CO's San Francisco Section 512 Roundtable Cements Expectations for Nonlegislative Fixes
Discussions at the Copyright Office’s San Francisco roundtable last week on the Digital Millennium Copyright Act’s Section 512 appear to largely be cementing expectations that the CO will favor nonlegislative fixes -- particularly voluntary measures -- to address problems with the statute, meeting participants said in interviews. The CO held the San Francisco session and another in New York earlier this month to collect input on the office’s study of Section 512’s notice-and-takedown process and safe harbors. The CO also plans to seek additional comments after the meetings to drill down on issues raised during the roundtables and in initial comments on the study, though it’s unclear how valuable additional comments will be, participants said. Both workshops were open to the public but seating was limited. The CO didn't webcast either roundtable.
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The San Francisco event was more tech-focused than the earlier New York session because of the presence of executives from major tech firms like Amazon, Google and Microsoft, but mirrored the earlier discussion’s focus on the Section 512 legal issues, roundtable participants said. As in New York, the CO also sought information on possible technological and voluntary solutions, participants said. There are some signs that tech firms like Amazon and Google that are now also content owners can “actually change the conversation” by no longer being as reluctant “to be the police” in enforcing notice-and-takedown requests, said Content Creators Coalition Politics and Organizing Committee Chairman Tom Murphy.
Some other participants told us that they are frustrated with how the meetings have been structured. A tech sector lobbyist said it’s “not valuable to just hear people talk past each other and regurgitate the talking points we’ve heard for years.” The tech sector is “participating in good faith, but I’m not hopeful that any proposals that are relevant or that won’t face strong opposition from one side or the other are going to emerge” in the CO’s study, the lobbyist said. “We’ve just been through two years of meetings [with the Patent and Trademark Office] on these issues, which was a frustrating experience for everyone involved.” PTO hosted talks in 2014 on tweaking Section 512’s notice-and-takedown process (see 1403210030). Those talks led the Department of Commerce Internet Policy Task Force to release a report in 2015 that identified a series of good, bad and “situational” practices to improve the efficiency and handling of the DMCA notices (see 1504070070).
It’s clear the CO is still looking to suggest “modest changes” to Section 512 and will “not be going down the road of getting rid of the statute even though some parties are alluding to that,” said former National Music Publishers’ Association General Counsel Jay Rosenthal, a Mitchell Silberberg lawyer who represents music industry content owners. Rosenthal spoke at both Section 512 roundtables on behalf of ESL Music. The CO appears to still be looking at voluntary measures as a viable option given a “big push” from online service providers to explore those fixes, though there’s no consensus in their favor, Rosenthal said.
Voluntary measures certainly appear to be the CO’s preference but the office doesn’t seem to have wholly discounted potential legislative recommendations, said copyright and Internet lawyer Joseph Gratz of Durie Tangri. Gratz primarily represents tech firms and online service providers but also has represented copyright owners. The CO also may be looking at targeting “low-hanging fruit” related to Section 512, including using its IT modernization push to target processes related to Section 512, Gratz said. “Consensus items are relatively few and relatively minor.”
Fight for the Future is among those opposing the use of voluntary measures as a possible fix because media companies are pushing their use as a way to create a de facto “notice and stay down” takedown regime that would shift the enforcement burden onto website operators, said Chief Technical Officer Jeff Lyon. Voluntary measures can be an effective tool in fixing copyright issues, but if the CO chooses to make that its primary objective to address Section 512, it“must make sure those measures are truly voluntary and that they aren’t done in a way that the government puts their thumb on the scale” in favor of a particular outcome, said Re:Create Coalition Executive Director Josh Lamel. “I would caution against any government entity acting as an intermediary” in voluntary measures, he said.
The one consistent theme throughout both the New York and San Francisco roundtables was there should be “further dialogue” on Section 512’s problems, said Copyright Alliance CEO Keith Kupferschmid. “A lot of people understand that we’re not going to solve these problems” solely through the CO’s study process, he said: “The point is to try to get various groups to try to work out more of these problems” among themselves. The upcoming second comment round likely will give all stakeholders an opportunity to respond to other parties’ past comments, Kupferschmid said.
Fight for the Future plans to again use a campaign to improve the public's ability to send comments to the CO for the second Section 512 round, Lyon said. The CO’s use of the Regulations.gov comments portal creates a “very opaque process,” and Fight for the Future wants to “make it easier for people to participate,” Lyon said. Fight for the Future’s TakeDownAbuse.org website generated at least 86,000 of the 92,000 comments the CO received in the initial Section 512 round last month (see 1604040051). The group knows its efforts “haven’t been welcome” among some copyright stakeholders and there was “no sense of a positive reaction” from the CO, Lyon said. “We’re definitely going to be battling those perceptions.”