association where he directs its 
advocacy on behalf of leading internet, communications, and 
technology companies. He joined CCIA from private practice in 
2005. For 10 years, he has served as an adjunct professor, 
teaching both intellectual property and internet law at 
Georgetown University and American University Washington 
College of Law. He is a graduate of Duke and the University of 
Virginia School of Law. Terrica Carrington is Vice President, 
legal policy and copyright counsel at the Copyright Alliance, 
an organization dedicated to protecting the rights of creators 
and advocating policies that promote the value of copyright. 
Ms. Carrington is also an adjunct professor at George Mason 
University School of Law. She is a graduate of the University 
of North Carolina Chapel Hill and George Mason University 
School of Law.
    We welcome all our distinguished Witnesses. We thank them 
for their participation. Now, if you would please rise, I will 
begin by swearing you in.
    Do you swear or affirm under penalty of perjury that the 
testimony you are about to give is true and correct to the best 
of your knowledge, information, and belief, so help you God?
    [A chorus of ayes.]
    Chair Nadler. Let the record show the Witnesses answered in 
the affirmative. Thank you, and you may be seated.
    Please note that each of your written statements will be 
entered into the record in its entirety. Accordingly, I ask 
that you summarize your testimony in 5 minutes. To help you 
stay within that time, there is a timer on your screen. When 
the light switches from green to yellow, you have 1 minute to 
conclude your testimony. When the light turns red, it signals 
your 5 minutes have expired.
    Mr. Sedlik, you may begin.

                  TESTIMONY OF JEFFREY SEDLIK

    Mr. Sedlick. Chair Nadler, Ranking Member Jordan, and other 
Members of the Committee, thank you for the opportunity to 
testify today on section 512 of the Digital Millennium 
Copyright Act (DMCA). My name is Jeffrey Sedlik. I've been a 
professional photographer for 35 years, and I am the author and 
owner of hundreds of thousands of copyrighted photographs. I am 
also the President of the PLUS Coalition, a global nonprofit 
organization in which diverse stakeholders from 140 countries 
have collaborated to develop standard technical measures to 
ensure that the public can access and understand rights 
information for visual works. The PLUS standard technical 
measures have multiple adopters, including Google, Yahoo, 
Adobe, and millions of creators and users throughout the world.
    I make a living creating and licensing photographs to 
appear in all manner of media. The photographs that I create 
are protected under U.S. copyright law, at least in theory. In 
reality, my photographs receive very little protection because 
of the rampant infringement of my work that is knowingly 
permitted by online service providers on their platforms and 
websites.
    Instead of using readily-available technologies to identify 
and mitigate copyright infringement, service providers hide in 
the safe harbor of 512, ignoring illegal activity, and allowing 
infringers to infringe, exploit, and monetize my work with 
impunity unless and until I submit a DMCA takedown notice. As a 
result, I am forced to dedicate my very limited time to 
searching for infringements, making screenshots to document the 
infringing material, collecting hundreds or thousands of 
infringement URLs, combing through obscure OSP menus to find 
DMCA agent information, drafting and submitting takedown 
notices, and responding to inane, unnecessary, superfluous 
follow-up questions from service providers. Once the 
infringement is taken down, it will inevitably return, often 
the same day because service providers uniformly fail to 
effectively implement and enforce repeat infringer policies.
    Enforcing my rights under the DMCA is an impossible task, 
not just for me, but for my fellow creators across this Nation. 
Most visual artists operate as micro businesses, often with no 
employees. Like other creators, in order to feed my family, I 
must generate revenue by creating and licensing new works 
continuously. In attempting to license my works, I find that I 
am forced to compete with hundreds of thousands of unlicensed, 
unpaid infringing uses of my works on service providers' 
platforms and websites. If I do not enforce my copyrights, my 
work has no value and my business is not sustainable, but if I 
dedicate the time and effort necessary to identify and 
repeatedly enforce my copyrights with takedown notices, I have 
no time left to create new works. This is an untenable 
situation--one that I and innumerable other visual artists and 
small businesses are forced to confront on a daily basis.
    If my takedown notice is met with a counter notice, 512 
allows me just 10 days in which to interview and retain an 
attorney and file a complaint in Federal court, or the 
infringement will be back online. If I do not have a copyright 
registration for the photograph in question, I face the 
prospect of paying the Copyright Office more than 10 times the 
normal registration fee to expedite processing of my 
application under the special handling procedures with no 
guarantee that the Office will be able to actually process and 
approve my registration within 10 days. Certainly, this is not 
the effective, balanced system envisioned by Congress when it 
enacted the DMCA. The fact that millions of takedown notices 
are issued each day is not a sign of success. It is a sign of 
an unbalanced system under strain and on the verge of failure, 
if not beyond.
    I thank the Copyright Office for their years of great work 
on the 512 report. I agree with and support the recommendations 
of the Copyright Office. In my written testimony, I present 13 
additional recommended revisions. I make these suggestions on 
behalf of the American Photographic Artists, the American 
Society for Collective Rights licensing, the American Society 
of Media Photographers, the Digital Media Licensing 
Association, the Graphic Artists Guild, the National Press 
Photographers Association, the North American Nature 
Photographers Association, the PLUS Coalition, and the 
Professional Photographers of America. In closing, I, again, 
thank the Committee for your efforts to improve the Copyright 
Act and for the opportunity to share my experience and 
suggestions in my testimony today.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    Chair Nadler. Thank you. Ms. Rose?

                   TESTIMONY OF MEREDITH ROSE

    Ms. Rose. Chair Nadler, Ranking Member Jordan, Members of 
the Committee, thank you for inviting me to testify today on 
this important topic.
    More than 229 million American adults use the internet each 
day. It is not just a delivery mechanism for copyrighted 
content. It is the lifeline by which they work, worship, 
connect with their families and communities, seek and receive 
healthcare, stay informed, organize debate, and exercise 
political speech every single day. Yet, despite the scale and 
importance of this constituency, they are conspicuously absent, 
absent from the Copyright Office section 512 report, absent 
from the oversight mechanisms governing their speech, and 
absent from the debate on Capitol Hill. This is the 
constituency on whose behalf I speak today, the forgotten 229 
million users in this debate.
    My written testimony gets into some detail, but I wanted to 
use my time to touch on three major issues: Section 512's 
outdated stance on broadband access, the powerful nature and 
attendant abuse of takedown notices, and the difficult 
realities of automated enforcement.
    First, section 512 governs the way in which I am speaking 
to you right now, through a broadband connection. The Supreme 
Court has held that cutting individuals off, even after being 
convicted for child sex offenses, raises grave constitutional 
concerns. Therefore, we cannot as a society accept a law which 
allows unvetted accusations from private parties of a civil 
offense to disconnect an entire household from modern society. 
Yet, lower courts have interpreted section 512 to mean exactly 
that, that ISPs must shut off households' internet access upon 
receiving unproven allegations of copyright infringement.
    A bright spot of bipartisanship currently is the push to 
expand broadband access, represented by no fewer than 30 bills 
currently before Congress in both chambers and across the 
political spectrum. Yet, major content companies insist that 
this power they wield is not only appropriate, but insufficient 
for their purposes. Historical context is important. When the 
DMCA was passed in 1998, ISPs were software providers that 
operated over the telephone network. As a user, if your AOL 
account was terminated, you could instead subscribe to any of 
the dozens of AOL competitors. In 2020, ISPs such as Comcast or 
Verizon control both the software and physical connection into 
your home. For the more than 100 million Americans living in 
homes serviced by only one broadband provider, an account 
termination means losing access to the internet in its 
entirety. Shifting ISP business models as well as the rising 
importance of broadband to modern life have rendered this 
punishment wildly disproportionate to the alleged offense.
    Second, we must acknowledge the systemic problem of bad 
DMCA notices and their impact on everyday speech. A DMCA 
takedown has a power which is unparalleled in the online 
ecosystem. It can erase speech from the internet for up to two 
weeks. Takedowns are rarely contested, and there's no 
meaningful oversight of these notices or disincentive against 
abuse, but the result is a long and thoroughly documented 
history of weaponization with experts estimating that nearly 
one-third of notices are problematic. Although bad notices stem 
from everything from algorithmic defects to deliberate abuse, 
their aggregate impact is undeniable. Senders can use takedowns 
to censor legitimate content, incomplete or error-filled 
notices can make it impossible for platforms to identify the 
works involved, and search and notice bots can and have 
disrupted livestreams and news broadcasts. Some stakeholders, 
however, still insist that they need faster takedowns with 
fewer user safeguards and greater potential liability for any 
platform that attempts to filter out defective or malicious 
notices.
    Finally, we must understand the limits of private 
technologically based enforcement solutions. These often sound 
good in theory, but the reality is far messier. Because they 
operate automatically, these algorithms are prone to removing 
speech that is otherwise political, educational, or newsworthy, 
and policymakers must grapple with what users and artists alike 
have understood for ages, that the balance of equities in 
practice is not determined by the law, but by the financial 
incentives, design choices, and technological limitations of 
those who design the algorithms.
    We are at a historic inflection point politically, 
economically, and socially. On the streets, at the polls, and 
in their homes, Americans are online. We are registering to 
vote, testifying before Congress, organizing political action, 
and attending weddings and funerals all online. We are debating 
and documenting our lives, our surroundings, and our realities 
across ideological and geographic divides. The internet is how 
we bear witness. It is how the work of community activists and 
organizers is amplified, and how we see ourselves and how we 
are seen by the eyes of the world. If we were to strike any 
sort of new balance, it must keep the needs of 229 million 
voices and their ability to speak freely at the front of mind.
    Thank you, and I look forward to your questions.
    [The statement of Ms. Rose follows:]

                   STATEMENT OF MEREDITH ROSE

    Chair Nadler, Ranking Member Jordan, Members of the 
Committee, thank you for inviting me to testify today on this 
always-important topic.
    Two hundred and twenty-nine million Americans use the 
internet each day.\1\ That's 229 million American adults using 
the internet towork, worship, connect with family and friends, 
receive healthcare, consume and discuss the news, and organize 
political action each and every day. The laws we debate here 
set the rules for that speech. The ability of these 229 million 
users to speak freely online must be the first motivating 
priority of any reform to copyright liability. While we commend 
the Copyright Office's herculean effort to comprehensively 
evaluate section 512, wewere alarmed to see the resulting 
Report dismiss the concerns of everyday users. The Office's 
analysis performed a familiar sleight-of-hand by presenting 
user interests as co-extensive with those of platforms, 
effectively erasing free speech concerns from its analysis.
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    \1\ U.S. Census Bureau, QuickFacts: United States, (last visited 
June l, 2020), https://www.census.gov/quickfacts/fact/table/US/
PST0452l9 (The total U.S. population is estimated at 328,239,523; 77.6% 
or 254,713,870 are over 18.); Monica Anderson, Andrew Perrin, Jingjing 
Jiang & Madhumitha Kumar, 10% of Americans Don't Use the Internet. Who 
Are They?, Pew Res. Ctr. (April 22, 2019) https://www.pewresearch.org/
fact-tank/2019/04/22/some-americans-dont-use-the-internet-who-are-they/ 
(if 10% of U.S. citizens over 18 do not use the internet, then 90% or 
229,242,483 do).
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    Congress must abandon the idea that copyright debates are 
mere sniping between rightsholders and platforms. The speech 
interest of every American internet user is directly in the 
crossfire. If we are to strike any sort of ``new balance,'' it 
must center our nation's 229 million internet users and their 
ability to speak freely--not merely the administrative 
convenience of major industries.

              I. The Risks to Users' Speech Online

                     A. ISP Disconnections

    Alarmingly, stakeholders such as RIAA, MPA, and AAP \2\ 
contend that section 512 grants them the right to demand that 
an entire household's internet access be terminated, based 
purely on accusations of copyright infringement. It goes 
without saying that Congress should not be making it easier for 
private third parties to unilaterally terminate a household's 
ability to participate in modern society.
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    \2\ U.S. Copyright Office, Section 512 of Title 17: A Report of the 
Register of Copyrights at 98, fn 520 (May 2020)[hereinafter USCO 512 
Report], https://www.coppyright.gov/policy/section-512/section-512-
full-report.pdf.
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    The Federal Communications Commission has found that 
Americans use broadband ``for every facet of daily life.'' \3\ 
The current pandemic has driven Congress to emphasize the role 
of broadband in Americans' work, education, social lives, and 
health care services.\4\ Broadband providers have pledged not 
to cut off people's broadband for non-payment, and Congress has 
proposed several bills designed to not only protect broadband 
as an essential communications service, but also to expand 
access and affordability. Despite this, it is the position of 
large rightsholders that their unvetted allegations of a civil 
offense are sufficient to cut an entire household off from the 
internet. Alarmingly, courts have largely gone along with this 
argument. This provision, before all others, is sorely in need 
of revision.
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    \3\ Inquiry Concerning the Deployment of Advanced 
Telecommunications Capability to All Americans in a Reasonable and Time 
Fashion, and Possible Steps to Accelerate Such Deploment Pursuant to 
Section 706 of the Telecommunications Act of 1996, as Amended by the 
Broadband Data Improvement Act, GN Docket No. 14-26, 2015 Broadband 
Progress Report and Notice of Inquiry on Immediate Action to Accelerate 
Deployment, 30 FCC Rcd. 1375, 1377 2 (2015).
    \4\ See COVID-19 Broadband Bills, Public Knowledge (Current as of 
June 1, 2020), https://www.publicknowledge.org/COVID-19-broadband-
bills/.
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    It is hard to overstate the outsize role that broadband 
access has adopted in the 22 years between the DMCA's passage 
and today. Americans use broadband to work remotely, attend 
classes, access critical medical care, consume essential news 
and information, and socialize. First responders use broadband 
to communicate life-saving information to local residents, and 
small- to medium-size businesses use broadband to access global 
markets that are critical to staying afloat.\5\ This importance 
cannot be reconciled with the broad interpretation of section 
512(i) as requiring that ISPs adopt policies that provide for 
the termination of subscribers upon repeat accusations of 
infringement.\6\
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    \5\ Robert Pepper et al., Cross-Border Data Flows, Digital 
Innovation, and Economic Growth, The Global Info. Tech. Rep. 40, 41 (20 
I 6), http://www3.weforum.org/docs/GITR2016/WEF
_GITR_Chapter1.2_2016.pdf; FCC, Connecting America: The National 
Broadband Plan 313 (March 17, 2010), https://transition.fcc.gov/
nationaI-broadband-plan/national-broadband-plan.pdf.
    \6\ BMG Rights Mgmt. v. Cox Communs., 881 F.3d 293, 302 (4th Cir., 
2018).
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    Much of this disconnect is due to outdated statutory 
terminology. Put simply, ``internet service providers'' meant 
something very different in 1998 than it does in 2020. Modern 
internet service providers have two distinct functions: The 
interactive software-level component that connects and routes 
traffic to the broader internet, and the physical 
infrastructure over which the traffic flows. In 1998, 
``internet service providers'' were strictly software-layer 
services such as America Online and CompuServe, which operated 
over infrastructure provided by the existing telephone network. 
In 1998, termination from an ``internet service provider'' 
meant that a customer had to uninstall American Online and 
subscribe to any of its software-layer competitors. In short, 
when the DMCA was written, ISPs were edge services that 
operated in a competitive market and operated over a 
separately-owned, regulated common carrier. Congress did not 
suggest that the operator of the infrastructural component 
(i.e., the legacy telephone network) could be held liable for 
copyright infringement.
    In 2020, however, the software and infrastructure have come 
under the same roof; modern ISPs both route traffic and own the 
cable (or fiber) over which the traffic flows. This radically 
alters the stakes of ``subscriber termination,'' as terminating 
an account bars the subscriber from the physical network. This 
is particularly dire in light of the current ISP market, which 
severely lacks competition. More than 100 million Americans 
live in homes serviced by only one broadband provider.\7\ 
Forty-two million lack access to any wired or fixed wireless 
broadband, instead relying on limited mobile or satellite 
connectivity.\8\ Only 27% of census blocks have access to more 
than two broadband providers at standard (25 Mbps) speeds; 
fewer than 2% have competitive access to 100 Mbps speeds.\9\
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    \7\ Christopher Mitchell, Repealing Net Neutrality Puts 177 Million 
Americans at Risk, Community Networks (December 11, 2017), https://
muninetworks.org/content/177-million-americans-harmed-net-neutrality.
    \8\ John Busby, Julia Tanberk et al., FCC Reports Broadband 
Unavailable to 21.3 Million Americans, Broadband Now Study Indicates 42 
Million Do Not Have Access, BroadbandNow (February 3, 2020), https://
broadbandnow.com/research/fcc-underestimates-unserved-by-50-percent.
    \9\ The FCC, Internet Access Services: Status as of December 31, 
2016, fig. 4 (February 2018),https://transition.fcc.gov/Daily_Releases/
Daily_Business/2018/db0207/DOC-349074Al.pdf. The FCC's more recent 
report contains less reliable figures as it includes satellite 
broadband, which is not an adequate substitute for terrestrial fixed 
connections, in the higher speed tiers. See Internet Access Services: 
Status as of December 31, 2017, fig. 4 (August 2019), https://
docs.fcc.gov/public/attachments/DOC-359342Al.pdf.
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    While deployment and speeds have improved marginally over 
time, competition has not. The reasons for this are numerous 
and well-documented: Truly high-speed wired broadband is only 
feasible over fiber and coaxial cable; the DSL providers who 
once provided a level of competition to cable are increasingly 
irrelevant; and mobile broadband remains a complement, not a 
substitute, to wired household broadband for the vast majority 
of users. Thus, for most households, being cut off from wired 
broadband means losing the kind of internet access necessary 
for those public policy reasons--school, work, and healthcare--
that Congress and the FCC have consistently advanced its 
adoption.
    It is also questionable (both as a legal and policy matter) 
whether the Act of providing broadband access should ever give 
rise to any form of secondary liability from which a provider 
must be shielded. The law does not specify how ISPs are 
supposed to obtain knowledge of repeat infringers; they are not 
required to accept DMCA takedown notices, as other online 
service providers are, since they do not actually host any 
material. ISPs also do not (and should not) have a general duty 
to monitor and track their users' activity. Private allegations 
of civil offense have never been--and should never be--
sufficient reason to compel utility companies to cut off a 
customer's water or power. Within the context of copyright 
liability, modern-day ISPs are more akin to the power company 
that powers a user's computer than they are to a file-sharing 
service or streaming site.

                         B. Bad Notices

    DMCA takedown notices are extraordinarily powerful tools 
with a documented history of abuse. A DMCA takedown has 
unparalleled power in the online ecosystem--the power to 
unilate rally, and nearly instantaneously, erase speech from 
the internet. Even when challenged, the law requires that the 
speech stay down for up to 14 days.
    This power would be concerning even in a well-governed 
system. However, by any measure, the DMCA notice-and-takedown 
scheme is not well-governed. It suffers from a disproportionate 
number of bad notices that hide non-infringing speech and 
information from public view, affecting the ability of users 
and creators to use the internet for free expression and 
creativity. A quantitative study of more than 108 million 
takedown requests revealed that approximately 30% of requests 
were ``potentially problematic,'' and further, that 4.5 million 
of the problematic requests were ``fundamentally flawed.'' \10\ 
Common causes include anticompetitive behavior,\11\ a 
misunderstanding or misapplication of copyright,\12\ and lack 
of useful identifying information for either the infringed-upon 
work or the allegedly infringing material.\13\ The kinds of bad 
notices vary by plat form, and reflect the particulars of its 
user base; on Amazon's Kindle Direct, for example, 
approximately half of DMCA takedown requests are not 
infringement-driven, but are instead attempts by authors to 
remove competitors' books from the rankings.\14\ Bad notices 
are, by any measure, pervasive, and have a substantial 
aggregate impact on user speech.
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    \10\ Jennifer M. Urban, Joe Karaganis, & Brianna Schofield, Notice 
and Takedown in Everyday Practice 2 (March 22, 2017) (UC Berkeley Pub. 
L. Res. Paper No. 2755628) [hereinafter Urban Report], https://
ssrn.com/abstract=2755628.
    \11\ See U.S. Copyright Office, Section 512 Study: 9th Circuit 
Public Rountable 248 (May 13, 2016) (Testimony of Stephen Worth, Assoc. 
General Counsel of Amazon.com), https://www.copyright.gov/policy/
section512/public-roundtable/transcript_05-13-2016.pdf.
    \12\ See, e.g., Google Additional Comments Submitted in Response to 
U.S. Copyright Office's Nov. 8, 2016, Notice of Inquiry 9 10 (February 
21, 2017). https://www.regulations.gov/document?D=COLC-2015-0013-924873 
(``[W]e explain at the appropriate step in our form that merely being 
the subject of a photo does not give one a copyright interest in the 
photo. In our experience, this warning dramatically cut down on the 
number of misguided notices.'').
    \13\ Urban Report at 90 (noting that, by conservative estimates, 
4.6% of notices contain incorrect or missing information about the 
allegedly infringed work or allegedly infringing material).
    \14\ See Testimony of Stephen Worth, Assoc. General Counsel of 
Amazon.com, supra note 11. (``[W]ith Kindle Direct publishing, authors 
routinely try to climb to the top spot in their category . . . by 
issuing bogus notices against higher ranking titles. And this for us 
actually accounts for more than half of the takedown notices that we 
receive.'').
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                   1. Sources of Bad Notices

    Bad notices stem from a variety of sources that range from 
technical errors to deliberate bad faith. Generally, they can 
be broken down into four categories: Misuse of copyright, abuse 
of the DMCA takedown procedure for non-copyright ends, 
technical flaws, and algorithmic defects. Similarly, the goals 
and motivations behind bad notices can range from political 
censorship, to innocent error, to overzealous enforcement. Even 
at their most granular, each category of bad notice still 
accounts for millions of problematic takedowns.\15\ Any 
solution to address the bad notice problem requires an 
understanding of these categories and how they occur.
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    \15\ Urban Report at 96.
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    Copyright misuse occurs when a notice sender leverages the 
notice-and-takedown process to remove content that incorporates 
or references their work, but is obviously noninfringing or 
fair use. For example, in 2019, several unreleased seasons of 
Starz shows and three episodes of American Gods were leaked to 
the public via a Russian streaming site. Starz used the DMCA 
takedown process to remove tweets and articles that reported on 
the leak, even though the coverage did not itself contain any 
infringing material.\16\ By doing so, Starz was able to 
leverage the DMCA process to censor legitimate--if 
embarrassing--journalism. This type of takedown also catalyzed 
copyright law's most recent scandal, in which two authors both 
pulled unprotectable stock elements from a popular fanfiction 
trope.\17\ In response to a new competitor in the niche genre, 
one author had her publisher issue takedowns against her 
competitor's work across several online retail sites, claiming 
an infringed-upon interest in stock elements which the author 
later admitted she had not created.\18\
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    \16\ Ernesto, Starz Goes on Twitter Meta-Censorship Spree to Cover 
Up TV-Show Leaks (Updated) TorrentFreak (April 15, 2019), https://
torrentfreak.com/starz-goes-on-twitter-mela-censorship-spree-to-cover-
up-tv-show-leaks-190415/.
    \17\ Alexandra Alter, A Feud in Wolf-Kink Erotica Raises a Deep 
Legal Question, N.Y. Times (May 23, 2020), https://www.nytimes.com/
2020/05/23/business/omegaverse-erotica-copyright .html.
    \18\ See, e.g., Atari, Inc. v. N. Am. Phillips Consumer Execs. 
Corp., 672 F.2d 607, 616 (7th Cir. 1982); Walker v. Time Life Films, 
Inc., 784 F.2d 44, 50 (2d Cir. 1986) (``Elements such as drunks, 
prostitutes, vermin and derelict cars would appear in any realistic 
work about the work of policemen in the South Bronx.'').
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    A similar strain of abuse occurs when a claimant issues 
takedowns to remove or temporarily disable unfavorable content 
for reasons wholly unrelated to copyright. One of the most 
notorious forms of this is a practice known as ``backdating.'' 
In order to remove or hide content, the actor will make a copy 
of the content and post it on an obscure site, backdating the 
copied material to a time before the original post. They will 
then issue takedowns against search engines and other indexes, 
forcing removal of the unfavorable original from search 
results, while ensuring that the fraudulently backdated copy 
remains far enough down the results to be functionally 
obscured. News outlet Benzinga was a victim of this exact 
practice after it published an article about the financial 
difficulties faced by Amira Nature Foods, a publicly traded 
company.\19\ Other groups, including the Church of Scientology, 
have used groundless takedown claims to censor criticism and 
harass former Members.\20\ Repressive regimes across the world, 
from Russia \21\ to Ecuador, \22\ have become adept abusers of 
the DMCA's notice-and-takedown regime to stifle critics and 
suppress coverage of human rights violations.
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    \19\ Andrea Fuller, Kirsten Grind & Joe Palazzolo, Google Hides 
News, Tricked by Fake Claims, Wall St. J. (May 15, 2020) https://
www.wsj.com/articles/google-dmca-copyright-claims-takedown-online-
reputation-11589557001.
    \20\ Eva Galperin, Massive Takedown of Anti-Scientology Videos on 
YouTube, Electronic Frontier Found (September 5, 2008), https://
www.eff.org/deeplinks/2008/09/massive-takedown-anti-scientology-videos-
youtube.
    \21\ Fuller, supra note 19.
    \22\ Alexandra Ellerbeck, How U.S. Copyright Law Is Being Used to 
Take Down Correa's Critics in Ecuador, Comm. to Protect Journalists 
(January 21, 2016), https://cpj.org/2016/01/how-us-copyright-law-is-
being-used-to-take-down-co/.
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    Most bad notices are the result of technical errors which, 
despite being technical in origin, nevertheless undermine the 
fundamental due process protections built into section 512. Two 
of the most substantively important requirements--that a 
takedown notice contains sufficient information about the 
allegedly infringed work (``AIW'') \23\ and allegedly 
infringing material (``AIM'') \24\--are often unmet.\25\ The 
same study that found problems with 30% of all takedown notices 
also discovered that it was difficult to identify the AIM in 
13.3% of requests, and difficult to identify the AIW in 6% ofr 
equests.\26\ Moreover, notices covering multiple claims do not 
always include clear details on the location of the allegedly 
infringing works. This has resulted in substantial, costly 
litigation over whether rights-holders or OSPs bear the cost of 
identifying infringing work.\27\
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    \23\ 17 U.S.C. 512(c)(3)(A)(ii).
    \24\ 512(c)(3)(A)(iii).
    \25\ Urban Report at 93.
    \26\ Id at 94.
    \27\ Id. at 93; see, e.g., Perfect 10, Inc. v. Google, Inc., No. CV 
04-9484 AHM SHX, 2010 WL 9479060 (C.D. Cal. July 30, 2010), aff'd., 653 
F.3d 976 (9th Cir. 2011).
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    Finally, many bad notices can be pinned squarely on the 
rise of algorithmic monitoring and enforcement. Though the 
limitations of algorithms are discussed more extensively below, 
some examples may be illustrative. In one case, NBC issued 
automated takedowns against NASA's SpaceX launch livestream--
because NBC was using the same feed on its own network, under a 
license (ironically) from NASA.\28\ In another, algorithmic 
enforcement ``blocked a 10-year-old boy's self-authored 
original video starring his LEGO mini-figures and garbage truck 
despite the fact that he used royalty-free music.'' \29\ 
Ultimately, user speech and online ecosystems cannot sustain a 
system that defaults uniformly in favor of those issuing 
takedown notices.
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    \28\ Chris B--NSF (@NASASpaceflight), Twitter (May 28, 2020, 9:46 
AM), https://twitter.com/NAASpaceflight/status/
1266002935051403264?s=?0.
    \29\ Maayan Perel & Niva Elkin-Koren, Accountability in Algorithmic 
Copyright Enforcement, 19 Stan. Tech. L. Rev. 473,476 (2016), https://
Iaw.stanford.edu/wp-content/uploads/2016/10/
Accountability-in-Algorithmic-Copyright-Enforcement.pdf.
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                       2. Lack of Redress

    There are no disincentives, either in the statute or the 
common law, against filing malicious notices. Section 512(f), 
which Congress included to deter abuse ex ante by providing 
penalties for bad notices, has been rendered dead letter--an 
outcome which, it is worth noting, is endorsed with some 
enthusiasm in the Copyright Office's 512 Report.\30\ Users 
whose speech has been improperly removed lack any meaningful 
redress ex post as well. Counter-notices are subject to a 
waiting period of up to 14 days, a duration that can be lethal 
to time-sensitive speech including news reporting, 
documentation of human rights abuses, political speech, public 
debate, and critique. For individuals who make their living 
through their online speech, that fourteen days represents the 
loss of both direct income and relevance. Moreover, the mere 
Act of filing a counter-notice opens the user up to a 
potentially frivolous lawsuit. It is perhaps no surprise that 
platforms have reported counter-notice rates between 4.7% and 
0.02%.\31\
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    \30\ The Copyright Office believes that the only case which 
provides even a modest nod toward 512(f)'s enforceability--Lenz v. 
Universal Music Group Corp., 815 F.3d 1145 (9th Cir. 2016)--was wrongly 
decided for placing potential liability on rights holders. See USCO 512 
Report
at 5.
    \31\ See Senate Committee on the Judiciary Subcommittee on 
Intellectual Property, Is the DMCA's Notice-and-Takedown System Working 
in the 21st Century? (June 2, 2020) (Testimony of Abigail A. Rives, 
Intellectual Property Counsel, Engine Advocacy and Research Foundation) 
https://www.judiciary.senate.gov/imo/media/doc/Rives%20Testimony.pdf.
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              3. Platform Responses to Bad Notices

    In the absence of meaningful statutory safeguards, some 
platforms have sought to screen out abusive or detective 
notices, including by requesting missing information, 
clarification of ambiguous notices, or additional information 
about the nature of the claim prior to processing. As noted 
above, different communities, and the platforms on which they 
congregate, have different use cases for copyrighted content, 
and thus different risk profiles for use (and misuse) of DMCA 
notices. For example, the Hugo Award-winning Archive of Our 
Own, maintained by the nonprofit Organization for 
Transformative Works, hosts more than four million works which 
remix major media properties and one another.\32\ Other sites, 
such as TikTok, base their core functionality around users' 
ability to share, remix, and build upon one another's work, 
attracting users specifically because of that function. And 
some sites, such as ecommerce platforms, are more at risk for 
abusive or anticompetitive takedown notices that could 
substantially prejudice the economic interests of merchants or 
artists using the platform.\33\
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    \32\ See, e.g., Caitlin Busch, An Archive of Our Own: How AOJ Built 
a Nonprofit Fanfiction Empire and Safe Haven, SyFy Wire(February 12, 
2019), https://www.sify.com/syfywire/an-
archive-of-our-own-how-ao3-built-a-nonprofit-fanfiction-empire-and-
safe-haven; See also, The Digital Millennilium Copyright Act at 22: 
What is it, why was it enacted, and where are we now? Before the 
Subcomm. on Intellectual Prop. of the S. Comm. on the Judiciary, 116th 
Cong. 9(2020) (Statement of Professor Rebecca Tushnet Harvard Law 
School), https://www.
judiciary.senate.gov/imo/media/doc/Tuslmet%20Testimony.pdf (Archive of 
Our Own``receive[s] relatively few notices of claimed infringement few 
of them are automated, and we subject them to individual review for 
validity. In the rare case that the notice complies with the DMCA and 
doesn't raise obvious fair use issues or assert non-copyright claims, 
our abuse team will remove the accused content and inform the user. Our 
experience with small-scale senders, consistent with the experience of 
many other OSPs, is that small-scale senders often consider DMCA claims 
to be a catch-all for objections such as that a work on the OTW's 
Archive has the same title as a differt work they've published for sale 
or that they don't wish their name to be used in a work. Our experience 
with large-scale senders is that many are careful to avoid challenging 
non-exact copies, but unfortunately some do send takedown notices based 
on unhelpful metadata (e.g., title of a work even though the content is 
clearly different from that of the copyright claimant's work).'').
    \33\ More than half of the DMCA takedown notices issued to Amazon's 
Kindle Direct, for example are attempts to deliberately suppress a 
competitor's book from climbing the rankings. U.S. Copyright Office, 
Section 512 Study; 9th Circuit Public Roundtable 248 (May 13 2016) 
(Testimony of Stephen Worth Assoc. General Counsel of Amazon.com), 
https://www.copyright.gov/policy/section512/public-roundtable/
transcript_05-13-2016.pdf ``[W]ith Kindle Direct publishing, authors 
routinely try to climb to the top spot in their category . . . by 
issuing bogus notices against higher ranking titles. And this for us 
actually accounts for more than half of the takedown notices that we 
receive.'').
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    Alarmingly, the Copyright Office study decides that these 
requests are sufficient to strip a platform of its safe 
harbor.\34\ lt goes on to characterize users' anti-abuse 
proposals as attempts to ``strip[] rightsholders from any 
realistic ability to enforce their (Congressionally mandated 
and constitutionally supported) rights.'' \35\ In short, the 
Copyright Office's position as articulated in its Report is 
that all notices, no matter how obviously spurious or in bad 
faith, must be honored without further inquiry, and even the 
most cursory attempts at vetting will strip a platform of its 
safe harbor protections. This largely aligns with the position 
of rightsholders, who have balked at the idea of introducing 
additional safeguards into this system. Instead, these 
stakeholders insist that targeted speech must be removed 
faster,\36\ with a longer period before reinstatement,\37\ and 
the removal must be executed without any human oversight or 
verification of claims.\38\
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    \34\ USCO 512 Report at 155.
    \35\ Id. at 169.
    \36\ Id. at 159.
    \37\ Id. at 162.
    \38\ Id. at 152 n. 813.
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    It bears repeating: The DMCA's notice-and-takedown 
provisions are extraordinarily powerful tools with a documented 
history of weaponization. It is true that artists face a 
difficult task in attempting to police the use of their 
copyrighted content online; however, we must acknowledge the 
enormous power of these takedown notices, their documented 
history of misuse, and the profound effect of that misuse on 
lawful speech. Asking for faster, more powerful notices with 
fewer safeguards is akin to discarding a tank and asking for a 
warhead.

