Importance of Natural Resources

Section 512 Study Roundtable – Section 4


>>Maria Strong:
Thank you everybody. We’re going to have our
final formal session of this afternoon. This is a session
on international. Just as a reminder, there
will be an open mike that follows immediately
after this panel. There is a sign up sheet on
the back table on the wall. So, if you could please sign up in case you would
like to participate. As mentioned earlier,
both panelists and members of the audience are
free to participate so jut please sign up. My name is Maria
Strong Deputy Director of International Affairs. We continue to be
joined by [Inaudible], Kevin Amer Deputy
General Counsel. And, we’re joined this afternoon
with Emily Lanza Counsel and Policy International
Affairs as well. So, welcome to this session
on international issues. And, as we indicated in
the round table, notice, participants in this session
are quote invited to identify and discuss recent law
and policy developments in other countries that
bear on issues related to the effectiveness,
ineffectiveness, and or impacts on online service provider
liability since early 2017. So, this session on
international issues is intended to supplement the record
for our report to Congress. As you know, many of our
reports, including those on the Making Available
Right, Small Copyright Claims, Resell Royalties, Orphan
Works, just to name a few, do contain discussions of copyright related
activities and developments. So, the companies and creators
on this particular panel, this table, are involved in the
global creation and distribution of copyrighted content and some
may have businesses as well as enforcement operations
in other countries. So, the office believes that
your views and experiences in participating in other
regimes outside the United States will be very informative
and insightful for this study. So, as you can tell, we have
the largest panel of the day, the most time, and we
have plenty to talk about. So, let’s get started with a
45 second introduction tour de table. For scheduling issues, I’m
going to invite Carlo Lavizzari of International STM
Association to start first. And, then we’ll go back in alphabetical order,
thank you so much.>>Carlo Scollo Lavizzari: Good
afternoon, thank you very much. So, I’m a lawyer in private
practice Lenz Caemmerer and I’m the legal counsel
to the STM Association which does not stand for
standard technical measure. It is Scientific Technical
Medical publishers, some 38 members that publish
science technology medicine but also arts, humanities, and
social science publications. Together, they represent
about 65% of what is being
published in those areas. So, picking up on the panels,
we have had the pleasure of listening to, earlier today,
I’m thinking in, I will focus on European developments. And they’re, I would say, the
internet, in the last 30 years, has not be static and the
developments are dynamic in Europe, basically,
moving from a system of platform liabilities and safe
harbor to one of responsibility. And, that is not just
borne by legislation but especially by case law. Case law in a European country
such as Germany, France, Italy, Spain, the UK, for the time
being, and also by the Court of Justice of the
European Union. The question today in Europe is
not how to fix a broken notice and take down wac-a-mole system. The question is, how
do platforms deal with their responsibility? How do they discharge the
duties that they have, and not in a one size fits
all way, but based on the risk that they introduce based
on these service models that they have chosen
for themselves?>>Maria Strong:
Thank you very much. Mr. Adams.>>Stan Adams: Good afternoon,
I’m Stan Adams with the Center for Democracy and Technology. Through both our DC
and Brussels office, we advocate for an
open internet, one in which all people can
express themselves freely. While we view Articles
11 and 13, or whatever their
current numbers are, the EU Copyright Directive
is fundamentally problematic to free expression. We continue to believe that Section 512 preserves
an appropriate balance between interests and
abilities of stakeholders in the online ecosystem. It’s worth noting that,
although the internet and the web are incredible
tools for the marketing and distribution of content. Those are not their
only functions. It is important to remember that the web is also the
default option for sharing and expressing between people. Section 512 is a foundation on
element for this capability, giving rise to many of the
platforms that allow creators of all kinds to share
their [inaudible] with more people
than every before. The EU has removed this
foundational stability.>>Maria Strong: Thank you. Mr. Cady.>>Eric Cady: My
name is Eric Cady. I’m Senior Counsel with
the Independent Film and Television Alliance. Thank you for the opportunity to
continue with this participation in the Section 512 study
and for today’s discussion on service provider liability
infringing content online. This continues to be a global
problem for IFTA members who are faced with massive
online infringement with no way, under current law, to prevent
or stop the introduction and rapid proliferation of illegal copies
across the internet. IFTA represents more than
145 companies in 23 countries around the world, the
majority of which are small to medium size US based
businesses that have produced, financed, and distributed many of the world’s most
prominent films including 80% of the Academy Award
winning films since 1980. In terms of developments,
we are encouraged by the European Parliament’s
recent approval of the copyright
directive to the extent that it recognizes the serious
need to rebalance the notice and take down framework
with respect to online content sharing
service providers, which, to date have had no
incentive to discourage users from further uploading
infringing content because that content drives
revenue to the platforms. And, we look forward to
discussing these issues further. Thank you.>>Maria Strong: Thank you. Ms. Coffey.>>Danielle Coffey: Hi
I’m Danielle Coffey. I’m with the News Media
Alliance and we represent over 2,000 news publishers in
the U.S. and internationally.>>Maria Strong: Hold the
microphone closer to you.>>Danielle Coffey:
Can you hear me? Danielle Coffey with
the News Media Alliance. We represent 2,000
publishers, news publishers. And, we, I spend most
of my days making sure that we have a better
business arrangement through favorable regulatory
treatment which will lead to a business model to
sustain quality journalism. And, I think we can all
agree that that’s critical to an informed democracy
and a civic society. And, thank you for
having us here today so that we can represent the
news media’s views with regard to Article 11 the EU Publishers
Right, which is now known as article 15 in the
Copyright Directive, which we hope will be
passed expeditiously.>>Maria Strong: Thank you. Mr. French.>>Alec French: Hi,
Alec French here with Thorsen French Advocacy. I have a number of creative
community clients, but, I’m not speaking on any
of their behaves today. Rather, I’d like to speak as
someone who’s been an advocate for creators since before
Section 512 reared its ugly head as the legislative price to
pay for the rest of the DMCA. I want to focus on one
aspect of Article 13 or now 17 adopted by the EP. Specifically, the different
obligations Article 13 applies to large and small UGC sites. I think it’s a really
reasonable principle that the U.S. should consider
adopting more broadly. The Europeans clearly
decided innovation by internet startups
would not be impacted by requiring companies with $500
billion market caps and more than $100 billion in cash
on hand to secure licenses from rights holders
and filter and keep that infringing material. Similarly, limiting
the availability of current Section 512 to internet startups will not
impair their ability to innovate but may prevent, Section 512 C
in particular, from continuing to operate as a legislative
license for multi-billion dollar
companies to ignore and profit from infringement with impunity. In short, the big
versus small distinction, drawn in Article 13, is one European export I think
we should welcome in the U.S.>>Maria Strong: Thank you. Ms. Friedman.>>Ashley Friedman: Hi
there, can you hear me? My name is Ashley Friedman. I’m the Senior Policy Director of the Information
Technology Industry Counsel. ITI is a trade association
representing about 70 companies in the hardware, software,
internet semiconductor, syntax, basically all aspects of
the technology sector. We do business, or our companies
do business in every market in the world and we cover,
from a policy perspective, pretty much every policy issue
that impacts the text sector. We appreciate the
opportunity to be here today to exchange our views and hear
from the others on the panel. Because, really, from
us, the DMCA, overall, and this section particular, is
really fundamental to providing that balance between
innovation and Trump actions. So thank you.>>Maria Strong: Thank you. Mr. Lamel.>>Joshua Lamel: Thank you. Thank you for the
opportunity to speak today. I am the Executive
Director of Re:Create. My coalition members
are very concerned about recent developments
in Europe. Specifically, we are concerned
about the impacts of Articles 15 and 17 formally 11 and 13. I hope today we’ll get
the opportunity to talk about the impact they’ll
have not just in Europe where European consumers,
innovators, and creators will be harmed,
but also here in the U.S. where it will have an impact on American investment
in the internet. Many smaller startups, you can’t
meet the test under the bill, as well as the operations of
large U.S. internet platforms and U.S. creators who will have
a lot more trouble reaching the American market. Since the last round table,
two things have changed. Number one, profits are up
in the creative industry. Number two, piracy is down. And, I think those are
two important things that have changed
over the last two and a half years
that we need to note. Additionally, we’ve seen
exponential growth in the amount of creators choosing to forgo
traditional internet industry intermediaries and reach
the audiences directly through platforms like
Amazon Publishing, YouTube, Tic Toc, Etsy and many more. We recently did an extremely
conservative estimate that only looked at
nine of these platforms and only the top
source of income on each of these platforms and found that approximately 17
million Americans are creating and distributing content online without traditional
intermediaries. Some are doing so for fun,
others are still trying to make it, while
others have turned into their own small businesses with their own employees
while making a nice living. And Europe’s new copyright
directives threatens all of their ability to do so. Thank you.>>Maria Strong: Thank you. Mr. McCoy.>>Stan McCoy: Good afternoon. I’m Stan McCoy and I
run the European arm of the Motion Picture
Association. We support the EU approach to
no fault injunctive relief, reflected in Article 8.3
of the 2001 directive. As to liability, we would
suggest that you look to recent ECJ case law rather than the new EU directive
as the model. While the original proposal
to clarify communication to the public, and that
directive was good, in the end, we find we have to agree with European audio visual
sector rights holders who dislike the burning
consistent notification rules in Article 17, dislike
its emphasis on licensing where AV needs enforcement
and dislikes it’s UGC language which contradicts the Commission
Zone impact assessment. The ECJ has done
much better in cases like the Pirate Bay
and Film Spoiler. I’d be happy to talk at
greater length about any of those subjects if you like. Thank you.>>Maria Strong: Thank you. Ms. McSherry.>>Corynne McSherry: Hi,
my name’s Corynne McSherry and I’m the Legal Director for the Electronic
Frontier Foundation. EFF’s been involved in most
of the Section 512 litigation over the past two decades either
as amicus or lead counsel. And, I was lead counsel on
the Lenz case, which I’m more than happy to talk
about at length. But, that’s not why
I’m here today. I’m here to focus my remarks
on Article 17 in particular. EFF worked very closely
with our partners in Europe to oppose the inclusion
of Article 17 in the new Copyright Directive. And, we did that because we know that Article 17 would inhibit
online expression forcing service providers to
embrace upload filters. EFF, at EFF, we understand that
the work we’re doing here today, in thinking about
copyright policy, when you’re formulating
copyright policy, you’re formulating speech
policy and innovation policy. That is what we are
talking about here today. And, we understand that. If, as we expect, we’re
going to see the adoption of upload filters across Europe
in order to avoid liability, those filters are, inevitably,
going to flag lawful as well as potentially infringing
content. Why do we know this? Because we have a decade of
experience with content ID. What we have seen in content ID, in which YouTube has
invested millions of dollar, despite that investment, content
ID regularly misidentifies all kinds of content, bird
songs, white noise, public domain performances,
clear fair uses like clips and lectures. So, we know that those
mistakes are going to happen. And, for those who say well, those mistakes are
the exception, Stan Adams actually pointed out that roughly 300,000
new YouTube videos a day, a system that incorrectly
flags only 1/10th of a percent of them, still removes or
blocks 300 lawful posts. That’s a lot of lawful speech and that’s what we’re
talking about. So, that’s just one of
many reasons that millions of internet users, not to
mention the technologists who built the internet and
the U.S. Special Repertoire on Free Expression all
spoke out on Article 13. I hope this office will
as well, in your report and expressly recommend against
importing this very bad policy to the United States.>>Maria Strong: Thank you. Ms. Oyama.>>Katherine Oyama:
Good afternoon. I’m Katie Oyama with Google. We do agree that the DMCA
has allowed for an exclusion of creativity and
economic growth. It’s led to the development
of robust anti-piracy tools. Today, the internet enables more than $27.7 trillion a
year in global eCommerce. And, the growth of these
legitimate online services, made possible by the
balanced U.S. legal approach, has also driven billions
of dollars to the entertainment industries that might otherwise
be lost to piracy. We’re really happy to see that
global box office revenue is up, global recorded music
revenue is up. On the specific topic of
the EU Copyright Directive, we believe that the
directive will not help but will rather set
Europe backwards. We believe that it will
harm Europe’s creative and digital economy. Unlike the recently
passed U.S, law, the Music Modernization
Act, which was a win, win, win for rights holders,
for users, for platforms, the EU Copyright Directive
posses a potential for massive and traumatic consequences
particularly an over-blocking of content as platforms become
fearful of additional liability. And, the details will matter and
the implementation will matter. And so, we look forward
to working with, in particular the member states as the directive is
implemented across Europe. Thank you.>>Maria Strong: Thank you. Mr. Rosenthal.>>Steven Rosenthal: Hi,
my name is Steve Rosenthal.>>Maria Strong: Sorry.>>Steven Rosenthal: I was
wondering why you skipped.>>Maria Strong: Mr.
Randle, my mistake.>>Christopher Randle:
No problem. Chris Randle with Facebook. It’s great to be here today. Facebook has submitted
previous comments. And, we want to reiterate
our strong support today for the USDMCA framework. We also wanted to
update the panel today on the innovative
steps we’re taking to protect intellectual property
rights, all of which are enabled by the strong imbalanced
DMCA approach. The purpose of the DMCA was
to encourage collaboration between rights holders
and platforms to effectively combat piracy. And, that is entirely
inline with our approach. And, we’re excited
about the new tools and partnerships we’ve been
developing over the past years. For example, we’ve invested in building our video
matching tool, Rights Manager, which provides control to rights
holders regarding their content on Facebook. This is in addition to
our decade long employment of Audible Magic in investment in building the cumbersome
Ads IP Tool. These are important
illustrations of how this kind of collaboration
can lead to real and effective technical
solutions, but only if it’s voluntary,
adaptable, and flexible. Over the past few years, we’ve also been developing
strong partnerships with rights holders
in all sectors. We’re proud that we empower
content creators of all types with new avenues of
sharing their content, driving offline viewership, and publicizing their
new creativity. We partner with various
rights holders including those in the music, entertainment,
and publishing industries. Our partnerships has resulted in testing new monetization
structures that support news publishers
subscription base models. The flexible legislative
frameworks like the DMCA allow us to take
into account changing needs and new market solutions
in order to offer rights owners top
IP tools for protecting and promoting their content. We look forward to sharing
additional views today.>>Maria Strong: Thank you. Now Mr. Rosenthal.>>Steven Rosenthal: Thank you. My name is Steve Rosenthal. I’m Senior Director
of Anti-piracy for McGraw Hill Education. Take you back on the E 512 age
discussion of last section. One of the tools that
rights holders rely on to enforce their rights against pirate websites is the
WHOIS System that is intended to identify who is responsible for a domain name
or an IP address. Having this identifying
information is integral to pursuing the operators
of these infringing sites. However, the goal of resources like WHOIS has recently
conflicted with the interests of the EUGDPR that seeks
to restrict public access to details of private
individuals including those operating these sites. We have seen a number
of incidences where identifying data,
previously available on a WHOIS or similar search result,
was suddenly redacted and hidden from public view. At the same time, we
have seen a proliferation of content delivery networks such as Cloudflare
providing services that annonymize the identity
of online service providers in the pretext of
furthering security interests. This impacts the rights
owner’s ability to enforce against the bad actors. Unfortunately, the DMCA subpoena
process often provides no alternative solution
to this problem as these subpoenas
many times lead to useless inaccurate
identifying information which is self-recorded
by the infringer. These impediments negatively
impact rights owner’s ability to effectively enforce
their rights.>>Maria Strong: Thank you. Mr. Schruers.>>Matthew Schruers: Thank you. My name’s Mat Schruers. I’m with the Computer and Communications Industry
Association Trade Association of Internet and Tech
Firms, which ranges in size from small startups
to household names. At the same time that
there’s growing consensus over the protection and
obligation of the DMCA and that approach is
being increasingly adopted by our trading partners
overseas, there’s a unique
exception to that which is the increasing
uncertainty emanating from Europe about its
own approach, which, until now has been
more in harmony with the U.S. approach
than in conflict. But, that is starting to change. With respect to the
U.S. approach, there’s a recent research report
actually released by CCIA Today, the latest in our Sky is Rising
series, demonstrates data from numerous third party
content industry organizations shows growth across the
creative sector indicating that the current notice and
take down system is working. By contrast, the extraordinary
controversy over and criticism of Article 13-17 of the EU
Directive, from all sectors, as we’ve already heard
from other speakers, ranging from creative industry
interest, academics, startups, civil society, and human
rights organizations, all of that criticism suggest
that the EU is out of step with the U.S. norm and increasingly the
international norm. And, that’s creating
great uncertainty which we should regard with
some skepticism, if we’re going to take any policy lessons
from that, other than that. This is a source of business
investment deterrents and potential risk
to free speech and consumer expression
interest. Thank you, I look forward to
discussing the issue further.>>Maria Strong: Thank you. Ms. Simpson.>>Lui Simpson: Lui Simpson, Association of American
Publishers. AAP encourages the U.S.
