Copyright Holders Dominate Closed-Door DMCA Hearings

As discussions over DMCA reform continue, a number of closed-door hearings have taken place in San Francisco. Representatives from Fight for the Future and YouTube's Channel Awesome were there and they report that discussions were dominated by copyright holders seeking new powers to permanently disappear content and even whole sites from the Internet.

Earlier this year the U.S. Government ran a public consultation to evaluate the effectiveness of the DMCA’s Safe Harbor provisions. These include issues such as ‘notice and takedown’ plus short-comings and abuses that arise from the current system.

In the final days of the consultation Fight for the Future (FFTF) and popular YouTube channel Channel Awesome launched a campaign urging the public to get involved. What followed was a massive response to the U.S. Copyright Office coordinated via the associated TakedownAbuse site. But that was just the beginning.

Thanks to the huge support FFTF and Channel Awesome (CA) were able to convince the U.S. Copyright Office (USCO) to give them seats at the table in a series of closed-door meetings on DMCA reforms held in San Francisco last week. Jeff Lyon (FFTF) and Mike Michaud (CA) attended and they report that discussion was heavily skewed in favor of copyright owners.

“Unfortunately, the hearings appeared to be rigged against the public interest, and unless we step up our game, it’s looking very likely that the USCO will make the DMCA even worse, with major giveaways to the copyright industry that put SOPA-style restrictions on independent content creators,” Lyon reports.

The FFTF CEO says that while Google, EFF and Mozilla were in attendance (pdf), they were outnumbered by pro-copyright groups including the MPAA, RIAA, Copyright Alliance (who previously labeled FFTF’s campaign participants as “zombies“), Creative Future, Disney, Paramount and NBCUniversal.

Speaking with TorrentFreak, Lyon says that one of the key copyright industry demands is for a “take down, stay down” system which would require platform owners to proactively police user-uploaded content.

“I can say for sure that there was overwhelming consensus in favor of ‘take down, stay down’ from members of the discussions affiliated with the copyright industry,” Lyon says.

“The idea is that once a copyright holder files a DMCA takedown for a particular piece of content, for example a music clip, it should then become the responsibility of the website operator to proactively scan everything uploaded by users and block that content from being posted in the future.”

Lyon says that this would effectively eliminate a user’s right to file a counter-notice, since they would be unable to post any content with a copyright claim against it, even in a fair use situation.

“Being unable to post copyrighted content also means users would be less able to sue copyright holders to assert a fair use right, since the content would be blocked by the website, instead of being taken down by a legal claim made by the copyright holder,” he explains.

TorrentFreak asked Lyon if copyright holders had made any suggestions on how such a complex system could work in practice. Apparently some feel it is Google’s problem.

“Keith Kupfershmid of Copyright Alliance said something to the effect of ‘I’m not a techie, but if they can make self driving cars, they can surely figure out how to keep copyrighted material from being posted,” he said.

However, also in attendance was Tony Rodriguez of anti-piracy outfit Digimarc. Lyon says that Rodriguez suggested that his company has the ability to deal with the job.

“It was strongly implied that Digimarc’s scanning technology could be adapted for use by website owners to comply with staydown requirements. I think Digimarc is practically salivating at the prospect of being in control over a government-mandated copyright protection racket, where they can serve both copyright holders and website owners who are held hostage by new staydown rules,” he explained.

“Overall the attitude was that it should be the tech industry’s problem to figure out how to do it and pay for it. Nobody had a good answer for determining fair use scenarios programmatically.”

While physically outnumbered by copyright holders, Google senior copyright counsel Fred von Lohman agreed with Jeff Lyon that content filtering technology is extremely expensive and burdensome for website owners to develop, noting that Google had spent over $40 million and deployed 100 software engineers to develop its Content ID system. Others weighed in too.

“One of the best points was made by Daphne Keller from Stanford Law,” Lyon says.

“She backed up my and von Lohman’s claims that content scanning systems are generally expensive, but added that good content scanning algorithms that could protect fair use rights will be very expensive. Thus if sites are required to implement content scanning, they will be incentivized to use cheap options that would err on the side of filtering out lawful content and fair use.”

Interestingly, sitting right next to Lyon in one of the sessions was MPAA attorney Dean Marks. He appeared to have SOPA on his mind.

“After some light-hearted joking banter with the regulators, the MPAA attorney suggested new legislation to take down entire websites (aka SOPA) for suspected copyright infringement,” Lyon explains.

“He spoke briefly and near the end of the meeting, so it was really almost in passing. He did not get into specifics about overseas websites [per SOPA], only mentioned that torrent sites only exist to spread pirated material and should be taken down completely.”

Overall, Lyon says he gets the impression that rather like with the SOPA debate, these DMCA discussions are being framed as “copyright industry vs. tech industry”, something which undermines the public interest. Nevertheless, FFTF and groups including EFF are putting up a fight.

“The general public is more affected by the DMCA than they even know. Copyright holders are abusing the process to censor negative reviews and commentary from the Internet. Creators are discouraged from fighting back, facing lost revenue and permanent bans from online platforms,” Lyon says.

“The sheer number of copyright holders at the meetings allowed them to push the discussions toward their ‘take down, stay down’ agenda, and they repeatedly tried to discredit nearly 100,000 comments sent by the public calling them out for mass censorship and abuse of the existing DMCA takedown rules. The copyright industry is clearly engaging in a massive lobbying effort to bring new SOPA-style legislation back in front of Congress.”

FFTF acknowledge that their opponents are powerful lobbying forces but they believe they have the tools and the public backing to put up a fight.

“We’ve beat them before and we can do it again. The copyright industry was blindsided by nearly 100,000 comments sent to the Copyright Office in the span of one day. When the next round of public commenting opens up, we will be ready, and our voices will be impossible to ignore,” Lyon concludes.

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