       II. Algorithmic Enforcement Is Not a Viable Answer

    We cannot reasonably think about reforming Section 512 
without understanding the private enforcement mechanisms that 
stakeholders have held out as possible solutions. Given the 
time and expense of federal litigation faced by rights-holders 
(and the pressures of operating at scale faced by platforms), 
it is unsurprising that many stakeholders have embraced the 
idea of technological solutions. But while automated private 
solutions ``might sound good in theory,'' the messy realities 
of implementation--technological limitations, complex legal 
protections and provisions, and the influence of a designer's 
commercial interests--``raises a slew of questions regarding 
policy.'' \39\ Private enforcement ``can have the same far-
reaching effect as actual law,'' including the ability to 
deprive users of legitimate income streams, ``without any 
corresponding due process or accountability.'' \40\ Because 
they operate automatically, these algorithms have the 
remarkable power to almost instantaneously erase speech--
including political speech, education, news, and speech which 
supports the livelihoods of millions of creators who derive 
their primary income via platforms with algorithmic content 
matching. A system which relies wholly on automated enforcement 
erases the very ``safety valves'' which prevent copyright law 
from becoming absolute, and violative of the First Amendment.
---------------------------------------------------------------------------
    \39\ Lauren D. Shinn, Youtube's Content ID as a Case Study of 
Private Copyright Enforcement Systems, 43 AIPLA Q. J. 359,372 (2015).
    \40\ Id.
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 A. Automated Solutions are Designed To Answer the Problems of 
                Their Designers--Not Anyone Else

    The way in which these systems operate is determined by the 
particular needs, commercial interests, and resource 
limitations of the developer and any large stakeholders with 
which that developer is cooperating. Policymakers must grapple 
with what users and artists alike have understood for ages--
that the balance of equities in practice is determined less by 
the contours of law than by the aggregate results of numerous 
design choices which often have ``more profitable'' or ``less 
profitable'' answers, but rarely have clear right or wrong 
ones. An automated system which perfectly serves the needs of 
any one stakeholder--be it platforms, commercial-scale rights-
holders, users, or small artists--invariably prejudices the 
interests of the remaining stakeholders.

     B. Automated Solutions Have Multiple Points of Failure

    We cannot reasonably think about reforming section 512 
without understanding the private enforcement mechanisms that 
stakeholders have held out as possible solutions. Given the 
time and expense of federal litigation faced by rights-holders 
(and the pressures of operating at scale faced by platforms), 
it is unsurprising that many stakeholders have embraced the 
idea of technological solutions. But while automated private 
solutions ``might sound good in theory,'' the messy realities 
of implementation--technological limitations, complex legal 
protections and provisions, and the influence of a designer's 
commercial interests--``raises a slew of questions regarding 
policy.'' \41\ Private enforcement ``can have the same far-
reaching effect as actual law,'' including the ability to 
deprive users of legitimate income streams, ``without any 
c01responding due process or accountability.'' \42\ Because 
they operate automatically, these algorithms have the 
remarkable power to almost instantaneously erase speech--
including political speech, education, news, and speech which 
supports the livelihoods of millions of creators who derive 
their primary income via platforms with algorithmic content 
matching.
---------------------------------------------------------------------------
    \41\ Shinn at 372 (2015).
    \42\ Id.
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    Algorithmic matching has numerous steps, which we will 
necessarily simplify here. First, the system designer must 
compile and maintain a database of known content to which the 
algorithm can refer. A robust database contains, among other 
things, a reference file and ownership information for each 
work. The algorithm then uses reference files to create digital 
``fingerprints,'' which it compares against unknown media in an 
attempt to identify it.\43\ When the algorithm returns a match, 
it provides rightsholders with a series of options. The scope 
and availability of these options depends on the design of the 
system, the level of access granted to the rights-holder, and 
other variab les. Common options include claiming the content's 
ad revenue, taking the content offline (either in toto or 
selectively disabling the matching piece), or doing 
nothing.\44\
---------------------------------------------------------------------------
    \43\ See David Kravets, YouTube Alters Copyright Algorithms, Will 
``Manually'' ReviewSome-
claims, Wired (October 3, 2012), https://www.wired.com/2012/10/youtube-
copyright-
algorithm/.
    \44\ See, How Content ID Works: What Options Are Available to 
Copyright Owners?, YouTube (2020), https://support.google.com/youtube/
answer/2797370.
---------------------------------------------------------------------------
    Though various kinds of errors can occur throughout this 
process, users are most frequently affected by ``false 
positives''--situations in which the algorithm incorrectly 
identifies content they have uploaded as infringing. Three 
common points of failure are errors in the database; erroneous 
flagging of content that does not match the reference file; and 
``content that matches the reference file and is owned by the 
claimant, but constitutes a legal use of the content.'' \45\
---------------------------------------------------------------------------
    \45\ Shinn at 372.
---------------------------------------------------------------------------

                       1. Database Errors

    The first category of false positives--where the flagged 
content matches a reference file in the database, but the 
database's ownership information is incorrect--can be broadly 
thought of as database errors. These happen for reasons that 
range from banal to malicious. Some database errors are caused 
by bad actors making false ownership claims, a problem that was 
particularly acute on YouTube in the early 2010s.\46\ A low-
quality or overbroad reference file can also cause an algorithm 
to throw false matches.\47\ Selective additions of media to the 
database can also trigger improper takedowns, as when a new 
piece of media incorporates a pre-existing sample, and 
inclusion of the new media causes the algorithm to flag and 
remove the older clip.\48\
---------------------------------------------------------------------------
    \46\ Perhaps the most notable instance of this misuse was when a 
Russian group falsely claimed ownership over a number of viral cat 
videos, diverting the videos' ad revenue into their own pockets. David 
Kravets, Rogues Falsely Claim Copyright on YouTube Videos to Hijack Ad 
Dollars, Wired (November 21, 2011), https://www.wired.com/2011/11/
youtube-fiIter-profiting/.
    \47\ See Urban Report at 90-92 (analyzing specific instances when 
targeted material did not match the allegedly infringed work).
    \48\ Notably, a 2016 episode of Family Guy ``included a clip from 
1980s Nintendo video game Double Dribble showing a glitch to get a free 
3-point goal. Fox obtained the clip from YouTube where it had been 
sitting since it was first uploaded in 2009. Shortly after, Fox told 
YouTube the game footage infringed its copyrights. YouTube took it 
down.'' Fox dropped the claim and issued an apology when the story went 
viral. Andy, Fox ``Stole'' a Game Clip, Used It in Family Guy & DMCA'd 
the Original, TorrentFreak (May 20, 2016), https://torrentfreak.com/
fox-stole-a-game-clip-used-it-in-family-guy-dmcad-the-original-160520/.
---------------------------------------------------------------------------
    These kinds of false positives force us to confront 
difficult questions around database design, integrity, and 
access. In an ideal world, a content-matching database would be 
full of high-quality reference files, complete with thorough, 
current, and accurate information on ownership, licensing, and 
payment. An ideal database would also be widely open and 
available to artists who wish to use it to monitor (or 
monetize) their work. However, these two principles are often 
in tension; universal access creates a greater risk of 
introducing errors into the system, while curation creates 
gatekeeping power and an attendant risk of competitive 
concerns.
    As with algorithmic design more broadly, any commercial 
database will reflect the priorities of its designer. These 
influences affect who is allowed to populate the database, how 
that information is vetted or revised, the oversight and 
handling of ownership disputes, and the transparency (or lack 
thereof) regarding its operation. We need look no further than 
the debates surrounding YouTube's Content ID system to see the 
risks and trade-offs of a private, in-house fingerprinting 
system designed to address the business interests of a specific 
platform.\49\
---------------------------------------------------------------------------
    \49\ See e.g., John Paul Titlow, How YouTube Is Fixing Its Most 
Controversial Feature, Fast Company (September 13, 2016), https://
www.fastcompany.com/3062494/how-youtube-is-fixing-its-most-
controversial-feature; Patrick McKay, Open Letter to YouTube Regarding 
Content ID, FairUseTube.org (September 15, 2011), http://
fairusetube.org/articles/21-open-letter. But cf. SoundExchange Direct 
(2020), https://sxdirect.soundexchange.com/login/?next=/. While 
SoundExchange Direct is designed to organize metadata (rather than 
content fingerprint for large-scale algorithmic enforcement), is a good 
example of how a database can be structured to accommodate the needs of 
artists. Sound Exchange is, notably, a nonprofit.
---------------------------------------------------------------------------

             2. Strict Versus ``Fuzzy'' Algorithms

    The second failure case--flagging content that does not 
match the reference file--reflects yet another trade-off in 
algorithmic design. Algorithms that only flag exact or near-
exact matches protect a greater range of unlicensed, yet legal, 
uses and exert less of a chilling influence on user speech. 
However, they are also easier to circumvent through basic 
manipulation of the underlying media, such as altering the 
tempo or pitch of a sound recording, or flipping a video to its 
mirror image.\50\ Algorithms that flag ``fuzzy'' matches will 
be harder to evade, but will throw more false positives and 
stifle some legitimate uses of content.
---------------------------------------------------------------------------
    \50\ Nick Douglas, You Can't Fool YouTube's Copyright Bots, 
LifeHacker (January 24, 2018) https://lifehacker.com/you-cant-fool-
youtubes-copyright-bots-1822174263.
---------------------------------------------------------------------------
    It is worth noting that the degree of ``fuzziness'' in an 
algorithm is a design choice that explicitly prioritizes 
certain genres and styles of content over others. Fuzzy 
algorithms are good at catching and flagging algorithm-evading 
``edits'' to popular content such as Top-40 hits.
    However, those same algorithms struggle when faced with 
classical and jazz music, where the underlying musical work is 
often in the public domain, and the difference between a 
copyrighted recording and a public domain or live performance 
may be as little as a few notes on an improvisational section, 
or the sound qualify of the space in which it was recorded.\51\ 
Content ID, often held up as the industry standard of content-
matching, once erroneously flagged a video that was ten minutes 
of solid (original) White noise.\52\
---------------------------------------------------------------------------
    \51\ Michael Andor Brodeur, Copyright bots and classical musicians 
are fighting online. The bots are winning., Wash. Post (May 21, 2 020), 
https://www.washingtonpost.com/entertainment/music/copyright-bots-and-
classical-musician-are-fighting-online-the-bots-are-winning/2020/05/20/
alle349c-98ae-11ea-S9fd-28fb313d1886_story.html. See also Ulrich 
Kaiser, Can Beethoven
                                                                        
         Continued
Send Takedown Requests? A First-Hand Account of One German Professor's 
Experience WithOverly Broad Upload Filters, Wikimedia Found (August 27, 
2018), https://wikimedia foundation.org/news/2018/08/27/can-beethoven-
send-takedown-reguests-a-first-hand-account-of-one-german-professors-
experience-with-overly-broad-upload-filters/.
    \52\ Chris Baraniuk, White Noise Video on YouTube Hit by Five 
Copyright Claims, BBC News (January 5, 2018), https://www.bbc.com/news/
technology-42580523; Timothy Geigner, White Noise on YouTune Gets FIVE 
Separate Copyright Claims From Other White Noise Providers, TechDirt 
(January 5, 2018), https://www.techdirt.com/articles/20180105/
l0292038938/white-noise-youtube-gets-five-separate-copyright-claims-
other-white-noise-providers.shtml.
---------------------------------------------------------------------------

                  3. Legally Permissible Uses

    Unlike an algorithm, copyright law is not binary or 
automated; the American system provides a number of exceptions 
and limitations that serve as a ``safety valve'' to protect 
legitimate policy ends. The Supreme Court has described these 
limitations and exceptions--specifically citing fair use--as 
``built-in First amendment accommodations'' to prevent 
copyright law from unduly burdening free speech.\53\ These 
contours of copyright law, however, depend heavily on social, 
factual, and cultural context. The fundamental balance of 
copyright law rests in ``[d]etailed doctrines . . . carefully 
designed to guide traditional, human law enforcement agents in 
addressing these questions'' of appropriate unlicensed use.\54\ 
Algorithmic enforcement, as a binary system designed to equate 
the presence of copyrighted content with its misuse, ``is 
blatantly hostile to users' interests because it shifts the 
neutral presumption of fair use against them.'' \55\ Moreover, 
systems such as Content ID allow rights-holders to 
instantaneously divert revenue streams away from claimees upon 
filing a claim, leading to lost or delayed revenue, as well as 
a host of secondary knock-on effects for the user whose speech 
has been removed.\56\
---------------------------------------------------------------------------
    \53\  Eldred v. Ashcroft, 537 U.S. 186, 219 (2003).
    \54\ Maayan Perel and Niva Elkin-Koren, Accountability in 
Algorithmic Copyright Enforcement, 19 Stan. Tech. L. Rev. 473 (2016), 
https://www-cdn.law.Stanford.edu/wp-content/uploads/2016/10/
Accountability-in-Algorithmic-Copyright-Enforcement.pdf.
    \55\ Taylor B. Bartholomew, The Death of Fair Use in Cyberspace: 
YouTube and the Problem With Content ID, 13 Duke L. & Tech. Rev. 66, 68 
(2015), https://schoolarship.law.duke.edu/cgi/
viewcontent.cgi?article=1271&context=dltr.
    \56\ Amanda Perelli, Prominent YouTube Creator Lindsay Ellis J. 
Challenging the Platform Over the Way It Handles Copyright Claims, Bus. 
Insider (Oct. 29, 2019), https://www.businessinsider .com/youtuber-
lindsay-ellis-fights-platform-universal-over-copyright-claim-2019-10.
---------------------------------------------------------------------------

                           Conclusion

    Two hundred and twenty-nine million American adults live 
their lives online under the shadow cast by section 512. 
Whatever the risks or rewards, we cannot be reckless with the 
speech rights of those who find themselves governed by the 
system we create. Congress must acknowledge that this debate is 
not happening in a vacuum, and reject the fantasy of copyright 
being a struggle between ``tech'' and ``content.'' Copyright 
law, broadband access, algorithmic governance, and economic 
incentive structures are all intertwined, and all impact 
Americans' ability to speak online. In a moment of massive 
social change, we must not take that for granted.

    Chair Nadler. Thank you. Ms. Kibby?

                TESTIMONY OF MORGAN GRACE KIBBY

    Ms. Kibby. Chair Nadler, Ranking Member Jordan, and Members 
of the Committee, thank you for inviting me to talk about the 
Copyright Office's report on section 512 of the DMCA. I 
appreciate the inclusion at the heart of this discussion is not 
just legal jargon, market analysis, or political calculations, 
it's the real and profound effects section 512's failings have 
on people like myself.
    The Copyright Office's report is confirmation of what 
creators and copyright owners have said for years about section 
512. It's just not working, but that statement is too benign. 
It's undermining creativity and, more alarmingly, systemically 
undercutting our next generation of artists. It's jeopardizing 
livelihoods of working-class musicians and obliterating healthy 
monetary velocity in our creative community. It's rewarding 
unscrupulous services that deal in the unauthorized trade and 
use of our works, and it's fundamentally sabotaging the 
legitimate online marketplace that we all rely on and that 
Congress envisioned.
    As a self-employed creator, I've dedicated my life to my 
craft. Through decades of study, collaborating, and touring 
with artists like Amity 3 and Lady Gaga, unrelenting deadlines, 
scoring for film and TV, promoting my work, and navigating a 
music industry in constant structural flux, I have methodically 
committed myself to building my career and making art that 
moves people. It's no secret that the creative life can 
sometimes have little promise beyond that exchange, and so it 
becomes my very dedication that is robbed of agency when there 
is a clear expectation that I now also spend hours looking for 
violations of my work.
    The popular mantra of working of 10,000 hours to achieve 
mastery should apply to my craft, not to the protection of my 
content. I can't afford to spend even a fraction of this time 
monitoring and noticing infringements as it's time spent away 
from my work, which is creating. So, the truth is I just don't 
do it. Trying to enforce my work within section 512's notice 
and takedown system is a futile endeavor as monitoring for 
infringements and sending notices does not curtail unauthorized 
works from popping up. It's like digging in the sand at high 
tide. And this problem is existential. When nascent artists 
don't see a viable path forward in a career already laden with 
inherent challenges, some simply won't continue. Perpetuating 
an ineffective enforcement system means fewer creative works, 
shrinking cultural identity, and fewer creators who cannot 
afford to press on. The intention of the DMCA's drafters was to 
decrease infringement, not to decrease production of creative 
works.
    I've heard claims that implementing a system that takes 
down infringing copies promotes censorship. I would counter 
that stripping creators like myself of their fundamental 
rights, livelihood, and contributions is the true censorship. 
I'm frustrated that the existing system devalues us and, in 
turn, weakens our very culture. I recognize that creative 
fields occupy an odd place in the consciousness of priorities, 
especially in this challenging year, but culture is art defined 
by a systemic empowerment of creators. How many artistic 
futures will we sacrifice because we can't come together to get 
this right?
    Unfortunately, service providers have no desire to shift 
our current paradigm. Why? Because the status quo under section 
512 is simply more lucrative. Commercial works like mine drive 
online traffic and, in turn, generate advertisement revenue. In 
a system that allows for perpetual removal of works after the 
fact instead of requiring proactive licensing, there's simply 
no incentive to secure licenses or stop infringement. There is 
financial incentive to do the exact opposite. This is a flawed 
system established by section 512, and online services must be 
required to do their part to resolve it. The Office reportedly 
understood this and provided guidelines, including clarifying 
who actually qualifies for the safe harbor, strengthening 
policies on repeating infringers, and requiring more action by 
services. So, while my area of expertise is art, there's 
technology. They surely can create algorithms to help us 
curtail the flow of infringing works on their platforms.
    Some artists can afford to allow their works to be 
distributed freely across these platforms, seeing it as 
promotion, perhaps meaning to go viral. But even as a musician 
lucky to make a living doing what I love, every dollar counts. 
And in the shadow of an industry transformed with peer-to-peer 
sharing and the post COVID-19 obliteration of touring, our 
works on these platforms generate income. They're not a loss 
leader for other revenue streams. Undoubtedly, technology can 
be used to distinguish between artists who are okay with their 
unauthorized works on these platforms and those who aren't. 
There are already programs in place to monitor and filter 
unauthorized content. So, I have to ask, with the more than 
capable minds of tech, how hard can it be to present users with 
questions to confirm that they have authorization to upload 
content?
    I'm grateful that Congress recognizes we are attempting to 
fix this and is pushing service providers to participate in 
finding solutions. As the Copyright Office put it, ``The degree 
and breadth of cooperation between OSPs and rights holders that 
was anticipated in 1998 has not come to full fruition.'' It's 
absolutely true, and it's a shame because that is what was 
intended, a balance of interests and a balance of 
responsibility. So, we're hopeful that our tech partners will 
join us to finally achieve a fair and effective DMCA for all. 
Thank you so much.
    [The statement of Ms. Kibby follows:]

                STATEMENT OF MORGAN GRACE KIBBY

    Chair Nadler, Ranking Member Jordan, and Members of the 
Committee:

    I want to thank you for inviting me here today to talk 
about the Copyright Office's report on section 512 of the DMCA. 
I appreciate you including me because the heart of this 
discussion is not legal jargon or market analysis or political 
calculations. It is the real and profound effect section 512's 
failings have on everyday people like myself.
    The Copyright Office's report is confirmation of what 
creators and copyright owners have been saying for years about 
section 512: It's just not working the way it's supposed to. 
But, that's too benign a way to describe the situation. It's 
worse than just broken. It is undermining creativity, and more 
alarmingly, quietly undercutting our next generation of 
artists. It is jeopardizing livelihoods for working class 
musicians, obliterating healthy monetary velocity in our 
creative community. It is rewarding unscrupulous services that 
deal in the unauthorized trade and use of our works. It is 
fundamentally sabotaging the legitimate online marketplace that 
we all rely on and that Congress envisioned.
    As a self-employed creative, I've dedicated my life to my 
craft. Through studying voice, piano and cello, working and 
touring with groups like M83 & Lady Gaga, 16 hour days for 
months on end meeting deadlines while scoring for film and 
television, writing and producing for other artists, vigorously 
hustling to promote my work, and navigating a music industry 
that is in constant structural flux--I have passionately and 
methodically committed the time, sweat, and tears required in 
order to make a living doing what I love, coupled with a desire 
to produce art that moves people. It's no secret that the 
creative life can sometimes have little payoff beyond that 
exchange, and so it is this very dedication that is robbed of 
agency when there is a clear expectation that I now spend hours 
in front of a computer screen looking for violations of my 
work.
    The popular mantra of working 10,000 hours to achieve 
mastery, (which, with the benefit of two decades in my field, I 
would amend to 100,000 hours) should apply to my craft, not to 
the protection of my own content. I can't afford to spend even 
a fraction of that time monitoring and noticing infringements 
as it's time spent away from my work--creating. So, the truth 
is, I just don't do it. Spending my time enforcing my work 
within section 512's notice and takedown system is a futile 
endeavor, even with the backing of a large management company. 
I can monitor for infringements and send notices all day long, 
but more unauthorized works will just keep popping up. It's 
like digging in the sand at high tide. That may sound to some 
like defeatism, but it's the immediate reality that if dwelled 
on, feels insurmountable. The Copyright Office report itself 
stated that, ``despite the advances in legitimate content 
options and delivery systems, and despite the millions of 
takedown notices submitted on a daily basis, the scale of 
online copyright infringement and the lack of effectiveness of 
section 512 notices to address that situation, remain 
significant problems.''
    Unfortunately, it remains problematic for millions of 
creators and it's existential. When artists, especially nascent 
ones, don't see a viable path forward in a career already laden 
with inherent and nebulous challenges, they simply won't 
continue. More alarmingly, some may not choose to walk a 
creative path. Perpetuating an ineffective enforcement system 
means fewer creative works, shrinking cultural identity, and 
fewer creators who cannot afford to stay in our business. 
That's not how it's supposed to be. The intention of the DMCA's 
drafters was to decrease infringement, not to decrease 
production of creative works themselves.
    I've heard some claims that implementing a system that 
takes down infringing copies promotes censorship. However 
stripping creators of their fundamental rights, their 
livelihood, and ultimately their creative contributions is the 
real censorship. I am frustrated by how much the existing 
system devalues creators such as myself, and in tum weakens our 
very culture. I recognize that creative fields occupy an odd 
place in the consciousness of priorities, especially in this 
chaotic and challenging year. But culture is art, defined by 
systemic empowerment of already inherently courageous creators. 
How many of today's voices and bright creative futures are we 
willing to sacrifice because we can't come together to get this 
right?
    Unfortunately, many short-sighted service providers have no 
desire to shift our current paradigm. Why? Because the status 
quo under section 512 is simply more lucrative. Commercial 
works like mine drive online traffic, which in tum generates 
advertising revenue. In a system that allows for perpetual 
removal of works after the fact, instead of requiring proactive 
licensing, there is simply no incentive to secure those 
licenses or stop the infringement. In fact, there is a 
financial incentive to do exactly the opposite. This is the 
flawed system established by section 512 and online services 
must be required to do their part to resolve it. If you have 
water pouring into your home, you don't resign yourself to 
endlessly cleaning up the puddles, you fix the leak where the 
water is streaming in.
    The Copyright Office report understood this and provided 
some guidelines, including clarifying who actually qualifies 
for the safe harbor, strengthening policies on repeat 
infringers, and requiring more awareness and action by 
services. Clearly, service providers can do more. My area of 
expertise is art; theirs is technology. They can create 
algorithms to help you discover new artists or predict what--
song you want to hear next; surely they can find ways to 
curtail the flow of infringing works on their platforms.
    I know some artists are ok with their works being 
distributed freely across these platforms. They see it as 
promotion, perhaps even a means to go viral, and that's fine as 
long as that is their choice and they can afford to do that. 
But as a solidly working/middle-class musician who is lucky 
enough to make a living solely doing what I love, every dollar 
counts. $100 here and there may not seem like much, but 
sometimes even this small amount keeps the lights on in my 
studio. Sweat equity is not a factor to discount, but it should 
also be a choice, not an unspoken mandate to participate. 
Ultimately my work and my time are not simply investments: This 
is my occupation, my career. In the shadow of an industry 
transformed overnight with peer to peer sharing, and with the 
recent obliteration of one of the last remaining bastions of 
income in light of COVID-19 touring, my works on these 
platforms generate income; they're not a loss-leader for other 
revenue streams. Undoubtedly, technology can be used to 
distinguish between those artists who are ok with their 
unauthorized works on these platforms and those who aren't. 
There are programs already in use to monitor and filter 
unauthorized content. Even YouTube has its Content ID (though 
it remains inexplicably inaccessible to many and inadequate for 
others). So, I have to ask the most basic and obvious of 
questions: with the capable minds of tech, how hard can it be 
to present users with questions to confirm they have the 
authorization to upload content?
    I am grateful that Congress recognizes what we are 
attempting to fix and is pushing service providers to 
participate in finding solutions. As the Copyright Office put 
it, ``the degree and breadth of cooperation between OSPs and 
rights holders that was anticipated in 1998 has not come to 
full fruition.'' That's absolutely true and it's a shame, 
because that's what was intended--a balance of interests and a 
balance of responsibility. We've been at the table waiting 
perhaps a little less patiently every day, but we are here. We 
are hopeful our tech partners and will join us to finally 
achieve a fair and effective DMCA for all.
    Thank you.

    Chair Nadler. Mr. Band?

                   TESTIMONY OF JONATHAN BAND

    Mr. Band. Chair Nadler, Ranking Member Jordan, Members of 
the Committee, I'm grateful for this opportunity to provide the 
views of libraries on the Copyright Office's section 512 
report. I will briefly discuss the importance of section 512 
safe harbors to U.S. libraries. I will then make three points 
about the 512 report.
    First, libraries agree with the report that Congress should 
not consider foreign approaches to online infringement, such as 
notice and stay down. Second, libraries agree with the 
Copyright Office that abusive takedown notices are a series 
problem requiring congressional attention. Third, libraries 
disagree with the report's conclusion that the balance Congress 
established in section 512 is askew. To the contrary, the DMCA 
is working just as Congress intended.
    Libraries provide a variety of internet-related services. 
As a practical matter, libraries can provide these services 
only because of the DMCA's safe harbor limits libraries 
liability for their users' online activities. In particular, 
the mere conduit safe harbor in section 512(a) enables 
libraries to provide internet access to their users. Libraries 
are the only source for free internet access for most 
Americans. Also, they often are the only source for reliable 
broadband in rural areas. Even now during the pandemic when 
many libraries are closed, they've left their Wi-Fi networks 
on, enabling users to access the internet from parking lots. 
The section 512(a) safe harbor allows libraries to provide 
internet access without the threat of large copyright damages 
for infringing user activity.
    Turning to the section 512 report, we agree with its 
conclusion that Congress should not adopt a notice and stay 
down regime. The filtering necessary to implement notice and 
stay down would have many false positives and would not 
accommodate fair use. This would be a serious problem in the 
area of political speech. A filter could wrongly block a 
campaign ad on the eve of an election. We also agree with the 
Office that the issue of abuse of takedown notices is serious 
and requires congressional attention. We urge the Committee to 
explore possible solutions to the misuse of the notice and 
takedown system. Perhaps the Federal Trade Commission should be 
provided with additional tools to address this issue.
    While the 512 report got many things right, it got one very 
important thing wrong. It concluded that the balance Congress 
intended to strike in section 512 is askew. It reaches an 
incorrect conclusion because it did not appreciate the 
interconnected structure of the DMCA. Contrary to the 
suggestion of some that the grand bargain of the DMCA is to be 
found within section 512 itself, the DMCA's grand bargain was 
the adoption of the section 512 safe harbor in exchange for the 
enactment of the prohibition on the circumvention of 
technological protection measures in section 1201. As the 
Committee studies this issue, it must always bear in mind that 
section 1201 dealing with TPMs and section 512 dealing with 
safe harbors were enacted together to create a balanced 
approach to copyright infringement in the internet environment. 
Thus, the effect of this and the fairness of the safe harbor 
system should not be considered in isolation, but in relation 
to the effectiveness and fairness of the anti-circumvention 
provisions.
    Unfortunately, the Copyright Office conducted two separate 
studies, one of 512 and the other of 1201. The Office looked at 
each section in isolation, and, thus, did not consider whether 
the overall balance Congress struck in 1998 was still intact. 
The Committee should examine copyright and the internet through 
a wide lens. The question is not whether some individuals or 
even some industries are disadvantaged by online infringement 
and could be benefited by imposing greater burdens on service 
providers through amendments to section 512. Rather, the 
question should be whether the goals of the copyright system, 
promoting the creation and distribution of works for the public 
benefit, would be best served by recalibrating the balance 
established in the DMCA.
    We live in a golden age of content creation and 
distribution. The DMCA is in large measure responsible for this 
golden age. It is a shining example of enlightened legislation 
for the public good. We disturb it at our peril. Thank you very 
much.
    [The statement of Mr. Band follows:]

                   STATEMENT OF JONATHAN BAND

    Chair Nadler, Ranking Member Jordan, Members of the 
Committee, I am counsel to the Library Copyright Alliance 
(``LCA''), which consists of the American Library Association, 
the Association of College and Research Libraries, and the 
Association of Research Libraries. These associations 
collectively represent over 100,000 libraries in the United 
States employing more than 300,000 librarians and other 
personnel. An estimated 200 million Americans use these 
libraries more than two billion times each year. U.S. libraries 
spend over $4 billion annually purchasing or licensing 
copyrighted works.
    I am grateful for this opportunity to testify on the 
Copyright Office's report on section 512 of the Digital 
Millennium Copyright Act (``DMCA''), 17 U.S.C. 512. I will 
briefly discuss the importance of the section 512 safe harbors 
to U.S. libraries and the American public. I then will make 
three points concerning the Copyright Office's report. First, 
LCA strongly agrees with the Office's recommendation that 
Congress not consider foreign approaches to online infringement 
such as notice-and-staydown and site blocking. Second, LCA 
appreciates that the Office recognized that abuse of the 
notice-and-takedown system is a serious problem requiring 
Congressional attention. LCA urges this Committee to explore 
possible solutions to this issue. Third, LCA strongly disagrees 
with the Office's conclusion that the balance Congress 
established in section 512 is askew. To the contrary, the DMCA 
is working just as Congress intended.

 I. The Importance of the DMCA Safe Harbors to U.S. Libraries.

    Libraries provide to their users a variety of Internet-
related services. As a practical matter, libraries can provide 
these services only because the DMCA's safe harbors limit 
libraries' liability for their users' online activities. The 
``mere conduit'' safe harbor in section 512(a) has enabled 
libraries to provide Internet access to its users; the section 
512(c) ``hosting'' safe harbor has permitted academic libraries 
to serve as institutional repositories for open access 
materials; and the section 512(d) ``linking'' safe harbor has 
allowed libraries to provide information location services to 
users.

                       A. Internet Access

    Not only large commercial entities such as Verizon and AT&T 
Act as ``service providers'' within the meaning of section 
512(k)(l)(A). Libraries play this role as well. In the United 
States, there are virtually no Internet cafes that provide 
users with the hardware necessary for Internet access. While 
Starbucks has Wi-Fi, it does not supply laptops. Although 
increasingly more Americans at all income levels own smart 
phones, it is difficult (if not impossible) to fill out an 
online job application, or apply for healthcare or unemployment 
benefits, on a smart phone. Libraries are the only source for 
free Internet connectivity and Internet-ready computer 
terminals for most Americans.
    Seventy-seven percent of Americans without Internet access 
in their homes rely on public libraries for Internet access.\1\ 
Public libraries provide the public with access to over 294,000 
Internet-ready computer terminals.\2\ In 2016, there were 276 
million user-sessions on these computers. There were 227 
computer uses per 1,000 visits to public libraries.\3\
---------------------------------------------------------------------------
    \1\ Pew Research Center, ``Public libraries and technology: From 
`houses of knowledge' to `houses of access,' '' https://
www.pewresearch.org/intemet/2014/07/09/public-libraries-and-technology-
from-houses-of-knowledge-to-houses-of-access/ (2014).
    \2\ Institute of Museum and Library Services, Public Libraries in 
the United States Survey, Fiscal Year 2016, 29 (2019).
    \3\ Id.
---------------------------------------------------------------------------
    A Pew Research Center survey revealed that 23% of Americans 
ages 16 and up went to libraries to use computers, the 
Internet, or a WiFi network.\4\ Seven percent of Americans used 
libraries' Wi-Fi signals outside when the libraries were 
closed.\5\ (During the COVID-19 pandemic, even though many 
public libraries were-and often still are-closed, the libraries 
left their Wi-Fi networks on, enabling users without home 
connectivity to access the Internet from outside the library 
structure. Indeed, some libraries boosted their Wi-Fi networks 
to enhance this outside-the-premises access.) Library users who 
take advantage of libraries' computers and Internet connections 
are more likely to be young, Black, female, and lower 
income.\6\ Forty-two precent of Black library users used 
libraries' computers and Internet connections, as did 35% of 
those whose annual household incomes were $30,000 or less.\7\
---------------------------------------------------------------------------
    \4\ Pew Research Center, Library usage and engagement, https://
www.pewresearch.org/internet/2016/09/09/library-usage-and-engagement/ 
(2019).
    \5\ Id.
    \6\ Id.
    \7\ Id.
---------------------------------------------------------------------------
    According to the Pew Research Center survey, 61% of library 
computer users used the Internet at a library in the past 
twelve months did research for school or work; 53% checked 
email; 38% received health information; 26% took online classes 
or completed an online certification.\8\
---------------------------------------------------------------------------
    \8\ Id.
---------------------------------------------------------------------------
    Libraries' broadband connections are particularly important 
in rural areas; 58% of rural adults believe that access to high 
speed Internet is a problem in their community.\9\ Accordingly, 
public libraries in rural areas have the highest ratio of 
Internet accessible computers: Twenty-three computers per 5,000 
people.\10\
---------------------------------------------------------------------------
    \9\ Pew Research Center, Digital gap between rural and nonrural 
America persists, https://www.pewresearch.org/fact-tank/2019/05/
31Idigital-gap-between-rural-and-nonmral-america-persists/ (2019).
    \10\ Institute of Museum and Library Services, Public Libraries in 
the United States Survey, Fiscal Year 2016, 29 (2019).
---------------------------------------------------------------------------
    Libraries in K-12 schools and institutions of higher 
learning provide Internet access for students and faculty. 
Additionally, at many institutions of higher education, the 
library operates the campus-wide network.\11\ Academic and 
school libraries also provide Internet access for students who 
do not have such access at home. During the COVID-19 pandemic, 
some community colleges that were otherwise closed still 
allowed students without broadband to use Internet-connected 
computer terminals in the college libraries.\12\
---------------------------------------------------------------------------
    \11\ At many colleges and universities, the libraries participate 
in the Administration of campus-wide Internet access services. Under 
the Higher Education Opportunity Act, educational institutions have 
significantly more obligations to address copyright infringement by 
subscribers than do commercial Internet service providers. See http://
www.educause.edu/library/higher-
education-opportunity-act-heoa.
    \12\ Lauren Lumpkin, A community for students' needs, Washington 
Post, Bl, April 2, 2020.
---------------------------------------------------------------------------
    The section 512(a) safe harbor for ``mere conduits'' has 
enabled libraries to provide Internet access without the 
specter of liability for onerous copyright damages because of 
infringing user activity.

                 B. Institutional Repositories

    With the growth of open access scholarly communications, 
libraries increasingly host online institutional repositories 
where academic authors can post papers, articles, and 
theses.\13\ The section 512(c) safe harbor shelters libraries 
from liability for infringing material that may be contained in 
the materials posted by third parties. Elsevier, for example, 
sent thousands of takedown notices to websites hosted by 
Harvard University, University of California, Irvine and 
academia.edu, a social networking site for academics. The 
articles targeted by these Elsevier notices typically had been 
posted by their authors, who may have transferred their 
copyright to Elsevier in the publication agreements. The 
publication agreements often allow authors to post their final, 
peer-reviewed manuscript of the articles, but not the final 
published version, i.e., as formatted by the publisher.
---------------------------------------------------------------------------
    \13\ See Brianna Schofield and Jennifer Urban, Takedown and Today's 
Academic Digital Library, November 2015, available at file: https://
papers.ssrn.com/sol3/papers.cfm?abstract_ id=2694731.
---------------------------------------------------------------------------
    Elsevier asserted that it pursued only final versions of 
published journal articles posted without their authorization. 
The section 512(c) safe harbor provided a mechanism for 
libraries to avoid getting caught in the middle of a dispute 
between the authors and their publishers.