Copyright Office to take account of the disruptive effect
website blocking has on blatantly pirate sites. There are now some 40 countries
with a website blocking statute or are considering its adoption. In Europe alone some
1,800 websites and over 5,300 domains
have been blocked. And yet, despite these blocks, the internet has not
and is not broken. Publishers haven’t successfully
pursued the remedy six European countries against a
notorious pirate site engaged in providing unauthorized
access to SCM journal articles. It is high time the U.S. looked to adopting additional
meaningful tools to enable rights holders
to tackle online piracy as a mere take down
is not enough to effectively address
the nature and scope of online piracy that
rights holders face today.>>Maria Strong: Thank you. Mr. Siy.>>Sherwin Siy: Thank
you for the opportunity. My name is Sherwin
Siy, I’m here on behalf of the Wikimedia Foundation. We are the nonprofit that supports various
projects including Wikipedia, actually Wikipedia’s in
nearly 300 different languages as well as Wikimedia Commons. We are very concerned
with the provisions of the European Copyright
Directive recently passed, particularly formally
article 13 now article 17. And, I think, in contrast
to some suggestions that have been made, I don’t
believe that it is a good model for proceeding in
copyright policy. This is, in part, because it is
just passed and its results are, I think, unclear and how it will
effect the online ecosystem is unclear both in its provisions and its implementations
in member states. Beyond its novelty, there’s
also the uncertainty, within it. There’s tension between
some of the recitations and its previsions and tensions
within the previsions themselves that raise a lot of the issue
that we’ve been discussing for the previous
several hours as well in more settled legislation
in the United States. Beyond this, I think I’d
also like to make the point that Wikipedia’s and Wikimedia
Commons occupy an interesting space in this discussion in that
they are very large websites, at least very prominent
websites with a very small staff with a very large user base and
a very large contributor base, but, that exist for
very specific purposes that aren’t often discussed
in these conversations. And, the effects
of these policies on a fairly unique system
like ours and many others that don’t fit the model
of the general purpose, general purpose sharing
site often get ignored. Thank you.>>Maria Strong: Thank you. Ms. Vollmer.>>Abby Vollmer: Thank you
for convening this panel. I’m Abby Vollmer, Senior
Policy Manager at GitHub. GitHub is the world’s
leading platform for developers to
build software. And, from the perspective
of software development, we’re driving innovation
across countless industries. And, a safe harbor has been
essential to enabling innovation to thrive over the
past few decades. GitHub itself relies
on the safe harbor because software is subject
to copyright and the notice and take down system has
generally worked well for us. When we learned of the proposed
Article 13 now Article 17 in the EU, we were
very concerned because it puts the safe harbor, that software development
relies on, at risk. We were able to secure a carve out for open source
software developing and sharing platforms. But, there are countless
other services that software developers
are building that are not within the scope
of that exclusion. This underscores the fact that
tinkering with the safe harbor, in the way that the EU policy
makers did, puts the economy and innovation at risk. I made a few trips to
Brussels and I spoke directly with EU policy makers there over
the course of the negotiations of this directive, and, I’d
be happy to chat with you and look forward to
today’s discussion. Thank you.>>Maria Strong: Thank you. Ms. Wolbers.>>Rachel Wolbers:
Last but not least. I’m Rachel Wolbers, the Policy
Director at Engine a nonprofit that advocates on
behalf of startups. The internet allows
entrepreneurs to scale quickly by reaching a global audience. But, in order for American
startups to thrive, foreign markets must offer a
similarly balanced copyright framework like the one we
have in the United States. Recent developments
and copyright law, notably the EU Copyright
Directive, will stifle American startups
and reduce competition abroad. Article 13-17 forces
startups and other platforms to use expensive and ineffective
content moderation tools to please user generated
content and the start up [inaudible] is not workable. The impact of this
directive will likely be felt across the world as
startups are forced to re-imagine their
global presence and restrict user
generated content. Thank you for the opportunity.>>Maria Strong:
Thank you very much. So, we have a busy agenda today. I’m hearing a lot from the table
about the concern over Europe. And, that’s understandable. I do want to accomplish, at
least, through the session, issues on liability and,
you know, various kinds of notice systems
around the world. Second, how do we view
effectiveness in other markets? Third, what is the
status of cooperation between local ISP’s
and rights holders? That was the subject
that came up in some of our earlier sessions today. And, last, but certainly
not least, the scope of injunctive relief and availability of
website blocking. And, I’m sure several of you
will speak to trends on that. But, if we started the first
kind of bucket, which will be, you know, notice systems and
liability, I think we just need to sort of start with Europe because that is right
in front of us. So, I’m going to start
off with a little bit of a softball question. Realizing that, as
you’ve noticed, that this was just
recently adopted, it’s still not been
finally adopted. There’s two years
of implementation, 27 or 28 different ways. But, what I’d like to hear from you is what might be
your top one or two issues that you see in the directive? Because, as I think, as Ms.
Wolbers so accurately noted, is that will this directive
require American companie and users, whether
you’re stakeholders or on the content side, how will
it effect your doing business in Europe? And then, thinking ahead, how might that effect
your business doing here? So, I’m looking for, you
know, one or top two issues with the directive, whether
it’s the definitions, the big small issue,
the liability issue, I’m curious to know,
since we have a lot of experts at the table? The flag is up and
Mr. Lavizzari.>>Carlo Lavizzari: Thank you. Well, I think that the
talk two issues are to what extent do article 17
codify really the case law that has been created by the
Court of Justice, specifically on active platforms, platforms
that are structurally infringing and that are accordingly held
themselves not to be able to hide behind the user not to
pertain that they’re standing in the user’s shoes
but are in fact, carrying out the
communication to the public. In this regard, two
cases, YouTube and Elsevier are
cases pending in front of the Court of Justice. And we are very eager to see to
what extent they will now take into account the Article 17 and hopefully see the
previous case law confirmed. The second issue will be the
not the different standards for platforms, how they carry out their responsibility,
will that change? The Court of Justice will have
different standards depending on the risk profile. If you choose to have
unidentified anonymous users, you are held to a much
higher standard, and, to make sure the risk you create through your business model
does not negatively effect copyright holders. We would hope that
this case load that is quite robust is not
impaired by the promises of licensing that
Article 17 also creates.>>Maria Strong: Thank you. Ms. Simpson.>>Lui Simpson: So, we don’t
think Article 17 is actually going to be a problem. Within the recitals it does
say that this is intended to be a clarification
to existing EU law. So, if you look to the
German Court cases, I know it’s going back to 2017, but the Rapporteurs case
actually was a clear annunciation of the [inaudible]
principle in German law. And, it made clear in that
case that, as Carlo mentioned, if you have set up your
platform so that it does intend to facilitate infringement, you’ve actually taken
upon yourself to undertake certain
responsibilities as enunciated in [inaudible]. And so, that does not
change with Article 17. So, obviously, there are
uncertainties with respect to how individual countries
will implement that statute. But, the fundamental position
here is that EU law is sound with respect to how its case law
has developed on the question of platform responsibility and not just reliability
an safeguards as Carlo and, I think, also as Mr.
McCoy has stated.>>Maria Strong: Thank you. Ms. Vollmer.>>Abby Vollmer: So, I think
that the number one problem, from our perspective,
is filtering. And, even though, like I
mentioned, there is a carve out for open source
software platform so, and GitHub itself seems to be
okay with respect to the EU. There’s so much else that
goes on that’s important for software development
and important for innovation that’s not there. And, whether or not the statute, the directive actually
says the word filtering, the reality is the requirements
are going to incentivize a lot of platforms to filters
that they don’t have to potentially subject
themselves to liability. And so, I just want to say
a few words about, for us, why filtering is
very problematic. So, GitHub is the home
of open source software. Open source refers to
open source licensing. And, that’s a form of copyright. So, software developers who
choose to license their code under an open source license,
there are various licenses but there are four main tenants
that freedoms that are present in open source licenses. So, the ability to
study, the ability to use, the ability to modify, and
the ability to redistribute. So, rights holders, that
are software developers, who’ve created software
code and are sharing that on the internet,
want it to be shared. And, they’re not
making money off of that and GitHub is not making
money off of that either. So, this is, you know, it
took a lot of conversations with policy makers in
Brussels but, this is kind of where we’re coming from
that hey, if you’re going to legislate on this level,
you need to really think about the kinds of
content that’s copyrighted on the internet and
figure out whether the way that you’re going about applying
requirements is actually helping all rights holders or not. Because, in our case, if
that content disappears, not only is that cutting into the open source software
holders rights, but also, that way that code is built
collaboratively online, means that you have hundreds
of different dependencies, like blocks of code, their
all licensed potentially differently, and if a
filter, if a false positive from a filter detects block a
code and that disappears, then, you’ve got a broken
software project. So, I understand this is, you
know, not necessarily applicable to all kinds of content. But the point I want to
make is that, you know, we really do need to
be thinking nuance here about how we go about
doing things. And, as I mentioned,
even though we are able to carve ourselves out,
we’re very concerned about the bigger picture
and everything else that didn’t get carved out.>>Maria Strong:
Thank you point taken. Mr. Siy.>>Sherwin Siy: Thank you,
yes, as the recipients of another carve out, I’m aware
that our potential liability under this might be limited,
though, I will, you know, the online encyclopedias are
only one part of our projects. I would argue, I
would want to argue that our other projects would
similarly being excluded from and considered an, considered
within the scope of Article 17. However, I think we are
concerns remain that, you know, should we be found
to be included or should additional projects
be found within the scope? There is this unresolved
tension between what it means to make best efforts to obtain
authorization for content that we do not intend
to be on our projects. Even with Wikimedia
Commons, which is devoted to hosting media, that, it’s
devoted to hosting media that is either in
the public domain or that has been
granted a license, an open license by its creator. And, even certain types of creative commons licenses
would not be permissible under the rules for creators
to upload to Wikimedia Commons. So, we have no intention of
hosting, on Wikimedia Commons, even perfectly legal works that
would be hosted under fair use. And so, the question of what
it takes to seek permission for those uses at the same
time and make best efforts to obtain those authorizations
is an open question and also what it means
to make best efforts to insure unavialability
of works while also trying to insure that various
other previsions are met such as not preventing,
not resulting in prevention of lawful uses being, you know,
not resulting in the prevention of lawful uses, not leading to to general monitoring
obligations, and so on.>>Maria Strong: Thank you. Mr. Cady.>>Eric Cady: Thank you. So, from IFTA’s perspective,
Article 17, it’s not perfect legislation. It’s the result of a
very lengthy process. A lot of political compromises
were made during that process. But, we do take two
positives from Article 17. The first being that
it’s premised on getting authorization. The second being that the
larger platforms would have to prevent future
uploads of notified works. So, from that perspective, we
are encouraged by Article 17, we look forward towards
working with the Commission in their stakeholder dialogues
that will be forthcoming and local implementation
throughout the 2020.>>Maria Strong: If I
can follow up with you. Given the world wide
nature of your IFTA members and the way you license
and finance films, could you say a little bit more about how you see the shall
obtain an authorization, especially from the
licensing point of view?>>Eric Cady: It’s an
interesting question. And thank you. In IFTA members license
on an exclusive basis. So, the premise of these
platforms obtaining the authorization may not work out. IFTA members may not want to license these
works to the platform. So, that’s one challenge
that we’re going to have to face during this process. But, you’re right, it
does have the potential to vastly impact the way that members finance
their productions.>>Maria Strong: Mr. Lavizzari,
you may also have comments on the authorization point.>>Carlo Lavizzari: Yeah, I
think, one of the beauties of the emergent case
law and article 17 is that it creates sort of an
incentive now for platforms and right holders to cooperate, which is perhaps lacking
in the 512 context. So, right holders do want works
to be available for authors of scientific works
to share their work. So, there is ample opportunity
now to come up with reasonable, with reasonable policies that
will not lead to a stifling of freedom of expression
or of works that should be available
not being available. Quite the opposite,
STM’s members, for a long time already now,
use artificial intelligence to deal with plagiarism. And, some of you notice that
from student days, Turnitin, that there are many more
sophisticated other options and identifiers. And, we are very eager to
work with the platforms that now have very good
incentives to work with us to devise a system that
will work with everybody.>>Maria Strong: Thank you. We have a bunch of cards up. We’re going to go with Mr.
McCoy, Ms. Oyama, Mr. Schruers, Ms. Simpson again, and
then back to Ms. McSherry. So, almost around the corner. Stan.>>Stan McCoy: I’ll
be, I’ll be brief. Thank you. I’ll take your question
as an invitation to expand on the first two
points that I mentioned as criticisms of Article 17. And, I should say that we
strongly disagree with a lot of the criticisms you’re
hearing around the table here. But, the question
here is, you know, what you should look
upon as a model. And, we do have some concerns
about the way this piece of legislation wound up. One of them is burning
consistent notification requirements. And here, I’m referring
to paragraph 4 where the structure
says that, you now, online content sharing service
providers shall be liable unless, and then it has some
subsidiary requirements, one of which is to act expeditiously upon
receiving sufficiently substantiated notice. So, you have liability
that only kicks in there when a formality has
been accomplished. And that, of course,
raises concerns under the Burn Convention. We would have preferred that, along with other AB
Sector rights holders that the EU legislator wait
until after the decision on the YouTube cases that
have been referred now which wills squarely address
some of the same issues that are in question here. And, the second point that
I mentioned was emphasis on licensing over enforcement. I just want to emphasize,
in my remarks here that, for many rights holders, the
idea of licensing UGC platforms, for example, is not something
they’re particularly interested in because they’re functioning on exclusive distribution
models. So, for those rights holders, the really key thing
is enforcement. So, to the extent that this
provision really emphasizes the need to obtain a license, it
leaves us a little bit concerned about how it’s going to be
implemented for the benefit of those rights holders who are
really allowing, really relying on the ability to
enforce their rights, although the implementation
of filtering solutions, along the lines of these
sorts of things, that entities like Google already have
in place, is one, you know, promising step that we
could look forward to here.>>Maria Strong: Thank you. Ms. Oyama.>>Katherine Oyama: Thank you. In terms of primary concerns,
I think it’s like tempting to dive into the weeds. But, when we are looking at
the EU Copyright Directive, we’re first just
taking a step back. And, our primary
concern is the conflict between the two frameworks and
the potential for conflict. You know, up until now,
as Mr. Schruers said, there has been relative harmony
between the DMCA safe harbors, the eCommerce directive. From the perspective of a
service provider, we know that, if we’re notified
by rights holders, notified by our partners
that there is infringement on our platforms, we
can then take action. There’s a significant shift in the approach the EU is taking
leaving open the possibility for direct liability for a
service provider for any type of content that anybody uploads. And, that does inject
significant confusion, fear, legal risk, and legal
uncertainty. One place, in particular,
that we would like to be really focused
on and implementation through discussions of policy
makers would be making more clear what is sufficient
notice for a platform to act. In the final version, there were
some positive steps taken beyond where the parliament had
landed which is this concept that platforms that are
making a good faith effort to help rights holders identify and protect works should not
face direct liability based on these best efforts. But, there’s a real
need for clarity around what those best
efforts look like. And, how we work with rights
holders and partners, what, are there specific URL’s? Is there specific information
in the way that we’ve been able to work in particular
with content ID where we can work
very collaboratively and understand the
intent of right holders? We’ve seen a huge benefit
from user uploaded content, user generated content. If we were at this round table,
you know, five years ago, the idea of users uploading was
much more controversial and even on YouTube we saw the majority
of rights holders, when notified that a user had uploaded content
that matched their rights, they would set to block. And now, the vast majority
choose to leave the content up on the platform and choose to
monetize, in fact, on YouTube, more than 50% of
revenue that we send out to music rights holders,
we’ve sent more than $6 billion out to the music industry,
more than 50% of the revenue that we’re sending
out is generated from claims against UGC. And so, that’s the
real concern is that this will harm not only
EU creators but U.S. creators. For U.S. creators, more than
60% of their views comes from outside of the
United States. And so, if service
providers operating in the EU are still fearful
of this direct liability and so uncertain of what
it takes for them to act, there is this a significant risk of over-blocking
this type of content.>>Maria Strong: Thank you. Mr. Schruers.>>Matthew Schuruers: Thanks. So, to summarize
my primary concern, my answer to the question in a
nutshell, it’s a manifestation of the deficiencies of
the EU approach in dealing with intermediaries
liability for user contact through what is essentially a
direct liability lens as opposed to an indirect liability lens. The way that translates into specific concrete problems
is primarily in paragraph 4 of the article, which was
previously alluded to, which requires this obligation
to secure a license for, effectively, all communications
on the platform and then to insure the unavailability of
that, while, it’s worth noting, there are obligations
elsewhere in the directive to insure the availability
of particular content like parities but not satires. And, because there are
interpretations of communication to the public in
making available right that attach liability at the
moment of availability, then, that results in, essentially, unmanageable filtering
obligation. And then, add on top
of that the obligation to prevent the future upload
of all problematic works when the only technologies that
are really proven for that, and they are imperfect
technologies, pertain audio visual works,
and yet, the article is not so similarly circumscribed. And so, we have a situation
where the system has, the legislative proposal
has created mandates to implement technologies
that have not yet been deployed
in the marketplace.>>Maria Strong:
Thank you Ms. Simpson.>>Lui Simpson: So, going
back to address the notion of filtering, I think,
yes, there may be concerns about how it is implemented
and how well it’s done. But frankly, the European Union
is all about proportionality and reasonableness of measures. And those standards re
already in their law. So, when you look at, again,
the German case law, you have, you don’t have a
general obligation to filter or to monitor. But, according to that case
law, once you have been notified of infringing content
on your platform, there does arise
the responsibility to take additional measures
to prevent the re-upload or the reappearance of
the infringing content. So, it’s not coming
out of nowhere. The existence of the obligation of responsibility is already
there [inaudible] again. Obviously, there are processes
that have to be put in place. So, as Mr. Schruers says, there
isn’t yet an effective filter for all types of content. But surely, the notion
of legislation is to get us to that point. So, here’s a nudge, maybe we
don’t all agree with the fact that this law is perfect,
and certainly it’s not. But, you can’t just keep saying
that we can’t do something because there’s no framework. The reason you have
a framework is to move us towards a direction
we can actually find a workable reasonable and proportionate
solution to the problem.>>Maria Strong: So, are you
in the same, similar situation like Mr. McCoy or you’re where
you would have preferred to wait for the court in
the YouTube case? It sounds like you’re you
would rather take the directive as it is first.>>Lui Simpson: Yeah, I frankly
think that, at this point, since the directive isn’t law
and it may not become law, since there is a vote coming up
on the 16th of April, I believe, let’s not yet look to that
as the primary problem. It may become a problem
when it is actually adopted. And then, we have 24
months to see how, either they get it right
in certain countries or they mess it up entirely. The case law is there, this
directive is supposed to clarify that case law and at least, as
Carlo said, maybe codify it. But, I do think that one thing
that is extremely problematic about probability of Article
17 is the fact that it seems to say, again, that you rights
holders, you just have to put up with whatever’s being
done with your content. And, obviously, that is contrary to the fundamentals
of copyright. You, as the creator and
you as the distributor, have the ability to control
or should have the ability to control that content. When that ability is taken from
you and then you have no choice but to either monetize
it or take it down, that’s really moved as far
from where a copyright is. But, that is the world I
which we are operating. And so, if that is
our world, then, rights holders do need the
requisite effective necessary and adequate tools to
combat that problem.>>Maria Strong: Okay. Thank you, so we have a line up. So, we’re going to Ms.
