DMCA Stakeholders to First Tackle Standardizing Notices

Parties ranging from the Center for Democracy and Technology (CDT) to MPAA to Ron Yokubaitis, who runs Internet newsgroups service Giganews out of San Antonio, Texas, showed up to lay out the topics they wanted addressed during the talks -- expected to run through 2014 (CD Feb 26 p20) -- and what structure those talks should take. By the end of the day, there was consensus that the next meeting in early May should discuss standardizing notices and form a smaller working group on the issue to operate between future large group meetings, occurring roughly every six weeks. While the group is starting with takedown notices, PTO officials assured the group it could choose to add more issues and working groups as it saw fit.

The Commerce Department began the recent copyright policy discussion with a July green paper (http://1.usa.gov/15vOJd3). The debate has continued through comments filed on the green paper (CD Dec 13 p11) during hearings on Capitol Hill. The House Intellectual Property Subcommittee recently held a hearing on notice-and-takedown procedures and Section 512 of the DMCA, which gives service providers some liability protections for copyright infringement by their users.

From the outset Thursday, the majority of speakers echoed the desire to start small. Standard notice is “the right place to start,” said Emery Simon, counselor to BSA/The Software Alliance, where he advises clients -- many of whom operate cloud services and cyberlockers -- on intellectual property (IP) policy. Standard notice is “not a simple issue -- but it’s simpler than some of the other issues,” he said. IP lawyer Jim Halpert of DLA Piper, representing the Internet Commerce Coalition, called standard notice a “relatively discrete topic” and “a win-win” for all stakeholders -- rights owners, service providers, small and medium enterprises (SMEs) and consumer groups. “Trying to be ambitious in a multistakeholder process ... is really a recipe for failure,” he said.

Stakeholders diverged on some issues, including the importance of abusive or inaccurate notices and whether the burden falls to service providers or rightsholders to protect copyrighted material. Giganews’s Yokubaitis offered an analogy. “My wife and I and my sons, we ranch also,” he said. Rights holders are ignoring a basic ranching tenet, he said. “We'll brand [the cattle] we're going to keep next week,” said Yokubaitis. “These rightsholders don’t brand their cattle.” Instead, “they all want the burden on me,” he said, suggesting rights holders could do a better job protecting their content or share in the financial burden of finding and removing infringing content. “They ought to be paying us for their darn cattle that wandered onto our ranch.”

"Branding our cattle is very expensive,” said Susan Cleary, general counsel for the Independent Film and Television Alliance, which represents SMEs comprising the majority of feature film production in the U.S., she said. SMEs and individuals can’t be expected to have available resources to electronically protect content and seek out every infringing copy, she said. “The cattle are indeed branded,” said Sandra Aistars, CEO of the Copyright Alliance, which works with small and independent creators. Aistars said extensive work is done to add the proper metadata, but that it’s often stripped before being illegally posted.

Google has spent four years standardizing data formats and templates for infringement notices, and gets 95 percent of its notices from members of a “trusted copyright removal program,” said Senior Copyright Counsel Fred von Lohmann. This has ameliorated some of the rightsholders’ challenges Cleary and Aistars mentioned, he said. It has also “yielded huge efficiency gains in turnaround times,” he said.(cbennett@warren-news.com)