from the calm down, sparky dept
As we’ve mentioned, today is the day that comments are due to the Copyright Office on the effectiveness (or not) of Section 512 of the DMCA, better known as the “notice and takedown” safe harbor provisions. We’ll be posting the details of our own filing at some point (possibly not until Monday as we’re still finalizing a few things), but some of the other filings are starting to filter out, including a fairly astounding 97-page document from a bunch of legacy music industry organizations (about half of which is the actual filing, with the rest being appendices), including the RIAA, ASCAP, AFM, NMPA, SoundExchange and more. It’s basically every organization that represents the way the industry used to work — and the document reads like an angry polemic against the internet. It would have been much shorter, if they just wrote “our business used to be much better when we had more control and less competition — and we never bothered to adapt, so fuck Google and all those internet companies — and let’s change the DMCA to punish them and magically bring back the good old days.”
Also, the filing seems to leave out the fairly important point that it was these groups that basically wrote the DMCA that they’re now whining about. Actually, let’s get even more specific. The comment here was co-written by lawyer Steve Metalitz — who has a way of showing up whenever some legacy industry is pushing to make copyright laws much, much worse. Metalitz’s own bio emphasizes the fact that, as a lobbyist, he was “instrumental in the drafting” of the DMCA:
So it seems rather… rich, for the legacy music industry to hire Metalitz, who proudly states that he was “instrumental in the drafting” of the DMCA while lobbying on behalf of these same groups, to now write a jeremiad about how totally awful the DMCA is for these same groups. But that’s what’s happened. The document literally mentions Google or YouTube more than once per page. But it starts right in with the industry’s concerns, which might be summarized as “why hasn’t Google stopped the evil piracy!?!?”
The Music Community’s list of frustrations with the DMCA is long. A broken
“notice-and-takedown” system. Toothless repeat infringer policies. Active services
mischaracterized as passive intermediaries. Incentives for services to embrace willful
blindness instead of preventing known and widespread infringement. The words
“representative list” read out of the statute.
Basically, Metalitz uses the document as a chance to list off how he’s sad that the courts have basically ruled against copyright holders trying to chip away at the safe harbors at pretty much every turn:
Courts have also given little meaning to key provisions for content owners in the
DMCA bargain. Examples include “red flag” knowledge, repeat infringer policies and
representative lists. The result: safe harbor status for services that choose to stick their
heads in the sand rather than do their fair share, forcing content owners to divert valuable
resources from away creating content to sending minimally effective take down notices,
or for content owners with limited resources, to actually refrain from sending takedown
notices at all. Content owners, especially those with limited resources, simply cannot
take on the entire digital universe alone.
At its worst, the DMCA safe harbors have become a business plan for profiting
off of stolen content; at best, the system is a de facto government subsidy enriching some
digital services at the expense of creators. This almost 20 year-old, 20th Century law
should be updated.
Astoundingly, this comment claims that the results in the YouTube and Veoh lawsuits prove how broken the DMCA is and how much it favors internet companies. Remember, Veoh was a YouTube competitor that won its lawsuit that had been filed by Universal Music… but went out of business due to the legal costs of defending itself under the DMCA. And Metalitz and the RIAA are bitching about the fact that Veoh won… as if that was the travesty in the case, rather than the fact that the recording industry was able to shut down a perfectly legal web service that many people found useful.
The comment goes on to whine that even as more music is available to the public these days, revenue is down for some of those who signed on to the comment (the comment is careful not to mention that ASCAP, BMI, SESAC and SoundExchange revenue keeps going up… but… those inconvenient details must be ignored). What the filing also ignores, of course, is that these very same players fought tooth and nail against any of the innovative services that helped make this revolution in music accessibility possible. They basically now want to tax all the innovative companies who experimented and found the models that work and make consumers better off, while they themselves did none of that and actively sought to block nearly every new innovation. Talk about entitlement.
The comment also ignores the basic fact that if so much more music is being consumed today, that seems to suggest that the law must be working in some manner, seeing as the purpose of copyright law is to incentivize the creation of new works so that the public can benefit. By their own words, that seems to be happening.
