American Indie Labels Reveal The Pain Of DMCA Takedowns

A survey of US indie labels has revealed the challenges for smaller rights owners posed by the takedown element of the pesky safe harbour.

The copyright safe harbour, of course, says that internet companies can’t be held liable if their customers use their services to infringe copyright, providing said net firms offer copyright owners with a takedown system via which they can request infringing files be removed. In the US, the safe harbour and the accompanying takedown requirements come from the Digital Millennium Act.

Critics of the safe harbour argue that that system puts too much onus on the copyright owner to monitor the servers of big tech companies for the unlicensed distribution of their content. Especially when US copyright law doesn’t set the bar for the effectiveness of the safe harbour dwellers’ takedown systems particularly high.

Of the indie labels surveyed by the Future Of Music Coalition, 30% said that they didn’t actively search for infringements of their recordings online, with a lack of resource a commonly cited reason. Some also said that they had stopped monitoring the net for the illegal distribution of their content after previous attempts at having their music removed via DMCA takedown systems had proven ineffective.

Of the respondents, 65% said that when they did issue takedowns, it often took more than 24 hours for their content to actually be removed. Meanwhile 68% said that a big issue was that their music often quickly reappeared on platforms after an initial takedown request had been actioned.

The study was also backed by the American Association Of Independent Music, and has been submitted to the ongoing US Office review of the safe harbour. The music industry wants safe harbour protection taken away from certain kinds of services, and the obligations around takedown increased across the board.

A2IM boss Richard James Burgess said of the survey: “Thanks to the Future Of Music Coalition for compiling this revealing survey and to our label members for completing it. Sadly, the survey confirms that independent labels are significantly harmed by the unauthorised online use of their music and the unnecessarily tortuous notice and takedown process”.

FMC’s Dick Huey added: “Independent labels play a crucial role in the careers of artists of every genre; many are run by musicians themselves. As policymakers weigh changes to copyright law, the unique needs of the independent sector and all the diverse music communities they serve must be a central consideration”.

Send DMCA Notices with ease by using the e-DMCA Takedown Notice Serviceclick here for more information.

Dangerous Ruling On DMCA Safe Harbors May Cause Problems For Hollywood

Late last week an important, but disappointing, ruling came down from the 9th Circuit appeals court. The ruling in the case of Mavrix Photographs v. LiveJournal found that volunteer moderators could be deemed agents of a platform, and thus it’s possible that red flag knowledge of infringement by one of those volunteer moderators could lead to a platform losing its safe harbors. There are a lot of caveats there, and the ruling itself covers a lot of ground, so it’s important to dig in.

The case specifically involved a site hosted on LiveJournal called “Oh No They Didn’t” ONTD which covers celebrity news. Users submit various celebrity stories, and ONTD has a bunch of volunteer moderators who determine what gets posted and what does not. Some of the images that were posted were taken by a paparazzi outfit named Mavrix. Rather than send DMCA takedowns, Mavrix went straight to court and sued LiveJournal. LiveJournal claimed that it was protected by the DMCA safe harbors as the service provider and the lower court agreed. This ruling sends the case back to the lower court, saying that its analysis of whether or not the volunteer moderators were “agents” of LiveJournal was incomplete, and suggests it tries again.

There are a number of “tricky” issues involved in this case, starting with this: because ONTD became massively big and popular, LiveJournal itself got a bit more involved with ONTD, which may eventually prove to be its undoing. From the decision by the court:

When ONTD was created, like other LiveJournal communities, it was operated exclusively by volunteer moderators. LiveJournal was not involved in the day-to-day operation of the site. ONTD, however, grew in popularity to 52 million page views per month in 2010 and attracted LiveJournal’s attention. By a significant margin, ONTD is LiveJournal’s most popular community and is the only community with a “household name.” In 2010, LiveJournal sought to exercise more control over ONTD so that it could generate advertising revenue from the popular community. LiveJournal hired a then active moderator, Brendan Delzer, to serve as the community’s full time “primary leader.” By hiring Delzer, LiveJournal intended to “take over” ONTD, grow the site, and run ads on it.

