• Copyright Office Review Of DMCA Safe Harbors Says System Is 'Unbalanced,' While Music Industry, Artists Groups Say Big Tech Should Fix It

    May 21, 2020 at 10:17 AM (PT)
  • copyrightoffice2020.jpg DMCA Review

    The U.S. COPYRIGHT OFFICE has released the results of its multiyear study of the DIGITAL MILLENNIUM COPYRIGHT ACT, Section 512 of the Copyright Act, concluding that the law's safe harbor system today is "unbalanced" and calling on CONGRESS to fix it, while industry organizations from both the label and artist sides charged that big tech platforms should and can make changes to address the problems.

    The report says that the implementation of the rules is "out of sync with Congress’ original intent," citing areas of trouble being eligibility qualifications; repeat infringer policies; knowledge requirement standards; takedown notice specificity; non-standard notice requirements; subpoenas; and injunctions. However, the OFFICE is not recommending any wholesale changes to the provision, asking CONGRESS to instead consider legislation to fix the problem. The OFFICE suggested that CONGRESS can require TWITTER, FACEBOOK, and other platforms make their policies for terminating repeat infringers public instead of internal, and that CONGRESS can define when a platform's knowledge or lack of knowledge of infringement constitutes a liability and when it is protected.

    Music Industry Orgs Say Big Tech Can Fix It

    The music industry's reaction to the report came in a release from a coalition of the AMERICAN ASSOCIATION OF INDEPENDENT MUSIC (A2IM), MUSIC ARTISTS COALITION (MAC), NATIONAL MUSIC PUBLISHERS ASSOCIATION (NMPA), RECORDING INDUSTRY ASSOCIATION OF AMERICA (RIAA), SONGWRITERS OF NORTH AMERICA (SONA), and SOUNDEXCHANGE putting the ball in "Big Tech"'s court, saying, “Platform accountability is achievable and mutually beneficial for fans, music creators and digital distribution partners alike. As this report makes clear, the current system is broken -- especially when it comes to so-called ‘user-upload platforms’. To succeed, platforms must be made accountable participants in the music ecosystem.

    “But the good news is that many of these issues can be addressed by the big technology platforms who exploit music, including by applying already widely available technologies. Here are three things these platforms could do right now to begin to address the issues identified in the report:

    “Ensure that ‘take down’ means ‘stay down.’ User-upload platforms should put an end to the ‘whack-a-mole’ era by implementing meaningful, robust processes to ensure that once infringing content is taken down, the same infringing content does not immediately re-appear on the same service. To be an effective remedy, ‘take down’ must mean ‘stay down.’

    “Thwart Stream-Ripping Services. Industrial-scale piracy has not disappeared. Instead, fueled by technological change, it has morphed to new forms like ‘stream-ripping.’ On-demand video streaming services can prevent stream-ripping services from circumventing their protective systems by ensuring that their technological protection measures stay ahead of the stream-ripping services, and by aggressively monitoring when and how their technical protections are being breached. Furthermore, search engines should make every effort not to link to such services.

    “Permit Copyright Owners to Monitor Infringement of Their Own Works. Social media platforms should provide tools that allow copyright owners -- regardless of their size – to monitor infringement of their own works and establish automated and scalable notice and takedown systems like many other user-upload platforms already have.”

    RIAA Chairman/CEO MITCH GLAZIER said, “Technology companies have shown they can solve some of the world’s most difficult technical problems -- legal, financial, or otherwise. Improved anti-piracy work is in everyone’s best interest and the RIAA and our members stand ready to work with the platforms to get it done. We expect that Congress will closely review both the Copyright Office report and the steps taken by the platforms to fix the issues it has identified. The RIAA stands ready to support that process.”

    A2IM Pres./CEO RICHARD BURGESS said, “Recorded music industry revenues are still artificially suppressed, twenty years after the digital disruption. There is no lack of demand. Music listeners and listening are at an all-time high while revenues hover around fifty percent of what they were in the year 2000 (by adjusted dollars). Common sense fixes would narrow the gap, especially for independent artists and labels that lack the means to adequately protect their intellectual property when they are up against internet platform behemoths that are literally the richest companies on earth. A2IM is eager to engage in the important steps that should follow the release of this report.”

    MUSIC ARTISTS COALITION Board Member and GLOBAL MUSIC RIGHTS founder IRVING AZOFF said, “The COPYRIGHT OFFICE’s report validates what every working musician knows:  the music copyright system is broken and must be fixed. The interpretation of the DMCA by big tech strips music creators of the rights granted to them by the Constitution. Technology companies fight vigorously to protect their intellectual property but trample on copyright. The time has come for big tech to pay attention, read this report, and work with us to fix the system, rather than hiding behind an antiquated law that harms our working musicians, songwriters, producers and recording artists.”

    NMPA Pres./CEO DAVID ISRAELITE said, “The changes necessary to prevent large-scale, systematic piracy are simple and achievable. This report outlines where the system is failing, and we hope that it underscores the need for tech companies to do more about the theft they know they are enabling. Music has value, and as long as it is willfully not protected, songwriters, artists and musicians will suffer. This study supports the fact that social media platforms and search engines can and should do better.”

    SOMA Exec. Dir. MICHELLE LEWIS said, “The DMCA takedown system is the opposite of the way copyright is supposed to work, which is to get permission first. It is particularly unfair to songwriters and other individual creators, who lack the resources to track infringements in the ocean of the Internet. Even when a takedown notice is sent, the material can pop right back up again on the very same platform. If we have to live with the DMCA system, it needs to be takedown, staydown. If there are better tools available to filter out repostings, all creators should have the opportunity to use those tools, not just bigger players. Songwriters should be spending their time writing songs, not sending takedown notices.”

    SOUNDEXCHANGE Pres./CEO MICHAEL HUPPE said, “It comes as no surprise to music creators that the 22-year old DMCA provisions meant to protect their work online have not aged well. The realities of today’s digital economy bear little resemblance to the technology anticipated when the DMCA became law. As this study shows, today’s creators are forced to spend immense (and sometimes impossible) efforts trying to protect their rights. This is fixable, but it requires the cooperation of Big Tech companies that allow their platforms to trample the rights of creators while hiding behind the DMCA. The system can work better, and we all deserve a higher standard.”

    Artists Rights Alliance Alleges Big Tech Can Fix The Problem But Doesn't Want To

    The ARTIST RIGHTS ALLIANCE also pointed its finger at tech platforms to fix the problems in the DMCA safe harbor provisions, issuing its own statement saying, “When you cut through the bureaucratic caution and legalese, this report describes a simple, brutal truth: The tech monopolies are failing artists, songwriters, and music fans. And they couldn’t care less. Billion-dollar valuations of tech companies built on a foundation of shortchanging artists and songwriters dispel the myth that ‘there is no money in music.’ It’s time to put that money back in the hands of the artists and songwriters who invest their time, labor, heart, and soul into making music, and the people who believe in their dreams and support their careers.

    “The bottom line:  tech platforms hold the keys to their own networks and could massively reduce the amount of online piracy and the crushing burden it imposes on working songwriters and musicians today if they wanted to. But they don't. Because they make too much money off the broken system this report describes, selling ads alongside pirated copies of our work and scraping data from music fans everywhere they go online, from the most legitimate streaming services to the darkest corners of the web.

    “If we could get some common decency from the SILICON VALLEY giants, we could work out solutions to many of these issues without changes to the law. The JUDICIARY COMMITTEES asked for this report and must now push tech companies to find these solutions and insist that independent creators have a seat at the table.

    “If that fails, CONGRESS must act.”