                 C. Information Location Tools

    Libraries also rely on the section 512(d) safe harbor for 
information location tools. Librarians prepare directories that 
provide users with hyperlinks to websites the librarians 
conclude in their professional judgment to contain useful 
information. Section 512(d) shelters a library from liability 
if the website linked to, unbeknownst to the library, contains 
infringing material.

 II. The Importance of the DMCA Safe Harbors to the U.S. Public

    The section 512 safe harbors have enabled the Internet to 
expand into a global communications medium that allows any 
speaker to reach a worldwide audience. It is section 512 that 
facilitates the Committee live-streaming this hearing across 
the country and around the world. It enables people watching 
the hearing to post responses online in real time. It permits 
experts and ordinary citizens to upload blog posts and videos 
tomorrow dissecting my testimony and that of my fellow 
panelists. Some of these videos might include mashups of our 
testimony. It allows Committee staffers next week to find and 
access all this this material and troves of other information 
concerning section 512 available online. Without the safe 
harbors of section 512, the providers of the services that 
enable all these activities would have to find alternative 
means of limiting their liability for the statutory damages 
available under the Copyright Act. This would involve filtering 
or limiting posting privileges to preapproved entities and 
individuals. Either alternative would in effect constitute 
censorship.
    The pandemic has made us increasingly dependent on the 
Internet, and by extension on section 512. It is no 
exaggeration to say that section 512 has enabled millions of 
Americans to survive the pandemic by working, shopping and 
studying from home; communicating with friends and family; and 
accessing a bounty of entertainment content during these 
difficult times. To be sure, businesses and individuals pay for 
Internet access, but the cost would be far greater if the 
Internet access service providers had to contend with the cost 
of copyright infringement liability for their subscribers' 
actions.

         III. The Copyright Office's Section 512 Report

    Turning to the Copyright Office's section 512 report, we 
acknowledge the Office's effort to solicit the views of all 
stakeholders and agree with its conclusion that Congress should 
not adopt a notice-and-staydown regime. Additionally, the 
Copyright Office correctly recognized that abuse of the notice-
and-takedown system by rights holders, or people claiming to be 
rights holders, is a serious problem. At the same time, we 
disagree with the Copyright Office's conclusion that the 
balance Congress intended in section 512 is ``askew.''

            A. Notice-and-Staydown and Site-Blocking

    LCA strongly agrees with the Copyright Office's 
recommendation that Congress not pursue foreign approaches such 
as notice-and-staydown or site-blocking. The Office stated:

        There are important reasons to proceed cautiously when 
        considering any of the proposed international solutions. While 
        the Office has received submission from thousands of 
        rightsholders, users, OSPs, academics, and others arguing for 
        or against adoption of the international models below, much of 
        the evidence is anecdotal or conflicting. The Office still has 
        relatively little data on how well these international regimes 
        are working in practice, or even how a notice-and-staydown 
        requirement will ultimately be implemented in the European 
        Union. To make the most informed decision possible, it will be 
        necessary for Congress to consider many factors beyond simply 
        the copyright law-questions of economics, competition policy, 
        fairness, and free speech, to name but a few. It is the opinion 
        of the Office that the international approaches discussed below 
        should be adopted, if at all, only after significant additional 
        study, including evaluation of the non copyright implications 
        they would raise.\14\
---------------------------------------------------------------------------
    \14\ U.S. Copyright Office, Section 512 of Title 17, 185 (2020).

    Likewise, in its June 29, 2020, letter to Chair Tillis and 
Senator Leahy, the Office noted that a notice-and-staydown 
filter might prevent future uploads that ``differ in 
significant respects from the subject of the takedown notice,'' 
such as a sample of a song being used as background music for 
different content. A staydown filter could also prevent the 
incorporation of a song into a political ad. The Office 
correctly asked, ``how do you comply with staydown request 
requirements while also protecting legitimate speech?'' Notice-
and-staydown could have a particularly chilling effect on 
scholarly communications. A professor's fair use inclusion of 
an audio or video clip in an online article could result in the 
blocking of that article.

           B. Abuse of the Notice-and-Takedown System

    The Copyright Office report itself did not give sufficient 
weight to the problem of the abuse of the notice-and-takedown 
system. Despite evidence that as many as 30 percent of notices 
are defective in some manner, the Office did not recommend any 
concrete action by Congress to protect fair use and free 
speech. In a footnote, it did acknowledge that ``abuses of the 
DMCA system do call for some enforcement mechanism.'' \15\ It 
questioned the effectiveness of private actions under section 
512(f) in deterring such abuses. Instead, the Office suggested 
that ``to the extent that such tactics represent ongoing 
patterns of abusive business practices, governmental 
enforcement outside the context of section 512 would appear to 
be a better avenue for addressing their proliferation.'' 
However, the Office did not specify what sort of ``government 
enforcement'' would be appropriate, and by what agency.
---------------------------------------------------------------------------
    \15\ Id. at 148 n.790.
---------------------------------------------------------------------------
    The Office was stronger on this issue in the Tillis-Leahy 
letter: ``The issue of abusive allegations of copyright 
infringement is serious, and congressional attention to the 
broader question of how to best discourage such uses of the 
copyright system could provide more effective mechanisms to 
address the problem.'' The Office still provided no specific 
course of action, perhaps feeling that this was outside the 
scope of its expertise. But anticompetitive conduct is very 
much within the expertise of this Committee, and LCA urges the 
Committee to explore possible solutions to the anticompetitive 
misuse of the notice-and-takedown system. Perhaps the Federal 
Trade Commission should provide additional tools to address 
this problem.
    Abuse of the notice-and-takedown system threatens not only 
fair uses; it can stifle any form of speech. Simply by sending 
a takedown notice, a person can cause the removal of speech 
with which he disagrees.

               C. The Balance in the Safe Harbors

    While the Copyright Office section 512 report got many 
things right, it got one very important thing wrong: It 
concluded that the balance Congress intended to strike in 
section 512 is askew. It reached this erroneous conclusion 
because it did not appreciate the interconnected structure of 
the DMCA. Contrary to the suggestion of some that the ``grand 
bargain'' of the DMCA is to be found within section 512 itself, 
the DMCA's ``grand bargain'' was the adoption of the section 
512 safe harbors in exchange for the enactment of the 
prohibition on the circumvention of technological protection 
measures (``TPMs'') in section 1201. As the Committee examines 
this issue, it must always bear in mind that section 1201, 
dealing with TPMs, and section 512, dealing with safe harbors, 
were enacted together to create a balanced approach to 
copyright enforcement in the Internet environment. Thus, the 
effectiveness-and fairness-of the safe harbor system should not 
be considered in isolation, but in relation to the 
effectiveness and fairness of the anti-circumvention 
provisions.
    What became section 512 and 1201 were originally introduced 
as separate bills in the 105th Congress. The TPM bill was 
supported by the entertainment industry and opposed by sectors 
of the technology industry. The safe harbor bill was supported 
by the online service providers and opposed by the 
entertainment industry. In the face of this opposition, both 
bills stalled. Chair Hatch, in a bold legislative move, merged 
the two bills into one. He calculated that the entertainment 
industry would be willing to accept the safe harbors in 
exchange for TPM protection. This calculation proved correct.
    The entertainment industry believes that section 1201 has 
benefitted it enormously. In response to a notice of inquiry 
issued by the Copyright Office concerning section 1201, the 
Association of American Publishers, the Motion Picture 
Association of America, and the Recording Industry Association 
of America filed joint comments stating that ``the protections 
of chapter 12 have enabled an enormous variety of flexible, 
legitimate digital business models to emerge and thrive . . . 
'' Likewise, the tech industry, libraries, and consumer groups 
believe that the section 512 safe harbors have ``allowed the 
Internet to become what it is today--a worldwide democratizing 
platform for communication, creativity, and commerce.'' \16\ 
Although Congress attempted to achieve a degree of balance 
within each title--each title contains internal compromises--at 
the end of the day, the grand bargain of the DMCA was the 
marriage of the TPM and the safe harbor bills.
---------------------------------------------------------------------------
    \16\ Matthew Schruers, ``Music Industry DMCA Letter Seeks to Tum 
Back Clock on Internet,'' Disruptive Competition Project (June 21, 
2016), http://www.project-disco.org/intellectual-property/062116-music-
industry-letter-seeks-to-tumback-clock-on-internet/#WHQCArYrKl5.
---------------------------------------------------------------------------
    Significantly, these titles are working just as Congress 
intended. To be sure, one can disagree with some of the policy 
choices Congress made in each title.\17\ But Congress made 
these policy choices with open eyes and a clear understanding 
of where the technology was headed. The courts generally have 
applied the DMCA in a manner consistent with Congress's intent. 
The overall balance struck in 1998 remains in place today.
---------------------------------------------------------------------------
    \17\ In my view, the theory underlying title I remains 
fundamentally flawed. While TPMs have been extremely helpful to the 
development of legitimate digital business models, the critical element 
has been the technological protection provided by TPMs, not the legal 
prohibition on circumvention and circumvention tools. Section 1201 is 
overbroad; because it is not limited to acts of circumvention (and 
circumvention tools) that facilitate infringement, it interferes with 
lawful uses. Further, the triennial rulemaking is not a nimble enough 
process to address these many lawful uses inhibited by section 1201. 
The number of these uses continues to grow as more devices are 
controlled by software, which in turn is protected by TPMs. These TPMs 
interfere with repair, maintenance, and customization. The Copyright 
Office through the triennial rulemaking in effect regulates vast swaths 
of the U.S. economy.
---------------------------------------------------------------------------
    As evidence of the imbalanced application of section 512 by 
the courts, the Copyright Office cited the concerns raised by 
the entertainment industry. But the entertainment industry has 
always opposed safe harbors for Internet service providers. The 
entertainment industry agreed to the safe harbors in 1998 as 
the price of obtaining the TPM provisions. As soon as the DMCA 
was signed into law, the entertainment industry reverted to its 
complaints about the safe harbors and how the Internet service 
providers were not doing enough to combat online infringement. 
While the rights holders did receive some benefit from the safe 
harbors--the automatic injunctions of a takedown in response to 
a mere notice of infringement--section 512 was never intended 
to provide a complete solution to the problem of infringement. 
Section 512 was adopted to help the service providers, not the 
content providers.
    Unfortunately, the Copyright Office conducted two separate 
studies, one of section 512, the other of section 1201. It 
suggested amendments of both sections. The Office looked at 
each section in isolation, and thus did not consider whether 
the overall balance Congress struck in 1998 was still intact.
    LCA urges the Committee to view the issue of copyright and 
the Internet through an appropriately wide lens. The question 
is not whether some individuals, or even some industries, are 
disadvantaged by online infringement, and could be benefited by 
imposing greater burdens on service providers through 
amendments to section 512. Rather, the question should be 
whether the goals of the copyright system--promoting the 
creation and distribution of works for the public benefit--
would be best served by recalibrating the balances established 
in the DMCA.
    In LCA's view, this is not even a close call. The amount of 
information individual users can access from home, the office, 
or the road, is astounding.\18\ Much of this information, 
posted with the authorization of the rights holder, is free. 
Similarly, the Internet enables these users to upload their own 
creations to social media platforms where they can be accessed 
by a global audience. If the safe harbors limiting the 
copyright liability of the websites hosting this content were 
contracted, then the Internet could not be as open. Web hosts 
would only make available material from trusted sources or 
would have to impose higher fees. Resources such as Wikipedia 
might disappear or greatly diminish.
---------------------------------------------------------------------------
    \18\ See Techdirt, The Sky Is Rising, https://skyisrising.com/.
---------------------------------------------------------------------------
    At the same time, it is entirely speculative whether 
changing the safe harbors would benefit copyright owners 
economically. The majority of infringing content available 
online is hosted overseas, beyond the reach of U.S. law. The 
large service providers have automated the process of 
submitting takedown notices, and have developed other tools 
content providers can use to combat infringement. Most content 
industries have adjusted their business models towards 
streaming to take advantage of the low distribution costs and 
enormous audiences of the Internet while minimizing the risk of 
infringement. While the transparency reports released by 
Internet companies indicate a large number of takedown notices, 
this volume is a function of a number of factors: The 
automation of the process; rights holders sending notices to 
search engines on the assumption that the search engines are 
indexing the infringing content, even if they are not; 
governments and corporations realizing they can use the DMCA 
process to censor legitimate speech; and the enormity of the 
Internet, social media platforms, and search engines. While 75 
million takedown notices a month may seem like a large number, 
it is a tiny fraction of the content available on the Internet.
    At the same time, this volume of automated notices 
indicates that fair use is not considered before notices are 
sent, which in tum suggests that far more content is being 
removed than should be.
    Because we disagree with the Copyright Office's assessment 
that section 512's balance is askew, we oppose the various 
amendments the report proposed, such as amending the red flag 
knowledge framework or adjusting the standards for terminating 
the accounts ofrepeat infringers. Section 512 is by no means 
perfect. We too could propose various changes, such as 
eliminating the requirement of every service provider 
registering its DMCA agent with the Copyright Office. Overall, 
section 512 works in the manner Congress intended.
    We live in a golden age of content creation and 
distribution. The DMCA is in large measure responsible for this 
golden age. It is a shining example of enlightened legislation 
for the public good. We disturb it at our peril.

    Chair Nadler. Thank you. Mr. Schruers?

                 TESTIMONY OF MATTHEW SCHRUERS

    Mr. Schruers. Thank you, Chair Nadler, Ranking Member 
Jordan, Members of the Committee. My name is Matt Schruers. I 
am President of the Computer and Communications Industry 
Association, which represents many of the world's leading 
internet communications and technology firms. Thanks for the 
opportunity to discuss section 512 today.
    Section 512 represents an enduring compromise which 
requires service providers to respond expeditiously to 
complaints from rights holders in exchange for certain 
liability limitations. In return, rights holders get rapid 
extra judicial relief from reported acts of alleged 
infringement. This gives critical legal certainty to the 
digital economy, which accounted for 6.9 percent of U.S. GDP as 
early as 2017. CCIA members and thousands of other services, 
websites, and apps utilize these protections. An even larger 
number of small businesses and independent creators utilize 
those 512-dependent services to engage in communications, 
creativity, commerce, and campaigning, as well as accomplishing 
daily activities, a need that is particularly acute when a 
pandemic compels social distancing in so many contacts like 
this hearing.
    Some companies voluntarily invest in additional service-
specific tools to mitigate infringement and help monetize 
content. Section 512 makes this voluntary private sector 
cooperation possible. It is sometimes called DMCA plus because 
these service-specific systems exceed section 512's 
requirements. DMCA plus systems offer speed and efficiency, but 
they are costly. They're site and often media specific, and 
they do struggle with false positives. That's important because 
the more powerful the tool, the bigger the risk of misuse 
against users. So, companies have to balance these concerns 
when employing DMCA plus tools.
    The Copyright Office's report omits any consideration of 
this, and, as you've already heard, takes a very isolated view 
that largely overlooks users as a constituency in DMCA 
policymaking. This despite coming right on the heels of a Wall 
Street Journal investigation that uncovered serious cases of 
misuse by claimed rights holders who are actually attempting to 
suppress lawful speech. Now, to be fair, the Office 
subsequently acknowledged these concerns, but the omission of 
these well-documented problems in the report is noticeable. As 
my testimony describes in greater detail, political campaigns 
have been targeted with section 512 misuse for over a decade 
and even in this cycle. As an association executive, I 
frequently hear from industry about these problems, so any 512 
amendments need to address these issues.
    Speaking more broadly, amending section 512 is not the low-
hanging fruit. The twin goals of ensuring that creators are 
compensated and that the public can access creative work is 
better served by promoting more legitimate channels through the 
distribution of copyrighted works and enforcing existing laws 
against offshore actors who aren't complying with section 512 
in the first place. So, I would say one more effective way to 
prevent infringement is to enforce our existing laws against 
offshore actors who don't view the DMCA as a constraint, and 
then, separately, to ensure that consumers have options to 
lawfully access content when they want it and where they want 
it.
    We know piracy rates fall when consumers have multiple 
lawful means of getting access to digital media, and CCIA 
members play an increasingly-important role here, enabling 
creators of all walks to reach a worldwide audience online. 
Digital services are increasingly the leading means by which 
creators can monetize their works, and they're playing a 
critical role in distributing creative content in the pandemic. 
Legislative efforts focused on fostering this kind of digital 
commerce would probably bear more fruit than implementing the 
report's uncertain recommendations.
    Thank you. I appreciate it and look forward to any 
questions you have.
    [The statement of Mr. Schruers follows:]

                   STATEMENT OF MATT SCHRUERS

    Chair Nadler, Ranking Member Jordan, and Members of the 
Committee, my name is Matt Schruers, and I serve as President 
at the Computer & Communications Industry Association (CCIA), 
which represents Internet, technology, and communications 
firms.\1\ CCIA was founded in 1972 to promote open markets, 
open systems, and open networks in the computer and 
telecommunications industry. Today, the Association continues 
to champion the same principles across these increasingly 
diverse and important sectors of the global economy.
---------------------------------------------------------------------------
    \1\ CCIA is an international, not-for-profit association 
representing a broad cross section of communications, technology and 
Internet industry firms. CCIA member's employ more than 1.6 million 
workers and generate annual revenues in excess of $870 billion. A list 
of CCIA members is available at https://www.ccianet.org.
---------------------------------------------------------------------------
    Thank you for the opportunity to discuss the Copyright 
Office's report on section 512 of Title 17. My statement 
focuses on the economic significance of section 512, and why 
the report inadequately reflects the interests of users, 
particularly when targeted by misuse of the statute to suppress 
speech and economic activity. It concludes by discussing how 
promoting lawful alternatives to piracy can achieve more than 
the unpredictable outcomes that would result from implementing 
the report's recommendations.

      I. History and Economic Significance of Section 512

    Section 512 was enacted by title II of the 1998 Digital 
Millennium Copyright Act (DMCA). It formed part of a compromise 
alongside title I of the DMCA, which attaches civil and 
criminal penalties to circumventing technological measures that 
we generally refer to as ``DRM'' (digital rights 
management).\2\ Service providers agreed to support giving 
legal force to technological measures, and in tum, rightsholder 
constituencies endorsed section 512.
---------------------------------------------------------------------------
    \2\ These provisions, codified primarily at 17 U.S.C. 1201 et seq., 
are not otherwise a subject of this testimony.
---------------------------------------------------------------------------
    There are also compromises embodied within section 512. The 
compromise at the heart of section 512 imposes upon service 
providers the responsibility of responding expeditiously to 
complaints by putative rightsholders in exchange for liability 
limitations. In turn, section 512 guarantees to rightsholders 
rapid, ex parte extrajudicial relief from specific acts of 
alleged infringement upon affirmatively reporting those acts. 
In order for services to benefit from section 512, they must 
satisfy recurring compliance responsibilities. In addition to 
expeditiously responding to notices of claimed infringement and 
complying with Copyright Office formalities, section 512 
compliance also includes maintaining and implementing a 
procedure for terminating repeat infringers, among other 
requirements.
    Section 512 provides critical legal certainty for the 
digital economy, which according to U.S. government data 
accounted for 6.9% of U.S. GDP, $1.35 trillion, in 2017.\3\ 
Economic research demonstrates that regulatory certainty about 
copyright intermediary protections encourages investment and 
innovation in this sector.\4\ While section 512's protections 
are critical for CCIA member companies, they are also essential 
to economic interests far beyond the tens of thousands of 
websites and service providers that utilize its protections. An 
even larger number of small businesses and independent creators 
utilize section 512-dependent service providers to engage in 
communications, commerce, and campaigning, as well as 
accomplishing their daily activities--a need that is 
particularly acute when the ongoing public health crisis 
compels social distancing in so many contexts, including this 
hearing.
---------------------------------------------------------------------------
    \3\ Bureau of Economic Analysis, Digital Economy Accounted for 6.9 
Percent of GDP in 2017 (Apr. 4, 2019), https://www.bea.gov/news/blog/
2019-04-04/digital-economy-accounted-69-percent-gdp-2017.
    \4\ Survey research found that changing regulations to remove 
intermediary protections would have a negative effect on venture 
capital investment. Booz & Company, The Impact of U.S. Internet 
Copyright Regulations on Early Stage Investment: A Quantitative Study 
(2011), https://www.strategyand.pwc.com/media/uploads/
Strategyandimpact-US-Internet-Copyright-Regulations-Early-Stage-
investment.pdf. Similarly, economic research found that venture capital 
investment in cloud computing firms increased significantly in the U.S. 
relative to the EU after a copyright decision involving intermediary 
liability. Compare Josh Lerner, The Impact of Copyright Policy Changes 
on Venture Capital Investment in Cloud Computing Companies (Analysis 
Group 2011), available at https://www.analysisgroup.com/globalassets/
content/insights/publishing/impact-copyright-policy-changes-venture-
capital-investment-cloud-computing-companies .pdf; with Josh Lerner, 
The Impact of Copyright Policy Changes in France and Germany on Venture 
Capital Investment in Cloud Computing Companies (Analysis Group 2012), 
available at http://cdn.ccianet.org/wp-content/uploads/library/
eu%20cloud%20computing%20white%20 paper.pdf.
---------------------------------------------------------------------------

  a. Section 512 Balances Not Two, But Three Separate Sets of 
                           Interests

    Section 512 is often construed as mutually benefiting and 
burdening two groups: service providers and rightsholders. This 
is true, but incomplete. Users represent the critical third 
stakeholder of section 512's balancing act. Congress 
acknowledged this in legislative history, noting that it 
``believes it has appropriately balanced the interests of 
content owners, on-line and other service providers, and 
information users in a way that will foster the continued 
development of electronic commerce and the growth of the 
Internet.'' \5\
---------------------------------------------------------------------------
    \5\ H.R. Rep. No. 105-551, pt. 2, at 21 (1998).
---------------------------------------------------------------------------
    These stakeholders also increasingly overlap and intersect. 
For example, many CCIA members are highly successful content 
creators and benefit from copyright protection, in addition to 
limitations and exceptions like section 512. Many users are 
also creators; a 2019 study found that nearly 17 million 
American creators earned incomes from posting their personal 
creations on nine platforms in 2017, collectively earning $6.8 
billion.\6\ Unfortunately, users' interests were largely 
overlooked by the Office's section 512 report.
---------------------------------------------------------------------------
    \6\ Robert Shapiro & Siddhartha Aneja, Taking Root: The Growth of 
America's New Creative Economy (2019), https://
www.recreatecoalition.org/wp-content/uploads/2019/02/ReCreate-2017-New-
Creative-Economy-Study.pdf.
---------------------------------------------------------------------------

            b. ``DMCA-Plus'' and Voluntary Measures

    In addition to general section 512 compliance, some 
companies voluntarily invest in offering additional service-
specific suites of tools for different types of creators to 
help prevent infringement online, and in some cases, monetize 
content. Section 512 makes this voluntary private sector 
cooperation possible. Providing rightsholders additional tools 
and services for content protection and monetization is 
sometimes referred to as ``DMCA-Plus'' because these service-
specific systems exceed the requirements that businesses must 
meet to qualify for statutory protection under section 512.\7\ 
These voluntary, additional layers of protection are desirable 
because they can expedite action, and often provide 
rightsholders opportunities not just to remove infringing 
content, but also to track and monetize their works online.
---------------------------------------------------------------------------
    \7\ See Jennifer Urban et al., Notice and Takedown in Everyday 
Practice (2016), http://papers
 ssrn.com/sol3/papers.cfm?abstract_id=2755628, at 52.
---------------------------------------------------------------------------
    DMCA-Plus systems provide value when deployed voluntarily 
by firms that have the resources to do so competently. Services 
without the resources to implement such measures should not be 
penalized for lacking the capacities of their larger 
competitors, however. If the section 512 protections were 
interpreted otherwise, it would raise barriers to entry for 
startups, entrenching existing services behind a compliance 
moat. Section 512 protections were intended to reduce 
regulatory burdens in order to encourage investment and 
innovation, not to deter companies from experimenting because 
of fears of incurring costly new obligations.
    The benefits of DMCA-Plus systems include speed, 
efficiencies of scale and, where automated, lower costs for all 
parties. However, DMCA-Plus tools are costly to develop,\8\ 
site- and media-specific, and often struggle with false 
positives. False positives merit particular attention because 
any unjustified content filtering or takedown may suppress 
users' lawful free expression--another reason that it is 
fundamental that users be acknowledged as one of section 512's 
stakeholders.\9\
---------------------------------------------------------------------------
    \8\ YouTube has invested more than $100 million building Content 
ID. Google, How Google Fights Piracy (Nov. 2018), https://blog.google/
documents/27/How_Google_Fights_Piracy_ 2018.pdf.
    \9\ The Copyright Office noted this in a letter following this 
report. See Letter from Acting Register Maria Strong to Senator Tillis 
and Senator Leahy (June 29, 2020), https://www .copyright.gov/laws/
hearings/response-to-may-29-2020-letter.pdf (``Even the most advanced 
filtering systems result in a non-negligible number of false positives 
and cannot identify whether content is protected by fair use.'').
---------------------------------------------------------------------------
    The more powerful the copyright management tool, the bigger 
the risk of abuse. Companies must therefore balance these 
concerns so that the risk of abuse and misuse is as low as 
possible. Companies calibrate access to tools to the needs of 
different rightsholders and creators, which may differ in, for 
example, the types of content they own, the volume of requests 
they submit, their ability to dedicate time and resources, 
their understanding of copyright law, and the complexity of 
their licensing arrangements.
    In addition to aiding copyright enforcement, DMCA-Plus 
systems can generate revenue for rightsholders. For example, 
YouTube's Content ID has paid billions to the content industry, 
including $6 billion to the music industry as of 2018.\10\ With 
Content ID, rightsholders can opt to remove the content, but 
may also claim the right to monetize it, in which case 
advertisements are placed adjacent to said content and 
rightsholders receive a share of the revenue stream associated 
with those advertisements. The inclusion of an advertising 
option benefits all of section 512's constituencies, since 
users' disputed content remains online, while the rightsholder 
receives previously unrealized revenue.
---------------------------------------------------------------------------
    \10\ Google, How Google Fights Piracy (Nov. 2018), https://
blog.google/documents/27/How _Google_Fights_piracy_2018.pdf.
---------------------------------------------------------------------------
    As another example, Facebook's Rights Manager tool was 
first launched in 2015 and has developed in close consultation 
with rightsholders. Rights Manager identifies millions of 
pieces of copyrighted content per week and provides 
rightsholders with the ability to block and disable content, in 
addition to a variety of other actions. For instance, Rights 
Manager allows rightsholders who choose not to disable content 
to obtain various forms of value, including data and insights 
about how their content is performing, promotional 
opportunities, and allows rightsholders to claim money from 
advertisements placed into their content via a streamlined in 
product process.

    II. The Copyright Office's Report Is of Limited Use for 
                          Policymaking

    Because it omits a critical constituency, and does not 
discuss one of the longest standing challenges confronting 
section 512, the Copyright Office's report is of limited use. 
It is encouraging that the Copyright Office recognized 
wholesale changes to the notice-and-takedown system are not 
needed. This includes the Office's decision not to recommend 
importing from abroad controversial proposals like ``notice-
and-staydown,'' a policy which has animated the European 
Union's contentious Directive on Copyright in the Digital 
Single Market. However, while the Office said it recommended no 
wholesale changes, it highlights a dozen areas for Congress to 
fine-tune, which arguably results in broad changes. By 
suggesting that numerous major cases on section 512 since 
1998--all defense wins--should be reversed, the consequences of 
the Office's report would be considerable and unpredictable.
    The report also conspicuously overlooked the problem of 
section 512 misuse. It is disappointing that the report said so 
little about fraudulent use of takedown demands to suppress 
speech, particularly as it came on the heels of a major Wall 
Street Journal investigation that uncovered serious cases of 
abusive takedowns aimed at disappearing legitimate information 
from public view.\11\ The Washington Post also recently covered 
how section 512 misuse and overclaiming harms creators, and the 
New York Times just covered how easily section 512 can be 
``maliciously'' ``weaponized by authors seeking to take down 
their rivals.'' \12\
---------------------------------------------------------------------------
    \11\ Andrea Fuller, Kirsten Grind & Joe Palazzolo, Google Hides 
News, Tricked by Fake Claims, Wall St. J. (May 15, 2020), https://
www.wsj.com/articles/google-dmca-copyright-claims-takedown-online-
reputation-11589557001.
    \12\ Michael Andor Brodeur, Copyright bots and classical musicians 
are fighting online. The bots are winning., Wash. Post (May 21, 2020), 
https://www.washingtonpost.com/entertainment/music/copyright-bots-and-
classical-musicians-are-fighting-outline-the-bots-are-winning/2020/05/
20/a11e349c-98ae-11ea-89fd-28fb313dl886_story.html; Alexandra Alter, A 
Feud in Wolf-Kink Erotica Raises a Deep Legal Question, N.Y. Times (May 
23, 2020), https://www .nytimes.com/2020/05/23/business/omegaverse-
eroitca-copyright.html.
---------------------------------------------------------------------------
    However, in a June 29 letter responding to an inquiry from 
Senator Tillis and Senator Leahy regarding the report, the 
Copyright Office acknowledged concerns regarding the impact of 
abusive takedowns on speech, among other important 
considerations affecting users. The Office wrote that ``[t]he 
issue of abusive allegations of copyright infringement is 
serious, and congressional attention to the broader question of 
how to best discourage such uses of the copyright system could 
provide more effective mechanisms to address the problem.'' 
\13\ CCIA shares this view. The recognition of the seriousness 
of section 512 misuse is significant, and the report should 
therefore be read in conjunction with the Copyright Office's 
June 29 letter.
---------------------------------------------------------------------------
    \13\ Letter from Acting Register Maria Strong to Senator Tillis and 
Senator Leahy (June 29, 2020), supra note 9.
---------------------------------------------------------------------------

       a. Section 512 Misuse Disrupts Speech and Commerce

    Although the Office subsequently recognized that section 
512 misuse is a serious problem, the omission of this subject 
from the report itself is a significant deficiency. Misuse of 
section 512's extremely powerful takedown remedy is a well-
documented, long-standing challenge. A decade ago, the Center 
for Democracy & Technology authored a report documenting 
section 512 abuse in political campaigns, and the concerns it 
identified then remain equally salient today.\14\ Campaigns 
supporting the late Senator McCain and former President Obama 
were prominent victims of dubious takedown demands by copyright 
owners.
---------------------------------------------------------------------------
    \14\ Center for Democracy & Technology, Campaign Takedown Troubles: 
How Meritless Copyright Claims Threaten Online Political Speech (Sept. 
2010), https://cdt.org/wp-content/uploads/pdfs/copyright_takedowns.pdf, 
at 1.
---------------------------------------------------------------------------
    Takedown abuse persists this campaign season; in 2020, 
multiple CCIA member companies have received false section 512 
notifications in connection with the Presidential debates and 
campaign videos on social media.\15\ Committee Members can 
imagine what it would be like to have their most effective 
campaign ad temporarily forced offline on the eve of an 
election by dubious copyright claims, just as it was gathering 
steam. The same can happen to individual creators, when the 
viral success of their work is cut short by someone who doesn't 
like their message, or a small business whose e-commerce site 
is struck down by a competitor on Black Friday.
---------------------------------------------------------------------------
    \15\ Charlie Hall, Report: Phony DMCA claims nuked Twitch streams 
of the Democratic debate, Polygon (Feb 28, 2020), https://
www.polygon.com/2020/2/28/21155955/twitch-streamers-banned-democratic-
debate-phony-dmca; Matt Schruers, Claims Against Trump Campaign Video 
Call for Revisiting Intersection of Speech and Copyright, Disruptive 
Competition Project (June 6, 2020), https://www.project-dlsco.org/
intellectual-property/060620-claims-against-trump-campaign-video-call-
for-revisiting-intersection-of-speech-and-copyright/.
---------------------------------------------------------------------------
    As an association executive, I frequently hear from 
industry about fraudulent and abusive takedown demands that 
stifle speech and disrupt commerce. Most of these incidents do 
not receive the media attention they deserve. Abusive behavior 
includes fraudulent notices, as well as over-reaching reports 
purportedly based on copyright that in fact are attempts to 
censor legitimate speech, even complete fabrications to remove 
content considered undesirable by the claimant.
    Publicly documented examples of section 512 misuse that 
CCIA member companies have experienced include extortion 
schemes tied to the section 512 takedown process; \16\ blatant 
disregard for fair use; \17\ section 512 abuse as a business 
model, such as reputation-related removals masquerading as 
copyright; \18\ abuse to target competitors in online 
marketplaces; \19\ and flawed automated systems that broadly 
target unrelated content.\20\ Some companies receive floods of 
batch notices from large rightsholders directed to short clips 
of content in which music is incidental as a means to force 
them to negotiate.\21\
---------------------------------------------------------------------------
    \16\ Julia Alexander, YouTube gets alleged copyright troll to agree 
to stop trolling YouTubers, The Verge (Oct. 15, 2019), https://
www.theverge.com/2019/10/15/20915688/youtube-copyright-troll-lawsuit-
settled-false-dmca-takedown-christopher-brady.
    \17\ Brief for Amici Curiae Automattic Inc., Google Inc., Twitter 
Inc., and Tumblr, Inc., Lenz v. Universal Music Corp., 815 F.3d 1145 
(9th Cir. 2015) (No. 13-16106), available at https://www.eff.org/files/
2015/10/30/lenz-automattic_google_twitter_tumblr_amicus.pdf.
    \18\ Andrea Fuller, Kirsten Grind & Joe Palazzolo, Google Hides 
News, Tricked by Fake Claims, Wall St. J. (May 15, 2020), supra note 
11.
    \19\ Alexandra Alter, A Feud in Wolf-Kink Erotica Raises a Deep 
Legal Question, N.Y. Times (May 23, 2020), supra note 12.
    \20\ Ernesto Van der Sar, Bizarre DMCA Takedown Requests Censor EU 
``Censorship'' News, TorrentFreak (Aug. 11, 2018), https://
torrentfreak.com/bizarre-dmca-takedown-requests-censor-eu-censorship-
news-181011/.
    \21\ See Jennifer Urban et al., Notice and Takedown in Everyday 
Practice (2016), supra note 7, at 72.
---------------------------------------------------------------------------
    Any review of section 512 needs to account for these 
challenges. Section 512(f)'s penalties, designed to deter 
misuse, are obviously inadequate, but strengthening this 
provision is an incomplete solution, and is unlikely to resolve 
all of the scenarios described above.

  b. Promoting Lawful Alternatives to Piracy Can Achieve More 
          Than Implementing the Report Recommendations

    In the sense that ``the best defense is a good offense,'' 
the most effective way to prevent the infringement of 
copyrights is to ensure that members of the public, most of 
whom want to pay for content, can lawfully consume works 
digitally whenever and wherever they want. As the Commerce 
Department has noted, the digital distribution of content is a 
crucial component to ensuring Internet users consume lawfully 
licensed content.\22\
---------------------------------------------------------------------------
    \22\ Department of Commerce Internet Policy Task Force, Copyright 
Policy, Creativity, and Innovation in the Digital Economy (July 2013), 
at 77-78, http://www.uspto.gov/sites/default/files/news/publications/
copyrightgreenpaper.pdf.
---------------------------------------------------------------------------
    Research consistently shows that piracy rates fall when 
consumers have broad access to lawful means of digital media 
consumption,\23\ such as when legitimate services such as 
Spotify and Netflix enter markets.\24\ A copyright system with 
robust protection and flexibilities is essential, but 
ultimately, access to legitimate alternatives is the best way 
to fight online piracy, and CCIA members are playing an 
increasingly important role in this space.\25\ Digital services 
enable creators, ranging from the largest content producers in 
the world to the individual artist working from home, to reach 
a worldwide audience online. Because section 512 facilitates 
the provision of many such services, it remains a crucial 
aspect of U.S. copyright policy.
---------------------------------------------------------------------------
    \23\ Karl Bode, Studies Keep Showing That the Best Way To Stop 
Piracy Is to Offer Cheaper, Better Alternatives, Vice (Feb. 26, 2019), 
https://www.vice.com/en_us/article/3kg7pv/studies-keep-showing-that-
the-best-way-to-stop-piracy-is-to-offer-cheaper-better-altematives.
    \24\ See, e.g., Scoop Media, Netflex is killing content piracy 
(Feb. 26, 2019), https://www.scoop.co.nz/stories/BU1902/S00685/netflix-
is-killing-content-piracy.htm; Copia Institute, The Carrot Or The 
Stick? Innovation vs. Anti-Piracy Enforcement (Oct. 8, 2015), https://
copia.is/library/the-carrot-or-the-stick/; Sophie Curtis, Spotify and 
Netflix Curb Music and Film Piracy, The Telegraph (July 18, 2013), 
http://www.telegraph.co.uk/technology/news/10187400/Spotifyand-Netflix-
curb-music-and-film-piracy.html.
    \25\ See, e.g., Dave Axelgard, Helping Creators and Publishers 
Manage Their Intellectual Property, Facebook (Sept. 21, 2020), https://
about.fb.com/news/2020/09/helping-creators-and-publishers-manage-their-
intellectual-property/; Leo Olebe, Making Music & Streaming Easier 
(Sept.
                                                                        
         Continued
14, 2020), https://www.facebook.com/fbgaminghome/blog/making-music-and-
streaming-easier (``Instead of suggesting you go to music law school to 
figure it all out, we want to make the whole process a lot easier so 
you can focus on being a great streamer, and not a rights specialist. 
That's why we're partnering with the music industry to open up a vast 
catalogue of popular music for Facebook Gaming Partners to play while 
livestreaming games.''); Tatiana Cirisano, Amazon Music Will Now Let 
Artists Integrate Twitch Livestreams: Exclusive, Billboard (Sept. 1, 
2020), https://www.billboard.com/articles/business/streaming/9442797/
amazon-music-twitch-livestream-artists; Sam Byford, Google Images is 
making it easier to license photo rights, The Verge (Aug. 31, 2020), 
https://www.theverge.com/2020/8/31/21408305/google-images-photo-
licensing-search-results.
---------------------------------------------------------------------------

                         IV. Conclusion

    The Copyright Office's report largely ignored one of 
section 512's three constituencies, as identified by Congress; 
called for the rejection of decades of settled case law; and 
failed to address the critical issue of abuse of the processes 
that section 512 established. As such, it is of limited value 
in assessing the current copyright landscape. Past experience 
teaches that the twin goals of ensuring creators are 
compensated and that the public can access creative works are 
best served by promoting a diversity of legitimate options for 
accessing media.