As the “primary leader,” Delzer instructs ONTD moderators on the content they should approve and selects and removes moderators on the basis of their performance. Delzer also continues to perform moderator work, reviewing and approving posts alongside the other moderators whom he oversees. While Delzer is paid and expected to work full time, the other moderators are “free to leave and go and volunteer their time in any way they see fit.” In his deposition, Mark Ferrell, the General Manager of LiveJournal’s U.S. office, explained that Delzer “acts in some capacities as a sort of head maintainer” and serves in an “elevated status” to the other moderators. Delzer, on the other hand, testified at his deposition that he does not serve as head moderator and that ONTD has no “primary leader.”

It’s this oversight by a paid employee of LiveJournal that makes things a bit sticky. The question is whether or not this oversight and control went so far that the volunteer moderators could also be seen as “agents” of LiveJournal, rather than independent users of the platform.

Evidence presented by Mavrix shows that LiveJournal maintains significant control over ONTD and its moderators. Delzer gives the moderators substantive supervision and selects and removes moderators on the basis of their performance, thus demonstrating control. Delzer also exercises control over the moderators’ work schedule. For example, he added a moderator from Europe so that there would be a moderator who could work while other moderators slept. Further demonstrating LiveJournal’s control over the moderators, the moderators’ screening criteria derive from rules ratified by LiveJournal

The court doesn’t fully answer the question, but sends it back to the lower court, saying that it’s a “genuine issue of material fact” that should be explored to determine if LiveJournal was responsible, and thus would lose its safe harbors. The specific fact pattern and details here may mean that this ruling doesn’t turn out to be a huge problem in the long run for safe harbors, but… it is somewhat worrisome, in that there are at least a few statements in the ruling that are… concerning. For example:

… LiveJournal relies on moderators as an integral part of its screening and posting business model.

But… lots of sites rely on independent and volunteer moderators as a part of their business model. That alone shouldn’t matter as to whether or not a volunteer is truly an agent of the company.

A larger issue may be the simple fact that even if a moderator is deemed to be an “agent” of a platform, if they’re not experts in copyright, it would be ridiculous to then argue that their own failure to stop infringement makes an entire company liable. That would doom many websites that rely on volunteer help. If one were to mess up and not understand the vast nuances of copyright law, the liabilities for the platform could be immense. As Parker Higgins notes, the expectation here is unbalanced in a ridiculous way, especially as this very same court doesn’t seem to think that the sender of a DMCA takedown should take as much responsibility for its actions:

Still, even if the moderator draws a paycheck from the platform, it seems unreasonable to expect them to approach thorny copyright questions with the nuance of a trained professional. That is especially true when you compare this ruling with the Ninth Circuit’s most recent opinion in Lenz v. Universal, the “dancing baby” case, which looks down the other end of the copyright gun at takedown notice senders. Notice senders must consider fair use, but only so far as to form a “subjective good faith belief” about it. If courts don’t require the people sending a takedown notice to form an objectively reasonable interpretation of the law, why should they impose a higher standard on the moderators at platforms handling staggering quantities of user uploads?

But if moderators are a platform’s “agents,” then it runs into trouble if they have actual or “red flag” knowledge of infringements. The Ninth Circuit has instructed the lower court to find out whether the moderators had either. Noting the watermarks on some of the copyrighted images in the case, the court phrased the question of “red flag” knowledge as whether “it would be objectively obvious to a reasonable person that material bearing a generic watermark or a watermark referring to a service provider’s website was infringing.” That’s an important point to watch. ownership and licensing can be extremely complex — so oversimplifying it to the idea that the presence of a watermark means any use is infringing would have profound negative consequences.

And this is why this ruling may backfire for Hollywood — even as it pushed the court to rule this way. As EFF notes, at the very time that the MA is demanding that platforms do more to moderate content, the implications of this ruling may force them to do much less moderation:

The fact that moderators reviewed those submissions shouldn’t change the analysis. The DMCA does not forbid service providers from using moderators. Indeed, as we explained in the amicus brief PDF we filed with CCIA and several library associations, many online services have employees or volunteers who review content posted on their services, to determine for example whether the content violates community guidelines or terms of service. Others lack the technical or human resources to do so. Access to DMCA protections does not and should not turn on this choice.

The irony here is that copyright owners are constantly pressuring service providers to monitor and moderate the content on their services more actively. This decision just gave them a powerful incentive to refuse.