McSherry, then to Ms. Wolbers, and then down this line, so Mr.
Lamel, Ms. Coffey, Mr. Adams. So.>>Corynne McSherry:
Okay, a few quick points. So, I agree, just
responding to Ms. Simpson that copyrights holders have
lots and lots of, have the right in many instances to control
how their works are used. But, those rights
are not unlimited. And, that’s the part
that I’m worried about. I’m worried about the content
that’s subject to limitations and exceptions or, in the
United States, if we imported it to fair use, well you
don’t need a license. So, I’m hearing a lot of talk
about well, we’ll just move to a nice licensing regime
and that will be fine. But, when, but there’s
lots and lots of content that doesn’t need
to be licensed. You don’t need permission,
you don’t need authorization. And, robots are very bad
at telling the difference between the content that
needs to be licensed and the content that doesn’t. So, I don’t think moving to a
licensing regime works for many, many different kinds of content. It may work for some. But, it’s not the answer. So, I want to resist that as
sort of an automatic direction that we should all accept. The second problem
I want to make is, the second point I would make
is that I would point in the, over the course of the
Article 13 being negotiated, there was a lot of back and
forth about were filters going to be mended, were they not? For a while it was, no, no, no we don’t need
filters, it’s okay. That’s, but then, a German
regulator just last week said yes, of course, we mean
filters, that’s what, that’s what you’re going to
need to comply with Article 13. So, I’m just resisting
a little bit the notion that we’re reaching any
kind of clarity except for that filtering’s
going to be required. And, that brings me
to my third point, sorry if I’m talking too
fast, I’ll slow down. We have a competition
problem here as well. I’m actually not
here to be worried about Google and Facebook. I like them very much,
they’ll take care of themselves, they’ll be fine. I’m worried about the
people that, for example, Ms. Wolbers represents. I’m worried about the people
the platforms that I’d like to see emerge so we can
have competition in this space, so we can have competition in the social media
space and other services. I want those platforms
to be able to emerge. And, the exemptions in, exemptions on sizes really
don’t satisfy that need. And the reason why is, if I’m
an investor and I’m looking at a start up, I’m going to ask
them, okay how are you going to comply with Article 13? And, if their answer is well
we’ll just never go to Europe. I’m going to say oh I don’t
think this is a good investment for me. And so, you’re going
to have to build into your business plan
some ability to filter at some point down the line. And, not everybody can
afford to invest millions of dollars in doing that. So, I worry about that as well.>>Maria Strong: Thank you. Let’s see we’re going
to Ms. Wolbers.>>Rachel Wolbers: Corynne just
made most of my points for me. But, you know, I have
a few other things that we’re concerned about. As Corynne mentioned, I
think for small startups, you’re really looking
at scale ability. And, if you have
conflicting legal regimes, the concept of having to
build separate platforms, one for the United States
and then maybe, you know, 27 or so other different
platforms for each country within the EU is not
particularly something investors want to see. But, it’s also not
really feasible. And then, when you add on the
cost of implementing filters, that will be an even
greater setback. And so, while we’ve
seen, in Article 17, a number of exceptions,
and I think, for startups it sounds
really good and I know that it’s politically
very popular to say oh we’ll just
carve out the small guys. But, that doesn’t actually
do startups any service. If you’re creating, in the
Article 17, it’s 3 years old, $10 million in annual turnover, and 5 million monthly
active users, it creates these perverse
incentives to try and stay under those numbers and
not grow your company in a more organic way. And then, when you’re seeing
exceptions that were made, and I respect my friends over
here with Wikimedia and GitHub, but, when you’re
creating, in law, exceptions for certain
companies and industries, you’re not really future
proofing your legislation. You are, essentially,
writing in companies that will now have an
advantage and a leg up in their business model. And, my friends at
Google and Facebook are in similar positions where they
now have legislation that’s written in a way that helps
protect their business models from potential new
encumbrance and, or new entrance into
the marketplace. And so, I generally, at Engine, we try to avoid these
startup exceptions or even exemptions
within the law.>>So, I just want to follow
up on that point a little bit. You know, first the comment that you might need 27
different platforms. It seems to me that the purpose
of the digital single market is so that you need one
platform for Europe. But, you know, I do
take the note that, if you have to have U.S.,
EU, Thailand, China. But, to a certain extent, don’t
we already have that issue? You know, Germany requires
you to monitor hate speech. Thailand requires that
anything that’s derogatory to the King be taken down. In some ways, isn’t
that just the cost of international business? You know, it always was,
in the analog world that, if you went into a
country you had to comply with their safety
laws or whatever. So, why do we treat the
internet differently? So.>>Rachel Wolbers: That’s a
great point, and we’ve worked with a number of much smaller
U.S. Companies like Kickstarter and Band Camp and some
cloud who, you know, a lot of the content that’s
being uploaded does not necessarily get into the
German hate speech law. It’s something that they
think about and then their one or two lawyers on
staff might flag for their trust and safety team. But, it’s not a fundamental
shift in the way that user generated content
is uploaded in the same way that Article 17 would
be and yeah.>>Maria Strong: Okay thank you. We still have to have Mr.
Lamel, Ms. Coffey, Mr. Adams, and then we have three
new folks Mr. Lavizzari, Mr. Siy, Mr. Schruers.>>Joshua Lamel: Thank you. So, I’ll reiterate what
Rachel said that Corynne and now Rachel have said most
of what I was going to say and why I put my placard up. I just, you know, I want to
note then, two more things. So, what I will say is Corynne
perfectly outlined my three biggest concerns with the
legislation and so thank you. But, adding one or two
more things to think about. Number one is, you know, not
all creators are the same and not all creators
create the same and not all creators
want the same thing and creators want different
ways of doing things. And, very often I come to
these round tables and things like this and I’m
frequently saying, you know, there are 17 million
people out there who are not represented
right now. And, the truth is, is
there’s no organization, I mean EFF tries to,
public [inaudible], but there’s no trade association
or industry association or some sort of like
forum advocating for the 17 million people
in the United States who are distributing
their content, you know, on these platforms and not
through the traditional ways. And again, you know, these
are people who are not signed to a record label or
who don’t have a deal with a major movie
studio, etcetera. And so, I’d just like to
note that like, you know, they’re not really present
in any of these debates. They really weren’t
present in Europe, they’re not really
present here today. Jarred [Inaudible] was
the only one, I think, who represented that
group today. And, I think it’s
important, you know, most of them don’t have lawyers, the don’t have sophisticated
understanding of copyright law, like, they’re just
trying to do their thing. The second point I want to
make, and under European law, those 17 million people in the
U.S. are now getting the impact of reeking their European base
or their European customers. And, as Katie noted, first
time I’ve heard this stat, 65% of U.S. users are
overseas, of U.S. creators who are using YouTube
have an overseas audience, I would venture to guess
based on population, access to the internet
and other things, a significant part
of that is in the EU. The second thing, I think that’s
just exceptionally important to note here is, Europe has
very, and Corynne touched on this, but I think
it’s really key. Europe has a very different
view of issues like fair use than the United States. In over 50% of European
countries right now, there’s no educational
exception for digital content. So, in other words, if a teacher
choose to show a YouTube clip in their classroom, they are
technically violating copyright law in over 50% of the
EU countries right now. These are things that are
like just like basic stuff that we look at in the
United States and go oh over course we want that. And, you know, I think
that brings up the point and you brought this up to, you
know, to Rachel and you brought up things like speech, you
know, hate speech in Germany, you brought up the
king of Thailand. The U.S. should be
the place that stands up for human rights
around the world. And, when you have a
Thai government, right, that says you can’t
criticize the king, that is the Thai government
violating human rights. And, if a U.S. citizen
uploads content, let’s say you have an
immigrant from Thailand who uploads content to a
platform and it’ highly critical of the king of Thailand
and YouTube or Sound Cloud or Apple Podcast is to
take that content down, that is violating
the speech rights of someone in the United States. And, that is something that
the U.S. should just be, it’s just paramount that
the U.S. stand up for. And, it should be,
you know, well you’re, the idea that we already do
this to comply with these laws, yes platforms are already doing
this to comply with these laws. They have to deal with it. You see the perils of any
platform trying to enter China and what that means right now. And, you know, that is
something the U.S. should stand up for U.S. companies
and U.S. speech and make sure it doesn’t happen.>>Maria Strong: Thank you. Ms. Coffey and then Ms.
Oyama will be at the end. And then, we’re going to put a,
after this the EU, that’s going to close out the EU discussion, we’re going to move
on to the next thing. So, it’s Ms. Coffey right now.>>Danielle Coffey: Thank
you, and to switch gears.>>Maria Strong:
No, no, I’m sorry, we still have the six people,
Coffey, Adams, Lavizzari, Siy, Schruers, and Oyama. After those six, we’re
done with Europe. Thank you.>>Danielle Coffey: While
we’re still on Europe, to switch gears a little bit.>>Maria Strong: Or
anything you’d like to say.>>Danielle Coffey: Okay. To switch gears a
little bit and talk about the news publisher rights that are Article
11 and Article 15. You asked how does it effect,
is going to effect our business in the EU and how’s it going
to effect our business here? Our business in the
EU that’s pretty clear because we represent Axel
Springer among other news publishers that have
a presence in EU. So, it’ll obviously
give them a copyright over their news publications. It’s a compilation that would
create efficiency in parity with film and television and
music that already exist. So, we’re very pleased
about that. And, that’s pretty clear cut. Where it becomes a little
more complicated is when, with our U.S. publishers
and whether or not they have the ability
to assert the right in the EU. When it was being discussed in
the trial log, they were talking about having language
that would restrict it to press publications
established in a member’s state. And there were questions
that were raised by the USG who were present in
those negotiations as to the reciprocity
that would be permitted to the U.S. publishers. You know, availing, EU
publishers being able to avail themselves, so, the
benefits of U.S. regulations and the reciprocity
of being able to do the same once the
publisher’s right is passed. You know, we weighed in there
because, if you have a presence in the EU, obviously, the national papers would have
easier ability to do that. But here, I think, where
we should be more concerned and more focus our attention
is on the local publications who may not have the
presence in the EU but may be more vulnerable and benefit more
from this new right. As it’s implemented
in the member’s state, we’re obviously going to work
with them in implementation like the other parties here. But, that’s something that
we’re certainly going to look at as well as maybe
implementing trade regulations that may allow this to
apply to U.S. publishers.>>Maria Strong: Thank you. Mr. Adams.>>Stan Adams: Thank you. And so, I’ll just try to bring
it all back to your question, Ms. Strong, about will
this impact companies in the United States? And, I think, playing off of Corynne’s points Rachel’s
points, it absolutely will. And, for some subset
of startups, at Engine and elsewhere, the decision
will not be, well can I afford to build to all these different
legal regimes, but do I want to continue doing
business at all? In which case, I’ll build to
the most stringent one, right. And, best case scenario in
the EU that means some sort of authorization program
and or filter both of which counteract
fair use here. I know that’s not the same
program they have there. But, it will impact fair use
on platform and users here. Thank you.>>Maria Strong: Thank you. Mr. Lavizzari.>>Carlo Lavizzari: Just wanted
to react to the carve outs and the intention behind them. I think, if you want to, as a startup you
shouldn’t build a system that will become a
victim of its own success. So, in Europe, the intention
is, if your business model is to attract customers
on the basis of creative works being
shared on your platform or you having links or you’re
working with linking sites, then you better, in fact seek to
have compliance mechanisms early on not only after the
three years grace period. If you’re however a bakery or a
mom and pop shop that doesn’t, principally, attract customers
through creative works of others, then, you
will be quite safe and uninhibited from the law.>>Maria Strong: Thank you. Mr. Siy.>>Sherwin Siy: Thanks. I did want to touch upon
your earlier question about different types
of content and sort of why there’s a difference
between those and copyright. Wikipedias of all languages
are banned in Turkey and they’re blocked
because of a dispute about the characterization
of the Government of Turkey. So, in certain cases,
that choice is made, based on certain types of
restrictions not to operate or to allow ourselves to be
blocked in those countries. I think, one of the reasons
that there is a distinction between the copyright
discussions and these discussions
is questions of [inaudible] hate
speech, defamation. They typically aren’t promised on X anti-actions
by the platform. It’s something that can only
be determined after the fact since it’s not a specific file. It’s a specific content
of speech that’s covered. That does lead into
another point I did want to make, I promise briefly. Which is, with regard to, a
number of issues were raised with regard to anonymity
and privacy. And, it is because Wikipedias
are available throughout the world and edited by
people all over the world that we do take privacy
very seriously. And we insure to keep as
little personal data and reveal as little personal data about
editors in various countries, including restrictive
regimes, as possible. And, just that, the
considerations that we are engaging in, mostly
today on copyright issues, do exist within a larger sphere. Just as Packingham is relevant,
privacy is relevant as well. Thank you.>>Maria Strong: Thank you. Mr. Schruers.>>Matthew Schruers: Thanks,
going back to the question as to whether or not
the inconsistent outcome or the inconsistent
implementation of the directive is
basically taking the single out of the digital single
market, and I think that’s right that we’ve seen what’s
essentially sort of a potential for an anti-federal
outcome, which is going to have distributional
consequences across industry as a number of speakers have
already cautioned to that. That concerns me very much
representing both large and small firms. I recognize that some
will be able to comply with this and others will not. And, that’s going
to have, I think, precisely the opposite impact
what you policy makers want. But, more to the general
question about whether or not we should just accept it because we already have other
similar market access barriers like lese majeste or overly
restricted hate speech policies. You now, I think the fact that we cannot resolve all
access barriers doesn’t mean that we shouldn’t be
worried about some. You know, particularly because, a Sherwin mentioned the X
anti-implications, excuse me, of this particular rule
set means simply operating in a marketplace is prohibited. Whereas, I think, in a
lot of other countries, there are services that are
available in the marketplace and they deal with these
lese majeste issues if and when they arise.>>Ms. Lanza: I’d just
like to follow up on that. When you’re advising
smaller companies, how do you advise them to,
I don’t want to say ignore, but ignore other access
barriers as opposed to some, like which one, how do
you advise which ones to pay attention to
and which ones not to?>>Matthew Schruers:
That’s a great question. I haven’t directly
advised companies like this in over a decade. It’s an association,
we’re not, you know, legal counsel to
these companies. But, I think there is an
understanding across industry that some of these rules
are enforced more I a breech than holistically. A lot of nations, you know,
as our, in some cases, 30, 40, 50 page submission to the U.S.