    Chair Nadler. Thank you. Ms. Carrington?

                TESTIMONY OF TERRICA CARRINGTON

    Ms. Carrington. Good afternoon, Chair Nadler, Ranking 
Member Jordan, and Members of the Committee, and thank you for 
the opportunity to testify today. I am Terrica Carrington, VP 
and legal policy and copyright counsel at the Copyright 
Alliance, an organization dedicated to advocating policies that 
promote and preserve the value of copyright and to protecting 
the rights of creators and innovators, including the more than 
13,000 organizations and 1.8 million individual creators whose 
interests we represent.
    After nearly 5 years of thoughtful and comprehensive 
deliberation by the Copyright Office, earlier this year, the 
Office issued its long-awaited section 512 report, which 
concludes that section 512 is unbalanced and not working as 
Congress intended. While online service providers, or OSPs, are 
routinely shielded from liability under the DMCA, the problem 
of online piracy has grown enormously, leaving copyright owners 
to shoulder the burden alone. Today I expect this Committee 
will hear from representatives of OSPs who will say that 
section 512 is working just fine. This only reinforces our 
point. Where the OSPs are pleased with section 512 and the 
copyright community is not, it is clear that the appropriate 
balance has not been achieved.
    I want to focus my time on three issues of concern that 
highlight this imbalance.

    (1)  The intent of the notice and takedown process was to give 
copyright owners a faster alternative to filing for a temporary 
restraining order in light of the speed at which infringement can occur 
online. Today, vastly increased internet speeds and capabilities have 
left copyright owners virtually no opportunity to prevent mass 
infringement. The notice and takedown process does not work well for 
any size or type of copyright owner, even when automated technologies 
are used. The number of takedown notices sent is staggering and 
steadily increasing. The Office's report recognizes the frustrations 
related to the constant game of whack-a-mole faced by creators simply 
trying to enforce their rights. For example, the report details how the 
Recording Industry Association of America sent over 175 million 
takedown notices in the span of 3 years, yet continues to see those 
words show up again and again.

    Make no mistake. The large number of notices is not a 
measure of success. It is an indicator of a systemwide failure. 
The consensus from our individual creator membership is that 
online infringement has reached a point where, without access 
to effective tools, they're unable to protect their work. The 
Office's report states that, ``A system that fails to provide 
adequate protection of creators' rights of all sizes ultimately 
fails to carry out congressional intent regarding section 512 
as well as the overall purpose of copyright law.'' We agree.

    (2)  One of the most significant problems with section 512 stems 
from incorrect court interpretations and applications of the statutory 
text, particularly those regarding red flag knowledge and willful 
blindness. Various courts' interpretation of the red flag standard is 
so restrictive that they have basically eliminated the careful balance 
that Congress intended and have effectively written the red flag 
knowledge standard out of the statute. Some courts have also 
incorrectly applied the concept of willful blindness, allowing OSPs to 
benefit from safe harbor protection despite turning a blind eye to 
infringement.
    (3)  I'll address repeat infringement policies. These policies are 
essential to maintaining the strong incentives for OSPs to prevent 
their services from becoming safe havens or conduits for known repeat 
infringers. The problem is not in the legal framework drafted by 
Congress, but instead in how OSPs choose to implement these policies. 
OSPs and copyright owners, with the assistance of government, need to 
work together to ensure that repeat infringement policies are effective 
and are being implemented as intended. Through such cooperation, OSPs 
should be able to adopt more acceptable repeat infringement policies.

    There is no silver bullet solution to fixing what ails 
section 512. Instead, we must consider a host of different 
options, including implementing standard technical measures, 
developing private sector voluntary agreements, enacting the 
CASE Act and legislation to harmonize criminal penalties for 
infringement, and amending the statute to clarify the knowledge 
standards in overturned erroneous case law. We applaud the 
Office for calling attention to areas of imbalance related to 
section 512 and how overly expansive or narrow interpretations 
of the statute have aided in skewing the balance that Congress 
intended. The copyright community stands ready to work with 
this committee, the Copyright Office, and other stakeholders to 
reduce today's rampant online piracy in a way that takes into 
account the interests of all stakeholders involved.
    Thank you again for the opportunity to testify at this 
hearing, and I am happy to answer any questions.
    [The statement of Ms. Carrington follows:]

                STATEMENT OF TERRICA CARRINGTON

    Good afternoon, Chair Nadler, Ranking Member Jordan and 
Members of the House Judiciary Committee, and thank you for the 
opportunity to testify at today's hearing titled, ``Copyright 
and the Internet in 2020: Reactions to the Copyright Office's 
Report on the Efficacy of 17 USC 512 After Two Decades.''
    My name is Terrica Carrington and I am VP, Legal Policy & 
Copyright Counsel at the Copyright Alliance, a non-profit, non-
partisan public interest and educational organization dedicated 
to advocating policies that promote and preserve the value of 
copyright, and to protecting the rights of creators and 
innovators. The Copyright Alliance represents the copyright 
interests of over 13,000 organizations in the United States, 
across the spectrum of copyright disciplines, and over 1.8 
million individual creators, including photographers, authors, 
songwriters, coder, bloggers, artists and many more individual 
creators and small businesses tbat rely on copyright law to 
protect their creativity efforts and investments in the 
creation and distribution of new copyrighted works for the 
public to enjoy.
    One of the greatest threats to the welfare of the creative 
community is piracy. Piracy is a persistent and evolving 
problem for virtually all types of copyrighted works and 
copyright owners and undermines the rights of creators and the 
value of copyright. It is essential that the copyright 
industries, including the millions of individual creators and 
small businesses across the country that rely on copyright law 
be able to recoup their investments in order to fund the next 
wave of investment, create and distribute quality content for 
the public to enjoy and ensure job stability for the nearly 5.7 
million men and women these industries employ in the United 
States. Piracy poses a threat to those investn1ents by unjustly 
enriching bad actors who make no investment and take no risk, 
at the expense of the creators behind those works.
    Congress has long recognized the harms of piracy, and in 
1998, passed the Digital Millennium Copyright Act (DMCA) as the 
primary way to combat online piracy. Section 512 of the DMCA 
includes a notice and takedown process for copyright owners and 
a safe harbor for online service providers (OSPs). The safe 
harbor for OSPs was meant to be a limitation on monetary 
liability, not an exception to copyright infringement.\1\ OSPs 
were concerned about being party to lawsuits over isolated acts 
of infringement by their users, even if they were otherwise 
cooperative in remedying the infringement as soon as they were 
put on notice.\2\ In exchange for OSPs' cooperation in 
detecting and addressing infringement, Congress created ``safe 
harbors'' to minimize the possibility that fear of liability 
would inhibit technological innovation. Section 512 sought to 
protect OSPs who work with the copyright community to mitigate 
and combat online infringement. The inclusion of these safe 
harbors, along with the other provisions in the DMCA, allowed 
the DMCA to ``provide greater certainty to service providers 
concerning their legal exposure for infringements that may 
occur in the course of their activities.'' \3\ Indeed, a review 
of the legislative history reveals that the intent of the safe 
harbors was to afford reasonable immunity to reasonable actors; 
not to create a mechanism by which OSPs could disregard 
copyright law.\4\
---------------------------------------------------------------------------
    \1\ See Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004) citing 
S. Rep. 105-190, at 19 (``Congress provided that `limitations 
ofliability apply if the provider is found to be liable under existing 
principles of law.' ''); S. Rep. 105-190 (``The [safe harbor] 
limitations . . . protect qualifying service providers from liability 
for all monetary relief for direct, vicarious and contributory 
infringement. Monetary relief is defined in subsection [(k)(2)] as 
encompassing damages, costs, attorneys' fees, and any other form of 
monetary payment. These subsections also limit injunctive relief 
against qualifying service providers to the extent specified in 
subjection G).'').
    \2\ See S. Rep. No. 105-190.
    \3\ S. Rep. No. 105-190, at 20; H.R. Rep. No. 105-551, pt. 2, at 
49-50.
    \4\ See H.R. Rep. No. 105-551.
---------------------------------------------------------------------------
    The notice and takedown process is a tool for copyright 
holders to get user-uploaded material that infringes their 
copyrights taken down off of websites and other internet sites. 
The process entails the copyright owner (or the owner's agent) 
sending a takedown notice to an OSP requesting the OSP to 
remove material that is infringing their copyright(s). In 
exchange for taking down infringing content, an OSP who did not 
upload the infringing material receives a safe harbor from 
monetary liability--but only if they comply with additional 
obligations, including: Implementing a repeat infringer policy; 
registering an agent with the Copyright Office; and responding 
to infringements ``expeditiously'' once they have actual or 
apparent knowledge of them. Even if a takedown notice meets all 
the legal requirements, the OSP still may refuse to takedown 
the material. However, if they fail to do so, then they open 
themselves up for potential secondary liability for assisting 
with copyright infringement.
    After a takedown notice is sent to an OSP, the OSP usually 
notifies the user, subscriber or other person who is 
responsible for engaging in the infringing activity. If that 
person--the alleged infringer--in good faith does not think the 
activity is infringing, he or she can send a counter notice to 
the OSP explaining why they disagree with the copyright owner. 
After receiving a counter notice, the OSP forwards that counter 
notice to the person who sent the original takedown notice. 
Once the OSP has received a valid counter notice they wait 10-
14 days. If the copyright owner sues the alleged infringer in 
that time frame the material will remain down, but if no suit 
is filed then the OSP must re-activate or allow access to the 
alleged infringing activity. This entire process is what is 
commonly referred to as the notice and takedown process. An OSP 
is not required to take any of these actions unless it wants to 
avail itself of the DMCA safe harbor.
    In passing the notice and takedown provisions in section 
512 of the Act, Congress intended to encourage copyright owners 
and OSPs to work together to combat existing and future forms 
of online infringement.\5\ This approach was designed to remedy 
hardships faced not only by large copyright owners and OSPs, 
but also individual creators who undeniably lack meaningful 
tools to fight online infringement.
---------------------------------------------------------------------------
    \5\ See H.R. Rep. No. 105-796, at 72 (1998).
---------------------------------------------------------------------------
    Over two decades have now passed since the DMCA was 
enacted. Since that time, the interconnectivity provided by the 
internet has fundamentally changed commerce, communication, and 
the way the public experiences copyrighted works. Consumers can 
access and enjoy all sorts of copyrighted works where and when 
they want, and creators benefit from new platforms that reach 
new audiences. Although the intemet's impact on creativity and 
interconnectivity have given us much to cheer about over the 
past two decades, there is also much that is problematic. One 
of these problems is rampant online piracy. In the past two 
decades since the DMCA was enacted, online infringement has 
increased exponentially, causing widespread harm to the 
economic and creative vibrancy of the copyright community.
    Although section 512 seemed to have achieved Congress's 
purpose when it was first enacted, over the past twenty-two 
years, court rulings and other unanticipated changes that have 
taken place in the online environment have rendered these 
provisions less effective, creating an ecosystem where mass 
copyright infringements are an unfortunate and regular 
occurrence. While section 512 remains a workable legal 
framework, it is evident that the statute is under strain and 
that stakeholder collaboration is needed in order for the 
statute to live up to its potential as imagined by Congress. If 
such collaboration doesn't come to fruition, perhaps it is time 
for Congress to reconsider this twenty-two-year-old bargain 
with an eye toward determining what areas of section 512 may 
need to be recalibrated in order to rebalance the system.
    Members of this Committee will no doubt hear from OSPs who 
will say that section 512 is working just fine and 
recalibration is not necessary. From the perspective of the OSP 
community, that viewpoint makes sense because the section 512 
safe harbors have routinely protected OSPs from liability. That 
is only one half of the section 512 bargain. While OSPs are 
routinely shielded from liability under the DMCA, the other 
half of the bargain remains unfulfilled, as online copyright 
infringement has grown enormously--leaving copyright owners to 
bear the brunt of the burden of taking action against 
infringement--with little to show for it.
    To be clear, the fact that copyright owners shoulder most 
of the burden of taking action against infringement is not--
standing alone--the only problem with section 512. An equally 
significant problem is that, when they do take on that burden 
and send takedown notices, the notices have little (if any) 
effect, as the infringing material is often immediately 
reposted. This results in the burden being placed almost 
exclusively on the creative community, and that is far from the 
balance and cooperation that Congress intended. This is a 
problem that can no longer go unaddressed.
    When the Committee evaluates the divergent views on the 
efficacy of section 512, the primary focus should be whether 
section 512 effectively balances the interests of OSPs and 
copyright owners, and incentivizes cooperation between OSPs and 
rights holders to detect and address infringement, as Congress 
intended. Balance would be reflected by the fact that both 
sides are in agreement that section 512 is working (or not). 
Where one side, the OSP community, is pleased with section 512 
but the other side, the copyright community, is not, it is 
clear that this balance has not been achieved.
    We have identified below specific problem areas of section 
512 that the Committee should consider as it moves forward with 
its evaluation of section 512.

               I. The Notice and Takedown Process

    In 1998, the intent of the notice and takedown process was 
to give copyright owners a faster alternative to filing for a 
temporary restraining order in court, mostly so they could 
prevent copies distributed legally on physical goods (DVDs, 
CDs) from being illegally distributed on the internet for 
people to download. Today, vastly increased download speeds and 
instant streaming capabilities have left copyright owners 
virtually no opportunity to prevent mass unauthorized copying, 
distribution and performance. The notice and takedown process 
doesn't work well for any size or type of copyright owner--even 
when automated technologies are used. As observed by Professor 
Bruce Boyden,\6\ ``even for the largest media companies with 
the most resources at their disposal, attempting to purge a 
site of even a fraction of the highest-value content is like 
trying to bail out an oil tanker with a thimble. The expenses 
of locating, identifying, and then sending a notice for that 
many files is so significant that even large companies must 
limit their efforts.'' \7\
---------------------------------------------------------------------------
    \6\ Professor Bruce Boyden is a Professor at Marquette University 
Law School and a member of the Copyright Alliance Academic Advisory 
Board.
    \7\ See Bruce Boyden, The Failure of the DMCA Notice and Takedown 
System: A Twentieth Century Solution for a 20-First Century Problem, 
Center for Protection of Intell. Prop. (Dec. 5, 2013).
---------------------------------------------------------------------------
    The number of takedown notices sent is staggering, and this 
number is steadily increasing.\8\ The Copyright Office's 
recently published section 512 Report recognizes that the 
massive amounts of notices sent by copyright owners represent a 
never-ending uphill battle against infringement.\9\ The report 
details the frustrations related to the constant game of 
``whack-a-mole'' as illustrated by the experience of 
organizations such as the Recording Industry Association of 
America (RlAA), whose Victoria Sheckler explains, ``[w]e have 
sent over 175 million notices in the past three years to a 
variety of entities that claim DMCA status, or DMCA safe harbor 
status. And yet, we continue to see our members' works show up 
again and again and again on these sites.'' \10\
---------------------------------------------------------------------------
    \8\ Transparency Report, Google, https://
transparencvreport.google.com/copyright/reporters/1594?hl=en (last 
updated Aprll 8 2020). As of April 2020, the Recording Industry 
Association of America (RIAA and its members have sent nearly 94 
million notices to Google alone).
    \9\ U.S. Copyright Office. Section 512 of Title 17: A Report of the 
Register of Copyrights at p. 81 (May 2020), available at: https://
www.copyright.gov/policy/section-512/section-512-full-
report.pdf.
    \10\ Id.
---------------------------------------------------------------------------
    Despite these glaring inefficiencies, there are those who 
believe that the large number of takedowns is evidence that the 
notice and takedown system is working. That is complete 
fallacy. The large number of takedown is not a measure of 
success; it is an indicator of a system-wide failure--
especially when those numbers are increasing.
    There are numerous examples of this failure for both large 
and small copyright owners. For example, consider a large movie 
studio's use of the process. For three months during the fall 
of 2015, Disney sent about 35,000 takedown notices directed to 
illegal copies of Avengers: Age of Ultron--which was still in 
theaters at the time--to a single site. That's more than 10,000 
notices a month, more than 300 a day, directed to a single 
movie on a single file hosting site. Similarly, in the 3 months 
in the spring of 2015, Fox sent more than 57,000 takedown 
notices to a single file-hosting site for the film Kingsman: 
The Secret Service. That's 19,000 notices a month, to one site, 
for the same movie. Were the DMCA working as intended, one 
would expect the number of notices to the site to decrease over 
time. Yet, we see the opposite. For instance, in the Kingsman 
example, on April 30, Fox sent 697 takedown notices. On July 
21, three months later, it had to send 881 notices to the same 
site for the exact same work. This is not an effective way to 
address piracy.
    Online infringement is especially problematic for 
individual creators. Individual creators (who typically have 
been provided little information and lack meaningful resources) 
must usually rely on manual web searches, reverse image 
searches, Google alerts, or word of mouth to discover 
infringements of their work. In 2017, we conducted a survey of 
our members to gauge their experiences with the notice and 
takedown process in section 512 of the DMCA (2017 Survey).\11\ 
Of the 1,362 respondents who took our survey, 52% said that 
they currently monitor the internet for copyright infringement 
of their copyrighted works, or have monitored in the past, 
while 37% said that they have never monitored for infringement. 
While it may be surprising that such a significant portion of 
creators do not monitor for infringement, the reasons why are 
enlightening. A lack of education and understanding about the 
DMCA and how to find and report online infringements was the 
most significant cause for their not monitoring. The second 
most significant cause was the difficulty and time commitment 
associated with small creators policing the internet for 
copyright infringement.
---------------------------------------------------------------------------
    \11\ https://copyrightalliance.org/wp-content/uploads/2017/03/
Copyright-Alliance-Section-512-Empirical-Research.pdf.
---------------------------------------------------------------------------
    That is only part of the challenge for the individual 
creator. According to another survey of our members (2016 
Survey),\12\ even when a creator does discover an infringement 
of his or work, many of them do not know how to file a takedown 
notice or even what the notice and takedown process is; and 
even when they have participated in the process, they lack 
access to the technologies necessary to actually keep 
infringing content from reappearing.\13\ About 70% of the 
creators responding to the 2016 Survey had never filed a 
takedown notice before because (1) they had never heard of it; 
(2) it would take too much effort; (3) the process is too 
difficult to navigate; or (4) they were skeptical it would do 
anything to stop online infringement.\14\ The 2017 Survey 
indicated that most creators who monitor for infringement and 
have discovered infringement online want the material taken 
down, but only 35% actually send a DMCA takedown notices. The 
remaining 65% use other means for contacting the site 
(including ``flagging'' or ``reporting'' content) or the user 
directly.\15\ These results illustrate a need for easily 
accessible educational resources to help creators better 
understand and avail themselves of the notice and takedown 
process. These educational offerings will also serve OSPs; 
better informed copyright owners will ultimately cut down on 
the number of inappropriate or incomplete DMCA takedown notices 
filed.
---------------------------------------------------------------------------
    \12\ https://copyrightalliance.org/wp-content/uploads/2016/11/
Copyright-Alliance-Section-512-Comments1.pdf.
    \13\ Id.
    \14\ Id.
    \15\ https://copyrightalliance.org/wp-content/uploads/2017/03/
Copyright-Alliance-Section-512
---Empirical-Research.pdf.
---------------------------------------------------------------------------
    Individual creators who file notices lack the resources of 
larger copyright owners to make a meaningful impact. Creators 
report that sending takedown notices takes time from their 
creative pursuits, which pushes many to give up enforcement 
efforts all together. These creators are defenseless against 
the volume and reach of online infringement, especially given 
the speed at which content is reposted anew by users. For 
example, Keith, a writer from Austin, has never personally 
posted his work on social media sites, but still spent four 
hours on Tumblr trying to locate 50 of the 2,000+ URLs that 
contained re-postings of his work: ``I can't afford the time to 
find the full 2,000 [that Tumblr asked for],'' he said. He has 
also found his work on numerous other sites, including Twitter, 
Facebook, and lnstagram.\16\
---------------------------------------------------------------------------
    \16\ Id. And online infringement does not just stop at loss of 
compensation or control; it also can damage the professional integrity 
of creators. For example, Melissa, a photographer from California, was 
horrified to learn that her Victoria Secret style bridal photos were 
stolen and used on pornography sites. ``This has been horrible!'' she 
said. ``I've been in business for 32 years. Married for 35 years and 
would never create anything for porn!''
---------------------------------------------------------------------------
    The consensus from our individual creator membership is 
that online infringement has reached a point where content can 
be posted on hundreds of online infringement sites within days, 
and where individual creators-without access to effective 
tools-are unable to make any real impact in protecting their 
work. Online infringement has become so commonplace that it 
destroys once legitimate markets for creators' works. For 
example, Susan, an audio producer from California, was told by 
a radio station that they saw no point in paying her for her 
work because they could ``get it for free.'' \17\
---------------------------------------------------------------------------
    \17\ Id.
---------------------------------------------------------------------------
    The impact of online infringement on a creator's livelihood 
has been thoroughly documented in testimony, news articles, and 
blog posts over the past several years. Here are just a few of 
the many stories told by creators:

      Maria Schneider, a Grammy award winning composer, 
testified before the House Judiciary Committee that she invested 
$200,000 of her own money into a new album to only discover her song 
had quickly been pirated all over the Internet.\18\ ``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.'' \19\
---------------------------------------------------------------------------
    \18\ Section 512 of title 17: Hearing Before the Subcomm. of 
Courts, Intel. Prop., and the Internet of the Comm. on the Judiciary 
(2014) (statement of Maria Schneider).
    \19\ Id.
---------------------------------------------------------------------------
      Kathy Wolfe, the owner of the independent film company 
Wolfe Video, lost $3 million in revenue in 2012 from the excessive 
pirating of her top 15 film titles.\20\ She ``found more than 903,000 
links to unauthorized versions of her film'' in a single year, spending 
``over $30,000 a year-about half of her profits--just to send out 
takedown notices.'' \21\ With losses this large, she was forced to cut 
her marketing budget in half, cut employees' pay, and discontinue her 
own salary.\22\ Making art is often expensive, and most artists already 
sacrifice paying themselves to keep the art going; this should not be 
exacerbated by online infringement.
---------------------------------------------------------------------------
    \20\ Christopher S. Stewart, As Pirates Run Rampant, TV Studios 
Dial Up, Wall Street Journal, Mar. 3, 2013.
    \21\ Id.
    \22\ Id.
---------------------------------------------------------------------------
      Tor Hanson, co-founder of YepRoc Records/Redeye 
Distribution, testified in 2013 at the House Judiciary Committee 
hearing on Innovation in America: The Role of Copyrights on this very 
point: ``[We] have limited budgets and whatever revenue and profits 
[we] can eke out are directed toward [our] primary goals, music 
creation by [our] music label's artists and then the marketing and 
promotion of this music to the American public so they are able to 
continue this creative process.'' \23\
---------------------------------------------------------------------------
    \23\ Innovation in America: The Role of Copyrights: Hearing Before 
the Subcomm. On Intellectual Property, Competition, and the Internet of 
the H. Comm. on the Judiciary, 113th Cong., 6 (2013) (Statement of Tor 
Hansen, Co-President/Co-Founder YepRoc Records/Redeye Distribution).
---------------------------------------------------------------------------
      Jonathan Yunger, Co-President of Millennium Media, an 
independent film production company, testified on March 10, 2020 at the 
Senate Committee on the Judiciary, Subcommittee on Intellectual 
Property hearing on Copyright Law in Foreign Jurisdictions: How are 
other countries handling digital piracy? that despite Millennium 
Media's investment in film security, piracy continues to affect its box 
office revenue and distributors.\24\ ``[I]n 2014, our film, Expendables 
3, was stolen by an employee of one of our venders and released online 
a month before it could open in theaters. By opening day, the movie had 
been downloaded 60 million times. It was calculated that we lost about 
$250 million in box office revenue.'' \25\
---------------------------------------------------------------------------
    \24\ See Copyright Law in Foreign Jurisdictions: How are other 
countries handling digital piracy? Hearing Before the Subcomm. on 
Intel. Prop. of the S. Comm. on the Judiciary, 116th Cong. 1, 4 (2020) 
(statement of Johnathan Yunger, Co-President of Millennium Media).
    \25\ Id. at 4.

    Individual creators face numerous other significant 
barriers to the effective use of the notice and takedown 
process, include the lack of uniformity and consistency from 
one OSP's web form to the next, and the practice by some OSPs 
of imposing requirements beyond those prescribed under the law. 
In addition, these individual creators and small businesses 
cite as barriers difficulty locating web forms and designated 
agents due to inconspicuous placement--since the DMCA only 
requires the information to be ``in a location accessible to 
the public,'' but not conspicuously placed.
    Numerous individual creators also voiced safety and privacy 
concerns about backlash from notice recipients. They are 
sometimes reluctant to send notices which require them ``to 
reveal their personal information including phone numbers and a 
home address,'' due to safety concern and fear of 
retaliation.\26\ Concerns over safety and privacy caused Blake 
Morgan, a musician and owner of the record label ECR Music 
Group, to stop sending takedown notices altogether because ``it 
simply was not wmih it.'' \27\ Photographer Yunghi Kirm's 
decided not to send a takedown notice to a website where her 
image had been used without permission because the group 
appeared to endorse violence and, in light of that, she was 
uncomfortable revealing her personal information to the group 
via a takedown notice.\28\ Other individual creators have 
similar experiences. At least one Copyright Alliance member has 
even reported receiving death threats as a result of sending a 
takedown notice.
---------------------------------------------------------------------------
    \26\ The Arts and Entertainment Advocacy Clinic at George Mason 
University School of Law, Comment on Section 512 Study (Apr. 7, 2016), 
at 10, https://www.regulations.gov/document ?D=COLC-2015-0013-90145.
    \27\ Id. at 12.
    \28\ Id. at 12.
---------------------------------------------------------------------------

              II. The Repeat Infringement Problem

    No one in the notice and takedown ecosystem likes spending 
time and money to send or process the millions of takedown 
notices that are sent daily. This is time and money that the 
individual or company could have spent innovating and creating 
instead, which is bad for the U.S. economy. Congress clearly 
did not intend such outcomes when it passed the DMCA--section 
512 was designed to protect copyrights, to protect non-culpable 
OSPs from liability when users uploaded infringing files and to 
maintain many of the traditional contours of secondary 
liability in the digital environment.\29\ Congress understood 
that internet enforcement could not be solved unilaterally 
through government regulations. So, Congress created section 
512 with the intent that the law would bring OSPs and copyright 
owners together to cooperate to detect and eliminate infringing 
material before that material was illegally distributed widely.
---------------------------------------------------------------------------
    \29\ Columbia Pictures Indus. v. Fung, 710 F.3d 1020, 1039-40 (9th 
Cir. 2013) (noting that ``the DMCA's legislative history confirms that 
Congress intended to provide protection for at least some vicarious and 
contributory infringement,'' and explaining that inquiries into 
contributory copyright infringement and the prerequisites for one or 
more of the DMCA safe harbors should be conducted independently); 
Playboy Enters., Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993); S. 
Rep. No. 105-190 at 19, 20 (1998); Boyden, supra note 7.
---------------------------------------------------------------------------
    Today, not only are stakeholders grappling with tens of 
millions of notices a year,\30\ but even worse, the business 
models employed by certain bad actors actually take advantage 
of judicial interpretations of this statutory scheme. As a 
result, uploaders repost infringing content within seconds, and 
these bad actors profit from having millions of infringing 
files shuffle off and back onto their website. After all, an 
OSP can obtain revenues even when copyrighted content stays up 
only for a brief time. If copyrighted content receives just one 
viewing or download before being taken down, in the aggregate 
of millions of works, that adds up to millions of ad revenue-
producing views for the OSP.\31\ Congress did not envision this 
type of abuse when it enacted the DMCA; such abuse needs to be 
addressed.
---------------------------------------------------------------------------
    \30\ Boyden, supra note 7.
    \31\ David Newhoff, The Illusion of More, Copyright Office to 
Review Safe Harbor in DMCA (Jan. 6, 2016), http://illusionofmore.com/
copyright-office-to-review-safe-harbor-in-dmca/.
---------------------------------------------------------------------------
    This viewpoint is supported by Professor Sean O'Connor, who 
explained that:

        The highest volume of notices seems 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 non-
        infringing. They are not mash-ups, remixes, covers, etc. They 
        are simply the original work reposted repeatedly by an 
        unauthorized person. 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 oftakedown notices.\32\
---------------------------------------------------------------------------
    \32\ Section 512 of Title 17, Hearing Before the Subcomm. Of 
Courts, Intell. Prop., and the Internet of the Comm. on the Judiciary, 
14 (2014) (testimony of Sean O'Connor).