There are a few other issues in this case that are also potentially problematic. As Annemarie Bridy points out over at Stanford’s Center for Internet & Society, the court seems to totally mess up the analysis of the DMCA’s safe harbors by confusing part a of the DMCA 512 which applies to network providers and part c which applies to online service providers:

According to the court, the section 512a safe harbor covers users’ submission of material to providers, and section 512c covers the providers’ subsequent posting of that material to their sites. There is no such submission-posting distinction in section 512. On the face of the statute and in the legislative history, it’s quite clear that section 512a is meant to cover user-initiated, end-to-end routing of information across a provider’s network. A residential broadband access provider is the paradigmatic section 512a provider. Section 512c covers hosting providers like LiveJournal that receive, store, and provide public access to stored user-generated content. To characterize LiveJournal as a hybrid 512a512c provider misapplies the statute and introduces into the case law a wrongheaded distinction between submitting and posting material.

Putting aside the peculiar submission-posting dyad, the dispositive question concerning LiveJournal’s eligibility for the section 512c safe harbor is whether the site’s moderator-curated, user-submitted posts occur “at the direction of users,” taking into consideration the nature of moderators’ review and the fact that only about one-third of user submissions are ultimately posted. That question can be answered entirely within the ambit of section 512c and the existing case law interpreting it, including the Ninth Circuit’s own decision in Shelter Capital. There was simply no need for the court to invoke section 512a in this case.

The court’s analysis here is… just weird. It’s on page 13 of the ruling, and it really does seem to take a totally unchartered path in arguing that the submission of content is covered by 512a while the posting is covered by c. But… that’s wrong:

The district court focused on the users’ submission of infringing photographs to LiveJournal rather than LiveJournal’s screening and public posting of the photographs. A different safe harbor, § 512a, protects service providers from liability for the passive role they play when users submit infringing material to them…. The § 512c safe harbor, however, focuses on the service provider’s role in publicly posting infringing material on its site.

Among the other issues with this case, there’s also one on the question of whether or not the anonymous volunteer moderators should be disclosed. As we’ve discussed in the past, because the First Amendment also protects anonymity, any move to reveal an anonymous commenter must be carefully weighed against their First Amendment right to anonymity. The court here more or less brushes off this issue, saying that once the lower court determines the level of agency, that will answer the question on preserving anonymity:

Notwithstanding the deferential standard of review and complex issues of law that govern this discovery ruling, we vacate the district court’s order denying the motion and remand for further consideration. Whether the moderators are agents should inform the district court’s analysis of whether Mavrix’s need for discovery outweighs the moderators’ interest in anonymous internet speech. Given the importance of the agency analysis to the ultimate outcome of the case, and the importance of discovering the moderators’ roles to that agency analysis, the district court should also consider alternative means by which Mavrix could formally notify or serve the moderators with process requesting that they appear for their deposition at a date and time certain.

This is yet another important case in determining how online platforms can actually function today — and rulings that undermine safe harbors like the DMCA frequently seem to be what Hollywood wants — but again, this may backfire. Making it harder for these sites to function if they’re actively involved in moderation only means they’ll do much less of it.

Music Industry Wants Piracy Filters

Signed into law nearly twenty years ago, the DMCA is one of the best known pieces of Internet related legislation.

The law provides a safe harbor for Internet services, shielding them from copyright infringement liability as long as they process takedown notices and deal with repeat infringers.

In recent years, however, various parties have complained about shortcomings and abuse of the system. On the one hand, rightsholders believe that the law doesn’t do enough to protect creators, while the opposing side warns of increased censorship and abuse.

To address these concerns, the U.S. Office is currently running an extended public consultation.

This week a new round of comments was submitted, including a detailed response from a coalition of music industry groups such as the RIAA, National Music s’ Association, and SoundExchange. When it comes to their views of the DMCA the music groups are very clear: It’s failing.

The music groups note that they are currently required to police the entire Internet in search of infringing links and files, which they then have to take down one at a time. This doesn’t work, they argue.

They say that the present situation forces rightsholders to participate in a never-ending whack-a-mole game which doesn’t fix the underlying problem. Instead, it results in a “frustrating, burdensome and ultimately ineffective takedown process.”

“…as numerous copyright owners point out in their comments, the notice and takedown system as currently configured results in an endless game of whack-a-mole, with infringing content that is removed from a site one moment reposted to the same site and other sites moments later, to be repeated ad infinitem.”