TR that we make every year about foreign access barrier
shows, there are a lot of problems that arise
from laws on the books that are infrequently enforced. And so, there’s a great amount
of uncertainty around that. But, they are all
exposed enforcement. And so, the reality is,
it’s possible for services to be available in
the marketplace until the government gets
around to blocking them. And, in some cases, that
simply doesn’t happen. You know, fortuitously, there
are services where content that might, in theory, violate
lese majeste laws are operating in nations that have such laws. This is a different
scenario where you have to meet the technological
mandate almost as soon as you’re in the market or as soon
as your user face spikes over five million
because you had one piece of content that went viral.>>Maria Strong: Thank you. The last question for
EU goes to Ms. Oyama. The next subject, get ready
for your questions and answers, will be in injunctions.>>Katherine Oyama: Thanks. Just a quick point kind of on the practical implications
sitting as a service provider to respond to other questions about recognizing different
categories of speech. The way that our systems would
view that, that is different. It is a different aspect
of the technology to, in addition to human
viewers, to recognize that speech is hate
speech or to recognize that speech is insulting
the king, that is a different process
than recognizing whether a piece of content is licensed or not. And, we’re living in a
day and age where there’s so much content created, you
know, every single individual or user is the creator
of a copyrighted work. And, there is no place
today to find, you know, authoritative comprehensive
rights ownership information. And so, that’s the place
where the collaboration and specific information
is really necessary so that the service
provider would know if something’s licensed or not. We have experiences all the time
with music where we may be able to complete, you know, 95%
of the rights ownership chart between different publishers
and different labels. But, it’s very common that
there is a sliver that’s still undefined or contested. And, if the default is to stay down anytime there’s imperfect
information, that’s going to be a very high occurrence. And then, just the last piece
on Article 11 because I know that didn’t get quite
as much time. Insuring that news publishers
do still have control and have the ability
to decide, you know, whether in our service
they have the ability to be out of search if they want. But also, if they do want to
appear in news aggregation, that’s also important. We have really good
examples in Europe looking at and certain copyright
regimes in Germany and Spain to understand what types of options give news publishers
maximum control and which ones, when their rights are
not wavable can lead to unintended consequences
that are, you know, later regretted across
the board.>>Maria Strong: Does anyone
else have a final word? I don’t see anymore tags. So, we’re going to switch
to the issue of injunctions. And, according to some reports,
we’ve seen that anywhere, over 40 countries have adopted
or implemented or obliged to adopt or implement measures
for ISP’s to take steps to disable access to
infringing websites. And, by this, I mean this
is often accomplished through court orders
for site blocking that address either the URL or the IP protocol address,
or the DMS blocking. But, I’m looking for information
or your views and experiences on perhaps what seems
to be a recent trend from other countries outside
the U.S. to be using this remedy of an injunctive relief to
attack a specific problem. And, I’m going to limit it
only for copyrighted content. I understand there may be
some over-blocking issues. But, to the extent there are
more than three dozen countries around the world, most
recently appeared in our notice, Australia passed a copyright
amendment to its copyright law that would provide copyright
owners with this tool. So, I welcome, the floor’s open
for views on the effectiveness or non-effectiveness of
that kind of a remedy. Mr. McCoy.>>Stan McCoy: Yeah, thank
you for the question. As I mentioned, in my opening
remarks, this is an EU model that we strongly support. And, the fact that this
model has been, you know, has inspired the adoption
of similar regimes for injunctive relief
in countries around the world is a
testament to its effectiveness. This has been, you know,
Article 8.3 has been in place now for 18 years. It’s functioning well. None of the dire consequences
that has sometimes been forecast around injunctive
relief measures like this have come to pass. And, I want to emphasize,
for this audience, in particular the
complementarity of an injunctive relief
regime to the goals of a notice and take
down regime. Because you can really, by what
the EU experience illustrates is having those two things
functioning in parallel with one another can really
give you a flexibility of tools to address the underlying
problems of piracy where, you know, certain types of particularly egregious
actors are ready targets for an injunctive relief
action under Article 8.3. So, my only criticism
related to Article 8.3 in the European context
would be the lack of complete implementation
of Article 8.3 across the member states. There are still some EU member
states where 18 years later, the remedy has not been
properly implemented. But, aside from that, where it
is up and running as intended and the implementations of
it, of course, are tailored to national law and national
systems as appropriate, we’ve found the remedy
to be a very good one. Not always, not always perfect, not always perfectly
implemented, but highly dissuasive in terms
of interfering with access to legitimate content. I think it’s very important that
we emphasize that, you know, this is by no means cutting off
consumers access to legitimate, to legitimate sources of
film and television content of which there are
now very, very many. This is rather, you
know, redirecting them from piratical sources towards
the many legitimate sources that are available there
in the marketplace. So, this is something
that’s working well. We’re glad to see it’s being
picked up in other parts of the world and
we are major users of the remedy where it exists.>>Maria Strong: Just a
question to the table. Has anyone noticed any
increased use of injunctions in those territories where
there is not a notice and take down system? I mean, apart from Europe
and the U.S. and, obviously, there’s a couple of countries
in Asia that have a kind of a notice and take
down system. It seems that the use of injunction actually is
being used by courts regardless of whether there’s
a notice system. So, I’m just curious if
anyone has any experience. And, while you’re thinking about
that, I’ll go to Ms. Simpson.>>Lui Simpson: I think, while
I agree with all the points that Mr. McCoy raised,
for the publishers, we certainly have taken
advantage of the remedy in Europe, as I mentioned
in my opening text. We have pursued the
remedy successfully in six European countries. And, the main goal of these
website blocking injunctions is really to disrupt the
availability of that service in that particular country. I will note that, because it
is a limited jurisdiction, there are limits to
the effectiveness of this particular remedy. Obviously, a site, when it
is blocked on a particular or within a particular
jurisdiction, sometimes the operator of that
website will simply try and move to a different server. What has progressed I Europe
is they’ve now expanded the availability of those
injunctions so that you don’t have to
redo the entire process. The orders themselves can be
amended so that the new sites that have come up as way of masking the original
identifier site can then be included in the previous order so that rights holders
don’t have to engage in that long process of
seeking hat injunction. I think for objections that these injunctions might
be broad, the court processes or the administrative
processes that are in place, actually are very rigorous and rights holders
themselves have been rigorous in identifying which
actually are viable targets under this particular model. So, the notion that it could be
abused, we haven’t seen that. And, I think rights holders
themselves would be very careful with respect to how
they bring these actions because everyone knows
we are all, of course, very budgetarily limited. And so, bringing an action
that doesn’t really result in anything is something that
we would not be likely to do. And, as to the second question
of whether we’ve seen it coupled with a notice and
take down system. I don’t think we
necessarily have. I think, in jurisdictions where the statute has been
made available whether it’s through a court or through
an administrative process, if the country has defined that this is actually
a worthwhile tool, to make available to rights
holders the availability of a notice and take down
system doesn’t really need to be accounted for
in this framework.>>Maria Strong: Ms. Oyama.>>Katherine Oyama: I
think, when you’re talking at a global scale, it’s hard
to say that we never see cases of abuse, you know, there’s
certain remedies that, even if they work many
times, there are, you know, instances abuse where
certain sites are targeted. On the Australian
implementation, I believe, and so recently, you know, past
measures, I don’t actually think that any orders, I’m
not aware of any orders that have actually been
issued under the new law yet. I did just want to mention
one approach that we’ve taken in search that does
kind of run parallel to site blocking regimes. And, our view for
search, they have benefit of being more scale able. So, just as a practical mater, if there is a site blocking
order that an ISP receives, even if a link were to show
up in search and a user were to click on the link, they
wouldn’t actually ever be able to access the site,
but, another measure that we did announce is the
Search Ranking Demotion Signal, which does work with the DMCA. So, when right holders
are sending to Google Search DMCA notices, that will have an
effect on their ranking. And, we have demoted more
than 66,000 sites in search. On average the amount
of traffic from Google that has been introduced
is about 90%. I think we’re adding about
500 new sites to that a week. And, in my discussions
with rights holders, one of the benefits
that they’ve seen is that these suppressions
do apply globally rather than country by country so.>>Maria Strong: I was
just going to ask you that, the demotion does apply to Google websites
around the world.>>Katherine Oyama: Yeah.>>Maria Strong: Maria Strong. Mr. McCoy.>>Stan McCoy: Yeah. Just picking up on that
topic, I can confirm from the MPA perspective
that some of the enhancements that Google has made to demotion
on a global basis have been, have had a noticeable impact. So, it’s a positive
development that’s certainly worth confirming. In regards, I wanted to
speak to your question about whether there’s any,
whether there’s any link between the presence or
absence of notice and take down and whether site blocking
is used in a market. I don’t know, empirically of
any data that speaks t that. I’ll certainly go back and
inquire with my colleagues who know more about the data and
see if we can get you any data that would help on that. One point to bear in
mind is, you know, the panels this morning drew
out some of the experience on the extensive
notice and take down. And, you know, consequently,
rights holders are selective about what markets and
systems they will target for notice and take down. So, in some cases, the
availability, the availability of an injunctive relief remedy
might provide an alternative way of addressing the worst of the
worse pirate sites in markets where notice and take down
weren’t a high priority for notice and take down.>>Maria Strong: Yeah thank you. As a sort of a segue, I’ve also
heard that, in other countries, Mexico comes to mind, which
does not have a notice and take down system and doesn’t exactly
have a secondary liability system that applies
in this space, that, some ISP’s are honoring,
basically the equivalence of notice and take downs being
sent to Mexican ISP’s kind of ala the U.S. on a
very informal basis. And, I would assume
that that is happening in a couple of other countries. Can anyone here speak to
that experience where a sort of an informal notice
and take down, maybe it’s not exactly a cease
and desist order, but a notice that are being recognized
by ISP’s and locations that do not have a
formalized system? Mr. Schruers.>>Matthew Schruers:
I, that’s a very, it’s a helpful observation
because, you know, for a long time, before he
Canadian system was implemented, some years ago, there was
an informal inter industry agreement that enabled
notice forwarding, primarily, which is what rights holders
in that marketplace wanted. And, it was widely adopted. We’ve also seen that
happen in other markets where the intermediaries
don’t want their services and environments to be
perceived as a venue for misuse. And so, they do,
they do work on this. One of the benefits
of that approach is that it allows more
capable service to invest more substantially
in that kind of compliance where startups, obviously, that don’t have the
resources do what they can. So, it’s just important to
take away that the absence of a particular statutory
mandate doesn’t mean that services aren’t
implementing misuse and misconduct policies to prevent infringement
where they can.>>Maria Strong: Yeah, I think that was my question was were
there examples of that kind of informality that
actually is in place? Ms. Simpson.>>Lui Simpson: Well, it’s
not contributors and take down point, but, when
we were successful in obtaining an injunction
against iHub in the District Court of
New York, strangely enough, a Chinese website, or a Chinese
operator actually, on the basis of reciprocity said we’ll
recognize that judgment and did block the site
in China or at least on its, to its subscribers. So, I guess the point that
you need not have a mandate in place is plausible, but
obviously, if one isn’t in place, there are
so many loop holes through which an ISP can
act, that, it will choose not to do something if there isn’t
an obligation to do something.>>Maria Strong: Could you
explain a little bit more about how the Chinese
recognized the judgment?>>Lui Simpson: Well, we
sent the copy of the judgment to the Chinese operator, and, frankly two days later the site
was just not available on that, to the subscribers of
that particular operator or that service. There was no formal
process in place but I.>>Maria Strong: It was
totally informal, you didn’t go through like a hate convention?>>Lui Simpson: No, we just
sent them a notice and said FYI, this has been judged a
notoriously infringing site. You should not have
it on your service. And, if you would like
please take it down or at least block access to it. And, they did.>>Maria Strong: Has anyone
else had a similar experience in either ease or difficulty
of getting a judgment, perhaps some injunctive
relief recognized outside the originating jurisdiction? Just curious.>>Lui Simpson: I guess I
should add, I don’t want to make it seem that
that was easy. Those are few and far
between instances.>>Maria Strong: I
thought I’d follow up.>>Emily Lanza: As we’re
talking about website, website blocking kind of comes
up in the CRTC, recently denied, fair play is application
for website blocking regime. And, they said that alternative
avenues were available. If anyone would like to speak about what those alternative
avenues are and how they, if they disagree or agree
with the CRTC decision.>>Maria Strong: We can
level it up a little bit and maybe ask does
anyone have any views of Canada’s implementation
of it’s notice regime that went into effect in 2015? It’s is a Canada question. Okay. Lui, Ms. Simpson
I’m sorry. I can’t.>>No I wasn’t going to speak
to the Canada element of it so.>>Lui Simpson: I guess
I’ll just go ahead and say, on the Canada situation, we
obviously think that the notice and notice system is, as
someone said before, a notice and nothing system
because, frankly, you send the notices forward,
but, do you ever really hear of anything being taken down? In the past, there
were some, I guess, private corporation
agreements that were favorable to rights holders
in the sense that, if something was being done. But, on the notion that notice and notice alone will
accomplish anything, I think we’ve seen
frankly that it doesn’t. If we’re having problems with
the notice and take down system, think of what the
notice and notice does, which is frankly nothing.>>Maria Strong: Thank you. This is a good transition to
one of the early points I meant at the beginning to talk about. And, it has to do with
what your experiences are in seeing the kind of
cooperation between ISP’s and content holders
at the local level. As we’ve spoke this morning and,
you know, the intent of the DMCA and sensitized that
kind of cooperation between these two groups. We really appreciate
hearing your experiences at the local level how are
or how not local ISP working with your local rights holders. We can start by region or
Stan can star, thank you.>>Stan McCoy: Well, just
to get things moving, I would say at the
local level, in Europe, which is where I’ll
begin here, we find that, in a lot of territories, the
ISP’s, as content becomes more and more important to their
business models, are more and more interested in finding
ways to work constructively with IP owners to implement
anti-piracy solutions. One important example of that
is in the field of in the field of implementing injunctive
relief under Article 8.3
of the directive. So, we have several
jurisdictions, Belgium is one that comes to mind,
where we’ve been able to achieve good voluntary
arrangements with ISP’s not to bypass the adjudication
process around injunctive relief,
but rather, to treat aspects of that process as
non-apposed for cases that meet certain
threshold requirements. And that, we find, can be a way
of reducing the overall cost of implementing an
injunctive relief solution both for the ISP’s and for
the rights holders.>>Maria Strong: Thank you. We’ll go with Mr. Adams,
Mr. Cady, Mr. Lamel.>>Stan Adams: Thank you. I just wanted to contribute
a more technical observation regarding ISP’s compliance
with various legal mandate such as copyright protection and to the site blocking
thing as well. In that, where implementations
of site blocking on DNS based, the DNS resolve or market
is undergoing, let’s say, significant changes
currently in that, as more private operators enter
the DNS scene supporting DNS over HTTPS, in particular,
and more people move to those, it reduces the visibility of
ISP’s into DNS traffic at all. Leave it at that.>>Maria Strong: Thank you. Mr. Cady.>>Eric Cady: Thank you. I contribute more of a
practical contribution. We, have to recognize the
importance of cooperation. But, legislative
changes is fundamental to our members having access
to effective measures. Our observation has been that
without government oversight and full participation
in any voluntary program, the benefits simply don’t reach
independence and, in practice, have not offered any
effective mechanism to stop any specific
instances of illegal activity. And, moreover, historically, these agreements
have cost prohibited.>>Maria Strong: Thank you. Mr. Lamel.>>Joshua Lamel: I just, I
just want to note here and talk about something just primarily
from the user perspective than the consumer perspective
in the United States, which is, when you’re looking
at ISP level blocking, the United States does
not exactly have the most competitive broadband
and ISP marketplace out there for many consumers. They only have one choice for
an ISP in the marketplace. And, I think within
the context of markets and how these things work, I think that’s something really
important to take into account as to look at the competition
in the ISP marketplace globally and specifically as you look
towards the U.S. marketplace, the lack of competition in
that marketplace for consumers.>>Maria Strong: Thank you. Just to follow with another
question I think Mr. Cady sort of suggested. There are a couple of
countries out there that have administrative
systems where rights holders, usually under the color
of a code or a statute, are able to come together and help streamline the
evaluation process for a notice. So, for example, the, what
is happening in Japan and, in a different way,
what is happening in Korea comes together. And, those are obviously
unique legal situations. But, both countries had actually
quite advanced copyright laws, liability systems,
notice and take downs, and a very active ISP community. And so, I was wondering,
does anyone have any views on how those systems are
operating with respect to addressing, you
know, infringement in the online environment and especially via
the use of notices? Ms. Wolbers.>>Rachel Wolbers: So, in
a number of the platforms, the small of platforms that
we work with, they provide it. And, when we’ve talked to them
about DMCA the amount of notices that they’ve received,
what types of notices that they receive, almost all
of them, the smaller platforms that I’m thinking of, there are
about ten that have all signed, that signed our Article
13, Article 17 letter, all provide dispute, internal
dispute resolution mechanisms. For instance, Patreon, a
many times rights holder, will upload something to
Patreon and occasionally dispute with another Patreon
creator about, you know, whose copyright it is. And, I think that,
while companies or countries may have more
flexible processes to deal with this, we do see a lot of
companies taking that initiative to allow rights holders
to dispute and settle their differences on
the platform rather than having to resort to the
legal system, which, for many small creators
is prohibitively costly and is not an avenue that
most small creators are going to pursue no matter if it’s
our legal system or, you know, maybe the legal system of
Japan or wherever it may be. I think, a lot of platforms
are offering those dispute resolution mechanisms within
the platforms themselves>>Maria Strong: Mr. Schruers.>>Matthew Schruers: So, I, with
the exception of a few cases, I think we should
be weary of assuming that inter-industry standard
setting, for example, is something that’s viable at
scale, in part because there’s so much heterogeneity
across internet services and how they function. And so, if you look at social
media platforms versus host, even within social media,
they’re highly unique in how they’re structured. And so, the frameworks
that might work for one are not necessarily
going to work for another. I know, for some years,
there was, basically, a notice forwarding system
here in the United States between rights holders and
broadband providers, which, it is at least plausible because
of the homogeneity on both sides of the equation there. But, that doesn’t necessarily
scale beyond the broadband sector into internet services
that are highly differentiated and new ways of sharing
both the user’s content and third party content
evolve all the time. And so, there’s always a
risk that, if, you know, domestic rights holders and certain domestic industries
get together, there are going to be standards written
with, that don’t have sort of U.S. exporters products in
mind and may have, may function as in a sort of an
exclusionary manner. It’s something we
should be mindful of before endorsing any
particular framework.>>Maria Strong: Thank you. Mr. McCoy.>>Stan McCoy: Thank you. Concerning administrative
systems and how well they function,
I don’t have any notes with me on Japan and Korea. So, I’m happy to come back to
you at a later date about that. But, I certainly have
some experience of dealing with the administrative
systems that exist to implement Article
8.3 in Europe. Italy and Portugal would
be two examples of that. And the, you know, the
overarching important thing for us is that injunctive relief
is accomplished in a manner which is consistent
with the rule of law. And, often that means
judicial oversight. In some systems, like the
systems in Italy and Portugal, the appropriate implementation
has been an implementation by an administrative agency
which itself is subject to judicial oversight. So, it’s very much a creature
of the national system in terms of how the rule of law
is best implemented in the context of that system. But, having the, you
know, having the rule of law dimension, that
oversight is important to viable injunctive
relief system. And, we do find that
those systems in Italy and Portugal are working well with the possible
exception that, you know, those are both systems
that, to my knowledge, still focus on blocking on DNS blocking rather
than IP blocking. And, that is a technical,
that is a technical detail that matters to the
effectiveness of the overall remedy. But, even DNS blocking, our, you
know, our analysis suggested is, it contributes greatly to the
dissuading the ordinary consumer from going to pirate sites
rather than legitimate services.>>Maria Strong: Thank you. Ms. Simpson.>>Lui Simpson: I was
just going to go back and address a point Mr.