  III. DMCA Provisions Interpreted Contrary to Congressional 
                             Intent

    One of the most significant problems with section 512 stems 
from incorrect court interpretations and applications of the 
statutory text. When this occurs it results in section 512 
falling short of the goals Congress had for section 512 and 
dramatically shifts' the balance between the burden and 
responsibilities of copyright owners and OSPs. The area where 
this is most evident is in court interpretations of red flag 
knowledge contributory and vicarious liability and willful 
blindness, as well as the provision of section 512(c) that the 
copyright owner's notice may include a ``representative list'' 
of the infringements.

          a. Red Flag Knowledge and Willful Blindness

    An OSP will lose safe harbor protection by failing to Act 
when confronted with actual or apparent knowledge opyright 
owners can provide the OSP with actual knowledge by sending a 
notice or they can prove the OSP has apparent knowledge \33\ of 
infringement under the ``red flag knowledge'' standard.\34\ 
Once aware, the OSP is required to Act expeditiously to remove, 
or disable access to, the material'' to remain eligible for 
safe harbor protect ions.\35\
---------------------------------------------------------------------------
    \33\ 17 U.S.C. 512(c)(1)(A)(ii) (``red flag knowledge'').
    \34\ H.R. Rep. No. 105-551 (II), pt. 2, at 58 (1998).
    \35\ 17 U.S.C. 512(c)(1)(A)(iii).
---------------------------------------------------------------------------
    Under the red flag knowledge standard, a copyright owner 
can prove an OSP has knowledge by showing it was aware of facts 
or circumstances that make infringement apparent. The court 
asks whether (1) the OSP was aware of the circumstances of 
infringement (the so called ``subjective prong''); and (2) the 
``infringing activity would have been apparent to a reasonable 
person operating under the same or similar circumstances'' (the 
so-called ``objective prong'').\36\ However the Second Circuit 
in Viacom v. YouTube \37\ and the Ninth Circuit in UMG 
Recordings v. Shelter Capital Partners \38\ and Perfect 10 v. 
CCBill \39\ arguably made the OSPs only responsible for 
responding to the infringement explicitly identified in 
takedown notice. \40\ These decisions were exacerbated by the 
recent decision in Ventura Content, Ltd. v. Motherless Inc. 
\41\ which held that ``even if it were obvious to a reasonable 
person that some of the material on the site must be 
infringing, that is not enough to lose the safe harbor. It must 
be obvious that the particular material that is the subject of 
the claim is infringing.'' These courts' interpretation of the 
red flag standard is so restrictive that it has basically 
eliminated the carefully balanced burden allocation that 
Congress intended and effectively written the red flag 
knowledge standard out of the statute.
---------------------------------------------------------------------------
    \36\ H.R. Rep. 105-551, pt. 2, 61 (1998).
    \37\ 676 F.3d 19 (2d Cir. 2012).
    \38\ 106 U.S.P.Q. 2d 1253 (9th Cir. 2013).
    \39\ Perfect 10 v. CCBill, 488 F.3d 1102, 1113 (2007).
    \40\ See Boyden, supra note 7.
    \41\ Ventura Content, Ltd. v. Motherless, Inc., 885 F.3d 597, 611 
(9th Cir. 2018).
---------------------------------------------------------------------------
    Some courts have also incorrectly applied the concept of 
willful blindness in the safe harbor context. Knowledge of 
infringing activity will be imputed to an OSP who has 
consciously avoided obtaining actual knowledge under a theory 
of willful blindness.\42\ In Viacom v. YouTube, the Second 
Circuit articulated that willful blindness is triggered when 
the OSP is ``aware of a high probability of the fact [of 
infringement] and consciously avoid[s] confirming that fact.'' 
\43\ The willful blindness doctrine provides courts with 
additional guidance and effectuates Congress's intent to 
``discourage today's common `do not look' policy.'' \44\ But in 
Capitol Records v. Vimeo, the court shielded the OSP from 
liability despite a record that showed the OSP and its 
employees turned a blind eye to infringement. The court 
determined that any conscious avoidance by the OSP needs to be 
``tailored'' to the ``specific infringing content at issue in 
the litigation,'' and that the knowledge demonstrated in the 
record ``did not relate to the Videos-in Suit.'' \45\ However, 
the hallmark of a willfully blind defendant is that the 
defendant has affirmatively avoided acquiring specific 
knowledge about infringing material or activity on its system. 
By definition, then, an OSP that is willfully blind to 
infringing activity on its system has ensured that it will not 
have knowledge that is ``tailored to'' the ``specific 
infringing content at issue,'' because that is the very 
knowledge the service provider has consciously avoided.
---------------------------------------------------------------------------
    \42\ Viacom, 676 F.3d at 35 (quoting Tiffany (NJ) Inc. v. eBay 
Inc., 600 F.3d 93, 109 (2d Cir. 2010)).
    \43\ 676 F.3d 19 (2d Cir. 2012).
    \44\ Steven Tjoe, Taking a Whack at the DMCA: The Problem of 
Continuous Re-Posting, Center for Protection of Intellectual Property 
(Mar. 14, 2014), http://cpip.gmu.edu/2014/03/14/taking-a-whack-at-the-
dmca-the-problem-of-continuous-re-postings/.
    \45\ Vimeo, 972 F. Supp. 2d at 524-25.
---------------------------------------------------------------------------
    As a practical matter, if improper court decisions like 
these continue to proliferate, OSPs will effectively have no 
obligations other than to react to DMCA notices. Congress 
envisioned the DMCA as creating a regime of joint 
responsibility, in which OSPs would Act reasonably and 
proactively in the face of actual or apparent knowledge. 
Coupled with the existing practical limitations of the notice 
and takedown process, copyright owners would have little 
meaningful protection against online infringement. When there 
is no meaningful ``red flag'' knowledge requirement, the result 
is a toothless statute.

           b. The ``Representative List'' Requirement

    The section 512 notice and takedown process, as often 
interpreted by the courts, has largely placed the burden on 
copyright owners to list every instances of infringement on an 
OSP's website. The ``representative list'' requirement in 
provision 512(c)(3)(A)(ii) specifies that a takedown notice 
must identify the ``copyrighted work claimed to be infringed, 
or, if multiple copyrighted works at a single online site are 
covered by a single notification, a representative list of such 
works at that site.'' This is paramount, given the volume of 
online infringement, because creators too often lack the time, 
money, and resources to list with specificity every single URL 
containing infringing copies of their work. Notwithstanding 
this language, many courts have placed the sole burden of 
tracking, identifying, and ``adequately documenting'' 
infringements squarely on the copyright owner which makes 
little sense in practice and discourages individual creators 
from enforcing their rights.\46\
---------------------------------------------------------------------------
    \46\ See Perfect 10 v. CCBill, 488 F.3d 1102, 1113 (2007); Viacom 
Int'l. v. YouTube, Inc., 940 F.Supp. 2d 110, 115 (S.D.N.Y. 2013).
---------------------------------------------------------------------------
    Congress did not intend this high degree of specificity for 
notices. As noted in the legislative history, the 
``representative list'' requirement is satisfied,

        [f]or example, where a party is operating an unauthorized 
        Internet jukebox from a particular site, it is not necessary 
        that the notification list every musical composition or sound 
        recording that has been, may have been, or could be infringed 
        at that site. Instead it is sufficient for the copyright owner 
        to provide the service provider with a representative list of 
        those compositions or recordings in order that the service 
        provider can understand the nature and scope of the 
        infringement being claimed.\47\
---------------------------------------------------------------------------
    \47\ H.R. Report No. 105-551 (emphasis added).

    The legislative history demonstrates that the 
interpretation of the ``representative list'' standard in 
section 512 is yet another example of the courts misinterpreted 
the language of section 512 in a manner that directly 
contradicts the intent of Congress, makes the notice and 
takedown process in effectual and harms the creative community.

                 IV. Repeat Infringer Policies

    Section 512(i) provides that to be eligible for the DMCA 
safe harbor, an OSP must adopt and reasonably implement ``a 
policy that provides for the termination in appropriate 
circumstances of subscribers and account holders . . . who are 
repeat infringers.'' What constitutes a reasonably implemented 
repeat infringer policy has been interpreted as being highly 
fact specific and may vary from one context to another. But any 
interpretation regarding a user's status as a repeat infringer 
or whether a policy has been reasonably implemented has to 
align with the purpose and intent of the statute. Congress 
intended section 512 to encourage cooperation between OSPs and 
copyright owners in combating online infringement. As such, 
512(i) incentivizes OSPs to cooperate by conditioning the 
benefit of the DMCA safe harbor on implementation of a policy 
that would help to deter infringement.\48\
---------------------------------------------------------------------------
    \48\ ``[T]hose who repeatedly or flagrantly abuse their access to 
the Internet through disrespect for the intellectual property rights of 
others should know that there is a realistic threat of losing that 
access.'' S. Rep., No. 105-190, at 52 (emphasis added).
---------------------------------------------------------------------------
    Repeat infringer policies are ``fundamental safeguard[s] 
for copyright owners . . . essential to maintain[ing] the 
strong incentives for [OSPs] to prevent their services from 
becoming safe havens or conduits for known repeat copyright 
infringers.'' \49\ The problem is not in the legal framework 
drafted by Congress, but instead in how OSPs choose to 
implement policies. As illustrated in Capitol Records v. 
Escape, some OSPs are fully capable of identifying works and 
tracking repeat infringers, but instead choose to craft a 
repeat infringer policy in a way that makes enforcement 
nonexistent.\50\ As the court found, the online music service 
provider Grooveshark, owned by Escape, had two policies for 
removing content: One Strike and DMCA Lite.\51\ Under the One 
Strike policy, content would be removed and the user would be 
banned from re-posting content.\52\ On the other hand, under 
the DMCA Lite policy-which made up 94% of all Grooveshark 
takedowns-any takedown notice that Grooveshark decided did not 
perfectly comply with the DMCA's requirements would only result 
in the content being removed. The user's account would remain 
active.\53\ In denying Grooveshark immunity under the safe 
harbor, the court noted that ``[a]dopting a repeat infringer 
policy and then purposely eviscerating any hope that such a 
policy could ever be carried out is not an 'implementation' as 
required by 512(i).'' \54\ Yet because Grooveshark publicly 
claimed it complied with the DMCA (even though it did not) it 
was able to operate for 8 years.\55\ For nearly a decade, 
Grooveshark profited from massive copyright infringement, 
misled users into thinking that they were a legitimate music 
service, and competed unfairly with other legitimate and 
licensed music services.
---------------------------------------------------------------------------
    \49\ Capitol Records, Inc. v. MP3Tunes, LLC, 821 F.Supp.2d 627, 637 
(S.D.N.Y. 2011).
    \50\ Copy L. Rep. (CCH) P30, 744 (S.D.N.Y. 2015).
    \51\ Id.
    \52\ Id.
    \53\ Id.
    \54\ Id.
    \55\ Letter from Paul Geller, Grooveshark's Executive Vice 
President (``There does appear to be some confusion about whether 
Grooveshark is a legal service. So, let's set the record straight: 
There is nothing illegal about what Grooveshark offers to consumers . . 
. . First, there is a distinction between legal and licensed. Laws from 
Congress. Licenses come from businesses. Grooveshark is completely 
legal because we comply with the laws passed by Congress, but we are 
not licensed by every label (yet). We are a technology company, and we 
operate within the boundaries of the Digital Millennium Copyright Act 
of 1998.'') Digital Music News has since removed the open letter from 
their website.
---------------------------------------------------------------------------
    More recently, in Sony Music Entertainment v. Cox 
Communications, Inc.,\56\ a jury in the United States District 
Court for the Eastern District of Virginia found Cox liable for 
contributory and vicarious copyright infringement, and 
ineligible for the DMCA safe harbors because it did not 
implement measures required by the DMCA to fight against 
infringement. Specifically, Cox would limit the number of 
infringement notices to get through, effectively allowing 
infringement to continue. Importantly, it also failed to 
discontinue service for its customers who pirated content. The 
complaint stated at least 20,000 Cox subscribers are repeat 
offenders. Ultimately, Cox's malfeasance led the jury to find 
that Cox's conduct was willful, awarding the plaintiffs $1 
billion in damages for the 10,017 sound recordings and musical 
compositions at issue.
---------------------------------------------------------------------------
    \56\ Sony Music Entertainment v. Cox Commc'ns, Inc., 426 F.Supp.3d 
(D.E.D.Va. 2019).
---------------------------------------------------------------------------
    Similarly, in UMG v. Grande Communications,\57\ the court 
concluded that not only did Grande ignore over a million 
copyright infringement notices that were sent to it, it did not 
even have an existing repeat infringer policy. The court 
referred to this behavior as ``the complete abdication of 
responsibilities to implement and enforce a terminating 
policy.'' \58\
---------------------------------------------------------------------------
    \57\ UMG Recordings, Inc. v. Grand Commc'ns Networks, LLC, 384 
F.Supp.3d 743 (D.W.D.Tex. 2019).
    \58\ Id. The court found that even if the Grande had a policy of 
terminating repeat infringers--based on an assessment of its internal 
emails, statements by employees and utter lack of terminating even one 
customer--it certainly did not reasonably implement that policy from 
2010 through 2016. The facts showed that prior to 2010 Defendant had 
terminate repeat infringer accounts. But from that time through May 
2017, not a single subscriber account was terminated despite receiving 
over a million copyright infringement notices from Plaintiffs and 
tracking 9,000 customers in its DMCA ``Excessive Violations Report.'' 
It wasn't until this suit was filed that Grande terminated a 
subscriber, and even then it was only 11 customers.
---------------------------------------------------------------------------
    On the other hand, the Ninth Circuit in Motherless \59\ 
held that Motherless, a pornography site, was eligible for the 
section 512 safe harbor even though it lacked a formal repeat 
infringer policy. The evidence showed that repeat infringers 
continued posting infringing material, and the website 
maintained insufficient records from which failures to 
terminate could be gleaned.
---------------------------------------------------------------------------
    \59\ Ventura Content, Ltd. v. Motherless, Inc., 885 F.3d 597, 611 
(9th Cir. 2018).
---------------------------------------------------------------------------
    While there have been some helpful decisions relating to 
the ``repeat infringer'' standard, the outcomes have not been 
uniform, and the positive decisions are not the panacea that 
some would make it out to be. First, as Cox and similar cases 
illustrate, large and sophisticated companies may pay only lip 
service to the requirement of a ``repeat infringer'' policy. 
Second, it's important to understand that lawsuits like Grande 
and Cox are expensive to bring--only a few can afford to bring 
them. Third, the OSP's actions in cases like Grande and Cox 
were so egregious and offensive that on a practical level those 
cases are not very helpful. Lastly, it's important to note that 
even where an OSP does reasonably implement a repeat infringer 
policy and terminates a subscriber under that policy, it is 
very simple for that person to circumvent the termination by 
signing up with a different OSP or re-subscribing with the same 
OSP under an alias.
    That is why OSPs and copyright owners, with the assistance 
of government, need to work together to ensure that that repeat 
infringers policy are effective and being implemented as 
intended. Through such cooperation, OSPs should be able to 
adopt more acceptable repeat infringer policies.

                 V. Information Location Tools

    When the DMCA was drafted, search engines already played a 
significant role in the internet ecosystem. In the years 
following its enactment, that role grew exponentially. Today 
when someone is looking for something on the internet, the 
first place they go to is a search engine. While search engines 
often direct people to lawful sources of content, too often 
they also direct users to illegal content. It is imperative 
that search engines and other OSPs who provide information 
location tools work with copyright owners find ways to work 
together to effectively address these infringement problems.
    While the copyright community appreciates many of the 
additional steps these search engines have taken, it is 
important that the steps be effective and not just symbolic. 
For example, Google has implemented a policy whereby it demotes 
sites based on the number of takedown notices that Google 
receives in conjunction with other factors. Unfortunately, the 
demotion policies, and other policies, have largely been 
ineffective because infringing content still shows up near the 
top of search results. One solution would be for search engines 
to place less weight on the infringing site's traffic and more 
weight on the number of takedown notices the site receives. 
Another solution would be for search engines and copyright 
owners to jointly enlist the support of independent third 
parties to evaluate the effectiveness of particular measures, 
develop ways to improve their efficiency and effectiveness, and 
to highlight best practices.
    Problems also remain with the autocomplete features of 
Google's search bar. While efforts have been made to remove 
piracy device terms like ``Kodi'' from autocomplete, the 
feature continues to steer users towards illicit websites and 
infringing content.\60\ An example of these enduring 
shortcomings is evident by simply typing ``watch f' into the 
search bar. A user may be trying to find a legitimate way to 
watch the movie Frozen, and yet the search bar autocompletes to 
``watch free movies,'' and the results display links to pirate 
websites.
---------------------------------------------------------------------------
    \60\ Dani Deahl, Google Removes ``Kodi'' From Search Autocomplete 
in Anti-Piracy Effort, The Verge (March 29, 2018). https://
www.theveree.com/2018/3/29/17176894/google-removes-kodi-search-
autocomplete-anti-piracy.
---------------------------------------------------------------------------

              VI. The Counternotification Process

    Despite clear evidence that the notice and takedown system 
is stacked against creators and copyright owners, some claim 
that OSPs bear a heavier burden by having to process a 
disproportionate amount of ``bad faith'' notices.\61\ A 2016 
report describe OSPs as being inundated by ``mistaken and 
abusive takedown demands, but a closer look at the data reveals 
that these notices are not what the study claim them to be. A 
response to the study by the Center for the Protection of 
Intellectual Property (CPIP) explains:
---------------------------------------------------------------------------
    \61\ Jennifer M. Urban, Joe Karaganis, and Brianna Schofield, 
Notice and Takedown in Everyday Practice, UC Berkeley Public Law 
Research Paper No. 2755628 at p. 87 (March 22, 2017). Available at 
SSRN: https://ssrn.com/abstract=2755628 or http://dx.doi.org/10.2139/
ssrn .2755628.

        The majority of the ``questionable'' notices come from those 
        notices that raise ``questions about compliance with the 
        statutory requirements'' (15.4%, about 281 notices) or raise 
        ''potential fair use defenses'' (7.3%, about 133 notices). As 
        to the statutory requirements issue, the authors argue that 
        these notices make it difficult for Google to locate the 
        material to take down. This claim is severely undercut by the 
        fact that, as they acknowledge in a footnote, Google complies 
---------------------------------------------------------------------------
        with 97.5% of takedown notices overall.

    Moreover, it wades into the murky waters of whether 
copyright owners can send service providers a ``representative 
list'' of infringing works. Turning to the complaint about 
potential fair uses, the authors argue that copyright owners 
are not adequately considering ``mashups, remixes, or covers.'' 
But none of these uses are inherently fair, and there's no 
reason to think that the notices were sent in bad faith just 
because someone might be able to make a fair use argument.\62\
---------------------------------------------------------------------------
    \62\ Devlin Hartline and Kevin Madigan, Separating Fact From 
Fiction in the Notice and Takedown Debate, Center for the Protection of 
Intellectual Property (CPIP) (April 25, 2016). Available at: https://
cpip.gmu.edu/2016/04/25/separating-fact-from-fiction-in-the-notice-and-
takedown-debate/.
---------------------------------------------------------------------------
    In the rare circumstance where a copyright owner sends a 
notice by mistake or in ``bad faith,'' the counter notification 
procedure\63\ offers an adequate remedy. In reality, very few 
counter notices are ever filed as compared to the number of 
DMCA notices sent because the content targeted by most takedown 
requests is clearly infringing, or is posted by users who do 
not wish to reveal their identity or location. However, when 
counternotices are filed without basis, they effectively stifle 
the enforcement efforts of copyright owners because they cannot 
afford or it is impractical for them to file suit in federal 
court.
---------------------------------------------------------------------------
    \63\ See 17 U.S.C. 512(g)(2012).
---------------------------------------------------------------------------
    Where a counternotice is filed, and there is no basis for 
it, the copyright owner has only ten days to bring suit against 
the alleged infringer before the infringing material or link is 
reposted.\64\ Bringing a federal lawsuit is a significant 
burden, especially for individual creators; and the ten-day 
requirement is, as a practical matter, virtually impossible to 
satisfy for even the larger, more sophisticated copyright 
owners.
---------------------------------------------------------------------------
    \64\ 17 U.S.C. 512(g)(2)(C).
---------------------------------------------------------------------------
    Making matters worse, the U.S. Supreme Court's recent 
decision in Fourth Estate v. Wall-Street.com,\65\ holding that 
registration, under section 411 of the Copyright Act, occurs 
when the Register acts to either complete a registration or 
refuse it, effectively makes it impossible for copyright owners 
to satisfy the ten-day window for filing suit as set forth in 
the 512(g), unless they have previously registered their work. 
The Fourth Estate decision means that if a work has not been 
previously registered with the Copyright Office the copyright 
owner must wait for Copyright Office action before filing a 
lawsuit for copyright infringement, and that action may take 
many months. Pendency of copyright applications with the U.S. 
Copyright Office is measured in months, not days. So, unless a 
copyright owner is willing and able to pay the fee for 
expedited handling--a fee that is roughly over ten times the 
normal application filing fee--there is no way the copyright 
owner file a lawsuit before the ten-day window expires. And 
even if they can afford to and pay for expedited handling , 
there is no assurance that the Office will Act on the 
application before the ten-day window expires. So, in effect, 
the Fourth Estate decision has created a new requirement for 
using the notice and takedown system--the requirement that the 
work be registered with the U.S. Copyright Office before a 
notice is sent (i.e., well in advance of any infringement).
---------------------------------------------------------------------------
    \65\ Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 
139 S.Ct. 881 (2019).
---------------------------------------------------------------------------
    One approach to solving this problem would be to extend the 
ten-day window. But that does little for those copyright owners 
who lack the financial resources to afford to litigate in 
federal court, so extending the period of time in which they 
may file a lawsuit before the infringing material is restored, 
alone, fails to adequately address the issue.
    One way to help these creators is to pass the Copyright 
Alternative in Small-Claims Enforcement Act of 2019 (the CASE 
Act), H.R. 2426 and S. 1273, a bill that would create an 
optional small claims tribunal within the U.S. Copyright 
Office. The Copyright Claims Board created by the CASE Act 
would be able to hear claims of infringement brought by 
copyright owners as well as declarations of non-infringement 
brought by users (as well as claims of misrepresentation under 
section 512(f), discussed below). Consequently, the small 
claims court created by the CASE Act would benefit both 
copyright owners and those who file counternotices but cannot 
afford to bring their claims or defenses in federal court.
    Ever since the DMCA was passed, some groups have voiced 
concerns about the notice and takedown process being used to 
harass users, suppress speech and remove material posted by 
users who have valid fair use defenses. Such instances of 
alleged abuse of the notice and takedown process by rights 
holders, even if true, are vastly outnumbered by legitimate 
efforts to enforce copyright. To the extent that abusive and 
misleading notices occur, the DMCA adequately guards against 
this sort of abuse. The DMCA protects against such misuse by, 
among other things, requiring the sender of a DMCA takedown 
notice to assert under penalty of perjury that the material is 
infringing. Consequently, sending a takedown notice for the 
sole purpose of stifling speech opens that person up to a 
perjury charge.
    Another way the DMCA protects against misuse is found in 
section 512(f) of the DMCA, which makes ``any person who 
knowingly materially misrepresents . . . that material or 
activity is infringing'' liable for the damages suffered as 
well as for attorneys' fees. Section 512(f) applies 
misrepresentation claims under a subjective standard, placing 
the burden on the alleged infringer to show that the copyright 
holder believed that the content subject to its takedown notice 
was non-in fringing.\66\
---------------------------------------------------------------------------
    \66\ In Rossi v. Motion Picture Ass'n., 391 F.3d 1000, 1004-05 (9th 
Cir. 2004), cert denied, 544 U.S. 1018 (2005), the Ninth Circuit 
articulated, ``[w]hen enacting the DMCA, Congress could have easily 
incorporated an objective standard ofreasonableness. The fact that it 
did not do so indicates an intent to adhere to the subjective standard 
traditionally associated with a good faith requirement . . . . Congress 
included an expressly limited cause of action for improper infringement 
notifications, imposing liability only if the copyright owner's 
notification is a ``knowing misrepresentation. A copyright owner cannot 
be liable simply because an unknowing mistake is made, even if the 
copyright owner acted unreasonably in making the mistake. Rather, there 
must be a demonstration of some actual knowledge of misrepresentation 
on the part of the copyright owner.''
---------------------------------------------------------------------------
    Some groups suggest that the protections afforded by 
section 512(f) are essentially ineffective because most of the 
recipients of takedown notices are individuals who do not have 
the money to sue in federal court \67\ and because these 
recipients are often too afraid to file DMCA counter notices 
because of the requirement in the DMCA that the counter notice 
include a ``statement that the subscriber consents to the 
jurisdiction of Federal District Court for the judicial 
district in which the address is located'' \68\ As a result, 
these groups argue that, despite the statutory protections and 
defenses afforded to recipients under the DMCA, the DMCA 
takedown process is being misused because users with 
meritorious fair use and misrepresentation claims are not able 
to avail themselves of them.
---------------------------------------------------------------------------
    \67\ Parker Higgins, Corynne McSherry, and Daniel Nazer, Who Has 
Your Back: Protecting Your Speech from Copyright & Trademark Bullies, 
at p. 7, Electronic Frontier Foundation (Oct. 27, 2014), https://
www.eff.org/files/2014/10/27/who-has-your-back-2014-copyright-trademark
_O.pdf. The EFF report says that ``Users also may fear the significant 
expense of defending even a winning copyright case, allowing themselves 
to be silenced rather than facing the expense and risk of vindicating 
their speech in courts.'' (emphasis added); See Sherwin Siy, Court Says 
Fair Use Still Matters in Takedowns: Here's Why That's a Real Victory, 
Public Knowledge (Sept. 16, 2015); https://www.publicknowledge.org/
blog/court-says-fair-use-still-matters-in-takedowns-heres-why-thats-a-
real-victory/. Public Knowledge (PK) says states that ``bringing a 
512(f) case is still an expensive proposition'' (emphasis added); See 
also, Comments of Engine, GitHub, Kickstarter, Medium, and Redbubble, 
section 512 Study: Notice and Request for Public Comment (April 1, 
2016). Available at: http://statistical.squarespace.com/static/57I68 
1753c44d835a440c8b5/t/573d28927c65e401e66l76df/1463625874743/Engine-
Copyright-Office-512-NOI-Comments.pdf. Engine says `` . . . the 
economic injury attributable to any individual takedown is unlikely to 
justify the costs of bringing a lawsuit under 512(f).'' (emphasis 
added).
    \68\ 17 U.S.C. 512(g)(3)(D); See Higgins, McSherry, and Nazer, 
supra note 65. The EFF says ``many users are intimidated by the 
requirement that they agree to be sued in federal court if the 
rightsholder wants to claim copyright infringement''; See also Comments 
of Engine, supra note 65. Engine states that'' 512(g)'s requirement 
that senders of counter-notices consent to jurisdiction where they are 
located and agree to accept service of process can be intimidating to 
many users . . . . Even users who strongly (and correctly) believe 
their use is fair or otherwise lawful may lack the legal sophistication 
to feel confident about making such a sworn commitment.''
---------------------------------------------------------------------------
    To the extent these claims have any validity, the CASE Act 
addresses them by creating a low-cost, efficient, and 
streamlined way to resolve copyright disputes that is 
accessible and affordable to individuals and small businesses 
and is a viable alternative to federal court.
    Furthermore, if, in fact, users with meritorious defenses 
or viable misrepresentation claims are not using the counter-
notice process because they are intimidated by having to agree 
to litigate in federal court, the CASE Act provides an ideal 
alternative by allowing them to assert their claims and 
defenses without the complexity and trepidation they associate 
with federal court.
    Copyright owners already bear the burden for enforcing 
their copyrights on the internet, so if there were legislative 
changes to expand 512(f), it would potentially open these 
owners up to ``limitless lawsuits just [for] policing [their] 
copyrighted material on the Inte rnet.'' \69\ The overwhelming 
majority of takedown notices are legitimate; lowering the 
threshold for what is considered an illegitimate notice, or 
increasing penalties would severely undermine the statutory 
scheme with little positive benefit. As such, any effort to 
expand the scope of 512(f) liability or otherwise legislate new 
penalties is unwarranted, and would effectively create more 
barriers to enforcement for copyright holders.
---------------------------------------------------------------------------
    \69\ Ouellette v. Viacom Int'l., Inc., No. CV-10-133-M-DWM-JCL, 
slip op. (D. Mon. Mar. 13, 2012).
---------------------------------------------------------------------------

                VII. Standard Technical Measures

    The House Judiciary Committee's 1998 report on the DMCA 
stated that ``technology is likely to be the solution to many 
of the issues facing copyright owners and service providers in 
this digital age,'' and the Committee ``strongly urge[d] all of 
the affected parties expeditiously to commence voluntary, 
interindustry discussions to agree upon and implement the best 
technological solutions available to achieve these goals.'' 
\70\ This rationale led Congress to include 512(i) in the DMCA, 
specifically conditioning eligibility for safe harbor 
protection on whether a service provider ``accommodates and 
does not interfere with standard technical measures,'' (STMs) 
which are to be developed based on ``a broad consensus of 
copyright owners and service providers in an open, fair, 
voluntary, multi-industry standards process.''
---------------------------------------------------------------------------
    \70\ See H.R. Rep, supra note 4, pt. 2 at 61.
---------------------------------------------------------------------------
    Unfortunately, since the inception of the DMCA nearly 22 
years ago, there have yet to be any standard technical measures 
adopted, effectively rendering the provision useless. This is 
one of the most significant drawbacks to the effective 
application of the notice-and-takedown process, as it nullifies 
a provision which is designed to facilitate cooperation between 
OSPs and copyright owners. To date, platforms like YouTube, 
Facebook, Scribd, and Dropbox have implemented technology 
capable of identifying and removing unauthorized copyrighted 
material posted by their users. Technologies like these should 
be shared with other OSPs in the context of 512(i), which 
specifies that STMs must be made ``available to any person on 
reasonable and nondiscriminatory terms.''
    As written, there is enormous potential for the STM 
provision to incentivize new technologies and encourage 
stakeholder collaboration. However, to satisfy the requirements 
of the statute, stakeholders would need to come together ``in 
an open, fair, voluntary, multi-industry standards process.'' 
\71\ And that is not happening, thereby making the STM 
provision in section 512(i) irrelevant. That is clearly not 
what Congress intended. Congress did not include 512(i) in the 
DMCA to see it go unused for 22 years. Reviving 512(i) may be 
the easiest and most important thing that could result from 
Congressional review of section 512.
---------------------------------------------------------------------------
    \71\ 17 U.S.C. 512(i)(2)(A).
---------------------------------------------------------------------------

             VIII. Next Steps and Possible Solution

    While there is much in section 512 that is not working as 
Congress intended, the notice and takedown process can provide 
a workable legal framework for OSPs and copyright owners to 
protect against infringement of copyrighted content on the 
internet. What needs to be improved is the implementation and 
application of the process to better respond to highly advanced 
online infringement tactics and the limited resources of 
smaller creators and OSPs.
    There is no silver bullet solution to fix what ails section 
512. Instead, we must consider a host of different options, 
some of which include:

                   a. Technological Solutions

    Automated technologies-available to copyright owners and 
OSPs no matter their size must be an integral part of any 
forward-looking solution. Because of the explosion of 
infringing content online, it is essential that such solutions 
to the extent reasonable, include the use of automated 
technologies. Automated technologies can intervene during the 
upload process, and can simplify the takedown process to 
effectively shorten the time that infringing content remains 
available for consumption. The vast majority of notices issued 
by reputable rights owners are legitimate. Even though the 
occasional so-called ``bad notice'' may slip through using 
automated technologies, the benefits of such services far 
outweigh the rare cases of ``bad notices.'' And while we 
recognize that these automated technologies may not work for 
all OSPs, we remain optimistic that investment in new 
technologies and collaborative agreements are essential to a 
healthy online ecosystem.
    Proper implementation and interpretation of all of the 
section 512 provisions will also incentivize OSPs to invest in 
automated technologies for copyright owners and their users. 
That means, as explained in more detail above, finally 
implementing STMs under section 512(i).
    It has been said that section 512(m), which relieves OSPs 
of any duty to monitor, in conjunction with section 
512(c)(l)(A)(ii), which permits an OSP to be held liable for 
``red-flag'' knowledge, discourages ISPs from adopting certain 
technologies for fear that if they do, they may be liable under 
section 512(c). OSPs that reasonably implement effective 
filtering systems to monitor for and take affirmative action 
against piracy should be rewarded, not penalized. Consequently, 
we would be interested in exploring this dynamic further with 
the OSP community to determine the viability of eliminating the 
potential for liability through ``red-flag'' knowledge for 
those OSPs that effectively monitor for and take action against 
infringement.
    Individual creators would benefit from greater access to 
automated technologies to ease the burden of filing takedown 
notices. The biggest hurdle is cost: Many automated 
technologies are not yet affordable for the average individual 
creator, but further discussions of the interested parties 
could reveal at least some solutions to the problem. Generally, 
OSPs (at least the larger entities) are better equipped to 
implement and extend access to automated technologies than 
individual creators.

             b. Private Sector Voluntary Agreements

    We enthusiastically support the use of voluntary, 
collaborative efforts to address the problem of online 
infringement. Such initiatives reduce and equitably apportion 
the burden of reducing infringement, removing profit from 
infringement, and educating users about legal alternatives. Any 
initiative, whether voluntary or statutory, cannot be 
considered effective if the burden of action falls primarily on 
the creator; everyone in the online ecosystem has a role to 
play in creating a fair and sustainable marketplace. We also 
believe that these efforts should complement the DMCA rather 
than supplement where the legislation falls short. For example, 
while a growing number ofISPs are voluntarily implementing 
content filtering technology, if STMs had been adopted in a 
collaborative manner pursuant to section 512(i), there would be 
less of a need for independently developed technology to 
balance the burden where the law has failed to.
    There is a long and successful history of stakeholders 
developing voluntary agreements to further mutual objectives. 
Some examples include:

      The Trustworthy Accountability Group (TAG) initiative, 
launched in February 2015 validates tools and services that take 
measures to prevent advertisements from running on pirate sites.\72\ 
According to the Digital Citizens Alliance, ad-supported pirate sites 
can be extraordinarily profitable, with many displaying ads from ``blue 
chip premium brands.'' \73\
---------------------------------------------------------------------------
    \72\ TAG, a coalition of online advertising stakeholders, including 
advertising agencies, ad placement networks, media companies, and 
consumer protection organizations. Press Release, Advertising Industry 
Launches Initiative to Protect Brands Against Piracy Websites, 
Trustworthy Accountability Group (February 10, 2015), https://
www.tagtoday.net/advertising-industry-launches-initiative-to-protect-
brands-against-piracy-websites/.
    \73\ Digital Citizens Alliance, Good Money Gone Bad: Digital 
Thieves and the Hijacking of the Online Ad Business (Infograph) (2014), 
available at http://www.digitalcitizensalliance .org/cac/alliance/
resources.aspx.
---------------------------------------------------------------------------
      In 2007, various stakeholders agreed upon the Principles 
for User Generated Content to eliminate infringing content, while still 
taking into account fair use considerations. This informal 
understanding at least illustrates a willingness of OSPs and copyright 
owners to agree on a middle ground.\74\
---------------------------------------------------------------------------
    \74\ The agreement was made by CBS, Disney, YouTube, and other 
copyright owners and OSP entities.
---------------------------------------------------------------------------
      Finally, collaboration between copyright owners and 
payment processors like Visa, Mastercard, and PayPal--encouraged by the 
Intellectual Property Enforcement Coordinator--has led to a process 
that prevents known infringing sites from access to payment networks. 
This helps cut off the revenues that such sites rely on to operate.

    Private-sector voluntary agreements are a critical tool for 
addressing online infringement. It is time that the 
stakeholders in the internet ecosystem explore what mutually 
beneficial agreements may be possible moving forward.

