Rocking the Rights-Tech Boat in a Safe Harbor

Any day now, according to the scuttlebutt in copyright policy circles, the U.S. Copyright Office could release its findings from its study of Section 512 of the Digital Millennium Copyright Act ordered up last year by the House Judiciary Committee, which is conducting a review of the DMCA and U.S. copyright law in general. Along with those findings, the Copyright Office is widely expected to offer recommendations to Congress for changes to the 512 “safe harbor” provisions, including perhaps replacing the current “notice-and-takedown” rules with a “notice-and-staydown”

Though a long way yet from becoming law the Copyright Office’s recommendations would add a jolt of momentum to the an increasingly aggressive campaign by rights owners, particularly though not exclusively within the music industry, to rewrite the rules of the safe harbors to shift the legal (and, not incidentally, financial) burden of policing copyright infringement on web platforms from rights owners to the platforms themselves.

This week, a group of 180 big-name artists and songwriters signed on to an open letter to members of congress calling for changes to the law to require that online platforms keep infringing content from reappear on their sites once it has been removed. The letter, organized by super-agent Irving Azoff is running as an ad this week in the Capitol Hill publications Politico, The Hill, and Roll Call.

Some of the artists involved had also signed an open letter to YouTube last week, accusing the online platform of using the safe harbors as leverage to shortchange artists and rights owners.

A parallel effort is underway in Europe, where the European Commission is reviewing the EU’s basic copyright and e-commerce directives, including the EU’s version of the DMCA safe harbors. This week, 58 members of the European Parliament signed on to a letter urging changes to the safe harbors to shift more of the burden of policing infringement to online platforms.

Merits of the argument aside, any such major change to the safe harbors, particularly one that shifted the burden of policing from rights owners to platform providers, would have major implications for rights management technology developers.

For all the controversy that surrounds them, the safe harbors, as currently structured, have spawned a fairly robust rights-management ecosystem. YouTube, for instance, claims to have invested more than $60 million to develop its Content ID system for automatically identifying content posted to the site without the knowledge of the rights owners.

Content ID itself, which has become the linchpin of YouTube’s licensing deals with rights owners, has also given birth to a long list of startups like Rumblefish and AdRev that help artists leverage Content ID to monetize their content when posted by users on YouTube.

The sheer volume of takedown notices sent to YouTube, Vimeo, Facebook and other platforms has given rise to companies and technology to help automate the sending and processing of bulk notices.

All of those technologies, however, were built to manage the current, post hoc notice-and-takedown regime. A change in the rules that shifted the burden of monitoring sites for infringing content, or mandated a priori filtering of content before it’s uploaded could be highly disruptive to that ecosystem.

Some technology developers are already thinking about how to benefit from such a congressionally mandated disruption, in fact. In comments filed with the Copyright Office, for instance, automatic content recognition (ACR) provider Audible Magic, spelled out exactly how it’s technology could be used to enable a notice-and-staydown regime:

Our customers are the websites, social networks, and digital services. We do not pay, nor are we paid by, the copyright owners. Nevertheless we are regarded by the copyright owners and online services as a highly trusted third party. As such we have been able to facilitate dialogue and the settlement of disputes, and to encourage and facilitate licensing agreements between these parties.

Content filtering carried out by a third party intermediary benefits all parties. For the online services, the filtering service is a turnkey solution. With the high cost of developing a highly effective content identification technology and system, the online service does not need to make this investment nor are they forced to make judgments about how the filter performs – the answer they receive is either that the content is registered in our database or it is not. Once the online service deploys this filter, the copyright owner has the responsibility to ensure their content is registered and therefore protected. Since it is free, there is no excuse for not registering.

Copyright owners are skeptical of content filtering owned and controlled by the online service itself, because online services may be motivated to deploy a ‘leaky filter’. Leaky filters would identify and block less content. As they say, you don’t want the fox to be in charge of counting the number of chickens in the hen house. This skepticism destroys the trust that is essential for the development of copyright licensing arrangements, which in turn are necessary for the prosperity and growth of the online content marketplace.

Since Audible Magic is an independent 3rd party, copyright owners have confidence that their content is identified correctly.

Digital watermark provider Digimarc offered its own pitch in comments filed in the proceeding:

Online Service Providers should develop and enforce meaningful policies to exclude users that repeatedly upload infringing content. Online Service Providers’ duty to police users is too ill-defined to have material value, and Online Services Providers capitalize on this ambiguity with opaque and, if the reappearance of infringing content is any indication, seldom-enforced policies that do little to deter or prevent recurring infringement…

[D]igital watermarking technology should be encouraged to prevent the online infringement of copyrighted works. Among its various applications, digital watermarking prevents the reappearance of infringing content on Online Service Provider websites, and automates determining the substantiality of copying in the context of fair use. With the growth of live streaming, the unauthorized use of copyrighted works is proliferating; digital watermarks inserted in content would provide a cost-effective and efficient means for live streaming services to detect and block infringements.

It’s unlikely that the Copyright Office will recommend, or that Congress would mandate, the use of any particular technology, let alone any particular vendor’s version of it. But changing the rules of the safe harbors could go a long way toward changing how rights are managed on user-generated content platforms.

Some will be better positioned to take advantage of those changes than others.

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