Schruers raised about, and I think it was
raised throughout the day that one size solution
does not fit all. And, that’s absolutely true. Perhaps the problem is that
we do not have an adequate definition in the statute about what is an
internet service provider versus what is an
online service provider. Because, if you are a mere ISP,
meaning you manage the pipes, I think your responsibilities
will be very different from what a OSP should be. And, that OSP could
cover share hoster sites, could cover social media sites. So, perhaps, that is a question that the corporate office
can look at more closely of whether there does
need to be a parsing out of what these
different types of intermediaries really are. And, if there are different
types of intermediaries, what are the appropriate
responsibilities that should be crafted onto
that particular platform or infrastructure?>>Maria Strong: Thank you. I just, we’re starting
to run out of time. I have one more question
and then if you have any last
observation that we can make within the time frame we will. If not, open mike is going to
follow directly after this. And, my questions, we
spent a lot of time in the prior sessions about
a repeat infringer policy. And to the extent there seems
to be, on behalf of some folks, interest in having
the certainties of 512 outside the boarders
of the United States. I’m curious to know, for
those people who want that, when you are looking at, you
know, a 512 outside the U.S., do you and your company
support the, an obligation to have a repeat
infringer policy? Because, I think we’ve seen, in
some countries outside the U.S., they tend to take the
phrase repeat infringer, meaning adjudicated
infringer, you know, by a court. So, I’m just curious to
know if anyone has views on implementation of repeat
infringement policies outside the U.S. Or, maybe I answered
my own question. Ms. Simpson.>>Lui Simpson: So, I think
it’s very important that, given how a notice and
take down system does have to work efficiently
and expeditiously, to have an adjudicated infringer or a repeat infringer
requirement simply does away with that. Because, if you have to
go to court to then have, this particular individual or operator judged a repeat
infringer, the material that you’re seeking to be
brought down because it is, in fact, infringing, it’s
been available for what more than 24 hours within a week
before you even get that order. So, to me, the notion that a repeat infringer must be
adjudicated in a court of law, simply will strip out the,
frankly what even makes a notice and take down system workable. It’s not workable now,
but, if you include that particular requirement,
I think you’re not going to have a system that
actually does anything for the rights holder.>>Emily Lanza: On that point
though, is it necessary to go to court before sending
a notice and take down? Couldn’t you do both in
conjunction with each other?>>Lui Simpson: I
suppose yes you would. I mean, your goal is to
notify the ISP or the OSP that there is material
on their system that is actually
infringing your rights. If they come back to you and say
it must be adjudicated, perhaps, you do need to do that. But, the goal is to notify
that particular actor that you are actually
facilitating infringement and that could, perhaps, lead to
another cause of action for you. But, if they come back to you and say you have not
actually shown us that there has been adjudication of whether this particular
infringer is a repeat infringer, that does present problems
for rights holders.>>Maria Strong: Mr. Schruers.>>Matthew Schruers: So, I think
it’s important to distinguish between what the statute says
and what happens in practice. You know, the statute
says repeat infringer. It doesn’t say repeat
alleged infringer. I’m aware that some courts have
interpreted that differently. But, the language of the section
is the language of the section. But, that being said, I’d say
many online services operate a far more strict process that functionally encompasses
repeat accused infringers. And that’s, I think,
very reasonable because, in an arms length, relationship,
in a private sector, if you have a user who’s
causing a lot of problems who is the source of complaints,
it’s entirely reasonable that an intermediary might
want to discontinue service to a troublesome user. And so, under the terms of use
of most services, you know, I’d say many online services
terminate users long before the statutory definition
comes into play. That, I think that
we shouldn’t, though, think that that changes what
the statutory definition actually says. It says repeat infringer. But, frankly speaking,
that’s not what’s really all that relevant in
the marketplace.>>Maria Strong: Ms. McSherry.>>Corynne McSherry: So, I think
that we’re, when we’re thinking about this issue, we have to
realize a couple of things. One is that the world has
changed in the past two decades and people are reliant upon
their internet service in a way that they weren’t two
decades ago, such that, it’s really fundamental to
so many different things in a household, right. So, the fact that
there might be someone in a household who’s engaging
in infringing activity, to impose the punishment of
cutting out internet access for that household will have
very, very sappier consequences. And, that’s just the reality
nowadays and, I think, has to change how we
think about the issue. And, secondly, getting
back to Mr. Lamel’s point, it’s also clear that, here
in the United States anyway, we don’t have a lot of choices for service, for
internet service. It’s particularly high speed
internet access service. So really, I think our
approach to repeat infringement, you know, really needs
a fundamental rethink. And, I think trying
to embrace a notion that we should make it easier to terminate people’s internet
access, I think, would be, cause far too many
unintended consequences and collateral damage far
beyond speech, far beyond speech but just for people’s ability to
work and get educated and so on.>>Maria Strong: Thank you. Mr. French.>>Alec French: Thank you. I want to make one, I guess,
general point that touches on what you just phrased
but also the first part of the discussion
on EU and taking off of Ms. McSherry’s
point that, you know, I think probably the
strongest policy justifications for some kind of ISP
safe harbor, you know, that have been raised are
certainly the critical access issue, the fact that to
participate in today’s society, you have to have
access to the internet. And then, I think, you know, the argument that’s
been made historically that to promote innovation
among startups, struggling new entrance in the
market, they need some kind of protection from liability. But, I think those
two justifications for a safe harbor, you know, apply to online access
providers, what I would call, you know, folks who help
you get onto the internet, not to UGC sites, not to
digital media service online, not to basically anyone except
someone who actually enables you to access the internet. And, the startup point is one
that I take as a real point. But again, once a provider
has a $500 billion market cap and $100 billion in the bank,
you don’t deserve that kind of protection anymore. And, I think, you know,
as I understood the goal of this whole day
was to, you know, incorporate into your
all’s goal, possibly, any ideas for congressional
legislation in this area, then I would say that
the important insights from Article 13 and 17 is that that approach
was incredibly narrow. It only applies to
for profit UGC sites that are consumer oriented. And, in that very narrow
context, even there it says if you’re a startup, basically,
you don’t have the types of obligations that they
found to be owner risk, that large players would
be treated differently than small players. I think that framework,
that idea is something that would be useful to bring
into U.S. law, to ask the idea if core internet access
issues aren’t on the table and we’re talking about sites
online that make their money off of exploiting copyright
works, even if they’re works that users have put on there, should large players
have the obligations that Europe is putting out? And, should small players
be treated differently until they become large player? And, if they’ve made
that affirmative decision that they want to
be large, well, maybe they do have some
more responsibilities then. But, that’s my takeaway
from, you know, what you all should
be thinking about and recommending to Congress.>>Maria Strong: Thank you. Mr. Lamel and then the final
word goes to Ms. Wolbers.>>Joshua Lemel: So, it’s
come up a lot in the context and Corynne just brought it
up again which is the idea that these conversations around
copyright policy are happening around a broader conversation around internet policy
generally. And, it’s very hard to just look
at something from the context of copyright policy in
today’s world, right. A decision like repeat
infringer policy has an impact on basic economy policy for
that person, their ability to participate in the economy,
participate in our democracy, if you see the internet
as an important place for democratic participation
and all sorts of other policy implications that go far beyond
the jurisdiction of the copyright office. We heard earlier a conversation
which hasn’t been discussed but was brought up with who is
within the context of privacy and cybersecurity policy, right. And, decisions that we might
be possibly making and thinking about from the respect of
a copyright professional, there might be, there are really
important other issues that come into play in these things
from the context of privacy which Stan Adams brought
up or cybersecurity and economic policy
were generally. And, I just think it’s important
that, at this juncture, there’s a notation made that this conversation goes
beyond DOS copyright policy, because we look at all
these other things. And, it’s something that the
office should take into account.>>Maria Strong: Thank you. Ms. Wolbers.>>Rachel Wolbers:
[Inaudible] and the comments. One thing to note, as I
mentioned, I was in touch with policy makers I Brussels. And, when the SME exception was
the final one between France and Germany was proposed, one of the lead negotiators
made the point that she asked, you know, is there
anybody who actually fits within this exception. So, it may sound nice to have,
you know, these three categories and if you meet them
you’re preserved. But, in reality, people
are sort of hard pressed to find an example that
actually works there. So, I mean, I would just
recommend some caution in just trying to
take that concept and really making
sure it’s effective. Also, you know, the idea of
access the internet, you know, it’s really not just about
who controls the pipes. I mentioned before, we have
software developers building all sorts of programs, apps,
websites on our platform, 31 million users, 100 million
different projects, all sectors. I mean, software’s everywhere. So, if you think
about, you know, cutting into people’s ability
to collaboratively build that software, that’s a real
serious impact and it’s not just about can you access
this website or not.>>Kevin Amer: On this point
about access, could I just ask, I mean you, you know we’ve had
a lot of people sort of invoke that concern, which
obviously is very serious. But I mean, do you see that
concern mitigated at all by the fact that, you know, this
is a voluntary system as part of which ISP’s are, you
know, have the choice whether or not to participate. But, if they do choose
to participate, they’re afforded quite a
significant benefit, right. I mean they have the limitation
against monetary liability. And, in exchange for that
benefit, they’re asked to do something that
is, you know, that we think should be
regulated because it’s against their economic
interests, right, they need to, I mean it’s not,
as we saw in Cox, it’s not in their economic
interest to terminate customers who are repeat infringers. So, we want to make that
part of the legal framework. I mean, so, does that sort of, I
don’t know, to me, is there sort of a response that this
concern about cutting people off from the internet is sort
of mitigated from the fact that this is, sort of, something
that ISP’s are choosing to engage in with
the expectation that they’ll be provided
a legal benefit?>>Maria Strong: You
know, I think we’re going to be going a little over. Ms. Wolbers and then
we’ll just go straight down the line who has things up. So, that’s going to be
Mr. Siy [inaudible].>>Rachel Wolbers: Thanks. I guess, you know, I get your
point about it being voluntary. But, I don’t see the
cost of, you know, access going away being the
fair collateral damage there. I think the point that I was
trying to make is that the goal of notice and take down
is trying to find a way to prevent infringement. I mean, we don’t want
to have infringers on our platform either. And so sure, we’re
voluntarily taking steps to help make that happen. But, I think, the cost of even, like earlier this
morning we were talking about counter notice,
I mean, that exists. But, the amount of counter
notices that we get is such a small fraction compared
to the take down notices, for a bunch of reasons that
were mentioned this morning. And, I think, you know, to assume that if
something comes off that there are mechanisms
there that bring it back up. I mean, that’s something. But, it’s really a cost
when something comes down. And, it might not come back up. Maybe the counter notice
isn’t going to be effective, maybe the person’s not
going to know to do it. And so, that was more my point, that I feel like the access is
something that we should really. There’s gravity there
when you remove access.>>Maria Strong: Thank you. Mr. Siy.>>Sherwin Siy: I think, just
for a practical matter, it’s, the idea that it’s a voluntary
system, it’s not something that is practically voluntary
if the alternative is to subject ourselves to strict
liability copyright regime with statutory damages,
etcetera, etcetera. And, I think it’s, and, in
terms of the distinction between an ISP and an OSP,
as an OSP that provide a, what we’d like to think
of as a public service. We like to think that this
ability to provide that access to knowledge and free
knowledge is something that matters despite the
fact that we’re not conduit.>>Maria Strong: Thank you. Mr. Schruers.>>Matthew Schruers: Well
so, I think two things that Sherwin touched on,
that they need to distinguish between what we would think
of as sort of 512A services and 512B through D services and then the eCommerce directive
makes it a somewhat similar distinction, right. The calculus for those two
constituents is, I think, quite different and
reasonably so. And so, we shouldn’t,
necessarily, you know, ask 512B through D business about the incentives
for 512A businesses. And actually, I think, while they may have been
represented earlier today, aren’t actually this panel, that
is to say the OSP’s, I’m sorry, the ISP’s, the demure
conduits, if you will, right, I think that’s a very different
calculus that should be, and that question should be
presented to that constituency.>>Maria Strong: Mr. Lamel. And, then Mr. McCoy
has the final words.>>Joshua Lamel: So.>>Maria Strong: And really.>>Joshua Lamel: First of
all, I think, you know, my ISP competition point
comes in really key here. That, if most users only have
the choice of one or two ISP’s as their ISP, there is the
third party to this conversation which is consumers
which are important. I think, second of all and even
more importantly, we’re seeing, an integration between
the ISP business model and the content business model. And, you have to take
that into account in the economic incentive
conversation around this. You can make a legitimate
argument that the two largest ISP’s
in this country right now, and I don’t know exactly
what mark share are members of NPAA right now because
of their holding in Comcast and AT and T right now. And so, you also have
to take into account that we’re seeing this
massive integration between the ISP business model and the content creation
business model in these traditional
methods in a way that that economic
incentive is going away.>>Maria Strong: And Mr. McCoy.>>Stan McCoy: Yeah, the
whole point about the, about not taking away access
to the internet kind of, it speaks to this, the
larger balancing of interest that has to take place here. And, I just wanted to commend to
you the jurisprudence in Europe on these issues because the
European Court of Justice and subsidiary courts in Europe
have taken very seriously their obligation to weigh the
different rights at steak in these cases including,
for example, in the UPC Telecable
case, that, in 2014, that involved an
early application of injunctive relief
in an IXP context. So, what you find there
is the, is, you know, courts carefully weighing
these different interests in the context of European
legislation and including that, indeed, site blocking that
meets certain basic criteria is consistent with fundamental
rights.>>Emily Lanza: Okay, with
that, I think we’re going to conclude the official round
table portion and we’re going to open up the open mike. If you’ve signed up to
speak at the open mike, start making your way over here. Unfortunately, we cannot
move the mike stand. If you haven’t signed up
and you want to, find Brad. Just one thing to keep
in mind, it is now 4:41, how long you talk will determine
how long you have to stay.>>Maria Strong: And those of
you siting at the table can stay if you like, stay seated
where you are, that’s fine and be comfortable,
thank you all.>>I did leave behind a like
three or four additional sheets, so up to another 80
people I think can sign up although I can’t guarantee
time for all of those.>>Do you have the list?>>Yeah.>>Can you call them in order?>>So, if I could just ask
the rest of the room to kind of quiet down so we can
get started with those who have already lined up. Feel free to walk to
the back if you do want to add your name to the list. But, we are on a time
crunch here so we do want to get started with
Janice Pilch.>>Janice Pilch:
Hello, is this on? No. My name is Janice Pilch. I am a faculty Librarian
at Rutgers University in New Jersey, but, speaking
as a member of the public in my person capacity. I’d like to comment on both of the topics being
discussed today. First, domestically,
it seems obvious and has been reinforced
today that litigation on section 512 cannot
change the systemic problem of infringement, disregard
by service providers and their users for the
rights of others, interference with the markets for
works, and the impossibility for most rights holders to undertake expensive
prolonged litigation. Section 512 sets up
a permanent conflict between service providers
and rights holders that case law can only act
out unsuccessfully, too often, in legal arguments that protect and increase the wealth
of service providers. This, to me, is an
illusion of balance. The conflict won’t end