                         c. Legislation

    Legislative proposals could be enacted to help address some 
of the problems with section 512, without the need for amending 
section 512. The CASE Act is a good example of this type of 
initiative. Copyright Office Modernization legislation could 
also address some of the problems discussed above that was 
created by the Fourth Estate decision. For example, 
modernization legislation could provide that when a counter 
notice is filed, the copyright owner is allowed to institute a 
civil action for infringement of the copyright against the 
filer immediately (without waiting for the Office to Act on the 
registration application) once the registration application is 
filed that meets the statutory requirements and other 
requirements are met.
    In addition, Congress should enact legislation to align 
criminal penalties for infringement of the public performance 
right, currently at most a misdemeanor, with those for 
infringement of the reproduction and distribution, which can 
result in felony charges for willful and egregious 
infringement. Although criminal enforcement of copyright 
infringement is a small portion of federal law enforcement 
overall, the presence of criminal penalties plays a significant 
role in deterring willful and egregious infringement. By 
deterring this criminal conduct, legislation to close the 
streaming loophole would therefore help reduce some of the 
strain on the notice and takedown system.

                    d. Amending Section 512

    If technological solutions, voluntary agreements and other 
legislative proposals prove to be unavailing or ineffective, 
then Congress should consider other alte rnatives, such as 
amending section 512. While copyright owners collectively value 
the same end result-a digital environment that neither 
supports, nor cultivates piracy--different groups have 
different ideas about how best to achieve that end. One 
recommendation that is strongly supported by many Copyright 
Alliance Members, but not all, is implementation of a ``notice 
and staydown'' system. Before the possibility of a ``notice and 
staydown'' provision can be fully considered we all need to 
have a better (and common) understanding of what that means and 
how that would be implemented. In concept, a ``notice and 
staydown'' system makes a tremendous amount of sense, but 
neither legislation nor voluntary measures can be implemented 
based solely on a broad concept. We think the concept of a 
notice and staydown system is ripe for discussion between the 
copyright and OSP communities to better determine next steps.
    Further, as explained above, the courts can alleviate some 
of the burden felt by individual creators by properly adhering 
to the red flag knowledge standard laid out in section 512. 
Congress may want to consider fine-tuning this provision so 
that when courts consider the red flag knowledge standard in 
the future they interpret it correct and as Congress intended.
    Chair Nadler. Thank you very much. We will now proceed 
under the 5-minute Rule with questions. I will recognize myself 
for 5 minutes.
    One of the most striking changes between the early days of 
section 512 and now is the sheer volume of takedown notices 
that the biggest platforms now receive. It is orders of 
magnitude larger than 20 years ago with the number reaching to 
the hundreds of millions, getting close to a billion in some 
cases. To me, this volume simply does not seem like the 
hallmark of an efficient, well-functioning system, yet I know 
opinions on what this means are divided. Ms. Carrington, can 
you please identify whether you believe this volume is a sign 
of success or failure, and briefly explain why?
    Ms. Carrington. Yes, certainly. As you stated, I believe 
that a vast number of takedown notices that are being sent are 
an indication of a system-wide failure. They represent a lack 
of balance that Congress intended. Section 512 was in no way 
intended to be simply a notice and takedown framework. The 
notice and takedown framework are one part of section 512, but 
there are a number of other responsibilities that OSPs are 
supposed to be sharing with creators.
    So, when we see numbers, such as the Google Transparency 
Report, showing, I believe, 75 million takedown notices or 75 
billion takedown notices that is a clear indication of a 
failure. It is showing that creators are continuing to use 
their time over and over again to send these notices, and yet 
continue to not see any actual practical effect on the rampant 
piracy that exists online today.
    Chair Nadler. What do you think we can do about that?
    Ms. Carrington. Well, I think that there are a number of 
solutions. I think the issues with section 512, we have reached 
a point at this point where there is not going to be any one 
simple fix, so we are going to need to do a number of different 
things, which are going to include, for one, implementing 
standard technical measures, making sure that OSPs have some 
incentive to actually come to the table and negotiate and 
actually implement those measures. To date, they do not have 
any incentive to do so. They are very comfortable with the 
status quo because the status quo allows them to operate in 
ways that are easier for them, but much more detrimental to the 
copyright community.
    In addition, I think other voluntary measures need to be 
implemented. In addition, I think passing the CASE Act would be 
a huge step in the way of enabling copyright owners as well as 
users to have an alternative to figuring out these disputes 
outside of the section 512 framework. Then finally, amending 
the statute to clarify the knowledge standards and overturn 
erroneous case law will go a long way in restoring the balance 
that Congress intended.
    Chair Nadler. Thank you. Ms. Kibby, thank you for being 
here today and sharing the perspective of someone trying to 
make a living from their creative work. Your acknowledgement 
that you do not really have the time to monitor for 
unauthorized uses of your work online is both illuminating and 
troubling. Is this a common situation for others you know 
working in the creative industries? More importantly, what is 
something we could do in Congress to help make it more 
realistic for you to obtain a fair return on your work when it 
is used on the internet?
    Ms. Kibby. Yes. I mean, it is just virtually impossible to 
spend any amount of time, even with the backing of a large 
management company, which I am very lucky to be a part of or to 
work with. As we all know, being self-employed, it requires you 
kind of working mentally 24/7, so I kind of gave up. There is 
just no way because the moment that I send any kind of notice 
to get something taken down, it immediately just pops right 
back up again.
    I actually just found a video literally 5 days ago on 
YouTube where someone was using a song of mine that I put out 
years ago, but the title of the video was actually the official 
music video for this particular song. Not only are they 
infringing my rights in terms of it being my song that they are 
using, but they are taking away the aesthetic of the art that I 
am trying to create and misrepresenting me. I think that it 
seems pretty obvious that there are some basic questions that 
can be asked for people that are uploading content that we can 
all agree on would just streamline the process so that we don't 
get into the nitty-gritty. I think that there seems to be, to 
me, a very black-and-white series of questions that we could at 
least start with as something to discuss and agree on.
    Chair Nadler. Okay. In my remaining time, Mr. Sedlik, I 
know you have experience trying to develop standards that would 
help visual artists, but it seems like success has been 
difficult and slow. Are there steps that Congress could take to 
help encourage the development and adoption of more standard 
technical measures?
    Mr. Sedlik. Yes. Our model at the PLUS Coalition was to 
bring together all stakeholders into a group, in which we set 
all our baggage aside and leave all other issues at the door, 
and just talk about how to communicate rights information 
accurately and effectively. Congress could help by enabling a 
system that would allow the different stakeholder groups to 
access and recognize STMs once they are developed. The 
technology is readily available for a means to communicate 
rights information for the identification of works and for all 
systems to be able to be searched to be able to find the right 
information before that work is posted. The missing piece is 
education and the ability to identify the STMs.
    Chair Nadler. Thank you very much. My time has expired. Ms. 
Roby?
    Ms. Roby. Thank you, Mr. Chair, and I want to thank all the 
witnesses for being with us here today, so thank you so much 
for your time. The Copyright Office's report, the product of 
many years of review and submissions from hundreds of 
stakeholders, concluded that the balance between copyright 
holders and platforms has been tilted askew, ``fails to provide 
adequate protection of creators' rights and fails to carry out 
congressional intent regarding section 512,'' as well as the 
overall purpose of copyright law. The DMCA is over 20 years 
old. Google had just been founded the month before the law was 
signed, and there was no YouTube, Twitter, Facebook, TikTok, 
and many other web sites and platforms that we use today. At 
the bare minimum, it seems like we should be looking at ways to 
bring this law into the 21st century to address the current 
internet, not one of 1998. I just want to say to each of you, I 
appreciate very much your written testimony and your oral 
testimony here today to lay out for us the most important of 
the Copyright Office's suggestions for reform so that we can 
ensure that the DMCA is working for all stakeholders.
    Last year, I had the opportunity to travel to California to 
tour several movie and TV studios, and one of the most eye-
opening experiences I had was when I saw the pirate living room 
demonstration. This demonstration showed how easy it was for 
people to access pirated material online and how much of that 
material was infected with malicious software and viruses. Most 
websites that offer pirated material are large criminal 
organizations. However, under current law, if the material is 
being offered in a streaming format, the operator of that 
website is only able to be charged with a misdemeanor. In 
contrast, if the same material is being offered in a 
downloadable form, the operator can be charged with a felony. 
This is commonly referred to as the felony streaming loophole. 
As more content becomes available online through streaming 
services, so, too, does the amount of pirated material.
    As the Ranking Member mentioned, the U.S. Chamber of 
Commerce estimated that commercial-scale piracy drains a 
minimum of $29 billion from the legitimate American economy 
each year. In my home State of Alabama, the motion picture and 
television industry are responsible for more than 10,000 jobs 
and $387 million total wages in our State. The music industry 
contributes $636 million to the GDP and supports more than 
14,000 jobs. These industries benefit small businesses, such as 
florists, and restaurants, salons, caterers, hotels, and other 
hospitality businesses that benefit the filming of a movie or 
the recording of a song. When copyrighted materials get 
pirated, it hurts all these small businesses.
    Earlier this year, the Senate conducted several series of 
roundtables with stakeholders from across the spectrum, 
including several of our witnesses here today, to close the 
felony streaming loophole. I was extremely pleased that as a 
result of very hard work by everyone involved, there was 
negotiated draft text and report language that was agreed to by 
the stakeholders involved. I have been working with several of 
my colleagues on the House side to move this negotiated draft 
legislation forward, and I am hopeful that we can get it done 
by the end of the year.
    So, to confirm with our witnesses who directly participated 
or were represented in these negotiations, Ms. Carrington, Ms. 
Rose, Mr. Van, and Mr. Schruers, you are supportive or at least 
neutral on this negotiated language? Each of you please answer.
    Ms. Carrington. Yes, that is correct.
    Ms. Rose. Yes, that is correct.
    Mr. Band. Yes, that is right.
    Mr. Sedlik. That is correct.
    Ms. Roby. Well, I appreciate it very much, and I look 
forward to continuing to work with you on this very important 
issue. Again, I can't thank you enough for, again, your written 
testimony, but also your oral testimony here today to talk 
about this very serious topic. Thank you so much. I yield back.
    Ms. Scanlon. [Presiding.] The gentlewoman yields back. The 
Chair recognizes Ms. Lofgren for 5 minutes.
    Ms. Lofgren. Thanks very much. This is a very useful and 
interesting hearing. There is actually just a handful of us on 
the Committee that were Members of the Committee when we wrote 
the DMCA, and I am one of them, and I recall what we were 
trying to achieve at that time. It is not always what people 
describe today, but we did the best we could. What we wanted to 
do was to make possible growth in the technology sector while 
protecting the rights of creators, and that is kind of what we 
hoped to do.
    We had some concerns at the time, I did, Ms. Kibby is not 
in favor of somebody abusing the notice and takedown. I mean, 
you just want to get paid for your work, but there are some who 
abuse it, for example, cited in some of the testimony, the 
Church of Scientology doing takedown notices to prevent 
criticism of their activity. That is not what you are about. 
You want to get paid for your work. So, I was concerned at the 
time that the tech sector would really not be motivated to 
stand up for the First Amendment. They would want to take down 
to protect themselves, and, in fact that has occurred, although 
there are problems in terms of the volume.
    Obviously, if you look at what has happened since 1998, 
because of streaming services like Netflix, the MPA reported 
global industry revenues of more than $100 billion for the 
first time ever in 2019. For the music industry, U.S. revenues 
for recorded music reached over $11 billion in 2019, the 4th 
straight year of double-digit growth. Video games, global 
revenues are way up, over $150 billion globally in 2019 and 
higher, I am sure, since then. Entirely new categories for 
creators have emerged online as podcasts and creators who share 
their work on video platforms like YouTube and Twitch are 
building audiences.
    That doesn't mean that this has worked for everybody, and 
we have heard from people that it hasn't worked for, so the 
question for us now is how to adjust. We need to make sure that 
we protect the rights of authors and creators in order to 
promote the useful arts. That is what the Constitution says, 
and so the question is how to do that. It is absolutely 
appropriate to take a look at this because the entire world has 
changed since we drafted the DMCA. We may take action that has 
impacts that we don't want to have.
    So, let me ask you this, Ms. Rose. You were trying to speak 
for users, and I found the testimony of all the witnesses very 
helpful, but some have suggested that we should adjust the red 
flag knowledge infringement standard. I am wondering what you 
think about that, and would that help, and would it have 
impacts or unintended consequences. What is your thought on 
that?
    Ms. Rose. So, I apologize in that that is one of the 
components of the section 512 that I am actually not terribly 
familiar.
    Ms. Lofgren. Okay. Fair enough. Let's see, who else? The 
libraries may have an opinion on that.
    Mr. Band. Sure. So, first, I think with respect to red flag 
knowledge, I think the courts have interpreted it correctly. 
The Office acknowledges that by changing the red flag knowledge 
standards as they are suggesting, it could very well require 
notice and stay down, i.e., filtering of some sort, so that 
would move towards an EU model that really would have very 
serious First amendment issues. So, you know, this is an area 
where other changes could have, as you suggest, very serious 
unintended consequences. Again, the report itself acknowledges 
that, that changing the red flag knowledge standard could very 
well lead to, as a practical matter, filtering requirements. 
For the bigger platforms, that is not a big problem. For the 
smaller platforms, that could be a very serious issue, 
certainly libraries. If they needed to start doing that, that 
would be very costly, but also it could have various impacts on 
users.
    Ms. Lofgren. I see my time is up, and I have a lot of other 
questions. I want to thank the Copyright Office for the work 
that is put in, and just note that I do think copyright 
modernization is going to advance the cause of compensation for 
artists tremendously. It is not going to solve all the 
problems, but it is going to be a huge help for artists and 
creators getting paid for their work. I will defer other 
questions to my written opportunity and thank each and every 
one of the witnesses for being with us today and sharing their 
perspective. I yield back.
    Ms. Scanlon. Mr. Biggs from Arizona is recognized for 5 
minutes.
    Mr. Biggs. I thank the Chair, and I am grateful for all the 
witnesses being here today. It has been very interesting and 
very informative. Because we only have 5 minutes and this is a 
very, in some ways, very complex topic, I am going to approach 
this from the point of view of one of my favorite YouTube 
online creators, Rick Beato, who, Madam Chair, I would, without 
objection, submit for the record Mr. Beato's testimony from 
July 20, 2020 before the Senate Intellectual Property hearing, 
and as well as a piece entitled, ``When a Guitar Lesson Becomes 
Controversial.''
    Ms. Scanlon. Without objection.
    [The information follows:]
  

                        MR. BIGGS FOR THE RECORD

=======================================================================


  Rick Beato's July 28, 2020 Testimony to the Subcommittee on 
  Intellectual Property hearing entitled,``How Does the DMCA 
    Contemplate Limitations and Exceptions Like Fair Use?''

    Chair Tillis, Senator Coons, and Members of the 
Subcommittee. I thank you for inviting me to participate in 
today's hearing. My name is Rick Beato.
    I have been asked to come here today and discuss the issue 
of Fair Use related to my work as a content creator on YouTube.
    For four years I have developed an educational YouTube 
channel I call ``Everything Music.'' In this time, I have 
steadily built an international audience of 1.7 million 
subscribers and my channel has had over 200 million views. I 
have created 750 videos on topics ranging from music theory, 
ear training and improvisation, to film scoring, production, 
copyright, interviews, and a series of 94 videos entitled 
``What Makes This Song Great?'' In this series, I explore the 
individual elements of famous songs, examining the melodic and 
harmonic structure along with its production technique to 
answer the question of what actually makes a song great.
    When I began the series, I uploaded the episodes knowing 
that the videos would be instantly recognized by YouTube's 
Content ID algorithm and demonetized. A demonetized video means 
that the artist or copyright holder receives all the ad revenue 
generated from the video that would normally go to the content 
creator. Some artists like the Eagles, Jimi Hendrix, and Guns 
N' Roses are what I refer to as ``blockers.'' Blockers are 
artists who have a zero use policy for ANY of their work, 
regardless of the length or purpose of the excerpt. I have 
never sought to claim Fair Use for any of these videos, even 
though a case could be made that I was providing education 
through commentary, criticism, research and teaching based on 
the Fair Use policy defined by U.S. law.
    From 1987 to 1992 I was an Associate Professor of Music at 
Ithaca College. In those days just, as it is today, the use of 
recorded music for analysis in classroom instruction was 
commonly used and protected under Fair Use. YouTube, in many 
ways, is the new university. It is a place where people go to 
learn things. The do-it-yourselfers who want to fix their hot 
water heater, consumers who want to compare cameras, or 
students who want to simply learn how to play a song. In my 
view, this is the most important function of YouTube.
    As a songwriter I've been signed to multiple publishing 
deals since 1992, most recently Sony ATV. I've had songs as a 
writer on many records including a number one, million-selling 
Country song as recently as 2013. Out of my 750 YouTube videos, 
254 have been demonetized and 43 have been taken down or 
blocked. For the record, I have never had a copyright strike 
filed against me by YouTube.
    This brings me back to Fair Use. Two elements of Fair Use 
that I believe covers teaching videos have to do with the 
amount of the copyrighted material used and whether or not it 
harms the copyright holder's ability to profit from their 
original work. I would argue that if a video is using brief 
excerpts of music to demonstrate a compositional technique it 
should be covered under the Fair Use guidelines. The rules 
governing the application and interpretation of Fair Use should 
be shouldered by all parties and not only the content creator. 
The concept of Fair Use is meaningless when frivolous or random 
interpretations allow a team of searchers, typically employed 
by a major label, harass creators for content that falls under 
the legal definition of Fair Use. A clear-cut case of piracy is 
one thing, but there have to be exemptions for Fair Use.
    One of my recent music theory videos called ``The 
Mixolydian Mode'' was manually claimed by Sony ATV because I 
played ten seconds of a Beatles song on my acoustic guitar to 
demonstrate how the melody is derived from this scale. This is 
an obvious example of Fair Use. In response, I made a video 
entitled ``The Music Industry SCAM to Ripoff YouTubers.'' The 
video describes how record labels employ Content ID farms, 
essentially collection agencies, to manually claim YouTube 
videos for demonetization. Don Henley testified to this before 
this very Committee. My video received over 500,000 views 
within 24 hours and the claim was then released by Sony without 
me even filing a dispute. I believe the claim was released 
because I have a channel with over one and a half million 
subscribers and hence have a platform to air these grievances. 
Creators with smaller audiences are not so fortunate.
    I accepted the invitation to testify today because we need 
to find solutions to these problems. In the case of Fair Use, 
content creators should be protected from frivolous 
demonetizations. I would like to propose what I call a Fair Use 
Registry, where one could get a certification as a good actor 
similar to Twitter's blue checkmark. When a video is posted, it 
can be checked against the database of Certified Fair Users. 
The content creator would then be whitelisted for use. YouTube 
already sets benchmark's for channel monetization. The Fair Use 
Registry would work along the same lines.
    I reason that I create videos, such as those in my ``What 
Makes This Song Great?'' series, is to introduce classic songs 
to new audiences, and reinvigorate these same songs.
    Thank you so much for your time. I would be happy to answer 
any questions you have.

                      When a Guitar Lesson Becomes
                           Controversial--OZY

Posted: 08 Nov 2019 12:00 AM PST

    In the smartphone era, anyone who dreams of being a rock 
star can download instructional apps such as Yousician, 
ChordBank and Fender Play, or spin up any number of YouTube 
tutorials on how to cover the classics and look the part doing 
it.
    And while these free, straight-to-camera lessons range from 
wobbly to accomplished, record producer Rick Beato (bee-YATO) 
has attracted more than a million subscribers with 
professional-looking segments combining a music teacher's ear 
for detail, a mastery of multiple instruments and a bit of 
Anthony Bourdain Swagger:.
    As host of the popular YouTube series What Makes This Song 
Great, Beato has now racked up no million views from a library 
of 700-plus educational videos and nearly 80 deconstructions of 
rock radio standards. But his illuminating and often 
inspirational videos are under constant threat.
    An ongoing copyright fight has embroiled many You Tube 
content creators who feel they would be on firm legal ground 
with ``fair use'' protections, if only they could afford to 
mount a formal legal challenge. Still others stay mum out of 
concern YouTube will penalize them or de-platform their 
channels.

                  I'm basically creating free commercials for these 
        songs.
                                                           rick beato