Instead of leaving all the work up to copyright holders, the music groups want Internet services to filter out and block infringing content proactively. With the use of automated hash filtering tools, for example.

“One possible solution to this problem would be to require that, once a service provider receives a takedown notice with respect to a given work, the service provider use automated content identification technology to prevent the same work from being uploaded in the future,” the groups write.

“Automated content identification technologies are one important type of standard technical measure that should be adopted across the industry, and at a minimum by service providers who give the public access to large amounts of works uploaded by users.”

These anti-piracy filters are already in use by some companies and are relatively cheap to implement, even for relatively smaller services, the music groups note.

The whack-a-mole problem doesn’t only apply to hosting providers but also to search engines, the music groups complain.

While companies such as Google remove links to infringing material upon request, these links often reappear under a different URL. At the same time, pirate sites often appear before legitimate services in search results. A fix for this problem would be to stop indexing known pirate sites completely.

“One possible solution would be to require search engines to de-index structurally infringing sites that are the subject of a large number of takedown notices,” the groups recommend.

Ideally, they want copyright holders and Internet services to reach a voluntary agreement on how to filter pirated content. This could be similar to YouTube’s Content-ID system, or the hash filtering mechanisms Dropbox and Google Drive employ, for example.

If service providers are not interested in helping out, however, the music industry says new legislation might be needed to give them a push.

“The Music Community stands ready to work with service providers and other copyright owners on the development and implementation of standard technical measures and voluntary measures. However, to the extent such measures are not forthcoming, legislative solutions will be necessary to restore the balance Congress intended,” the recommendation reads.

Interestingly, this collaborative stance doesn’t appear to apply to all parties. File-hosting service 4Shared previously informed TorrentFreak that several prominent music groups have shown little interest in their voluntary piracy fingerprint tool.

The notion of piracy filters isn’t new. A few months ago the European Commission released its proposal to modernize the EU’s copyright law, under which online services will also be required to install mandatory piracy filters.

Whether the U.S. Government will follow suit has yet to be seen. In any case, rightsholders are likely to keep lobbying for change until they see significant improvements.

Music Coalition asks Congress to fix DMCA’s safe harbours

A large coalition of organisations covering all sectors of the US music community has asked Congress to act to fix the safe harbours provisions in US copyright law if tech companies did not voluntarily agree to adopt measures to help address the “failings” of safe harbours.

The call came through a filing, submitted by Kenneth Doroshow and Scott Wilkens from New York law firm Jenner & Block, on behalf of 15 organisations. The filing is part of the call for comments initiated by the US Office in its review process of Section 512 of the Digital Millennium Act DMCA, which introduced in 1998 safe harbour provisions. These provisions have allowed internet services to avoid liability for content posted on their platforms in exchange for complying with take down notifications from rights holders. The filing also comes at a time when the chairman of the House Judiciary Committee, Bob Goodlatte, plans to overhaul parts of US copyright law.

For the music community, the DMCA’s safe harbour provisions are one-sided instead of being balanced, and have led to a slow erosion of the value of music, exemplified by the small amount of royalties paid by video streaming platform YouTube to rights holders, or by the absence of licensing deals in place with FaceBook.

In the filing, the signatories claim that the DMCA safe harbours “suffer from numerous key failings that have resulted in a heavily skewed playing field where service providers can either comply with their minimal safe harbour obligations—and thereby obtain immunity from damages liability and avoid obtaining licenses from copyright owners—or use the safe harbors strategically in licensing negotiations with copyright owners to extract rates far below fair market value.”

The remedy, according to the filing, is in the hands of service providers, who could “help to restore much of the balance Congress intended to strike by agreeing to adopt standard technical measures andor voluntary measures to address the DMCA safe harbours’ key failings.”

However, if said technology companies were not actively seeking such balance, action from Congress would be needed. The filing concludes: “The Music Community stands ready to work with service providers and other copyright owners on the development and implementation of standard technical measures and voluntary measures. However, to the extent such measures are not forthcoming, legislative solutions will be necessary to restore the balance Congress intended.”