until section 512 is amended to create a functional balance to effectively give
creative people and other rights holders
their rights back and not make that the responsibility
of the courts. I hope that the copyright office
will make that recommendation. And secondly, internationally,
the same conflict plays out between efforts to
create laws that are fair to all members of the public
such as the laws envisioned by the new EU directive
that will hold all platforms that bring works to the public
more equally responsible for their content and
on the other hand, the drive by private internet
and technology corporations, some of the richest and
most privileged corporations in the world, to fight laws
that will constrain their profit from user generated
content, that, their war on rights
is often waged by corporate activists posing
as public advocates is a problem that has become global. It’s become more clear,
in the past several years, how some private technology
companies are using their dominant economic position, a
position made possible in part by the flaws in section 512, to
distort public perception of law in the legislative process
through influence, campaigns, coalition building,
funding, misinformation and technological disruption. We see fleets of academics, law
school centers and programs, NGO’s, nonprofit and civil
society organizations, internet users, professional
associations and others paid or otherwise motivated
toward coordinated action that creates an illusion
of public interest support and supporting logic for
specific corporate interests. These groups pride
themselves in the power of their coalitions employing
tactics from rhetoric, linguistic play, misinformation,
confusion, omission of fact, flipping of definitions to
censorship and threats to those with apposing views
to infiltration of law making bodies and
hacking of information systems. It’s commonly known that
a technical war was waged on the EU copyright directive and that the U.S. Copyright
Office itself was compromised in 2016 on a day
that written comments on section 512 were
due, crashing the system and making it difficult
for people to file real comments
before the deadline.>>Are you contending that certain people were
not able to file comments?>>Janic Pilch: There
were delays because of the interruptions
involving, roughly, 90,000 we think bought
submissions.>>Okay, I think we think
that everyone who wanted to file a comment
was able to do it. And, not aware of
any actual denial but we appreciate clearly
92,000 is way more comments than we normally get.>>Janice Pilch: There
was common opinion that that was a technological
disruption. We see in South Africa
a concerted effort to frame a copyright
bill as being about a creator rights
agenda written to benefit quote suffering
creatives no less, when, it’s not a secret
that law makers in South Africa were
heavily influenced by U.S. Tech interests
and their allies to adopt what’s essentially
a protect bill. For years, we’ve seen the
deployment of concepts like freedom and democracy, free
speech, freedom of expression, free internet used to
defend the safe harbors to legitimize what is too often
the freedom to rip off members of the public and make it look like a public need
backed by a public outcry. Who loses? The public including authors,
musicians, song writers, photographers, and
filmmakers, and also any member of the public who is trying to gain objective
knowledge on the internet. The actual damage to
the public interest and to public knowledge
cause by this type of misinformation has
yet to be calculated. But, it’s an activity
that functions like any other online falsehood. Singapore has proposed a
law called the Protection from Online Falsehoods
and Manipulation Bill that would cut off
profits of sites that spread misinformation,
that drowns out authentic speech and ideas, and undermines
democratic processes in society. With respect to sites
that manipulate in order to incite feelings of animosity
toward the rights of others, perhaps there should be a
law in the United States too. The U.S. Copyright Office
always welcomes input on its initiative. But, if the public’s view of
section 512 or of copyright law in general is distorted by
misrepresentation of fact, by corporate supported advocates
marching under the flag of freedom of speech and freedom
of expression as justification for private freedom from
the constraints of law, it would seem that this
issue would benefit from government study or
even better from a new law. Thank you to the Copyright
Office for providing to the public an opportunity
to express our views.>>Thank you. Keith Cooperschmidt [assumed
spelling], if you can come up. And I should’ve noted,
we have 15 sign ups and I’ll check I
the back and see if anybody else has
signed up since. But, considering the
time limits we have, no more than five
minutes per person. And, we may interrupt
with some questions. So, just keep that in mind.>>Keith Cooperschmidt:
All right. Well, thank you very much. I’m going to touch upon a
few issues, I had my card up at the end of my panel
but I wasn’t able to talk about so I figured I raise them
here and then a few other issues that came up after the panel. So, the issue of burden came
up during my panel, and also, I think the panel had followed. Like, who should
have the burden? Is the burden placed
on the right person? And, I think frankly, that
kind of misses the point or at least misses the
point with the problem with the DMCA as
it exists today. Because, the primary problem
is not the the copyright owners shoulder most of the burden. The problem is that, when
they do take on that burden, they have very little
to show for it because the notices they send, basically have very
little effect. The material goes back
up online, and, you know, then it’s sort of this
game of wack-a-mole which we heard earlier. And so, the result, the result and the burden being
mostly exclusively place on the creative community is that we are not achieving
the balance that Congress had intended here. And so, once again, just on the
issue of burden, it’s really not so much who the burden
is placed on or whether it should be
placed on the creators, the fact is it is placed
on the creators now, there’s no doubt about it. But, when that happens when
they take on that burden and it is basically
not having the fact that was intended by the DMCA. There was a discussion on my
panel on fraudulent notices. Just wanted to mention
what we are doing to try to rectify not only
fraudulent notices but frankly just
educate creators. If you go to our website, the
Copyright Alliance website, you’ll see we have not only
FAQ’s but we give presentations across the country on the DMCA
and other issues we’ve been at Bidcon several
times to explain kind of how the DMCA works, answer
questions, things like that. We, for the creators
who are members of the Copyright Alliance,
we create a DMCA toolkit which explains the DMCA and
we answer their questions. But perhaps, more importantly, we have a video series that’s
online about the DMCA both from the sender perspective and
also the recipient perspective. So, we talk about notices
and counter notices to try to educate people and
hopefully to the extent that if there are
fraudulent notices being sent that that is significantly
limited and we would encourage others to similarly do educational
programs to educate the individual
creators because to the extent
there are sort of, it think you call
the wonky notices, wonky notices out there. It largely comes from
noneducated people. I think there are a few people that certainly do try
to abuse the system. And then, there was
a discussion also about these fraudulent notice
and 512 asking why there was so few 512F challenges. I’ve got a wonderful
bill for you to support. The Case Act. If you really want to see
these challenges got to, come to fruition, because
that’s one of the claims in the Case Act that
can be brought and it would be a lot
less expensive to do it in that context than
try to bring one of these claims in
Federal Court. And then, just very quickly on a few other issues
red flag knowledge, I just want to reiterate these. We talked about that
on the first panel but then it really
didn’t get too revisited or revisited very much. But, I think it was very,
very interesting that no ISP, no platform around the table
either in the first panel or subsequent panels could
come up with one example that was red flag knowledge
or would qualify that was, you know, that was
actual knowledge. And so, I think, I think that
is extremely significant. We have made the claim,
bunch of us made the claim that the red flag knowledge
standard had been written out of the statute. I think that helps
prove our point because it really, really has. And, one of the speakers
earlier, in the first panel, talked about well it was
intended to be narrow. And, I’m not so sure it
was intended to be narrow. But, it certainly wasn’t
intended to be so narrow that it was never used
and never applied and so that certainly isn’t the case. A couple more points.>>Actually I meant to ask
you to wrap up quickly.>>Keith Cooperschmidt:
Okay, I’m going to wrap up, I’ll just say one
more point then which is the afford the state
case because that came up and we never really
got to talk about that. I mean, basically, the afford
the state case has created a new DMCA requirement
that didn’t exist. So, if, under 512F, a
copyright owner files a notice and the alleged infringer
files a counter notice, the OSP must repost the
infringing material unless the copyright owner files a
complaint against the infringer within 14 business days. So, given dependency times,
at least as they exist today, and the high cost of
expedited registration, especially in the case of mass
infringement this decisions effectively requires notice
senders to register their works with the office first
to the extent they can. Those who have large
portfolios and as well as individual creators
of small businesses so they can’t afford to do that. And so, this is this
forward to state case, which shockingly wasn’t
really discussed during any of the panels.>>Well the forward to the
state opinion doesn’t mention section 512.>>Keith Cooperschmidt:
What’s that?>>The opinion doesn’t
mention section 512.>>Keith Cooprschmidt:
It doesn’t, but it has a real life
effect on section 512.>>In the circus that we’re
applying the other rule.>>Keith Cooperschmidt:
Well yeah, but that’s now the Supreme Court
has handed down in that case, it certainly is a
real life effect.>>Thank you. Ms. Rosenburger [assumed
spelling].>>Ms. Rosenburger:
Hi, thank you. I just want to also follow
up on a couple issues that were raised
in other panels. First I want to second and
support Mr. Wang’s testimony from the third panel,
I believe it was. As a writer, I hear authors
saying exactly, thank you, the same thing literally
every day. They feel completely
helpless via the piracy. There is nothing they can do. We have members who spend, one
has admitted she spends 50% of her time dealing with piracy. It’s shocking. This is taking away
from their writing time. Most of the authors just,
they give up, they literally. We did a recent survey
where we found that the mean author
income is $20,000 a year for full time authors,
that’s full time authors. They do not have the money
or the resources to fight. We’re allowing ISP’s to
profit from infringing content without compensation
to the creators. And, I do want to note that
there is a large absence of creators here today. And, one that was because
this was built as an update on the law of the cases and
most creators don’t know the law very well. They’re not lawyers or they, the creator groups don’t
have lawyers on staff or that they can
afford to send here. We are part of a
group that I organize of 20 different creator
groups, we talk monthly and not a single other one of them thought it was
appropriate to come today. So, I do feel like there’s
been an absence of that voice. So, I think we just, we need to
step back and decide whether, as a country, we want
to protect copyright. And, if we do, we
need to amend 512. I agree that ISP’s
have real concerns. But, this is really a matter of who bears the
responsibility and risks. We’ve already seen how the major
internet platforms have really drained money out of
various content industries. And, I’m happy to get
you some of those stats. John Taplin, in his book
Move Fast and Break Things, sites a number of those. The balance that was, that
Congress thought it struck with 512 is not working. And, I don’t think we
need any other proof than to see the transfer
of wealth that has already happened. And, if we don’t
fix this, really, shame on us, shame on us. The EU has to courage to
take it on, we can to. Second thing I want
to mention is 512J. It has not been used because
of how narrow the relief is and the uncertainty as to
its application, particularly with what the courts have done
with other sections of 512. They relief provided
is very narrow. I won’t, given the limited time, you can go through them,
the section yourself. My page is not scrolling down. There is, it’s for providing
the first injunctive relief is providing access to
specific infringing material. The second is for terminating
accounts of subscribers, of specific subscribers. And, the third is such
other injunctive relief as the court may consider
necessary to prevent or restrain infringement
of copyrighted material if such relief is the
least burdensome, etcetera. It costs a lot of money to sue, 512J does not give you the
ability to recover cost. For I, you have to bring a
case to get rid of one account. So, the value proposition
just is not there, same for section two, you
can get the same relief from filing a take down notice. So, it doesn’t, the
wack-a-mole problem, for three, we can’t figure out when we
could bring that, honestly. I also want to, last thing
I’m going to mention is in the last panel, it was
mentioned Google’s demotion of sites was mentioned. And, I want to say that
they have been helpful to us in telling us how to use that, after we’ve actually
gotten authors together to do these massive
take down notices to Google to get sites demoted. And, that has worked. However, it does not
address the problem where the users know
the name of the site because they can just
type it into the URL box. That’s all I have.>>Thank you. Ms. Prezer [assumed spelling].>>Ms. Preezer: Thank you. I just want to make a
couple of brief points. First of all, I’m going to
reiterate the point that I made at the New York round
table two years ago when asked what can
the copyright office do to help in the situation. And, what I said then was,
other than write a great report that will utterly support
our side, on my wish list, I also think the Copyright
Office could hold a round table much like this around the idea
of standard technical measures. You heard me say,
and others say today, filtering technologies
are plentiful, they are reasonably priced, they are effective,
and they are working. And, you heard others
say no they aren’t to each of those things. These are facts that can
be determined and, I think, would be very helpful in everyone understanding
what is out there. We might never get to the
point where any of them rise to the level of a statutorily
mandated standard technical measure, within the
definition of 512. But, at least, if we knew a kind
of factually what was out there and what was true
and what wasn’t, I think that could help
move the conversation so that two years hence we won’t
be sitting here saying there’s filtering technologies,
no there aren’t, etcetera. So, I think that would be a
tremendous service to all of us. The other point I wanted to make
is, in the reply comment notice, you asked it is indeed
a tale of two cities. Are there any neutral principles
we can look to to determine who is correct, as a
lack of a better term? And, our answer to
that question, at the time, was
look to notices. There’s a huge amount
of notices. They are not dropping. And therefore, it can’t
possibly be the case that this system is working
in any real sense because, if it were, piracy
would be dropping and that would be evidenced by
a diminution of the notices. Now, it appears that
notices are dropping. So, this is a very important
fact, but, it’s important to understand why
notices are dropping. They are not dropping
because piracy is dropping. To the contrary,
there’s a number of different explanation
for this. I’m not here to tell you
that anyone is controlling. But, they include the
fact, as you heard today, that copyright owners have
no descending fatigue. In addition, copyright owners, in part because of
the demotion system that Google has thankfully
put in place, a lot of copyright
owners are now focusing on what we call top of search. They are sending notices just
for these sites that appear on that first page because all
of the links further down are in fact less important. So, we’re not, they’re not
going to run up the numbers just for the sake of running
up the numbers. They’re going to use
their notice sending tools in a more surgical fashion. So naturally, the number of
notices are going to drop. Third, the piracy
landscape is shifting. It is shifting from
peer to peer, and in particular torrents,
to search and other forms of piracy, the result of which
is the number of notices drop. Torrents, just to give
you a example, torrent, as you probably know, can
generate tense of thousands of noticeable links
for particular work. And, indeed, if you’re
the copyright owner and you have the resources,
you send tens of thousands of notices for all those links. But now, as piracy shifts
to search, that’s now going to be 10, 20, 30 links because
a site is basically doing all of that aggregating for you that
the peer to peer system used to have to do the work of. We can explain this
in more detail, if you have questions about it. But, the bottom line
is that sites that deliver searchable
streamable content, a misspeaking I think I’m
saying search instead of stream. I’m misspeaking, that’s
the problem, sorry. The problem is that
piracy is moving from peer to peer torrent type
piracy to streamable piracy. And a site that delivers
streams is going to give you many fewer
links that can be notice, the result of which is it looks
like piracy is getting better but all that really
happened is we’ve moved it into another area.>>Does that make the
notice system easier for copyright owners to
enforce against streams or not?>>Ms. Preezer: Not really. I think there’s fewer notices. But, the result we’ve
complained about, which is that the titles
repopulate instantaneously. So, when we’re in wack-a-mole
land, hasn’t changed. And, there are many more
streaming services they’re very, they proliferate very easily. And so, we’re kind of in the
same world we always were. It’s just that it
looks like that, from the transparency report,
that notices are going, that piracy is dipping,
when in fact, it’s just shifting
from one to another. Finally, to look at money. You heard a lot today