    Videos focused on the music of Radiohead and Fleetwood Mac, 
among others, have been removed by artists and record companies 
using YouTube's own scanning software and the site's manual 
claiming tool, which can trigger a takedown notice or claim a 
video creator's portion of any pre-roll ad revenue.
    ``These blanket takedowns prevent [artists'] music from 
being discovered by a new generation and make their repertoire 
mostly music for old people,'' Beato says. ``I'm basically 
creating free commercials for these songs while I'm teaching 
music appreciation, music production, songwriting and 
arrangement.''
    Beato's online scholarship can be highly technical, but his 
insights into studio production, rock history and music theory 
are accessible even if fans' knowledge of chord progressions is 
limited to the lyrics of Leonard Cohen's ``Hallelujah.''
    ``I focus on important conventions,'' says Beato, 57, who 
earned a master's degree in jazz studies from Boston's 
prestigious New England Conservatory in 1987. ``So my core 
audience of musicians will say, `Oh! So that's why my music 
teacher was talking to me about that!' ''
    Beato's own inspiration came early on at Sunday family 
gatherings in Rochester, New York, where family members would 
play everything from contemporary pop to traditional Italian 
songs.
    Today, the fun of Beato's videos is that of watching an 
irreverent Mozart deconstruct Salieri as he plays in time with 
each song's most recognizable riffs, beats and passages while 
including a bit of band lore.
    These segments could be considered part of a modern 
nouvelle vague of online pop culture dissertations that 
includes the piano-focused Playground Sessions and the comedic, 
movie-themed Honest Trailers, Because Science and How It Should 
Have Ended.
    Beato breaks down the ``stems'' that make up each song, 
showcasing individual band members' contribution to the track 
and demystifying the process. He's able to identify and trace 
some chord patterns even to antiquity: The Police's 1981 hit 
``Every Little Thing She Does Is Magic'' is supported by an 
ascending Lydian bass line that was known in ancient Greece, 
possibly as far back as 500 B.C.
    Clad in a simple black T-shirt and jeans in his Atlanta 
studio, looking like the cool uncle who might buy you your 
first beer, Beato explains why certain songs remain timeless, 
despite shifting tastes. He notes that songs like Toto's 
``Africa,'' the Beatles' ``Let It Be'' and U2's ``With or 
Without You'' are constructed from the same chord progressions. 
``The innovation is in the way it's put together,'' he says.
    Beato says he, too, is building something new out of 
familiar elements, protected under the fair use exemption in 
copyright law that allows for the academic discussion, 
commentary, criticism or parody of copyrighted works.
    From the music industry's perspective, however, songs 
streamed on YouTube can function as an on-demand jukebox, 
eliminating the listener's need to ever buy the music. ``Music 
publishers have a legal and fiduciary responsibility to our 
songwriters to protect the value of their copyrights,'' says 
Golnar Khosrowshahi, CEO of independent music publisher 
Reservoir. ``We understand that the current systems, 
particularly in the digital arena, are not structured in a way 
that recognizes all creators fairly, and at Reservoir, we 
continue to advocate for changes that will benefit everyone.''
    The global recorded music market has grown to just over $19 
billion, according to industry figures, with users of paid 
streaming services accounting for 37 percent of total recorded 
music revenue--as physical album sales and individual download 
purchases decline.
    For some in the music industry, the real issue is how 
little YouTube pays well-known recording artists for the use of 
their music on its site, meaning they need to be ever more 
zealous about copyrights. According to Digital Music News, 
YouTube pays artists $0.00074 per stream--less than Pandora and 
Spotify--adding up to $1,500 for every 2 million plays on the 
site.
    For a massive company like Google, ``it's basically free,'' 
says Ashlye M. Keaton, an attorney who co-founded The Ella 
Project, a nonprofit that provides legal resources to musicians 
and content creators across Louisiana. The tech giants, she 
says, avoid liability by using automated systems to take down 
anything that could potentially violate copyright law. 
Meanwhile, ``the `little guy content creator' arguing fair use 
does not have the same privileges and protections that big 
multinational firms have, so that hardly seems fair.''
    In the face of criticism, YouTube--which did not reply to 
requests for comment--has said it is curtailing the use of 
manual claiming for "very short or unintentional uses of 
music." But that wouldn't apply to Beato, who showcases entire 
songs. Rather than dealing with legal hurdles, he has decided 
to simply post his enthusiastic videos and hope for the best.
    However, with the growing popularity of his channel, some 
artists have started to embrace Beato's show. Last year, he 
interviewed Peter Frampton in the singer's home studio about 
how his iconic ``Do You Feel Like I Do?'' riff was originally 
overlooked by the improvisational guitarist himself.
    As for where the road takes him from here, Beato plans to 
keep breaking down the chord progressions, odd time signatures 
and songwriting innovations underpinning rock's most memorable 
moments--and hoping YouTube and the record labels let them stay 
up. ``I don't think I'll run out of videos,'' he says. ``If I 
had to, I could probably name a thousand great songs off the 
top of my head.''
    Mr. Biggs. Thank you. Now, Mr. Beato is a songwriter, 
producer, engineer, and educator, and he is a YouTube content 
creator, which is why I watch him because he does incredibly 
interesting theoretical breakdowns of what he calls the, I 
think, the great songs. Maybe it is a Steely Dan song. Maybe it 
is a Led Zeppelin song. Maybe it is a Police song. He will take 
a small riff and he will define it, break it down, educate us 
on it, and some folks immediately take down his content. He has 
done more than 750 videos on topics ranging from music theory, 
ear training, improvisation, et cetera, but he has done almost 
100 videos of what makes a song great. Some of those 
immediately come down, and I won't name the artists, but their 
labels immediately pull them down.
    So, we are talking about creators today, and I appreciate 
the creators. I want to ask, Ms. Rose, the Copyright Office 
report did not distinguish between traditional creators, such 
as recording artists, from purely online creators, such as 
those who produce content for YouTube or Facebook, such as Mr. 
Beato. What makes the interests of such online creators 
different from traditional creators with respect to section 
512?
    Ms. Rose. Thank you. I also am a fan of Mr. Beato's, so I 
will commiserate there with the occasional disappearance of his 
videos. There are a number of points of difference between what 
we consider sort of the more ``traditional trajectories and 
traditional artists,'' and those sorts of new creators that we 
see emerging largely through online platforms. One is 
obviously, the method of getting your content out to the 
public. Those are going to be governed by different systems. 
When you are a traditional recording artist, you have a record 
label, the publishers.
    Mr. Beato completely makes his own content, releases it 
through YouTube, and thus is entirely subject to the way in 
which YouTube has structured its particular implementation of 
things like monetization, de-monetization, and notice and 
takedown. At the end of the day, a lot of these new creators, 
Mr. Beato, are reliant on some of the provisions of fair use, 
which is a built-in sort of safety valve for First amendment 
concerns, to alleviate some of the problems that would 
otherwise arise from sort of total copyright control. In his 
case, education, criticism, and commentary are the bread and 
butter of what he does, and what he has been facing is a good 
illustration of the fact that these systems, especially 
algorithmic ones designed in-house for specific companies to 
address their business needs, cannot account for those things. 
They fundamentally can't. They are binary systems in a lot of 
ways and copyright is not a binary system, and so it is a poor 
match to say that really what we need to do is just sort of 
nerd harder and develop better algorithms, and that will 
somehow take care of these things, because at the end of the 
day, they are just not capable of doing that.
    Mr. Biggs. So, when we look at section 512(f), and you have 
been critical of victims of abusive takedown notices, that the 
provisions of 512(f) are too weak. What would you say is a 
better way to beef up that for frivolous notices, while not 
going so far as to o penalize copyright holders to issue 
notices in good faith, but just turn out to be wrong?
    Ms. Rose. So, I think the easy or the lowest-hanging fruit 
on this is Lenz v. Universal decided that there was a 
subjective knowledge standard for what constitutes good faith 
notice. Changing that to an objective standard would be far 
more enforceable at a minimum.
    Mr. Biggs. Okay. Thank you. Really quick, Mr. Band, do you 
believe that government enforcement is needed, and, if so, what 
specific types of enforcement do you think should be 
implemented to deter abusive takedown notices?
    Mr. Band. Yeah, thank you for the question. I think that 
something outside the DMCA might be needed, and so that would 
be something along the lines of maybe FTC enforcement or some 
other government agency. I think the Office recognizes that 
that even though you could tinker with 512(f) and maybe make it 
easier to bring action, still you are talking about individuals 
bringing actions. Just as it is hard on the rights holders end 
for individuals to enforce their rights, it is hard for 
individuals on the user side to enforce their rights as well. 
So, that is why you might need something, an agency like the 
FTC, that could really bring the weight of the government and 
go after these bad actors, and that would also have a 
significant deterrent effect.
    Mr. Band. Thank you. I yield back.
    Ms. Scanlon. Mr. Johnson is recognized for 5 minutes.
    Mr. Johnson of Georgia. Thank you, Madam Chair. Thank you, 
and I thank the Chair for hosting this hearing today, and I 
thank the witnesses for their testimony.
    The IP Subcommittee has spent much of this Congress 
exploring how to promote and protect intellectual property 
rights in the patent and trademark space, and today's 
discussion from the copyright angle has been particularly 
informative. Copyright law governs the work of artists and 
innovators, designers and developers, and other content 
creators. It is crucial that these creators can rely on 
copyright law protections to make their living. This is even 
more true in an age where the click of a button can plagiarize 
a lifetime of work. As Chair of the Subcommittee on 
Intellectual Property, Courts, and Internet, I believe it is 
important that we work with the Copyright Office to ensure that 
the rules of the road are clear for content users, platforms, 
and internet service providers.
    Section 512 was created before the internet had permeated 
our lives, and I am concerned that the law has failed to keep 
up, not adequately protecting creators and not necessarily 
providing clear guidance to users and others, and this needs to 
change. So, I look forward to further hearing from the 
witnesses. I thank you for the very great testimony that you 
have already given, and we look forward to exploring how 
Congress can help pave the way to the future.
    Now, Mr. Sedlik, I understand that many online platforms 
have now started to require those submitting takedown notices 
to provide information above and beyond what section 512 
requires in order to start the takedown process. Not only does 
this seem to raise concerns about the extra burden imposed on 
rights holders beyond what Congress intended, but it implies 
that rights holders must figure out how to use takedown systems 
that are potentially very different very different if they are 
monitoring several platforms. Can you speak to the impact that 
having to deal with different takedown processes is having on 
rights holders?
    Mr. Sedlik. Thank you for the question. Absolutely. As a 
rights holder and creator, after a day of creating photographs, 
I am forced to search for potential infringements and to send 
DMCA takedown notices, of which I send 100 to 200 each week. I 
have no employees, so in the evenings, I go to the platforms, I 
find the DMCA agent information, which can take considerable 
time because it is often buried in the terms and conditions on 
these sites. Then each and every OSP has a different form, and 
all of them are manual by the way. You must enter your name, 
your address, and the other information manually, or you can 
send an email. I choose to send an email.
    I then send that email meeting every single requirement 
with the actual sections of the statute identified, and then 1 
or 2 days later I get in response a question such as, it is 
unclear why you think this use infringes on your copyright, or 
please provide a URL pointing to an example of your work on the 
web, even though I have provided them with a copy of my work 
with my DMCA takedown notice. It would help to have some level 
of automation built into these forms, not to send the DMCA 
takedown notices in bulk, but instead to be able to create an 
account and be able to save my address and phone information 
and be able to input just the specific information about that 
particular takedown and submit it.
    I would also say that these takedowns are not expeditious 
as required under the statute. I have seen it with me take up 
to a month or 6 weeks. Often it does happen within 72 hours, 
and, further, there is this exchange back and forth repeatedly 
asking me for information I have already provided. It would be 
fantastic if the OSPs could each establish a way for us to more 
efficiently submit these notices.
    Mr. Johnson of Georgia. Thank you. Would you like to 
comment on that as well?
    Mr. Schruers. Certainly. Thanks for the question. I think 
there is a lot that can be done by way of improving systems. A 
lot of services are constantly trying to iterate on and improve 
their systems so that they function more expediently. It is 
important to recognize that a lot of platforms have entirely 
different interfaces. The design of the platform is 
asymmetrical from others, and, as a result, the content isn't 
necessarily going to port easily from one web form to another.
    The ease with which takedowns are filed in bulk is one of 
the reasons why we are seeing takedown rates get so high, and, 
unfortunately, there is no penalty for submitting inaccurate or 
wrongful claims. As a result, there is an industry of 
enforcement vendors that will take payment from rights holders 
to go out and send these notices, often without paying much 
attention to whether the work that they are complaining about 
is actually where they say it is online.
    Some surveys of these submissions reflect that in some 
cases, upwards of 80 percent of things that are being submitted 
in takedowns aren't even there in the first place, and that is 
important because when you have an individual artist who is 
trying to get content removed, their inquiry is in line behind 
all this other spam.
    Mr. Johnson of Georgia. How often does that spam occur?
    Ms. Scanlon. I am sorry. The gentleman's time has expired. 
The Chair recognizes Mr. Cline for 5 minutes.
    Mr. Cline. I thank the Chair, and I want to thank our 
witnesses for attending today. As has been explained, when the 
DMCA was first passed by Congress, section 512 was meant to 
preserve strong incentives for service providers and copyright 
owners to cooperate to detect and deal with copyright 
infringements that take place in the digital network 
environment, while also providing greater certainties to 
service providers concerning their legal exposure for 
infringements that may occur in the course of their activities. 
In the 20 years since the DMCA was first signed into law, the 
volume of online piracy and infringements has exploded.
    The study that has been 5 years in the making provides for 
some very interesting debate and discussion. One area that has 
been underutilized is 512(i)(2) dealing with standard technical 
measures. In the study comments, many stakeholders noted that 
no measures currently qualify as STMs despite the availability 
of various technologies and the potential interest in consensus 
building across industries. So, I would like to start with a 
question to Mr. Sedlik. Can you just generally talk about what 
standard technical measures are already out there and why they 
haven't been more widely adopted or more measures developed?
    Mr. Sedlik. I can speak to our standard technical measure 
developed by the PLUS Coalition recently adopted by Google, 
previously adopted by Yahoo, adopted by Adobe many years ago. I 
believe that the hesitancy with regards to standard technical 
measures is the perception, I think an incorrect one, that they 
would be used to stifle fair use and to stifle free speech. The 
visual creators at least, and I believe the other creators, not 
only want to be compensated for their use, but they also want 
attribution for their work as it is distributed.
    So, the development of standard technical measures does 
not, under the statute, require a formal standards body. It 
only requires two groups of participants, the online service 
providers and the copyright owners, to get together and to have 
a discussion on how to use technology. The most important thing 
to me is identification of creators' works and making 
information available for users and machines to make an 
informed decision about making use of works.
    Mr. Cline. Do you believe that 512(i) has restricted or 
discouraged the use of STMs? I mean, do you support the 
recommendations in the report that Congress may want to either 
broaden the language or give the Copyright Office regulatory 
authority to oversee the development of STMs? It seems awfully 
heavy handed.
    Mr. Sedlik. I don't know that I support regulatory 
authority. I do think that there needs to be a means of 
recognizing STMs, and that can be done through a coalition or 
consortium or Committee of stakeholder groups that look at STMs 
and see if they can check the boxes in 512 as to whether or not 
it is open and fair and developed in a broad process, et 
cetera. In our process, we had 1,500 participants from 140 
countries from all different stakeholder groups and individuals 
participating to arrive at a way to identify works.
    The big problem is that the OSPs are stripping out the 
right information, what we call our embedded photo metadata, 
from our works when it is distributed, and, thus, our works are 
orphaned and virally distributed with no attribution 
information. I do--
    Mr. Cline. Mr. Schruers, do you want to respond to that?
    Mr. Schruers. Certainly. So, as I was saying previously, 
the number of variations and systems online is almost as many 
as the number of online services. So, what technology may work 
for short-form video service is not necessarily going to work 
for a text-based social media service. As I think we have 
heard, there are a lot of individual companies that have 
implemented particular technical measures into their own either 
DMCA compliance or their own DMCA plus systems. Now, the fact 
that those might not qualify as standard technical measures 
because of the narrowness of the definition in the statute 
doesn't mean that they are not getting implemented by these 
different companies. It is just an indication of the fact that 
with the number of variations of services online, it is 
somewhat more challenging to come up with a one-size-fits-all 
solution.
    Mr. Cline. Right, you don't agree that it requires 
consensus from all stakeholders across every industry. You 
agree that it requires only broad consensus, so that is 
achievable in theory, correct?
    Mr. Schruers. Well, I certainly think that achieving 
standard technical measures in a way that complies with the 
definition provided by the statute is feasible. The market has 
evolved in such a way that the participants haven't found their 
way on that consensus yet.
    Mr. Cline. Okay. Well, I look forward to the Copyright 
Office having additional discussions, and I think they are 
going to have a symposium in the near future as to what they 
have issued in their report, so I look forward to further 
developments there. Thank you, Madam Chair.
    Ms. Scanlon. Okay. Thank you. The Chair recognizes Ms. 
Demings for 5 minutes.
    Ms. Demings. Thank you so much, Madam Chair, and thank you 
to all of you for being with us today. Ms. Kibby, the Chair 
mentioned this somewhat, but when we think about the Congress 
of yesterday, we could not have predicted how expansive and 
advanced our online ecosystem would become. We had absolutely 
no clue. So, as today's Congress continues to examine section 
512, including whether any updates may or may not be needed, 
what do you believe we should keep in mind to ensure that we 
are future proofing, if you will, our work in this area? It is 
so critical that we get it right. I would love to hear from 
you.
    Ms. Kibby. Thank you so much. I think it is about 
simplifying, to be honest. The fact of the matter is that 
artists such as myself, we are really just looking to get paid 
for unauthorized use of our works and to take down things that 
infringe on our artistic integrity. It is pretty basic. I mean, 
I am only speaking for kind of my community that I am in, 
specifically musicians that I know and artists, but I will come 
back the idea of simplification. I refuse to believe that there 
is not a way for us to come together as creators and service 
providers, and I am not the person to perhaps come up with 
these questions, but to have a discussion of what are some 
basic questions that can be established that we check back in 
on that would be viable, even 10 years from now. I think that 
we are at a place where we have seen how the online service 
providers have evolved in terms of their technology. I think 
that we must be in participation with one another to come up 
with some basic questions to make sure that our rights are 
protected and also the creators on YouTube, for example, can 
continue to do what they do, because it is not like we are not 
in support of both types of creators and there must be some 
kind of compromise. Ultimately, from my position and type of 
creator, I can speak for musicians, and we are ultimately left 
holding the bag at the end of the day.
    Ms. Demings. Thank you. Mr. Sedlik, anything you would like 
to add to what has been said?
    Mr. Sedlik. Yes, and I would say that abuse of DMCA 
takedowns pales in comparison. Certainly, there is abuse, but 
it pales in comparison to abuse of the fair use exception. The 
fair use exception is absolutely vital to copyright law, but it 
is not a license to steal. Go ahead and criticize my work, 
review it and make fun of it, teach about my work, but don't 
make coffee mugs, and shirts, and posters, and iPhone cases. 
Now, 9 out of 10 unauthorized uses, I get a response back from 
the user saying this is fair use when they are using my work on 
socks and tee shirts, and so education is a great first step. 
The Copyright Office--I applaud them today--launched an 
educational website for 512 to teach the public about notices 
and takedowns and counter notices.
    Ms. Demings. Thank you so much for that. Ms. Carrington, my 
colleague, Ms. Lofgren, asked about this, but I would like to 
hear your answer on red flag knowledge and hear what you 
believe the practice means, and if you agree with the Copyright 
Office's conclusion that the courts have blurred the lines 
between actual knowledge and red flag knowledge.
    Ms. Carrington. Yes, thank you for that question. I 
completely agree with the Copyright Office's conclusion. 
Section 512 is written such that even in the absence of actual 
knowledge, red flag knowledge is supposed to trigger a duty to 
investigate and find the infringing material. Unfortunately, 
there have been a number of court cases--Viacom in the Second 
Circuit, UMD, Perfect 10 in the Ninth Circuit and others--that 
have conflated that red flag knowledge with actual knowledge in 
a way that essentially reads the red flag knowledge out of the 
statute, and what that does is it hinders the balance that 
Congress intended. It was supposed to be a balance in which 
copyright owners and OSPs are cooperating to address these 
issues, but when courts have decided that they only need to 
respond when they get specific notices or when they have 
specific knowledge about infringement, that takes away a huge 
part of the statute and really goes a long way towards 
contributing to this unequal balance that the report documents 
so well.
    Ms. Demings. Again, thank you all. Madam Chair, I yield 
back.
    Ms. Scanlon. Thank you, and the Chair recognizes Mr. Chabot 
for 5 minutes.
    Mr. Chabot. I thank the Chair for yielding. All the way 
back in 1789, our founding fathers included in our Nation's 
most important governing document, the Constitution, a clause 
granting Congress the power to quote ``promote the progress of 
science and useful arts by securing for limited times to 
authors and inventors the exclusive right to their respective 
writings and discoveries.'' A year later, Congress did just 
that by passing, and President Washington signed into law, the 
first Copyright Act. In the 230 years since its enactment, 
there have been millions of works registered and numerous 
amendments passed to improve our copyright system. The most 
recent significant change occurred in the Music Modernization 
Act, and this was back in 201, intended to streamline and 
reform how music is licensed and artists are compensated. 
Before that, over 20 years ago, we passed the Digital 
Millennium Copyright Act, or DMCA, to help protect the works of 
creators on the internet. Obviously, a lot has changed since 
then.
    Ms. Kibby, let me begin with you. You have created a number 
of works over the years since DMCA was enacted. How is your 
ability to produce new creative works, and the ability of other 
creators like you, been affected by activities needed to 
protect your existing works through section 512?
    Ms. Kibby. Thank you for asking. Honestly, like I said in 
my opening statement, I just don't do it. I am so demoralized, 
and frankly, don't know many other musicians in my small circle 
that even consider it worth doing because they literally just 
pop up again. I mean the internet is so vast that there is no 
human way possible to really stay on top of infringements.
    Mr. Chabot. Thank you very much. Some platforms, like 
YouTube and Facebook, provide automated filtering tools that 
are supposed to help find and block copyright infringement. I 
would ask any of the panel Members who would like to address 
this, how effective are they and are they adequate to protect 
copyrighted works on those platforms? I would be interested to 
hear from anyone who might like to comment.
    Mr. Schruers. This is Matt Schruers. I would be happy to 
comment on that.
    Mr. Chabot. Thank you.
    Mr. Schruers. So, these services, provide a valuable 
additional tool to creative industries and individual artists 
on top of, of course, the DMCA compliance. As I said in my 
previous statement, a lot of these are both site and sometimes 
media specific, and they require large investments, so 
expecting small startups to implement these kinds of systems 
isn't really practical. But, within the system, these not only 
streamline and expedite enforcement, but they also create new 
opportunities for monetizing content. So, in many cases, 
artists can say this content, which is appearing on your site 
belongs to me, but rather than take it down, why don't you run 
ads next to it, and then the artists needn't do anything more, 
but can now claim a share of the ad revenues that are 
associated with the advertisements that have now been co-
located next to that content. So, in some ways, this is a way 
of making lemonade from lemons, trying to turn this 
infringement into a monetization opportunity that works.
    Mr. Chabot. Yes?
    Ms. Carrington. Yes, I would like to also respond.
    Mr. Chabot. Go right ahead.
    Ms. Carrington. Sorry.
    Mr. Chabot. Go right ahead.
    Ms. Carrington. Sure. So, I would also like to respond to 
that. I think the technology that exists, such as Content ID, 
Rights Manager, Audible Magic, right now, in the absence of 
mandatory STMs per section 512(i) they are really, in a sense, 
trying to put a band-aid on a gaping wound. What really needs 
to happen is that these technologies, the underlying 
technologies which would be completely appropriate to become 
STMs, should be implemented as STMs. Of course, the technology 
would have to be implemented in accordance with the statute, 
which means that they need to assist copyright owners of all 
sizes. I really want to emphasize that because there are 
concerns with Content ID and other similar technologies, and 
that they are not made available consistently to both large and 
small content owners, and so, I really want to emphasize that. 
Also, in addition, STMs are supposed to be developed with 
participation from different stakeholders. The operations need 
to be transparent, and they must be made available to all. So, 
while these various technologies have assisted in some ways, 
there are huge gaps that needs to be filled through STMs as 
well as voluntary measures.
    Mr. Chabot. Thank you, Madam Chair. My time has expired.
    Ms. Scanlon. Okay. Thank you. The Chair recognizes Mr. 
Deutch for 5 minutes.
    Mr. Deutch. Thank you, Madam Chair. After this Committee 
embarked upon its own multi-year review of the Copyright Act to 
examine what is working and what is not working for creators 
and stakeholders, and now after the Copyright Office's thorough 
review of section 512, I feel like we are in a good place to 
actually Act on some of the recurring problems that we have 
seen with the current system. The basic premise of our 
copyright law is that we are all enriched when creators create, 
and they must be able to earn a fair return on their ingenuity. 
The core of what we are talking about today is how we can 
improve accountability and curb abuses of the delicate balance 
that the 512 notice and takedown system seeks to achieve 
without upsetting the whole apple cart. As we have seen, and as 
the Copyright Office's report reflects, section 512 has become 
a cornerstone of growth and development of the internet as we 
know it, both for better and for worse.
    I have previously described 512 as a flawed framework 
because it puts all the burden of enforcement on the victims of 
the crime. While this is universally unfair in theory, the 
system represents an insurmountable burden to small creators 
who cannot afford the cost of enforcing their copyright across 
the vast and ever-growing online platforms.
    Now, Ms. Kibby, I would like to follow up and refer to a 
conversation you had with Chair Nadler, something you point out 
your testimony, that all the hours you spend trying to track 
down and stop infringement of your works robs you of time spent 
actually creating new music or further honing your craft. When 
the internet was in its infancy, that searching might have been 
a distraction and a frustration, but with the myriad of 
platforms and services, it just seems impossible. So, Mr. 
Sedlik, you go on to further describe how enforcing your rights 
under 512 is impossible, and I agree with that. What we have is 
a whole group of creators who have been effectively left out of 
copyright protection. I think the CASE Act was a step in the 
right direction here, but the 512 regime compounds existing 
problems. So, Mr. Sedlik, can you elaborate on some of the ways 
that you suggested to shift some of the weight of the burden 
off small creators like yourself?
    Mr. Sedlik. Sure. Well, one of them is to revise and 
clarify the knowledge requirements recognizing that service 
providers have the ability to control infringing activity and 
deeming that willful blindness and negligent blindness are the 
equivalent of actual knowledge. The service providers have 
knowledge that there are works in their systems that have 
identifying material embedded in the work that enable the 
service providers, no matter what type of platform or 
technology they are using, to read the information out of our 
visual works and to Act on that information, or at least 
consider it or make it available to the public. That is perhaps 
the number one concern of creators in the visual arts is that 
when we take the time to put our rights information into our 
works, it should not be ignored by the service providers. 
Google just took the right step on August 26th and is making 
information available in all images that are in Google Images 
if creators take the time to put work in there. We would like 
to see that across the board from all OSPs.
    Mr. Deutch. Great. I appreciate that. I want to just 
finally to spend a minute talking about the bad actors, the 
repeat offenders who take advantage of the system, that force 
creators like Ms. Kibby and Mr. Sedlik into a perverse game of 
whack-a-mole where creators must chase down each Act of 
infringement online, each link, each stream. I wonder if there 
is anything, we could do specifically on repeat infringers, the 
small percentage of actors in this case who represent the 
lion's share of the problem. Mr. Schruers, do you have thoughts 
on that, how to better distinguish between legitimate users and 
bad actors?
    Mr. Schruers. Well, so section 512 already requires digital 
services to have and enforce a repeat infringer policy, and we 
have seen from the Cox case that the failure to meaningfully 
enforce that kind of policy can result in serious liability. Of 
course, there are certain constraints for anonymous users. 
Unless you are going to forbid anonymous use of the internet, 
it is difficult to meaningfully catch all repeat users, repeat 
infringers. Certainly, we have seen courts say you need to have 
this policy and you need to meaningfully enforce it. So, I 
think that is certainly happening already, and I know within 
industry that enforcing that policy is a critical part of their 
internal DMCA compliance, lest you wind up facing a massive 
judgment.
    Mr. Deutch. I appreciate that. Madam Chair, section 512 
certainly has value, but it also has flaws. We can't continue 
to ignore the impact that those flaws have on American creators 
and on our economy. I thank the witnesses for their time and 
hope the Committee can navigate its way to tangible solutions 
for the complex problems that we are discussing here today. I 
yield back.
    Ms. Scanlon. Thank you. The Chair recognizes Mr. Armstrong 
for 5 minutes.
    Mr. Armstrong. Thank you, Madam Chair. I want to talk a 
little bit about the elements of notification in section 512(c) 
and some of the legal and practical implications, and, Mr. 
Sedlik, you had mentioned the URL issue earlier. So, a 
claimant's infringement requires, among other elements, 
identification of the material that is claimed to be infringing 
and information reasonably sufficient to permit the service 
provider to locate the material, and some courts have 
interpreted this element to require a high degree of 
specificity, including an exact URL for the alleged infringing 
material. This creates a significant burden for rights holders 
and contributes to the whack-a-mole problem. So, Mr. Sedlik, 
what kind of burden is it for an independent singer-songwriter, 
or anyone else for that matter, to track down each specific URL 
to protect their copyrighted material?
    Mr. Sedlik. If you could only see my spreadsheets of those 
URLs. It is a huge burden, and the DMCA should be amended to 
require that, upon receipt of a representative list of links to 
infringing material, service providers must employ available 
technologies to identify and remove not only those 
representative examples, but all other existing infringement of 
a copyrighted work. I would say that the statute says 
information identifying and the work itself is, by definition, 
data which is information identifying. So, if I were to provide 
a copy of my work to an online service provider, there is 
sufficient technology available to use my work to conduct image 
recognition and identify all copies of my work across the 
platform and give me the opportunity to determine which ones 
are licensed and which are not, and give the users the ability 
to claim fair use should they wish to do so.
    Mr. Armstrong. Yeah, and the standard is information 
reasonably sufficient to permit the service provider to locate 
the material. Requiring an exact URL further shifts the burden 
onto the rights of shareholders and away from the service 
provider, who actually or theoretically controls the site and 
often generates revenue from that contact. I don't think it is 
a good argument for service providers to say they can't be 
expected to search massive amounts of content on their site if 
they generate revenue from that exact same content. Your 
testimony suggests only requiring a representative list, URLs 
that would serve as examples but would require the takedown of 
all represented copyright work. Can you just elaborate on that 
a little bit?
    Mr. Sedlik. Sure. Well, the work itself should serve as a 
way for the OSPs to be able to identify all copies of that work 
even if they have been modified--cropped, flipped colorized, 
changed in some ways--to determine where these copies exist on 
their systems. So, the URLs aren't even needed. The work 
itself, if submitted to the online service provider in a 
similar system to what Facebook is implementing right now as a 
means of rights holders to submit their work, would be 
sufficient and should be sufficient under the statute. I think 
the courts have got it wrong.
    Mr. Armstrong. Mr. Schruers and Ms. Rose, I am going to ask 
you the same question. Should larger, more sophisticated 
service providers be able to search and filter infringing 
material that is reasonably identified, meaning something more 
general than a specific URL?
    Mr. Schruers. So, if I may, some services already do this. 
I would point out that there are inherent challenges in 
assuming that because one iteration of a work that has been 
identified as infringing, that it can necessarily be 
extrapolated to all other uses of that work on the platform. We 
do require rights holders to say that they have a good-faith 
belief that this is infringing, but after they make that 
representation with respect to all potential iterations the 
work that exist across the platform. We have heard about the 
scenario with Mr. Beato earlier today. I am not personally 
familiar with his work, but it sounds like he is an educator 
who helps people--
    Mr. Armstrong. Yeah, and I am just going to stop you here 
because that is not my question.
    Mr. Schruers. Okay.
    Mr. Armstrong. I understand the different iterations. I 
mean, do they need the specificity of the exact URL, that is 
the question, or can larger providers do it in a different way?
    Mr. Schruers. Well, yeah. So, I think it is difficult to 
paint all service providers with a broad brush, but in many 
cases, the identifying information that is required in a 
particular system is not necessarily the URL. The URL is sort 
of the--
    Mr. Armstrong. I have 15 seconds, and, I am sorry, Ms. 
Rose, I hope we can get to you later. From an enforcement 
standpoint, we have done this before, not necessarily in this 
area, but we do it with drug analogs in the criminal system. 
When we first started having analogs that existed, if you 
changed one single thing in it, then it was legal until either 
the DEA or the State legislation made it illegal again, and we 
figured out that was untenable. While not exactly an apples-to-
apples comparison, there are ways to do this that would make it 
a little less burdensome on the actual singer-songwriters. With 
that, I yield back.
    Ms. Scanlon. Thank you. The Chair recognizes Mr. Swalwell 
for 5 minutes.
    Mr. Swalwell. Thank you. Mr. Armstrong, if you have another 
question, I am happy to yield to you if you want to get that in 
there. I was interested in your dialogue.
    Mr. Armstrong. I would just ask the same question to Ms. 
Rose. Should larger, more sophisticated service providers be 
able to search and filter infringing material that is 
reasonably identified, meaning something more general than a 
specific URL?
    Ms. Rose. So, while I can't speak to the capacities of 
larger platforms, and I think there is. Certainly, to agree 
with my colleague, Mr. Schruers, I think that are some have the 
capacity possibly to do that and some that don't. I worry about 
any provision which would mandate such capacity, particularly 
on smaller platforms. We tend to fall into a trap in a lot of 
these situations where we have the impulse to legislate based 
on what Google and Facebook are capable of doing, and in doing 
so, create a set of rules that end up creating unfair or 
unreasonable expectations for smaller websites, often run by 
nonprofits that host user-generated content as well.
    Mr. Armstrong. Just really quickly, and I agree with that 
because what we don't want to do is create more of an incentive 
to create market share in the top. Thank you, Mr. Swalwell. I 
yield back.
    Mr. Swalwell. Thank you and reclaiming my time. To follow 
up on Mr. Deutch's point, Mr. Schruers, how do repeat infringer 
policies vary among different online service providers?
    Mr. Schruers. So, it depends very much on, in large part, 
because we have a huge variety of service providers that fall 
under section 512. So, the cost, for example, of terminating 
somebody's social media account is perhaps not as serious, at 
least for some users, then terminating someone's broadband 
access, which could also terminate their livelihood, their 
ability to engage in prayer and worship, and communication, and 
so on. So, different services take different approaches. I know 
some broadband providers, for example, have more extensive 
policies. Some digital services, quite frankly, are very 
strict.
    The number of instances will often vary, and whether or not 
a user disputes a claim against them will often be a relevant 
factor, too. So, it is not uncommon for someone to submit a 
takedown against a critic who says I don't like their work, or 
a competitor. My testimony has a number of examples of that. 
One doesn't want to hold against a legitimate user, a so-called 
strike, when that claim was made in bad faith, and we will 
often see policies take that into account.
    Mr. Swalwell. Thank you. Speaking of livelihood, Ms. Kibby, 
being someone in the artist community, lay out for us what it 
means for you financially for your livelihood if we do not have 
better protections for what you create?
    Ms. Kibby. Yes, of course. Thank you. Unfortunately, as a 
smaller artist, streaming is already not a huge part of my 
income. I mean, we can all recognize that the music industry 
has been completely turned on its head over the last 20 years, 
I don't expect much from streaming to begin with. I think on 
YouTube, 1,499 streams equals $1, so it is not that much. I am 
a working-class musician, so let's say I get $100 from YouTube 
streams. That could make the difference between me keeping the 
lights on in my studio for a month or not. The frustrating 
thing is that most of us are working-class musicians. We make 
careers out of this. We are not famous. We don't dream of 
buying big houses and expensive cars. We just want to do what 
we love, and it is kind of bleak, to be perfectly honest.
    Mr. Swalwell. We want you to do what you love, too, because 
we love listening to it and being entertained by it. So, I am 
grateful to the Chair for having this hearing, and I am 
grateful to the panelists for participating. I yield back.
    Ms. Scanlon. Thank you. The Chair recognizes Mr. Tiffany 
for 5 minutes.
    Mr. Tiffany. Thank you, Madam Chair. I yield my time to Mr. 
Cline from Virginia.
    Mr. Cline. Thank you. I thank my colleague, and I want to 
follow up on Mr. Swalwell's questions to Ms. Kibby because we 
all want you to do what you love, and we love that you are 
doing it. So, when you are dealing with these platforms, are 
you able to enter into agreements, licensing or otherwise, to 
be compensated for your works across the board, or are there 
some platforms that are more willing to enter into these 
agreements than others?
    Ms. Kibby. I would love to answer your question in an 
intelligent way, but unfortunately, I cannot. As a general 
rule, I make the art and my management takes care of the rest, 
so I can't speak to the specifics of each platform 
unfortunately.
    Mr. Cline. Okay. Some of the larger platforms, whether it 
is Facebook or Twitter, are they cooperating with you to make 
sure that you are compensated for music that is put out there 
on their platforms?
    Ms. Kibby. Right. In general, any company that profits from 
music, needs to pay the creators. We all agree on that. 
Specifically, Twitter makes takedown very difficult, which adds 
to the frustrations that I expressed earlier. It is not easy. 
With YouTube, for example, the video that I mentioned earlier, 
I sent a notice, and I must go through the whole rigmarole of 
justifying what is my work. Well, not only my work, but also 
misrepresenting me as an artist. It is very difficult across 
the board, obviously, with differences here and there depending 
on the platform, in general, it is extremely difficult. On top 
of it, I am small enough that I will never have human 
interaction with anybody from these platforms. I am relegated 
to a general algorithm-generated email.
    Mr. Cline. Thank you. Mr. Schruers, some of your 
association's members have a business model based on internet 
traffic, such as services supported primarily by advertising 
revenue. Since infringing content can drive traffic just as 
much, if not more, than non-infringing content, what incentives 
exist for such providers to do more to help copyright holders 
protect their works if their current efforts are enough for a 
section 512 safe harbor?
    Mr. Schruers. So, thanks for the question. I don't agree 
with the contention that infringing works are necessarily 
driving more traffic than non-infringing works. The vast 
majority of users and people want to ensure that the artist 
they know and love, are compensated for the work that they do. 
On top of that, digital services want to be regarded as 
valuable contributors to the creative economy. So, it leads to 
these, as I said, voluntary efforts that we often see where 
digital services try and find mechanisms whereby artists can 
identify the works that have been uploaded without 
authorization, and advertisements can be located next to those 
works upon identification to allow the artist to monetize some 
of that infringement. Those arrangements are, as I said, site 
specific. They vary based on what kind of media is being used, 
and so the ease with which that is done changes depending on 
the particular context. These are the opportunities that 
digital services are looking for to ensure that everyone can 
take advantage of the value of these distribution systems.
    Mr. Cline. Thank you. What problems do copyright holders 
face? This can be for Ms. Carrington--when a counter notice is 
filed to restore content that they requested be taken down, and 
how should the counter notice system be changed to address 
those problems in a fair and balanced way?
    Ms. Carrington. Thank you for that question. So, one of the 
major issues that contributes to the lack of balance in section 
512 right now has to do with the notice and counter notice 
process. Right now, if a creator finds their work has been 
infringed, they are able to send a takedown notice, but the 
users of that work have the ability to send the counter notice 
putting that work back up, and often times they allege fair use 
in ways that are very obviously not fair use. Once that 
happens, a user sends a counter notice, there are really no 
options left for a copyright owner. The statute basically says 
that they would need to then go to Federal court. Most 
creators, especially small individual creators and small 
businesses absolutely cannot afford the cost of Federal court. 
So, one option that I think would be a definite benefit in this 
area, and I am very grateful to the House for having passed the 
CASE Act 410 to 6, but it would be to pass the CASE Act, which 
would give an alternative dispute resolution system for these 
kinds of issues.
    Mr. Cline. Thank you.
    Ms. Scanlon. Thank you, and the Chair recognizes myself for 
5 minutes. I do want to thank Chair Nadler for holding this 
hearing. We have been hearing a lot in my region on the section 
512 issue, particularly from small businesses and artists who 
are struggling to effectively use the notice and takedown 
system to enforce their copyrights online. In addition to 
lacking the resources of larger creators or corporations, they 
can even be prevented from using tools that could make 
navigating the regime easier, and there seems like a fairness 
issue. Given some of the conversations we have been having in 
the Antitrust Subcommittee with some of the abuses and market 
takeover of larger platforms, this seems like it fits right in 
with that discussion. So, we have heard some conversation about 
some of the larger platforms having developed automated systems 
for the detection of copyright infringement. However, often 
they are provided to only select rights holders, such as 
YouTube with Content ID, and smaller businesses and small solo 
creators can be locked out of those tools, forced to manually 
detect infringement, and that puts them obviously at an extreme 
disadvantage.
    Mr. Sedlik, your story is one I have heard, and I would be 
interested in hearing more about what you think might be 
potential solutions to the problem. I am particularly 
interested in the knowledge requirement and the willful 
disregard issue.
    Mr. Sedlik. Well, if the OSPs have access to a copy of a 
protected work, whether by doing as Facebook is about to do in 
requesting that creators submit copies of their work so that 
people can recognize unauthorized copies on their system, then 
that is a great step in the right direction. One of the most 
significant benefits would occur if the OSPs were to recognize 
and protect and maintain the rights information that we put 
into our work, and that includes not just on the servers of 
OSPs, but they use what are called content delivery networks, 
which are other parties that do what is called localized 
caching of works. Those parties, those localized caching 
services and content delivery networks strip all of the rights 
information out of the work to decrease the size of the work 
and make it load faster.
    If Congress can look at that and perhaps increase the scope 
of the protections afforded under 1202, that would be a great 
benefit. The stripping of our rights information is absolutely 
key. As soon as our work is put up onto a social media 
platform, it is injected into the stream of commerce. I marked 
one of my works. I put a special mark on it, uploaded it to 
Facebook as a test, and within 3 weeks, it was up on Amazon 
being sold as socks, Miles Davis, right? On socks. I bought 
these socks online very shortly after a specially marked 
version was uploaded. This is a very real issue, and my 
students at the Art Center College of Design are some of the 
best artists I have ever seen in a generation of artists that 
have very little chance at success in running a sustainable 
business or even pursuing art and making art during their 
lifetimes.
    Ms. Scanlon. I think we can assume that you did not receive 
any reimbursement from your purchase of those socks.
    Mr. Sedlik. I did not, and there is no system that I know 
of that provides artists with compensation when their work is 
used, for example, on a social media platform. We are hoping to 
see that developed, and the visual arts community is ready, 
willing, and able to participate in discussions with social 
media platforms on revenue shares for the use of our works.
    Ms. Scanlon. Okay. Thank you. I appreciate your insight 
here. With that, I will yield back, and the Chair recognizes 
Mr. Raskin for 5 minutes.
    Mr. Raskin. Madam Chair, thank you very much. I have got a 
question based for Morgan Kibby. It is based on an article that 
I read yesterday about a bunch of rock bands who have been in a 
fight with President Trump because he has been using their 
songs without their permission. The Rolling Stones are 
involved, Neil Young, REM, Guns N' Roses, Elton John, Rihanna, 
Tom Petty and the Heartbreakers, like, a dozen others, whose 
music has been used in various Donald Trump campaign events 
without their permission. They are furious about it because 
they say they deplore his politics, and they don't want to be 
associated with it. So, I guess my first question for you is, 
you have expressed very powerfully how the copyright law at 
least theoretically protects your financial interests, but 
would you also describe how it protects your interests and the 
integrity of your art and what you are trying to do with your 
art against dilution and distortion and corruption online?
    Ms. Kibby. Thank you so much for this question. It is just 
as important as the financial benefit of having some agency 
with my copyright. The video, once again, that I talked about 
earlier, I dislike the imagery. It does not represent me. It 
has nothing to do with me. In a world where people make snap 
judgments about everything across the board day-to-day, for 
artists particularly, especially one, I don't use social media 
for personal purposes. It is literally only my art. I have 
spent years developing my voice as an artist, growing, 
maturing, crafting that into something that is very important 
to me and helps people digest, who I am. So, yes, that is a 
long answer to your question. Yes, it is just as important.
    Mr. Raskin. Well, and if you have got giant rock and roll 
bands, like the Rolling Stones, and Tom Petty, and George 
Harrison's estate, that are wrestling with the President about 
this and are caught up with lawyers, and who knows how much 
money they are spending, is it possible for someone like you to 
chase down people who are essentially tarnishing your 
intellectual product and your artistic legacy online?
    Ms. Kibby. We all know the answer to that question is 
absolutely not. By the way, I am not a green musician. I have 
been in the music industry for 20 years. I make a good living. 
I am not rich. I am not poor. I am, solidly down the middle. 
For me, it is virtually impossible to even consider pursuing 
protecting myself. I must acknowledge Mr. Sedlik. Especially 
working with young people, I see this. I have a couple of 
mentees, and I work with younger people a lot in my industry. 
It really breaks my heart because if it is difficult for me, 
imagine how it is for this next generation of artists that will 
not have the same opportunity to build a financial or create a 
foundation the way that I was able to 15 years ago. So, I am 
very concerned.
    Mr. Raskin. Thank you. Ms. Rose, the gentlelady from 
California mentioned the Church of Scientology as one that, as 
an entity, abuses the takedown orders. I am wondering if you 
know anything about that and if you could describe what they 
have done, and who are the other abusers and how serious a 
problem is that?
    Ms. Rose. So, as far as the specific instance of Church of 
Scientology, I do not have the examples at my fingertips, but 
there have been several documented instances where critiques of 
doctrine particularly, including quotes from some of their 
texts, short quotes meant for the purposes of criticism or 
education, as well as documentation, was in Going Clear, a 
recent documentary about it, also faced some DMCA challenges 
based purely on the desire to silence.
    Mr. Raskin. Well, do you think it is possible people like 
Morgan Kibby, while we prevent abuses by religions that claim 
that their doctrine is somehow copyrighted and protected 
material that can't be quoted by former members or people 
criticizing them?
    Ms. Rose. I think there certainly is. I think that is 
something that is going to require a lot of effort, frankly. If 
we knew what it was, we would have probably figured it out and 
implemented it some time ago. What we need to do is move away 
from the understanding that we had in 1998 where the balance 
being set was one between established content industries and a 
relatively nascent online tech ecosystem, and consumers were 
not explicitly part of that. Now we have passed the point where 
the ability of folks to speak and critique freely is so 
dependent on access to the online ecosystem, we need to make 
sure that consumers and everyday voices are a recognized 
constituency group and help build our policy around that.
    Mr. Raskin. Thank you.
    Mr. Stanton. Congressman Raskin, your 5 minutes are up. The 
next up will be Congresswoman Garcia. The plan right now is to 
continue to go through all the Members' questions--
    Ms. Garcia. I am trying to get this unmuted.
    Mr. Stanton. --so that we don't stop for votes, but votes 
are happening right now. Congresswoman Garcia?
    Ms. Garcia. Thank you, Mr. Chair, and thank you to the 
Chair for bringing this important bill to the table. I wanted 
to start with Mr. Band. Mr. Band, libraries occupy a unique 
space in providing public access to the internet. I can tell 
you that without a public library in several areas, and I grew 
up in a rural area, so every time I go home, I hear this from 
my sister. She has got to go from the farm into town to go to 
the library to be able to use the internet. The libraries still 
play a very important role in America. So, what part of this 
section 512 framework is most important for libraries being 
able to carry out their functions, and, given their unique 
role, can and should libraries take extra steps to educate 
users about the function of copyrights to provide compensation 
for authors and creators?
    Mr. Band. Thank you very much for the question. The most 
important part of the DMCA for libraries is section 512(a). It 
is called the safe harbor for mere conduits, and so it makes 
sure that if you are providing broadband access, that you are 
shielded from liability for any infringing activities of your 
users if you are not part of what they are doing. The potential 
for damages could be enormous. Mr. Schruers alluded to this 
case involving Cox where it might be liable for about $1 
billion in damages. So, protecting libraries from that is 
incredibly important, and it enables libraries around the 
country to continue providing services for people who need it.
    Ms. Garcia. Moving forward, I mean, a lot has happened 
since this was first enacted, and now we are dealing and 
wrestling with what changes need to be made. Moving forward and 
looking at the role libraries will play in the future, is there 
anything that we need to do today to prepare for the changing 
times?
    Mr. Band. Well, I think that preserving the basic framework 
is the most critical thing, and to remember that, as others 
have said, that the internet ecosystem is incredibly diverse. 
You have large players. You have small players. You have for 
profit. You have nonprofit. The legal framework needs to remain 
relatively simple so that you don't have sort of a one-size-
fits-all and you don't have technological mandates because, 
again, there is such a tension between different interests. In 
particular, libraries are often interested in representing the 
interests of their users, right? The amazing thing about the 
internet is that it allows all of us to become artists and 
speakers and allows all of us to share our views and our 
perspectives with the world. This is where, it really 
intersects with the First Amendment.
    Ms. Garcia. Thank you.
    Ms. Garcia. Thank you. In the interest of my time because I 
have got little time left, Mr. Sedlik, I had a question for 
you, and just in simple words, 25 words or less, if I could ask 
every Panel Member, beginning with Mr. Sedlik. This all sounds 
complicated if anybody's watching, unless they are really 
experts in this field. Tell me in 25 words or less why it 
matters to the everyday constituent in my district that we pass 
this bill. I mean help me connect the dots here. Why does it 
matter?
    Mr. Sedlik. To which bill are we referring?
    Ms. Garcia. I am sorry. The bill that we are discussing 
today.
    Mr. Sedlik. Updating the DMCA?
    Ms. Garcia. Yes, sir. What does all this really mean, the 
changes to section 220? How does the average person buy into it 
and even care what we are talking about today?
    Mr. Sedlik. My short answer is that creators depend on 
having for a limited time the ability to benefit from their 
creations, and then the ownership and the access and the use 
passes to society. The DMCA is supposed to provide a fair means 
for creators to be able to create and have an incentive to 
create, and for OSPs to be able to have safe harbor when using 
creative works that are uploaded by their users.
    Mr. Stanton. Thank you very much. Congresswoman, the 5 
minutes is up, and I appreciate those questions.
    Ms. Garcia. Thank you, Mr. Chair. I yield back.
    Mr. Stanton. Thank you, Congresswoman. Next will be 
Congressman Correa.
    Mr. Correa. Thank you, Mr. Chair. I want to thank Chair 
Nadler for holding this most important hearing, and I want to 
thank our guests today, our witnesses, for your time and 
interest. As we think about DMCA 1998, 22 years have gone by, 
and you have the evolution of the internet. I look at the 
internet as a distribution system, so to speak, where small, 
creative artists can market your products and get compensated 
for what you do, because at the end of the day, all of us enjoy 
your music, your songs. The world is much, much better off when 
you are doing what you do best. So, I am going to ask Ms. Kibby 
and Mr. Sedlik, do you believe that the notice and takedown 
system of section 512 is robust enough to effectively handle 
even greater shift in the online environment? Question?
    Ms. Kibby. No.
    Mr. Correa. Why not?
    Ms. Kibby. No. It is just, the parameters for participating 
in the structure that we have, it is not working. We have noted 
earlier there are millions of takedown notices, and yet I still 
see infringement on my rights popping up all the time.
    Mr. Correa. Mr. Sedlik?
    Mr. Sedlik. Yes, it is a distribution system, but it is a 
distribution system for infringements. Ninty-nine percent or 
more copies of my work online are unlicensed, unauthorized 
uses, some being fair use, most being infringements. The DMCA 
gives me the opportunity to pull some of those down, but there 
are millions. In front of my class when I am demonstrating how 
to file a DMCA takedown notice, I can find between 50 and 100 
infringements in 10 minutes every semester, so this is an 
untenable situation for us. The DMCA is a step in the right 
direction, and it needs to be refined. I have provided some 
specific recommendations in my written testimony.
    Mr. Correa. So, a brief answer from all the panelists. 
Since 1998, the ability to automate and detect infringement 
online has improved. Some of the larger platforms have 
developed much better automated systems to detect infringement. 
Is this a benefit that the solo creators and small businesses 
can take part, or is this just a benefit that is really 
reserved for the bigger guys? Please.
    Ms. Rose. I would like to answer that if I may.
    Mr. Correa. Please.
    Ms. Rose. Right now, most of the sort of algorithmic 
detection processes that are available on the market have been 
developed in-house by large established players. These are very 
complex pieces of technology. They are usually designed to be 
proprietary, especially in the case of YouTube's Content ID, 
which is sort of one of the most famous examples. It is 
designed very specifically for YouTube and YouTube's major 
content partners. So, no, this is not something that is 
available to small businesses, small platforms, and it is also 
not available, frankly, to small artists. We have heard from a 
few other folks, my colleagues here on the panel, who have 
testified that this is not made available to small artists in 
any meaningful capacity. So, any sort of private-side solutions 
is necessarily going to reflect the priorities of the 
individuals and organizations who develop it, and that's one of 
the problems we have to wrangle with.
    Mr. Correa. Would the ability to share this technology with 
the small businesses, the individual songwriters, be part of 
the solution?
    Ms. Rose. Potentially. There is some discussion, for those 
who are familiar with the patent sphere, something like a 
standard essential patent where there are licensing obligations 
placed on this kind of technology to license it out under fair, 
reasonable, and non-discriminatory terms, is certainly an 
option. As the market currently stands, it just risks re-
entrenching the market power of the few very, very large 
dominant players who have managed to develop the technology in 
the first place.
    Mr. Correa. Solutions? Anybody? Got 30 seconds.
    Ms. Carrington. So, I would also like to jump in on that 
question. I agree, automated technologies are not made 
available to small players, individual creators, and that is a 
huge problem. The scale of piracy that is on the internet 
today, expecting people to manually find and send takedown 
notices for each instance of infringement is just an 
unrealistic task, and it is an uphill battle that small 
creators just cannot surmount.
    Mr. Correa. Thank you very much. I am out of time. Mr. 
Chair, I yield.
    Mr. Stanton. Thank you, Congressman Correa. Next up will be 
Congresswoman McBath for 5 minutes.
    Ms. McBath. Thank you, Mr. Chair, and thank you to each and 
every one of you for being here to discuss our copyright laws 
today. I am proud to represent Georgia's 6th District, which is 
home to many members of the creative community, especially 
people are involved in film and music and television. I have to 
say, probably outside of California and New York, we have now 
become one of the largest environments for the creative 
technology and creators of television and movies and music. 
These creators, of course, and some like yourselves today, 
bring much to our lives by sharing your talents. They are 
sharing their talents, movies that inform and inspire us, 
television shows that we watch with our loved ones, and music 
that we dance to through every stage of our life. We rely on 
graphic artists, too, when we send cards to a friend that we 
can't see in person, which I am sure we are having a lot of 
success doing that in COVID-19, and when we wear tee shirts to 
express our views, and when we hire photographers to document 
our most special moments.
    Our world is so much richer because of the creative minds 
among us, and, like I said, those of you that are with us 
today. We have got to make sure that our laws are serving the 
needs of persons such as yourselves, and this is especially 
important right now as we continue through a health crisis that 
has closed concert venues and limited the operations of music 
and film studios. I believe that we can maintain the internet 
as a critical place for the spread of information and ideas 
while also making sure that our artists can actually make a 
living.
    Ms. Kibby, your testimony resonated with me, and I did read 
it. It resonated with me because I have heard from many 
working-class musicians, as you put it, from my own district. 
You emphasize that copyrighted infringement is especially 
damaging to musicians who are early in their careers or are 
still thinking about whether their talent is something that 
they want to continue to pursue professionally. Can you 
elaborate on your experience working with and mentoring 
emerging artists and how they are thinking about these issues 
that we are discussing today?
    Ms. Kibby. Yes, thank you for the question. It is 
terrifying for them if I can be completely blunt. The pandemic 
has just robbed us of one of the remaining viable ways to make 
a living. You used to be able to hop in a van, and even if it 
wasn't comfortable and it wasn't plush, you could tour and make 
some money to get by. Now that is not even available to large 
artists who are canceling multimillion-dollar tours and who 
employ hundreds of people. It is just so saddening talking to 
one of my mentees. She has to live with her mother, and she 
doesn't know when she is ever going to be able to move out. She 
is not able to participate in any active live shows and can't 
even network with people now because she can't physically be 
around people. It is kind of a conundrum.
    Ms. McBath. Well, thank you so much for that, and I would 
like to move on. Mr. Sedlik, I have read your testimony as 
well, and thank you so much for the recommendations that you 
made for revisioning section 512, to make revisions to 512. The 
recommendations in your written testimony include prohibiting 
service providers from publishing creators' names, addresses, 
phone numbers, and emails, and you mentioned that publishing 
this information has led to shaming and threatening creators. 
Can you expand on these incidents and the reforms that you are 
recommending, that you are suggesting?
    Mr. Sedlik. Thank you for the question. So, when we as 
creators, create our works initially, we do so with the 
expectation that we are going to be able to benefit from them 
over time. The first initial use for which the work is created 
is only the first in a long chain of a lifetime of uses, over 
our lifetime and our heirs' lifetime, of our works, and those 
might be very different types of uses. For example, I might 
create a book, and it will later be used on tee shirts without 
my authorization, in magazines and newspapers for various 
commercial uses, and so my ability to protect my work overtime 
is absolutely essential. I lost my train of thought there, so I 
am going to yield my answer.
    Ms. McBath. Thank you. I yield back. Thank you for your 
answers.
    Mr. Stanton. I am going to yield 5 minutes to myself. One 
of the concerns that I have heard about changing section 512 
are the barriers for entry to new businesses. Uncertainty due 
to changes in the law and not being able to afford litigation 
on copyright infringement can cause new and smaller businesses 
not to compete all together. This is a question for any of the 
witnesses who would like to answer. What are some of the ways 
that these concerns can be alleviated if section 512 is, in 
fact, changed?
    Mr. Schruers. If I may, unless somebody else wants to go 
first.
    Mr. Stanton. Jump in, please.
    Mr. Schruers. All right. I guess what I would say is at the 
outset, my testimony points out that arguably, section 512 is 
not the low-hanging fruit of the Copyright Act. While we 
acknowledge there are problems that affect creators as well as 
users who are often the target of misuse that my testimony 
describes in greater detail, providing additional certainty and 
mechanisms around encouraging the promotion of creative works 
online is likelier to provide greater benefits in the long run. 
To achieve that, we would look to modernizing the copyright 
system to make licensing information more available and easily 
accessible to ease the speed with which a willing buyer can 
find a willing seller and license those works.
    Mr. Stanton. Any other witness who would like to answer 
that same question?
    Ms. Carrington. Yes, thank you. I would also like to answer 
that question.
    Mr. Stanton. Please.
    Ms. Carrington. So, I think it is very important that OSPs 
come to the table and engage in the kind of cooperation that 
Congress intended. To your question about innovation and new 
businesses, it is important to remember that no one is 
expecting that a small OSP or a new fledgling platform is going 
to implement the same level of an anti-piracy program as, say, 
Google. Our expectations are that the scale of an OSP's anti-
piracy program is commensurate with the level of infringement 
and piracy on their site, so that is definitely not going to be 
a barrier to entry. It is the price to play. Creators are being 
hurt by piracy, and OSPs absolutely have a responsibility to do 
something about that.
    Mr. Stanton. Thank you very much. Any other witness like to 
answer the same question, impact on small businesses and what 
can be changed to improve that?
    Mr. Band. If I may, I would just add that it is important 
to recognize that if this hearing were held 10 years ago, we 
would be having a very different conversation. At that point 
you would be having a lot of the large content providers, the 
motion picture studios and so forth, bringing their concerns 
and talking about how the service providers are not addressing 
their needs and the threats they are under. Now, because a lot 
of the problems of the large providers have been addressed 
through things like Content ID, the problem is different. It 
has evolved, and it is a more targeted issue, obviously 
something that we need to come up with a solution to, but it is 
important to recognize that the problem has evolved. It is, in 
many ways, a much narrower problem, in its own way, it is a 
harder problem to address because it is easier to figure out 
how to work with motion picture studios and harder to figure 
out how to address the enormous variety of individual artists.
    Mr. Stanton. I thank you very much. I will yield back the 
rest of my time, and now will turn to Congresswoman Mucarsel-
Powell. Congresswoman, 5 minutes?
    Ms. Mucarsel-Powell. Yeah. Thank you, Mr. Chair, and thank 
you, the witnesses, again, for coming. I represent South 
Florida, Florida's 26th District, and Miami is home to some of 
the biggest Latino creators in the industry. I wanted to shift 
a little bit and ask you, maybe starting with Ms. Kibby then 
Mr. Sedlik, some people have mentioned that they would like the 
United States to move towards a notice and stay down approach 
where OSPs must make efforts to take down infringing material 
and prevent similar infringement in the future or open 
themselves to liability. So, do you know of other countries 
that have effectively implemented such a system that we should 
look at as a model?
    Ms. Kibby. I will let Mr. Sedlik take that question.
    Ms. Mucarsel-Powell. Okay.
    Mr. Sedlik. We have to be very careful with notice and stay 
down, but at the same time, we need to find a solution. When I 
put my work up, it comes down within a few days and then it 
comes right back up, and there needs to be a solution to that. 
I can't keep up with this whack-a-mole type of [inaudible]. So, 
what needs to happen is a notice and stay down procedure that 
does not stifle free speech and does not stifle fair use. It is 
important to recognize that my work itself is free speech. My 
photographs are free speech. The infringement that is occurring 
is inhibiting and chilling my ability to exercise my right to 
free speech, so it is a two-way street.
    Ms. Mucarsel-Powell. Does any other witness have any 
information on models that have worked in other countries that 
we can look at moving forward?
    Ms. Rose. Yes. So, I think the closest approximation right 
now is the European Union implemented or passed a new copyright 
directive recently. The states, individual member states, are 
still in the process of implementing the copyright directive 
into their individual laws. So, we actually have a very 
interesting situation right now where we essentially have a lot 
of sort of test runs of a lot of these potential or proposed 
changes to copyright law. That will take a few years for those 
implementations to happen, and then there will be inevitably 
legal challenges to various aspects of it. In this case, the 
U.S. has the benefit of being able to observe what happens in 
the wild as these proposals move forward over the next several 
years.
    Ms. Mucarsel-Powell. Thank you, Ms. Rose. Before we close 
down, one last question. I know that other nations have 
actually implemented systems that place more responsibility for 
negative externalities on service providers, and some advocates 
for service providers have argued that this inhibits 
investigation, and that the U.S.'s more relaxed system allows 
it to maintain its position as a leading Nation in technology. 
Do you have any evidence that would support this?
    Mr. Schruers. I think, if I may, this is Matt Schruers, 
representing a number of those industry constituents, I think 
the fact that the U.S. technology industry is the envy of the 
world and digital exports are one of our fastest-growing export 
sectors is illustrative of the fact that we have struck the 
right balance, that we got it right, which is not to say that 
there are not problems. I think we have talked about 
challenges, but among all the other alternatives, this is the 
best path forward. While we still have challenges to deal with, 
no one else has managed to do it better. I would note that the 
Copyright Office, for example, does not recommend implementing 
the highly controversial system that Europe is looking at it in 
part because they simply haven't figured out how to say if you 
have a stay down obligation, if a work is taken down for an 
infringing use today, but it is the subject of a lawful use 
tomorrow, how does one thread that needle? There is no good 
explanation for that, at least that I have heard, and certainly 
I haven't seen any European member states come up with that. I 
would say we have managed to strike the right balance.
    Ms. Mucarsel-Powell. Yeah. Thank you, Mr. Schruers. Look, I 
think we have to protect people, artists like Ms. Kibby, that 
have to continuously work through a system where she can't even 
talk to someone directly. She must go through this process on 
Twitter or whatever other platforms she is using. We need to 
find solutions and I think that it is important to look at what 
is working in other places and what we can really study here so 
that we can bring that balance, so thank you. Thank you to all 
the witnesses. I yield back my time.
    Mr. Stanton. Thank you very much, Congresswoman. I see no 
further Members here to ask additional questions, so this 
concludes today's hearings. We thank all our outstanding 
witnesses for participating.
    Without objection, all Members of the Committee have 5 
legislative days to submit additional written questions for the 
witnesses or additional materials for the record.
    Without objection, this hearing is adjourned. Thank you, 
everybody.
    [Whereupon, at 2:29 p.m., the Committee was adjourned.]
      