The submitting organisations include: American Federation of Musicians; American Society of Composers, s and s; Broadcast Music, .; Content Creators Coalition; Global Music Rights; Living Legends Foundation; Music Managers Forum – United States; Nashville Songwriters Association International; National Academy of Recording Arts and Sciences; National Music s’ Association; Recording Industry Association of America; Rhythm and Blues Foundation; Screen Actors Guild – American Federation of Television and Radio Artists; SESAC Holdings, .; and SoundExchange.

At the same time, singer, songwriter and producer T Bone Burnett has submitted a video calling for reforms to the DMCA’s notice-and-takedown process as part of the US Office’s review of Section 512. Burnett is also Advisory Board Member of the Content Creators Coalition, or c3, an artist-run non-profit advocacy group representing creators in the digital landscape.

In the video, Burnett, claimed that, for artists and creators, “instead of amplifying our voices to lead the fight for change, it the Internet undermines and silences us.” The problem, according to Burnett comes from the DMCA provisions on safe harbours that were “supposed to balance the Internet’s openness with creators’ ability to earn a living wage from their work.” But his verdict is blunt: “Those safe harbours have failed.”

He subsequently urged policy-makers to fix the DMCA’s safe harbour provisions and offered a way forward: “The safe harbours must be restored – so only responsible actors earn their protection, not those who actively profit from the abuse and exploitation of creators’ work. Technology must be enlisted to make the system work better, not to roadblock progress in a pointless arms race of whack a mole and digital deception. Creators must be given meaningful tools to earn a living from their art.”

He concluded: “Everyone with a stake in the Internet’s success and the health of our creative democracy must work together to make this right. It’s time for Congress to close the loopholes in section 512 of the DMCA. Our culture is at stake.”

Vietnam makes Intellectual Property progress

Hanoi VNA – Vietnam is ranked 37th among 45 countries in the latest Intellectual Property IP Index report compiled by the US Chamber of Commerce’s Global Intellectual Property Centre.

The report, released for the fifth consecutive year, ranks the United States first and Venezuela last.

Its latest ranking puts Vietnam ahead of countries like Indonesia, Thailand, Pakistan, India and Egypt, but behind the Philippines. It also marks an approximately four percent increase in its overall score to 30 percent 10.34 out of 35 from 26 percent 7.83 out of 30 last year.

“This year’s index, namely ‘The Roots of Innovation’, recognises the indispensable role of intellectual property IP in facilitating innovative and creative activity on a socially transformative scale,” said Patrick Kilbride, Executive Director for the Global Intellectual Property Center, at the launch of Vietnam IP Index by AmCham in Hanoi on February 17.

The 2017 Index benchmarks the IP standards in 45 global economies, representing roughly 90 percent of global GDP, Kilbride said, adding that economies are scored against six categories of IP protection: patents; copyrights; trademarks; trade secrets; market access; and enforcement and ratification of international treaties.

Thomas Treutler, Chairman of Amcham’s IT, Telecom and IPR Committee, said the increase in Vietnam’s score this year can be attributed to the country signing the Trans Pacific Partnership TPP deal and improvements in industrial design protection and the ability to commercialise IP protection.

“Over the last few years, Vietnam has shown strong improvement in the IP sector. The market management authorities and the police seem to be much more active, as evidenced by the fact that hundreds of thousands of counterfeit goods were seized last year,” Treutler said.

He added that in many cases, the operation of businesses producing counterfeit goods had been suspended, which showed the government’s efforts to protect the IP rights of the honest enterprises.

However, although 2016 saw greater government focus on IP, overall efforts remain limited relative to the scale of the challenges, and tend to occur on a case-by-case basis rather than on a large scale, Truetler said.

According to this year’s report, Vietnam’s improvements in the IP sector include putting a basic IP framework in place, particularly for trademark protection, better protection of domain names and action against confusingly similar marks for dissimilar goods.

The report also mentioned some limitations, like inadequate protection of life sciences patents, challenging enforcement environment, gaps in copyright protection, including lack of measures to address online infringements and very high physical counterfeiting rates and rampant online infringement.

Enforcement is still poor, insufficient penalties are levied and administrative inaction still occurs, according to the report.

The Global Intellectual Property Center says it works around the world to champion intellectual property rights as vital to creating jobs, advancing global economic growth, and generating breakthrough solutions to global challenges.

The US Chamber of Commerce is the world’s largest business federation representing the interests of more than 3 million businesses of all sizes, sectors, and regions, as well as state and local chambers and industry associations. — VNA