about the fact that everybody’s making money and they’re tech services
are paying content billions of dollars and it’s a rising
tide and it’s lifting all boats and everybody should be happy
and content should be happy. But, the fact is that’s
not really what’s going on. Tech companies are making
vast amounts of money and becoming the most profitable
businesses the world has ever known while content is, relative
to what it had been, shrinking. You heard Dr. Buras [assumed
spelling] give you the statistic that today the industry is
worth a billion whereas, on an adjusted basis, previously
music had, would be $21 billion. Yes, not every industry’s
being devastated equally. The motion picture
industry is doing all right. But, relative to what it
would be doing, absent piracy, it would be a completely
different story. Whereas, internet services
are spending a tiny fraction of their revenue on take
down tools, on piracy, on response to notices, and, it obviously has not
effected their bottom line to any great extent. So, perhaps another
neutral factor you can look to to find out who’s right.>>Thank you. Ms. Sheckler.>>Vickie Sheckler: Thanks I’m with Recording Industry
Association of America. A couple of points. Vickie Sheckler with Recording
Industry Association of America. So, a couple of points. On the third domestic panel
there were some statement made about some facts that are
completely and opposite of our experience, particularly
with respect to counter notices and to notices that
are sent to search. I refer you to the
comments that we submitted to the copyright office in
the past on our experience with counter notices and
fraudulent counter notices as well as our experience with
search notices and, you know, we have 96% take down
rate with Google right now with the search notices
and the other four ones that were never indexed, we’re
giving them practically to say, you know, these are
in your index but these are still
infringing sites. As you may know, we send
millions of notices annually, to give you a sense of
our experience on that. Second, Jenny mentioned
to you, you know, the evolving nature of piracy. One thing that, arguably,
that our members experience that may be different from some
of the others is the problem that we call stream
ripping, which, you know, you may have heard. Wherein, these practical
sites circumvent, they have some circumvention
measures for an audiovisual piece of
content, rip out the audio of it, and then distribute
the audio to whoever is anxious to get it. These stream ripping websites,
some types do not have any type of static URL that we can send
a notice to anybody about. So, that is an evolving
nature of piracy. It is an area where the 512
notice system simply will not work because there’s no deep
link notice to send on that one. And then, lastly, as,
you know, Jenny noted and as Richard told you
earlier, yes we’re happy to see that reporting revenues are
starting to rise finally, however, let’s be
absolutely clear, they are nowhere near the
peak of where they used to be. We are, you know, 14
billion in actual dollars in the United States in 1998, 21 billion if inflation
adjusted today’s dollars. And now, we’re at 9. So, have we been devastated
in real economic terms? Yes, we have. Thank you so much.>>Thank you. Mr. Hatfield.>>Mr. Hatfield: Thank you.>>Mr. Hatfield:
One of the things that I’ve not heard discussed is
the downward economic pressure that free access places on the
entire ecosystem for what I do, which is create music,
invest money to document it, and then put it out
into the world. No one in any market
can compete with free. And, when the free that
we’re being forced to compete with is our own music, music
which we invested a great deal of time to create and a
great deal of money in which, that we invested to
document it in a hopes that we might get a return on
that investment so we can come up with the money to do the
next project, it’s devistating. It’s incredibly unfair. In 2014, a professor name
Eric Priest wrote an article, he published it anyway
at that time, he might have written it
earlier, that exams what happens when copyright owners aren’t
able to monetize their works at the points where consumers
derive value from them. He focused on the experience of
the film and music industries in China and found that
it illustrated three ways in which the diminishment of capitol revenue
streams harms producers. One, monetization
opportunities for smaller and independent producers
were drastically reduced to market signals sent to
producers, market signals sent to producers are
reduced and distorted and producers are
disproportionately exposed to idiosyncrasy of
peculiar markets and exploitation
by intermediaries. China’s experience with
monosomy intermediaries that pay minuscule
royalties to copyright to copyright owners
provide a glimpse into what could possibly become
our own dystopian future, a future in which few legitimate
digital distribution platforms become dominant while
piracy remains unchecked. Despite all the, forgive
me, crocodile tears for the small start
ups, the consolidation for the big tech industry
makes it really clear that there’s something
else going on. If and when a winning
platform or platforms in this space emerge and
become ubiquitous and reach for monosomy status, they
will have little incentive to maximize royalty payouts
and it will be difficult for copyright owners to withhold
content and reject those terms. In other words, undervalued
inputs in one part of the music ecosystem
impact all parts of the ecosystem creating
systematic dysfunction and prejudicing creators. If music is devalued anywhere,
it’s devalued everywhere. I’ve been doing this
for over 40 years. I don’t know any musician that hasn’t had their
music illegally posted on user uploaded sites. And, I don’t know
of any musician, no matter how famous they are,
that have more live gigs now than they used to have. We used to have, part of why
so many musicians agreed, I was there, debating
and arguing with people when the DMCA was created. We saw this as an opportunity
because we saw the internet as this glorious thing
that would allow us to get directly to
our customers. We were replacing a
group of middlemen that were greedy record
company executives. But, at least those greedy
record company executives invested in us. They have so little money
now, that, it’s common place for ending labels,
I’ll go spend $10,000 to $30,000 to make a record. I paid for everything. I’m going to go to the label,
they’re going to give me $5,000 to $10,000 to release it. And, that’s not enough. They’ve got a 5 or
a 10 year license, where any additional
revenues like if somebody uses in the film, they make that
money, that’s not enough. They didn’t want to give, take
a percentage of our tour money. Before the internet, the
record companies used to give us tour support. That’s all gone. So, just to kind of wrap this
up, the DMCA intended t balance.>>Were use saying more live
touring or less live touring?>>Mr. Hatfield: Less live
touring and less money from it. I mean, I can name
some famous acts that don’t even pay their
opening act anymore. They charge them
for the exposure. That’s how devastating this
entire thing has become. The DMCA was intended
to balance the interests of service providers,
content creators and owners, as well as the consumers
of content. It’s not that we failed
big media companies, it was that we failed to capture
the attention of the internet to empower artists
and to allow them to determine the contours
of their own careers. When we reform rules like
section 512 of the DMCA so that it does not take an
army to enforce copyright, we expand the choices
of artists. And, these artists
want to create. They will be empowered to
create even more wondrous things for all to behold, and
service providers will benefit from that. For anyone that questions
the value of artist’s work, just ask yourself
a simple question. Who wants a device or a
subscription or even pre-access to a platform to avoid
interesting content? The music community
values the internet and the tech companies
that help create it. But, our content brings value
to their enterprise too. We only ask for a fair
and equitable percentage of the revenues our
work generates. It’s time the tech
companies realize that without our content their
platforms will be less valuable. We ask that they join us in
contributing to the creation of a fair and sustainable
digital ecosystem, one where all the participants
share equally in the benefits as well as the responsibilities
required for the internet to fulfill its promise. And, if you doubt what I’m
saying, the easiest way to understand things like
this, sometimes it’s just, I’m in Washington, forgive me for quoting Deep Throat,
but follow the money. Look at 1998 when, and
I’m not even adjusting it. The RIA said the music
industry was worth $15 billion. Last year, it was worth 9.8. Look at the dominant
internet things, look at, they measure their worth
in millions maybe hundreds of millions AOL was at the top. Now.>>I’m sorry I’m
going to cut you off.>>Mr. Hatfield: Now it’s
a trillion dollar industry. So just, the last time I
checked the remuneration paid up streaming services is less that 6/10,000ths of
a cent per spend. The user uploaded
content services like YouTube pay even less to
generate the U.S. monthly wage, minimum wage of $1,400
on YouTube, one needs 2,133,300
monthly spends and that, that’s if they pay
you everything. The mechanical licensing,
the publishing, the composer, and you happen to
own all of that. That’s not sustainable.>>Thank you. I’m actually going to jump
now to Professor Goldman who has a train in about
30 minutes to catch.>>Professor Goldman: I’m so
sorry to jump out of line. Thank you for accommodating me. I’ll keep it brief. The statement that no one
can compete with free, we did hear from a
representative today, Mr. Poland, who told us
how he competes with free. And so, we do know that there
are different content creation models, different, that
we need to support. I’ve been confused by
all the discussion, there’ve been no examples of
red flags of infringement. Because the 9 circuit told us
what caused these red flags of infringement, told us
that third party notices about content could constitute
red flags of infringement. So, this is from the 9 circuits
UMG versus [inaudible] case, I don’t understand why there’s
been such fud on that topic. I do want to remind everybody,
there’s a lot of references to tech giants and or to
the dominant platforms. Google and Facebook are
integral parts of our ecosystem. But, they are not the internet. There’s a whole lot of internet
that’s worth fighting for. And, we have seen over and
over again, rather a temptation to think that Facebook
and Google activities need to be corrected and applying
that across the entire internet. That, I think, would be a
terrible, terrible mistake. Last thing I’m just going to
mention is about the discussions about when services
curate content and what consequences
that it has. And, I just want to mentioned
some things that we’ve learned from section 230 which says. A websites aren’t liable
for third party content with some minor exclusions or statutory exclusions
including IP. And, we don’t ask
those questions because section 230
categorically protects all editorial decisions on
the part of a service. It protects not only selecting
what to publish or not, but also then all of the other
steps in a curration process, what to prioritize,
how much to show, what metadata would be
appropriate around it? And, that model has
worked really well at helping sites understand
now what they can or cannot do. In Section 12 land, I would
propose a way in thinking about the creation
question as once it starts out of third party content, it
remains third party content. The only question then is,
is it still being stored at the direction of user? What evidence do we have that the user did not
want to store that? Section 230 actually offers
some insights on that. There’s a case called Batsle, which says that when someone
commits content to a sight without it intended
to be published and then the site publishes
it anyway that’s now no longer protected by section
230 because of the fact that the site made the
publication revision not the user themselves. So, we have to model
some section 230 that will help inform this
creation question but recognize that one of the things that
section 230 is best is mutes that creation question because
there’s a thousand different editorial decisions
that sites can make. And, if we try to parse between, these decisions don’t constitute
editorial discretion, these do, it’s a losing game we
can never solve that. Thank you so much
for doing this, we really appreciate
the opportunity.>>Thank you. I’m actually going to
go now to Mr. Wong who.>>Mr. Wong: Thank
you very much.>>Mr. Wong: I see many
guys already address very important issues. But, I’d like to add four point. Reason one, one, is the
big companies always says if the new law let them
face the legal uncertainty. That’s quite the common
question asked in Europe. You know, who didn’t
face certainty in your life and in your career? Everyone faced. When you do something wrong,
we want to take advantage of other’s work without
permission. You, of course, at
least face uncertainty. That’s the thing we want. Right now, the only certainty that some big companies
want is just to make money no responsibility. That’s a certainty they want. They don’t want to face
any law potential lawsuit, anything uncertainty
they don’t want to face, but, that’s not fair. Two, I’d like to address this,
you know, it’s not my opinion but I agree with that some
Europe Parliament members. They reach this issue
to human rights level. When I first heard this,
whoa big words, human rights. But, I checked online and
I checked their message. And, it is many guys
always visit you know, the upload future of the
First Amendment of the freedom of speech, yes that’s
important, that’s why I came to this country right. But, according to the UN’s
[inaudible] particular reason for human rights,
Article 17, same item, no one should be actually
deprived of their, his property. And IP properties
are their properties. So, when you emphasize
the freedom of speech, you’re also violating the
people’s human rights, and [inaudible]. They don’t want to
be treated this way. It’s their property. And, you’re using it for profit. That’s not fair. Three, the lobbying. Right now this issue
it’s global issue. But in the United States, I
can’t, I’m not, I’m not right. It’s kind of like, you now, it’s not well represented
I public, on the internet. Quite often, you’ll see the
Americans argue for the comments with the [inaudible]
lobby, lobby, lobbying fight between the publishing companies
and the new tech companies, this time the big companies
win, next time big publishers, the movie industry win. Honestly, no, if just lobbying
comes, no matter who wins, the people in the videos lose. When the law is made
by and for those who have more lobbying power,
the system’s got a problem. I think laws should be guarantee
to protect in the videos, to protect the public interest. If law is influenced by these
lobbying powers, it’s to me, essential is no difference
to how law is made by dictators around the world. And last, democracy,
about democracy. I want you guys to remember
the creators are only very few on the internet. They are minorities. Majority internet users are
just wait, listen, watch, enjoy the contents, they
don’t create the contents. That’s why this, Europe, you
hear so many overwhelming voice against the copyright directive, most are copyright
users, the internet users. Yes, of course, one Europe
Parliament member told me, told us, not only me, you
know you are minorities here. If we don’t voice for
you, no one would. They’re going to crash you. Your voice will be, you know, submerged by [inaudible] it
doesn’t matter it’s just music they just enjoy this. So, it’s helpless for creators. Let’s see, okay I
had enough time. Thank you very much. Thank you.>>Thank you. Mr. Levy.>>Mr. Levy: Hello again. And so, [inaudible]
the Association of Independent Music Publishers. In some of the panels
today, we discussed the fact that the possibility of
using a representative list in a notification has
been essentially written out of 5:12 by the courts. And, that, combined with how
the red flag concept has been narrowed may ultimately mean that any DMCA notice must
identify specific instances of infringement as opposed to
identifying copyrighted material that is representative of the material generally
being infringed. Lenz may also require some
sort of fair use analysis for each notice which in turn
may prevent rights holders from being able to
use automated systems to identify infringements
and make notices. All of this means
that publishers and songs writers are
effectively prevented from protecting their works due
to the mass investment in money and time required to specifically identify each
instance of infringement. We’ve heard that many copyright
owners have simply stopped sending DMCA notices. And, we’ve also discussed
how their filtering tools that are currently in use, like
Content ID and Content Match, that can be used to
efficiently identify and take down multiple works
after the import of certain information specific
to a copyrighted work as opposed to a location of a
specific infringement. And these are tools
that can be used to slow the tied
of infringement. So, we have a problem. We have the tools
that can help fix it. What we need now is some
help to rebalance the DMCA. While there are problems
with some of the developments in Europe, recent cases and
the passage of Directive 13 and now 17 I guess, provide
a positive roadmap of source for U.S. reform efforts
which should focus more on shifting the burden
of policing the internet from the copyright owner
to the copyright user. And, finally, I just wanted
to thank the copyright office for this opportunity with
the speed of developments and technology sector, it
makes a great deal of sense to reevaluate this
law periodically. And if, as we hope, the copyright office recommends
some improvements here, I hope that you all will
recommend that we continue to reevaluate and
make adjustments to the law when necessary. Thanks guys.>>Great thank you. Next is Mr. Imezioti
[assumed spelling].>>Mr. Imezioti: Good
afternoon everyone. I would like to thank
the copyright office for this opportunity. I’m an EU Fulbright scholar. I’m here at NYU from
Community College Dublin to conduct a study on the issue
of [inaudible] of creators in the online environment. I’m placing a particularly
strong emphasis on social media. So, I’m here to say a few
things, hopefully filling gaps in the discussion
that we had today. First of all, I’m very
grateful to the U.S. Government for their support
on my Fulbright. But, I heard today,
earlier today that the EU should be
careful with human rights. I think that U.S.