                  QUESTIONS AND ANSWERS FOR THE RECORD
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

RESPONSES OF PROFESSOR JEFFREY SEDLIK TO CONGRESSMAN STANTON'S 
                    QUESTIONS FOR THE RECORD

    1. Section 512 was enacted in 1998, more than 20 years ago. 
It took the Copyright Office more than 5 years to write the 
report on section 512. It seems to me that although technology 
certainly does move fast, solutions to the problems at hand are 
coming slowly. My question for all of the witnesses is: If 
Congress and stakeholders do not come back to the table and 
work together on ways to modernize and section 512 and find 
solutions to the issues we have discussed here today, what will 
happen to the Internet and to the stakeholders that use section 
512?

    Witnesses representing Online Service Providers ( OSPs) at 
the hearing claimed that the DMCA is working as intended, and 
that nothing is broken. Most OSPs continue to ignore the very 
real problems with section 512 because their business models 
rely in great measure on their exploitation of infringing 
material uploaded by their users. Most OSPs are unwilling to 
participate in any process that may disrupt that business 
model, or prevent them from continuing to profit handsomely 
from rampant piracy and from the infringement that they 
continue to facilitate on their platforms, with impunity.
    Section 512(i) and other provisions of the DMCA are 
currently structured in a way that encourages collaboration 
among stakeholders only in the event that copyright owners and 
service providers agree that a problem exists and requires a 
remedy. But OSPs continue consistently deny and downplay the 
scale of piracy and infringement occurring on their platforms, 
and claim that all is well, and that everything is working just 
as Congress intended when drafting the DMCA. OSPs are well 
aware that the loopholes and ambiguity in section 512 play 
heavily in their favor. OSPs have every incentive to maintain 
the status quo by discouraging and delaying efforts to 
collaborate on standards, and by opposing statutory and 
regulatory revisions that might limit their ability to continue 
profiting from the rampant infringement occurring on their 
platforms, and thereby tilt the scales of the online 
marketplace into equilibrium.
    Meanwhile, small creators and copyright holders complain 
that loopholes, ambiguity, and other shortcomings of section 
512 are facilitating and perpetuating infringement and other 
abuses of their creative works, devaluing those works and 
impeding or even destroying their businesses. OSPs persistently 
leverage the inadequacies of section 512 to frustrate rights 
holders' desperate attempts to protect their creative works 
against infringement on OSP platforms. Facing widespread repeat 
infringement, cumbersome takedown forms on OSP websites, and 
tactics employed by OSP DMCA agents to discourage rightsholders 
from completing the takedown process, many creators find that 
attempting to enforce their rights under the current section 
512 is a hopelessly useless endeavor.
    After decades under the section 512, we have a system under 
which one stakeholder group (the OSPs) thrives while claiming 
that all is well, while the other stakeholder group (creators 
and copyright owners) suffer horribly, persistently complain of 
serious, ongoing problems endangering their businesses. This is 
not a sign of a balanced system. This is not a system working 
as intended. By carefully structuring their business models to 
exploit the loopholes and weaknesses of the DMCA, the OSPs have 
built empires, monetizing infringing content without fear of 
liability, and enjoying rapid and explosive growth. OSPs are 
among the most wealthy and powerful companies on earth. 
Meanwhile, creators and copyright owners struggle desperately 
to survive in a marketplace where infringement of their works 
is the rule, not the exception.
    The loopholes in the DMCA must be closed. Ambiguity must be 
resolved. All stakeholders must be held accountable for their 
inaction. The development of a clearly articulated intent to 
adopt a balanced system, weighing the equities and interest of 
all stakeholders, is a good starting point.
    The community of visual artists has been and continues to 
be devastated by the massive scope of online infringement, and 
is already seated at the table with Congress, eager to 
cooperate with OSPs to remedy the proven inadequacies of 
section 512. Unfortunately, OSPs continue to insist that all is 
well, and refuse to take their seats at the table and roll up 
their sleeves to collaborate on developing and implementing 
corrective measures to achieve a more balanced, effective 
system.
    In refusing to recognize the well documented points of 
failure in section 512, OSPs are filling their coffers while 
destroying the livelihoods of small creators and discouraging 
the progress of the arts envisioned by Congress in article I, 
section 8, Clause 8, of our Constitution.
    The community of visual artists has been and continues to 
be devastated by the massive scope of online infringement, and 
stands ready to cooperate with OSPs to propagate systems ``to 
detect and deal with infringements that take place in the 
digital networked environment'' as intended by Congress.

    2. One of the concerns that I have heard about changing 
section 512 are the barriers to entry for new businesses. 
Uncertainty due to changes in the law and not being able to 
afford litigation on copyright infringement can cause new and 
smaller businesses to not compete altogether. What are some 
ways that these concerns can be alleviated if section 512 is in 
fact changed?

    Concerns that revisions to section 512 will create barriers 
to entry for new businesses are biased, misplaced, and 
misguided. These concerns focus solely on OSPs, ignoring 
existing, long term, formidable barriers to entry for small 
creators whose survival depends directly on revenue from 
licensing their copyrights for authorized uses on the internet, 
and who are unable to sustain their businesses due to rampant 
infringement by OSPs, who infringe with impunity due to 
unresolved loopholes and ambiguity in the section 512.
    Under the current section 512, OSPs enjoy unfettered access 
to copyrighted creative works, exploiting those works to 
attract users in order to ultimately generate advertising 
revenue, while knowing or having reason to know that the 
majority of the works uploaded to their platforms are 
infringing material. OSPs profit unfairly by exploiting 
copyright protected works on a massive scale, without the 
knowledge or permission of the copyright holders, while hiding 
in the safe harbor of section 512, in a manner never envisioned 
by Congress.
    When entering the marketplace, new, small OSPs have access 
to technologies that would, if implemented, reduce, and nearly 
eliminate infringement on their platforms. These new OSPs need 
not develop new technology for this purpose. The technology has 
been available for decades, it is readily available, at low 
cost, for integration in any OSP platform. The integration of 
these technologies is a small price to pay for OSPs, who build 
their businesses on the backs of creators and copyright owners 
while offering little or no compensation.
    The barrier to entry is real, but it is faced by creators 
unable to monetize their copyrighted works in an environment of 
widespread, legalized infringement by OSPs and their users.

    3. Just this morning the U.S. Copyright Office launched a 
website dedicated to the Digital Millennium Copyright Act which 
consolidates information and resources about various aspects of 
the Act including section 512's safe harbors and notice-and-
takedown system. The Copyright Office found in its report that 
education resources about notice-and takedown system may help 
``alleviate certain imbalances in the section 512 framework by 
reducing the number of inappropriate notices and counter-
claims.'' This is certainly a step in the right direction, but 
what more can the Copyright Office do to restore these 
imbalances?

    Section 512(i) of the DMCA conditions OSP safe harbor 
eligibility on not interfering with Standard Technical Measures 
(``STMs'') that ``have been developed pursuant to a broad 
consensus of copyright owners and service providers in an open, 
fair, voluntary, multi-industry standards process.'' The 
Copyright Office should be directed by Congress to more 
aggressively encourage and facilitate collaboration by 
stakeholders on the development of STMs, and to promote and 
enable the development of networked, interoperable public and 
private registries to provide OSPs and the public with ready 
access to rights holder information necessary to identify 
copyrighted works made available on the internet.
    Toward those ends, in 2002, Register of Copyrights Marybeth 
Peters urged the photography industry to facilitate a 
consultative, multi-industry process to develop an STM for 
visual works, for use by all industries and the public. Acting 
on Register Peters' advice, the photography industry then 
approached publishers, advertising agencies, design firms, 
museums, libraries, OSPs, RROs, educational institutions, stock 
photography agencies and others. In 2004, stakeholders and 
groups from all of these industries formed the industry-
neutral, non-profit PLUS Coalition. I helped found the PLUS 
Coalition and currently serve as President.
    In an open, fair, voluntary, multi-industry process, with 
intensive participation by over 1,500 representatives from all 
of the above-described industries, and with input from OSPs 
such as Microsoft, Yahoo and Google, the PLUS Coalition then 
developed standards and guidelines supporting the use of 
embedded rights metadata as an STM for visual works, in all 
industries. The PLUS standards were then integrated within 
other, pre-existing standards, and built into software and 
tools employed by all industries and communities engaged in 
creating, distributing, using, and preserving visual works.
    The PLUS standards do not impose substantial costs or 
burdens on service providers or their networks. Since 2006, the 
PLUS standards, in combination with mature technology to embed 
and read data in digital files, has been used by copyright 
owners to identify and protect copyrighted visual works, and is 
employed by users and intermediaries to identify rights holders 
and rights information pertaining to visual works. For 
reference, I provide four examples:

          i. PLUS standards for embedded rights metadata are integrated 
        in the cross-industry IPTC Photo Metadata Standard, the global 
        standard for image metadata, used in all industries and user 
        communities as an STM to identify rights holders and rights 
        information for visual works, and to protect those works.
          ii. PLUS standards field ``Licensor URL'' for embedded rights 
        metadata has been adopted by Google and integrated in Google 
        Images as an STM to allow users of Google Images to identify 
        rights holders and rights information for visual works, and 
        thus to protect those works.
          iii. PLUS standards for embedded rights metadata are 
        integrated in Adobe applications utilized by more than 15 
        million users globally as an STM for visual works, to identify 
        rights holders and rights information and thus to protect those 
        works.
          iv. PLUS standards for embedded rights metadata are 
        integrated in ExifTool, the primary tool employed to read and 
        write embedded image metadata for the purpose of identifying 
        rights holders and rights information as an STM for visual 
        works, and thus to protect those works.

    Embedded metadata for photographs and other visual works is 
a mature technology, broadly employed in and recognized by all 
manner of devices for more than 30 years. By embedding rights 
metadata in their works, visual artists provide all OSPs with a 
means by which OSPs can employ automation to identify works, 
authors, and rights information at any scale. OSPs can in turn 
employ automation to Act on that information at scale, and to 
make that information available to the public engaged in 
accessing works distributed and displayed by OSPs, just as 
Google has done by adopting a PLUS standards rights metadata 
field for identifying rightsholders and rights information in 
Google Images.
    The PLUS Coalition is an example of a successful voluntary 
initiative to create and broadly deploy an STM, allowing 
creators and copyright owners to embed standardized copyright 
management information within digital photographs, where that 
metadata can be readily accessed and acted upon by online 
service providers (OSPs) and the public.
    Unfortunately, the PLUS Coalition is a rare example of a 
successful STM initiative. Many well- intentioned efforts to 
develop effective STMs never get past the conceptual stage due 
to a lack of incentive and desire on the part of OSPs. Under 
section 512, if an OSP doesn't like a proposed STM, it can 
simply abandon an initiative or agreement and thereby claim 
that the technology or system was not developed with a broad 
consensus of service providers and is not a qualified STM under 
section 512.
    OSPs must come to the table and make a good faith effort to 
collaborate on development and implementation of effective 
STMs. By revising section 512 to ensure that OSP safe harbor 
eligibility is premised on OSP participation in development of 
STMs, more successful STMs will be developed, resulting in 
widespread, significant improvements for all stakeholders.
    As I wrote in my testimony, service providers need to be 
encouraged to collaborate with creators and other stakeholder 
groups to implement non-proprietary, opt-out and opt-in 
registries, available for voluntary use by creators and rights 
holders. OSPs should be required to check all uploaded works 
against those registries prior to reproduction, storage, or 
display. For visual works, image recognition technology is 
readily available, scalable, highly accurate, and perfectly 
suited for this task. In addition, OSPs should be required to 
search embedded metadata to identify rightsholders and to 
discover infringing works.
    Embedded metadata and digital watermarks should also be 
formally recognized as STMs, and service providers should be 
required to maintain and preserve all metadata and digital 
watermarks in all files uploaded to their platforms, as a 
condition of safe harbor eligibility.
    Finally, the Register of Copyrights should be granted the 
authority to establish and maintain a public listing of 
recognized STMs.
    Lastly, a point of clarification. As noted in the Copyright 
Office report on section 512, there has been nomulti-industry 
process to develop a single, universal STM with the OSPs, for 
application across a broad spectrum of content types. However, 
such an STM is an impossibility, as technical differences 
between the different types of content prevent the possibility 
of creating a single STM that can be applied across all types 
of content, STMs can and should be developed for each type of 
content (musical works, motion pictures, books, etc.) as the 
PLUS Coalition has done for photography and the visual arts.

    4. What is the one change that you would like to see to 
section 512 and why?

    In my testimony, I detail twelve revisions to section 512 
that will help to achieve a balanced, effective system, such as 
revising and clarifying knowledge requirements, recognizing 
meaningful STMs, and encouraging voluntary initiatives. All of 
my proposed revisions will improve the DMCA, but most needed is 
a provision updating the notice and takedown system to remedy 
the widespread ``whack-a-mole'' issue, in which infringing 
content is immediately reposted to OSP platforms immediately 
after a previous infringement is removed by an OSP in response 
to a DMCA takedown notice submitted by a copyright owner. The 
next section 512 must provide for a notice and stay-down, 
requiring that OSPs take action to prevent their users from 
successfully reposting infringing content after it is removed 
in response to a legitimate DMCA take down notice.
    OSPs argue that implementing a notice and stay-down system 
would be overly burdensome and ineffective. However, many of 
these same companies and services have developed far more 
sophisticated technologies to harvest our data, curate content 
for us, and target us with advertisements. The burden should 
not be on copyright owners and creators to monitor for 
infringement. In all fairness, as OSPs profit from the 
distribution and display of infringing content while benefiting 
from safe harbor under section 512, OSPs should shoulder the 
burden of policing and enforcing infringement on their 
platforms.
    In addition to the revisions enumerated in my testimony, 
the counter notification procedure described under 512(g)(2)(C) 
should be revised to provide the rights holder with 30 days to 
file an action seeking a court order. The current statute 
requires that copyright owners identify an attorney in the 
applicable district, contact that attorney, retain that 
attorney, secure information sufficient to determine venue and 
other details required in a complaint, and file an action, all 
within ten days of receipt of a counter notification, or the 
OSP will replace that content within four days of the tenth 
day, further damaging the copyright owner. After infringing 
content is restored due to a counter notification, many OSPs 
then refuse to accept further takedown notices from the 
copyright owner for that same infringing material. The ten-day 
requirement creates an untenable if not impossible burden for 
both copyright owners and OSPs, and must be revised to 
accommodate practical considerations.
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                MS. KIBBY RESPONSE TO QUESTIONS

                    Congressman Greg Stanton

    Statement:
    More than 20 years ago, the policy makers who pioneered the 
Internet Age worked together to craft Section 512 of the 
Digital Millennium Copyright Act. Section 512 was created to 
protect ``original works of authorship'' under copyright law by 
providing safe harbors for online service providers. One of the 
provisions of that law sought to balance a copyright owners' 
ability to protect their works with the responsibility of an 
online service provider to remove the content from a website. 
Providers who comply with that provision - what is known as 
"notice and take down" - can limit their liability.
    All of us know, though, that since that law was passed, the 
Internet has changed significantly, far beyond what any of us 
could have imagined in the late 1990s. We use the Internet to 
learn, to watch movies, TV and user-created content, to buy and 
sell, to set the thermostat in our homes and so much more. With 
this exciting growth have also come significant challenges for 
copyright owners who have an inherent right and need to protect 
their content.
    One of the most prevalent forms of copyright infringement 
is online streaming. In fact, illegal streaming now accounts 
for 80 percent of digital piracy including illegally streamed 
music, movies, and shows.The recent report by the Copyright 
Office considered whether Section 512 is currently working for 
all parties that use it. Their finding was that "the original 
intended balance has been tilted askew" and that notice and 
take down notices have not fixed or even weakened digital 
piracy. The report also found that while online service 
providers are generally satisfied with Section 512, artists and 
content creators are not, and in my view, are justified in 
feeling so.
    We need to modernize Section 512 to meet the challenges of 
the modern age. Congress must be mindful of the concerns on 
both sides of this issue and realize that remedies will have to 
be scalable to the issue in the Internet ecosystem. A solution 
that works for a small business might not work for Facebook. 
One fix will not solve every problem. Like many of my 
colleagues and witnesses here today, I also believe that we 
must strike the right balance between combating digital piracy 
without stifling innovation or free speech. I appreciate the 
testimony I have heard so far today and look forward to working 
with Chair Nadler, Ranking Member Jordan, and stakeholders on 
finding solutions that are sustainable and helpful to creators 
and the platforms that host the content.

                           Questions:

    For all witnesses:
      Section 512 was enacted in 1998, more than 20 
years ago. It took the Copyright Office more than 5 years to 
write the report on Section 512. It seems to me that although 
technology certainly does move fast, solutions to the problems 
at hand are coming slowly. My question for all of the witnesses 
is: If Congress and stakeholders do not come back to the table 
and work together on ways to modernize and Section 512 and find 
solutions to the issues we have discussed here today, what will 
happen to the Internet and to the stakeholders that use Section 
512?

          The current application of section 512 has already cost so 
        many of my fellow creators their careers and their livelihoods. 
        In light of the additional harm COVID-19 has wrought on 
        creatives, if we don't address the shortcomings of 512 and, 
        more appropriately, its implementation, many more will have no 
        choice but to abandon their craft and the digital marketplace, 
        our culture, will suffer.
          Of course, failing to correct section 512's deficiencies will 
        allow irresponsible companies to disadvantage and prosper at 
        the expense of other businesses--particularly smaller and newer 
        ones--that obtain the proper licenses and responsibly address 
        any infringing activity on their platforms. Edging out smaller 
        players through unethical and unfair means under the cover of 
        section 512 is a threat to growing and legitimate businesses, 
        to creators, and to the marketplace itself. We don't allow 
        brick and mortar businesses to be driven by illicit activity 
        and we can't allow the Internet to be either.

      One of the concerns that I have heard about 
changing Section 512 are the barriers to entry for new 
businesses. Uncertainty due to changes in the law and not being 
able to afford litigation on copyright infringement can cause 
new and smaller businesses to not compete altogether. What are 
some ways that these concerns can be alleviated if Section 512 
is in fact changed?

          Section 512 was created more than 2 decades ago, in part to 
        help fledgling Internet businesses get their footing in a 
        nascent online environment. The law provided them significant 
        protections and now, today, many of those businesses are 
        multibillion-dollar international behemoths. They are raking in 
        money off content while creators of that content like me, are 
        barely making a living. The true risk in NOT addressing the 
        shortcomings of section 512 is to the millions of smaller 
        creators out there who struggle to make ends meet as they are 
        expected to comb the vast depths of the Internet to find the 
        infringements preventing them from making a return on their 
        investment.
          In addition, the real risk to smaller businesses, and the 
        actual reason they may be unable to compete, is that an 
        ineffective section 512 gives an unfair competitive advantage 
        to companies that are able to offer infringing and unlicensed 
        works with impunity. A section 512 that worked as Congress 
        intended would not only stop the infringing activity through an 
        effective notice and STAYDOWN system, it would preclude many of 
        these illicit and undeserving businesses from qualifying for 
        the safe harbor in the first place, which would benefit smaller 
        businesses playing by the rules.

    Just this morning the U.S. Copyright Office launched a 
website dedicated to the Digital Millennium Copyright Act which 
consolidates information and resources about various aspects of 
the Act including Section 512's safe harbors and notice-and-
takedown system. The Copyright Office found in its report that 
education resources about notice-and takedown system may help 
``alleviate certain imbalances in the section 512 framework by 
reducing the number of inappropriate notices and counter-
claims." This is certainly a step in the right direction, but 
what more can the Copyright Office do to restore these 
imbalances?

          Education is an important component in establishing an 
        effective notice and takedown system, and the Copyright Office 
        is uniquely positioned to offer that. The Copyright Office 
        could also be instrumental in helping to establish standard 
        technical measures used to recognize and stop infringing 
        activity. Congress included these STMs in section 512 and 
        expected their implementation based on a broad consensus of 
        participants, but for two decades tech companies have refused 
        to come to the table to establish them. And why should they? 
        The current operation of Section 512 creates an imbalance that 
        benefits tech companies at the expense of creators. 
        Establishing STMs would increase their responsibilities and 
        interfere with those benefits. With prompting by Congress, 
        however, the Copyright Office could serve to bring the parties 
        together and finally establish, as intended, the STMs that 
        could help prevent the mass infringement now occurring online.

      What is the one change that you would like to see 
to Section 512 and why?
    Ensure that, when infringing works are taken down, they do 
not reappear. Works that are removed due to a takedown notice 
are routinely--and often automatically and instantly--reposted. 
There is no reason that a creator like myself should have to 
send a repeat notice for the same work, on the same platform, 
and often by the same user, ad infinitum. It's no wonder so 
many of my colleagues have decided to give up--their jobs had 
transformed from creating their art to searching for 
infringements of it. Endlessly. That's not a livelihood, it's 
debilitating and creative purgatory. It robs us of agency and 
of focus. Takedown should effectively mean staydown. That is 
what Congress intended and that is the only way section 512 
will be successful.

       Questions for the Record From Rep. Reschenthaler:

    You identified Twitter as a platform that makes it 
difficult for creators to effectively enforce their rights 
through the notice-and-takedown process. Would you elaborate on 
the problems associated with Twitter's copyright infringement 
policies, and how you think they should be doing things 
differently?

          Twitter is an incredible platform with some brilliant 
        technical minds behind it that is very capable of doing more. I 
        wish there were more will and desire to address the key 
        problems regarding infringement that they are well aware of and 
        more than capable of entering into nitty-gritty dialogue about 
        how to fix.
          Unfortunately, like so many other digital platforms, I know 
        both anecdotally from colleagues and from my own experience 
        that Twitter largely fails on both ends--notice and takedown. 
        The platform makes it difficult to figure out how to send 
        notices and then can take an eternity to remove an infringing 
        work. And then, of course, when a work is finally taken down, 
        it almost always pops right back up and we have to start all 
        over again. So, yes, on paper technically we have rights but, 
        under such an inoperative system, we effectively have none as 
        it pertains to effectuating a just outcome.
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