Despite music being more popular than ever today, U.S. music industry
revenues have been virtually flat since 2010 and are down nearly 50% since the DMCA
was enacted in 1998. This has led to what we call the “value grab”, creating market
distortions that lead to bizarre statistics like vinyl records generating more revenue for the
industry in 2015 than the billions of on-demand ad-supported music streams on YouTube
and similar services.
Except, of course, that comparison between vinyl and YouTube is total bullshit. As we were just discussing a week ago, the industry is comparing apples and oranges, using the gross “retail value” on vinyl (ignoring discounts and all the money that goes to everyone in the distribution chain) and only counting the net “wholesale value” on free streams (and ignoring the upsell opportunities or other revenue that comes from ad-supported streams).
The summary so far: we wrote the DMCA, but now we’re going to whine about it. The public is benefiting like never before from new music — so we’re going to ignore that the purpose of copyright law appears to be met. We’re not making as much money as we used to (ignoring that some of us are making much more than we used to)… but we see big internet companies making lots of money, so we’re going to ignore that it’s probably because they innovated and built services the public wanted while we sued our own biggest fans.
And, of course, the comment pushes for a “notice and staydown” regime:
Copyright owners should not be required to engage in the endless game of
sending repeat takedown notices to protect their works, simply because another or the
same infringement of the initially noticed work appears at a marginally different URL
than the first time. The current standard of “URL by URL” takedown does not make
sense in a world where there is an infinite supply of URLs. As described in the response
to Question 15, technologies exist to identify content that is reposted on a digital service
after it is removed, services of all sizes have implemented them, and they should be
deployed as a standard industry practice.
Again, this ignores the basic fact that copyright is context dependent. And you can’t put a total block on content, because you don’t actually know if the content is actually infringing each time. Hell, remember in the Viacom case against YouTube (which the comment whines about), Viacom had to admit that the evil pirate uploaders to a bunch of the videos… were actually Viacom employees trying to market Viacom content. This is why we don’t do full on content blocks, because just because the content is up, doesn’t mean that it’s infringing.
Even more ridiculous, while at one point noting that almost no one files counternotices, so that means that DMCA takedowns are almost all legit (despite a recent study debunking this point), it later whines that there are too many false counternotices:
In our experience, the counter-notification process results in too many false-positive
counter-notices. For example, IFPI received counter-notices on 653
infringements, based on a sample of 98,753 infringements noticed to YouTube. After
reviewing these counter-notices, it appeared that over 80% of the counter-notices had no
good faith basis for claiming “mistake or misidentification,” the only valid statutory
grounds for a counter-notification. Yet, based on this sample, the association
representing the rights holders would be required to institute over 500 lawsuits in order to
enforce their rights. This is an unmanageable burden. These statistics further
demonstrate that the deck is unfairly stacked against rights holders.
Filing 500 lawsuits would be an “unmanageable burden?” Funny, the RIAA was able to go after at least 30,000 individuals. And, really, this paragraph acts as if filing a lawsuit is the only possible remedy in such a situation. It’s not.
Also, trying to make sure that they’re as evil and against the public and fans as much as possible, the comment actually decides to whine about the ruling in the dancing baby case, saying that it’s some horrible burden to have to consider fair use before sending a takedown, even though they just need a subjective good faith belief, rather than an objective one:
We take this opportunity to highlight one case in particular, Lenz v. Universal
Music Corp. In that case, contrary to Congressional intent and the weight of authority
concerning who has the burden of claiming and proving fair use, the court held that a
copyright holder must subjectively consider fair use before submitting a DMCA notice.
This unique decision, and the fanfare that has followed it, is quite remarkable considering
that other courts have expressly rejected that view, and that the Supreme Court has
routinely held that the burden of proof for a fair use defense rests on the accused
They also whine that the newly amended version of that ruling took out the random dicta that an automated takedown system could meet the standard.
Believe it or not, that’s just a sampling of all the ridiculousness in the comment. It’s simply not a reality-based document. One hopes that the Copyright Office might actually recognize that, though that seems unlikely.