[inaudible] to learn from the U.S. and human rights. Well, for the sake of
[inaudible] relationship, we just say that
the vast majority of European countries are
exceptionally good in providing, you know, free healthcare,
free education, and also guaranteeing
rights to asylum seekers and refugee law beneficiaries. So, and, I think that the
[inaudible] we should be a little bit more careful
in using words. This is, I think, something
that we all agree upon. This EU copyright directive,
this has been a long journey. I wrote, together
with the Center for European Policy
Studies 2013 report, after having led a task
force which was a little bit like based on meetings
like this, even though it was not European
Commission holding them, a report that’s been downloaded
almost 15,000 times whose title was Copyright in the EU Digital
Single Market which is more or less the same title of
the upcoming directive. That was 2015, it
was the aftermath of the [inaudible] debates
and let’s say clashes between sectors between
parts of the public opinion. And, there was very
little willingness to discuss constructively about the developments
in copyright law. There was a consultation,
more or less the same process that you follow here at
the Copyright Office, and if you read that report,
because I want to do publicity for my work, but, you can
see clearly in that report that incorporates also policy
recommendations what has been done. I would say very little in part of this directives
despite the alarming or the alarmed reactions
here in the U.S. What we have in this new directive
is very little. And, what has not been done yet, because we don’t have a
Federal system of copyright in the European Union,
we have a bunch of national copyright systems that we are doing our
best to harmonize. And also, if you look at the
article 15 slash new article 17, I understand the concerns
of the technology companies of the civic society
organizations. But, you have to
understand that, for us, it was also an issue of harmonizing secondary
liability law. It’s something that
we don’t have because we don’t have
a common torte law. I’ll be as quick as possible. On article formal Article
11 and 13, obviously, these are not perfect
provisions. As someone has stressed,
these are the result of very complex policy making
and law making process. Someone asked correctly
emphasize that fact that the government, so your
counsel has not approved the directive yet. The approval and
so the [inaudible] in the next few days. Article 15 and article
11, obviously, these are not provisions that
convince the European Parliament to vote in favor
of this directive. What I have not heard
one, I would say, one single time today
is the fact that Europe normalizing
copyright is driven by control policies. France, now the biggest
enemy, let’s say, of the tech companies. Now the most outrageously
conservative government in the European Union, the France I think
share their views. France, negotiated the
copyright directive of the government level
through its ministry of culture, not the ministry of economic
growth, not not the ministry of industrial development. And so, you already understand
a significant difference with the U.S. What really
motivated the European Parliament to grant
a decent majority in the final vote a
few weeks ago was not, as I said Article 17 or
Article 11, was mostly, I would say say two
components of the new directive. The first is the new exceptions. Someone correctly emphasized
we don’t have fair use. We have a significant
[inaudible] of a new few exceptions
in the new directive. Teaching someone
emphasizes the fact that we lack public
teaching exception especially in the digital environment. We will have it thanks
to this directive. We also will have text
in [inaudible] exception which is beneficial to
the companies especially in the public partners,
the private partnerships. And, I will say something
that I have not heard today. Read the final part
of the directive because what motivated
the European Parliament in its approval of the
overall bill is the new rights that are being granted to
authors and performers. The idea that European
Parliament, especially now, is run by a sort
of awkward majority which is socially [inaudible]
play a role, and it’s expected in the next election that this
majority will not be there. So, here will.>>I’m going to have
to ask you to wrap up.>>Mr. Imezioti: So, pay
attention to the next frontier of European regulation,
it’s platform regulation, it’s data regulation, it’s
transparency and fairness. Something that could upset the
technology companies even more than Article 17 and Article 15. I, final thing, I’m
conducting interviews and I’m collecting data here. So, if after this
[inaudible] some of you could actually give
me his or her business cards, I would be very happy to
arrange a conversation or to be as informed as possible
because I would like to reflect this kind of comparison EU,
U.S. in the best way. Thank you.>>Thank you. Ms Wolfe. And then, after
Ms. Wolfe will be Ms. Gillis [assumed spelling]
and then Mr. Band.>>Ms Wolfe: Okay. I thank you, I’ll try
to keep things short. I agree with a few
of those speakers who were just before me
that, after 21 years, it’s good to reflect on what’s
working and not working. I think from the perspective
of those that represent and try to monetize and license the
work of professionals and, in this case, visual artists
whether it’s motion clips or graphic design
or photographs. The notice and take down
really isn’t adequate because professionals can’t
spend their lives doing notice and take down. What they really need is
incentives for this community to work with the
providers to find ways to just stop the infringement
and also to encourage some type of licensing system
that would really work. If you have a system where your
only, your only resource is to have content taken down, most
of the benefit has been used, particularly if anything is time
sensitive in the amount of time that it’s already been up
before it can be taken down. And you’re really, you’re not
encouraging an economic system where you’re going to be
able to sustain yourself through the actual
licensing of content. And, as you all know, no
one looks at any website without some kind of video
or images these days. So, the balance that
was promised in the beginning really
needs to be reexamined. Part of it is, I think the way
the courts have interpreted a lot of these cases is it
discourages real activity between content creators
and ISP’s which can be defined
as almost anyone. There is filtering
that can work, there is image recognition
technology. I think everyone’s afraid that
they may be doing too much, that they will loose
safe harbor protection if they do too much review or
curation, perhaps there’s a way that that can be clarified
that you don’t lose it if you do take steps
in that area. And, I think, the other problem,
which we didn’t address today, which is the definition of
standard technical measures. The way it’s defined
just doesn’t work because technical measures
aren’t done by a broad consensus of users and technology
companies, they really come out of different sectors that
are familiar with their own type of content, so, what may work for the Music industry
may not work for the motion picture
industry or work for the visual arts community. So, I think that.>>Do you think the statute
leaves that kind of flexibility to have industry specific STM’s?>>Ms. Wolfe: Well,
it’s very unclear because it says it has
to, and I don’t have it, well I have it on
a, the definition.>>It’s really basic. I believe the entire explanation
is it must accommodate and not interfere with
standard technical measures.>>Ms. Wolfe: Well,
but, the definition of standard technical
measures requires that those standard
technical measures are develop over a broad, I think,
consensus. I have to, yeah I
have to find it.>>So it says.>>Ms. Wolfe: Used by copyright
owners to identify, project, copyright works and
have been dealt pursuant to a broad consensus
of copyright owners and service providers in an open
fair voluntary multi-industry standards process. And so, that whole, the idea that it’s a multi-industry
standard process with everyone involved, I
don’t think that’s the way that really has worked. I haven’t seen any
of that happening.>>And you don’t think
multi-industry could just mean, you know, a platform and, you
know, visual artist for example? I mean, in other sectors there
might be standard [inaudible].>>Ms. Wolfe: It’s possible but in 21 years it
hasn’t happened so.>>Right.>>Ms. Wolfe: The
incentives to encourage that seem not to be there. And. Yeah, and, I think that
the great protections that have encouraged ISP’s to
take down have also discouraged, they just designed their
platforms around fitting within the boundaries and
edges of 512 when, perhaps, there could be much better
platforms, much better content if there was more
curation and more working with content creators
to create a system where you wouldn’t have just
to do notice and take downs but you would have opportunities
for broad licensing. And, I’ll turn it
over to the next one. Thank you very much
for having this today.>>Thank you. Ms. Gillis.>>Ms. Gillis: Thank you. Two main points. One, I want to go back to
the study skyisrising.com and the question was raised
about where the data came from. This is largely industry
data and the final page of the report lists the
sources that built it. Also, it’s not just showing that
like all media, video, books, music, video games, that the
overall pie is growing for all of them, but also that, as we’ve
discussed throughout the day, for independent creators,
their markets, their markets are
also increasing. And, when we do our advocacy,
we’re not just speaking about the hypothetical
idealized citizen speaker. We are speaking about
independent creators who need access to these
platforms in order to be able to commercially exploit
their creativity. The second point is, I wanted
to talk about mavericks because we didn’t really
do that in my session. Largely echoing what
Professor Goldman said. I think the maverick decision
itself was a wrong turn. As a litigator, I’m
going to litigate as if it were a wrong turn,
especially given that the follow up decision moved away from it. And, I think the error was the
at the direction of the users. And, I think that the Professor
Goldman’s comments are important in that regard that that’s
creating the universe. And the fact that the platform
may be shrinking the universe of content that’s
going to appear on the platform should not
change that, ultimately, liability hinges on whether the
material was at the direction of users to put it in
that potentially universe of content to be posted. But, the big point I wanted to
make on mavericks is this idea, we have this collision now
between Section 230 and 512. And, this is not a good
collision because one of the things we see with section 230 is the
enormous censoring of facts. And, I know that that’s my
bailiwick and I keep harping on that, but it’s
because it’s true. When there’s the fear of
liability, I pinches platforms and they crack down on speech
if they can exist at all. We see, with the amendments
that we just had to Section 230, widespread damage where whole
swaths of content that used to be able to live quite
happily on the internet, legal, lawful content has now been
taken down by platforms because they’re so afraid of the new liability
regime that may target them.>>You have a question.>>Ms. Gillis: Yeah.>>Can I just ask a
question about that. So a lot of people have said that SESTA has created
these vast chilling effects on the internet. But, didn’t Section
230 already exempt out criminal activity
in the first place?>>Ms. Gillis: So, I think the
question is why did they bother to do SESTA when you
already have some language on 230 would do the job? Of which I can say there
was no good reason. And, what they ended up doing
was making a statutory change that certain promoters
thought was going to be, some of the promoters may
have thought it was minor, other promoters may have
thought it was actually major. And this is entirely what
they thought happened. But, it was not necessary. But, the consequence of it, it
changed just enough to cause so much uncertainty to the
immunity, because it’s more than a safe harbor, it’s an
immunity, you don’t even have to litigate it and spend
the cost to litigate to find out if you have a safe harbor,
which we do in 512 land. It caused so much damage that
platforms have reacted to, I mean, one of the first and most famous was Craig’s
List deleted its entire adult personals adds. This is legal lawful content. But, because it had
enough qualities where it could possibly
be caught up in this awful
definition of the way that statutory changes
happened with, it was SESTA, it became FOSTA so just for
clarity we’ll call it FOSTA. But, those changes ended
up removing he safety that the platforms were
relying on in order to allow this great cacophony
of user and dialogue, discourse, speech, etcetera, where the
censoring effects have been real, measured, observable and
they’re now being challenged in the courts about whether
this was constitutional at all. But, the point is this is
something we should be very reluctant to look for in as a regime small changes can
have huge impacts on the amount of speech that we can
still have online. The one other point I wanted
to flag with mavericks is with the idea that
if you moderate, moderation shouldn’t
challenge it. But, one of the other
things is just to echo what I was saying
before is that, if you moderate, I think there’s this idea
that moderating your look and you’re seeing, well then
you’re seeing the infringements so therefore now your
safe harbor’s in jeopardy if you don’t do something
about it. And again, I think the
same challenges that happen with a take down notice or
happen with any sort of content of is it copyrightable,
who owns the copyright, was there fair use,
was there a license? Somebody who’s moderating
the content and particularly in the position where live
general moderators were, they’re not going to have
access to that information to truly know anything
their decision or risking their safe harbor. I think it’s really important,
as we were discussing with 230 and 512, that, for these
protections to be useful and valid and ultimately
protect the platforms to protect the speech, they
have to be robust and reliable. And, we should be really
reluctant to mess with that. Thank you.>>Thank you. Mr. Band and then Mr.
Gratts [assumed spelling] who I already see in the
back, you’ll be next.>>Mr. Band: Thank you. First I wanted to agree
with our colleague from the European Union, I
support Medicare for all. So, if you could make sure that
that’s included in your report. Two overarching points
aside from that. First, I guess, at a high
level, the message from a lot of the 512 supports is that, in
your report, we don’t view it, we would really urge you
not to take 512 in isolation or view it in isolation. You need to first view it
in its societal context. We talked about the importance
of internet access both in terms of, you know, free
speech dimension but also in terms of employment
and participation in democratic institutions
and so forth. So, that’s the first thing. You really need to view
the, and, as well the impact of potential impact of filter
and the adverse consequences that could have well beyond
the area of copyright. So first, the importance
of the internet in its societal context. Second of all the legal
context that 512 was part of a broader legal framework. We only touched on that briefly. Meredith Rose mentioned
that that you, you know, we really can’t view 512
in isolation from 1201 which the rights holders have
repeatedly said is so essential for the success of all kinds
of content on the internet. Which leads to my third point
that you can’t separate, you shouldn’t view
section 512 in isolation from the content context which
is that there is search now, in part because of 1201, I
have to concede that, but, for other reasons as well,
there’s just such an abundance of contents available
on the internet. If any, you know, I
remember, indeed certainly, when we were talking about the
DMCA 20 years ago there was this notion, well, you know,
we have cable television, we have 500 channels and
nothing to watch, right. Whereas, now, we have a
situation where there is such an abundance of
content it’s almost like you have content
overload anxiety, right. I mean, you, there’s, you can’t
possibly consume all the great content whether it’s between
all the great television shows on Netflix or Amazon or all the
podcasts, I mean, it’s just, we’re overwhelmed with content. And also, when you talk a lot
of with the many rights holders, you know, in this context
they complain about piracy. But, in other contexts they
basically say well we can’t, there’s too much competition. There’s too many
photographers out there, there’s too many
musicians, the barriers to entry have gotten so low. But, I’m not sure that
that’s a bad thing. I think that certainly, from the
copyright office point of view, the more content, and a lot of this is very high quality
content, certainly the better. So, that’s the first big area
that we want to make sure that 512 is viewed in context. The second point is one, in the last panel someone
mentioned the publisher’s right. And, I was going to, I heard a
panel last week in Geneva about, where the publishers
were talking about the publisher’s right
and why it was so wonderful. And they said they weren’t
trying to regulate facts and they weren’t trying to
regulate free expression, they weren’t trying to
undermine the quotation right and they weren’t trying to
limit access to news of the day. However, they did say that
they thought that four words from the headline would
be an infringement. Now, I’m sorry, four words
from the headline sounds to me like facts, sounds to me
like showing free expression, infringing the quotation right
and undermining news of the day. And so, I think that, you know,
we really need to be very, very weary about this
publisher’s right and make sure it
doesn’t come here. It would clearly be
unconstitutional. And so, you know, it’s
like a horrible idea. I know it’s beyond the scope
of this report, I hope.>>Yeah but you have 50 more
seconds left if you want to keep talking about that.>>Mr. Band: And
so then, the last, the very final point
then is that, you know, also when we’re looking at
the directive and, you know, it has some bad ideas like, you
know, Article 13, Article 11. But, it also has
some good things. And so, I just wanted to say,
the one thing that I think is, you know, there’s a
couple of good things, I think the Preservation Rights for Cultural Heritage
Organizations is great and also the contract
override so that the notions that there are certain
new exceptions created in the directive
and then it says that those cannot be
overridden by contract. Again, I know that’s
beyond the scope of this panel or this report. But again, if we’re looking at bringing good ideas
from the directive. That’s a really good
idea you should consider. Thank you.>>Thank you. Mr. Gratts. Following Mr. Gratts will be
Ms. Castillo then Mr. Carver, then finally Mr. Trungoso
[assumed spelling] unless anybody else has signed
up and I haven’t seen it.>>Joe Gratts: Thank
you very much. I’m Joe Gratts, recognizing
it is late in the day, I will limit myself to one
minute and three case citations. My first case citation
is to the MP3 tunes case. There’s a question that
came up a number of times about what does a real
world example of something that would qualify as
red flag knowledge? And, we get one from that case. In that case, there
were a lot of facts. But, one set of those facts
is about Beatles songs, that is the service knew
that they were only allowed, under their legal theory,
to have Beatles songs up, to have songs up that
were lawfully purchased on an online MP3 store. And, they knew that Beatles
songs weren’t available on any online MP3 stores. And, they knew that
Beatles songs were available in a very particular
place in their service. All of that being true, the court said they
had red flag knowledge and I think that’s right. That’s the first case citation. I want to turn briefly
to expeditiousness. I think courts have been
correctly recognizing that expeditiousness
depends on the circumstances, my second case citation
is Long against Facebook in which I represented
the defendant that came about a month ago.>>Is this the same
as Long V Dorset?>>Joe Gratts: It is.>>Okay.>>Joe Gratts: You’re
aware of the case, I won’t belabor it except to
say it reflects the flexibility with which courts are taking into account the different
facts, that can add up to expeditiousness go ahead.>>I do unfortunately want
to ask a question which is. How unique do you think the
outcome of that case was to the facts of that
case, right? In that case, they basically
say five days is expeditious, but it dealt with the