In conjunction with the United States Copyright Office’s public study on the effectiveness of the “safe harbors” for online service providers contained in the Digital Millennium Copyright Act (“DMCA”), this month the Copyright Office hosted a series of public roundtable discussions about the effectiveness of the DMCA’s safe harbors.
Background: The DMCA Safe Harbors & the Notice-and-Takedown Regime
The DMCA provides “safe harbors” to protect online service providers (“OSPs”) from copyright infringement liability for user-posted content—provided they cooperate with copyright owners to police and prevent infringement on their sites. The law was adopted in 1998, when Congress was afraid that liability for user-posted infringements might slow tech-sector growth. The safe harbors are sound in theory, but, as the Guild argued in written comments we submitted as part of the Copyright Office study, the safe harbors “have been interpreted by the courts in a manner that leaves individual creators with no recourse against online piracy”—no recourse, that is, except the notoriously frustrating and ineffective notice-and-takedown process.
The first set of sessions was held at Manhattan’s Thurgood Marshall Courthouse on May 2 and 3. Authors Guild executive director Mary Rasenberger participated in these roundtables, as did two individual Guild members, Damon DiMarco and Hilary Johnson. The Copyright Office then held a second set of discussions for west coast stakeholders at the James R. Browning Courthouse in San Francisco on May 12 and 13, where Authors Guild council member T.J. Stiles represented the concerns of individual authors. DiMarco’s and Stiles’ accounts of the proceedings are quoted below.
Takeaway #1: Notice-and-Takedown Is Just Not Working for Creators
The first two sessions at each of the venues focused on notice-and-takedown, the process by which copyright holders can request that OSPs remove infringing material from their sites. The Copyright Office, represented by Jacqueline Charlesworth and Karyn Temple Claggett, opened the New York proceedings by observing that the written comments revealed a “wide chasm” between those who think the DMCA is working well (Internet service providers, generally) and those who think it’s fundamentally flawed (representatives of the creative industries, generally). The roundtable talks, naturally, reflected the same chasm between viewpoints.
Regarding notice-and-takedown, creators underscored the difficulties of the system, such as OSPs demanding additional requirements of notice-senders, the need to agree to an OSPs terms of service before sending a notice, and the speedy reappearance of infringing works once they’ve been taken down. As author (and AG member) Damon DiMarco explained:
the current DMCA policy places authors in an existential game of Whack a Mole. Take one copy of your work down, three more pop up. Repeat, repeat, repeat. Meanwhile, our industry’s ecosystem withers from the bottom up. If the powers that be were this lax in enforcing instances of car theft, stock market fraud, and homicide, we’d all be riding bicycles, impoverished, or dead.
Each time a standard frontlist e-book is pirated rather than purchased through a normal retail channel, its author forgoes what would have been nearly $2 in royalties. T.J. Stiles, recent recipient of his second Pulitzer Prize, spoke about the very real costs of even a small amount of piracy:
To small creators, the DMCA seems designed to fail. Putting the burden on individuals to police the entire Internet is absurd. The cost of piracy in direct terms (i.e. lost sales) is hard to measure, of course, but given the small absolute size of the market for certain works, even a very small amount can be devastating. . . . [E]ven after the Pulitzer the total sales of my newest book [Custer’s Trials] are only 38,000 copies (as of last week). Merely a few hundred pirated copies equals a mortgage payment, a few months of health insurance, etc. Then there are the opportunity costs, the lost time from searching and sending out takedown notices. . . . [P]ublishers are authors’ business partners, not employers, and the support they provide on the piracy front varies widely. Penguin Random House has a centralized takedown-notice service, and works with services like Digimarc, but small presses and self-published authors have to take on the load themselves. Even in my case, I spend perhaps twenty minutes a day finding pirate sites that host my books, copies hosted on Google Docs, and videos on YouTube that advertise free downloads of my books on pirate sites. It’s all time that is lost to creating.
On the other side of the chasm, the online service providers tended to argue that notice-and-takedown is working well for creators, or else complained about the burden of receiving “defective” takedown requests. DiMarco expressed his dismay at their position.
“I went [to the roundtables] to assure representatives of the federal government that, from an author’s perspective, Internet piracy is hurting our industry, destroying the incomes of middle-class authors, and eviscerating the time honored notion that copyright can protect intellectual property,” he said. “Now imagine my shock when I found myself seated with representatives from multi-billion dollar conglomerates, some of whom stated that e-book piracy isn’t a problem, and any attempts to stop piracy would infringe on their freedom of speech. I couldn’t make that up if I tried.”
Takeaway #2: Courts Have Interpreted the DMCA to Favor the Tech Sector
A subsequent roundtable session explored courts’ interpretation of the DMCA, particularly the legal battles that have been waged over what type of knowledge or awareness of infringement should render an OSP ineligible for safe harbor protection. Representing the Authors Guild, Mary Rasenberger argued that courts require such specific knowledge of infringement that OSPs effectively get a free pass for enabling and profiting from user-posted infringements, while content owners are left with the notoriously ineffective notice-and-takedown system as their only recourse. At the heart of the DMCA is a bargain struck between copyright owners and service providers so that creativity could be free from piracy on the Internet and that Internet service providers’ potential secondary liability for infringing content posted by their users wouldn’t cripple innovation. The OSPs’ free pass, Rasenberger noted, removes any incentive for OSPs to cooperate with rightsholders to combat piracy; additionally, the fact that knowledge of infringement could lead to liability leads many OSPs to avoid policing their sites.
Takeaway #3: The DMCA Has Left Individual Creators Behind
The shortcomings of section 512 are felt particularly acutely by individual creators, who are affected by piracy on the same scale as corporate copyright holders, but who lack the resources to effectively combat it. Many publishers, record companies, and film studios have the resources to outsource notice-and-takedown and to negotiate filtering or other arrangements with OSPs, either directly or through the services they hire. Independent authors do not even have access to these imperfect solutions.
At a session exploring how voluntary agreements between content owners and OSPs could help solve the piracy problem, Rasenberger noted that, while voluntary agreements are well and good, the fact is that, to date, individual creators have been left out of the bargains, which have been struck between OSPs and major content corporations. Maria Schneider, an award-winning composer, enumerated the ways the DMCA has promoted the interests of Internet corporations over those of individual artists. “Do we want a culture that’s controlled by one company?” she asked.
Next Step: Reply Comments Likely
As the Copyright Office continues its study, the next part of the process will likely be an opportunity for stakeholders to submit a round of reply comments responding to other entities’ original comments or remarks at the roundtables. The Guild will be participating in the reply round, and we’ll be sure to keep the interests of individual creators at the heart of the conversation. As Stiles noted of the San Francisco roundtables, “the most heartbreaking stuff came from the musicians, small labels, and indie filmmakers. New releases being massively pirated within minutes—minutes—of release, and they get no return on their efforts to fight it. One filmmaker broke down and cried describing how he lost his life savings within a couple of days of release. Story after story like this.”