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Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Notices
12
See Pub. Knowledge, Comments Submitted in
Response to U.S. Copyright Office’s Dec. 31, 2015
Notice of Inquiry at 4 (Apr. 1, 2016) (‘‘Section 512
appropriately balances the interests of online
platforms and copyright owners .... Where the
balance is acutely in need of recalibration, though,
is with respect to user rights.’’); Tr. at 101:4–10
(May 13, 2016) (Daphne Keller, Stanford Law Sch.
Ctr. for Internet & Soc’y).
13
Compare Tr. at 92:6–11 (May 12, 2016) (Jordan
Berliant, Revelation Mgmt. Grp.) (‘‘I’m very
concerned about even our biggest client’s ability to
earn a living under the current copyright protection
system, which, in effect, sanctions the infringement
of their rights and is devastating to the revenue that
they can earn from recording music.’’), and Tr. at
119:1–5 (May 2, 2016) (Jennifer Pariser, Motion
Picture Ass’n of Am.) (‘‘[T]his is where on the
content side we feel the imbalance comes, that
[processing takedown notices is] a cost of doing
business for an online service provider that is
relatively manageable for them, whereas on the
creation side, we’re being killed by piracy.’’), with
Facebook, Inc., Comments Submitted in Response
to U.S. Copyright Office’s Dec. 31, 2015 Notice of
Inquiry at 4 (Apr. 1, 2016) (‘‘It is quite
effective.... [W]hile the DMCA by necessity
imposes some burden on the respective parties, its
procedures unquestionably result in the effective
and consistent removal of infringing content from
the Internet.’’), and Amazon.com, Inc., Comments
Submitted in Response to U.S. Copyright Office’s
Dec. 31, 2015 Notice of Inquiry at 3–4 (Apr. 1, 2016)
(discussing the role of section 512 in fostering a
balanced copyright regime that allows Internet
creativity and innovation).
14
See Intel Corp., Comments Submitted in
Response to U.S. Copyright Office’s Dec. 31, 2015
Notice of Inquiry at 4–5 (Apr. 1, 2016) (‘‘As stated
in the House Report, the goal of the [Digital
Millennium Copyright] Act was to lubricate the
legitimate distribution of creative content. When
measured by these Congressional yardsticks,
Section 512 has been a stunning success.... At
the same time, Congress desired to preserve ‘strong
incentives for service providers and copyright
owners to cooperate to detect and deal with
copyright infringements that take place in the
digital networked environment.’ Intel believes that
the Act has done just that.’’).
15
See, e.g., New Am.’s Open Tech. Inst.,
Comments Submitted in Response to U.S. Copyright
Office’s Dec. 31, 2015 Notice of Inquiry at 3 (Apr.
1, 2016); Tr. at 77:7–13 (May 13, 2016) (Fred von
Lohmann, Google, Inc.) (‘‘I disagree with people
who think that a large volume of notices is a sign
of failure; in fact, quite the contrary. If the notices
weren’t doing any good, if it was too expensive to
send, we would expect the numbers to be falling,
not rising. And in fact, we see them rising because
the systems are more efficient.’’).
16
See, e.g., Am. Ass’n of Indep. Music et al., Joint
Comments Submitted in Response to U.S. Copyright
Office’s Dec. 31, 2015 Notice of Inquiry at 21 (Apr.
1, 2016); T Bone Burnett et al., Joint Comments
Submitted in Response to U.S. Copyright Office’s
Dec. 31, 2015 Notice of Inquiry at 2 (Apr. 1, 2016).
17
See, e.g., Tr. at 108:2–5 (May 13, 2016) (Dean
Marks, Motion Picture Ass’n of Am.).
18
See, e.g., Jill Doe, Comments Submitted in
Response to U.S. Copyright Office’s Dec. 31, 2015
Notice of Inquiry at 2 (Mar. 21, 2016); Verizon
Commc’ns, Comments Submitted in Response to
U.S. Copyright Office’s Dec. 31, 2015 Notice of
Inquiry at 18 (Apr. 1, 2016).
19
See, e.g., Tr. at 153:3–17 (May 2, 2016)
(Rebecca Prince, Becky Boop); Tr. at 75:4–8 (May
12, 2016) (Alex Feerst, Medium); Tr. at 164:9–16
(May 12, 2016) (Joseph Gratz, Durie Tangri LLP).
20
See, e.g., Engine et al., Comments Submitted in
Response to U.S. Copyright Office’s Dec. 31, 2015
Notice of Inquiry at 9 (Apr. 1, 2016); Internet
Commerce Coal., Comments Submitted in Response
to U.S. Copyright Office’s Dec. 31, 2015 Notice of
Inquiry at 3 (Apr. 1, 2016).
21
See, e.g., Tr. at 155:9–13 (May 2, 2016) (Steven
Rosenthal, McGraw-Hill Educ.); Tr. at 183:21–184:1
(May 12, 2016) (Gabriel Miller, Paramount Pictures
Corp.).
22
See Copyright All., Comments Submitted in
Response to U.S. Copyright Office’s Dec. 31, 2015
Notice of Inquiry at 20–21 (Apr. 1, 2016).
23
See, e.g., Dig. Media Licensing Ass’n, Inc. et al.,
Joint Comments Submitted in Response to U.S.
Copyright Office’s Dec. 31, 2015 Notice of Inquiry
at 7 (Apr. 1, 2016); Sony Music Entm’t, Comments
Submitted in Response to U.S. Copyright Office’s
Dec. 31, 2015 Notice of Inquiry at 16 (Apr. 1, 2016)
(citing the cost of litigation as accounting for the
fact that ‘‘since 2008, thousands of videos infringing
Sony’s copyrights have been reinstated on YouTube
due to counter notifications not being contested by
Sony’’ even though ‘‘[i]n the vast majority of those
instances, there was no legitimate question that the
use infringed Sony’s exclusive rights’’).
24
See Tr. at 54:22–55:11 (May 3, 2016) (Matthew
Schruers, Comput. & Commc’ns Indus. Ass’n).
25
See Internet Archive, Comments Submitted in
Response to U.S. Copyright Office’s Dec. 31, 2015
Notice of Inquiry at 3 (Mar. 22, 2016).
26
See Jennifer M. Urban, Joe Karaganis & Brianna
L. Schofield, Notice and Takedown in Everyday
Practice 37 (UC Berkeley Pub. Law Research, Paper
No. 2755628, 2016), http://ssrn.com/
abstract=2755628.
27
See Ass’n of Am. Publishers, Comments
Submitted in Response to U.S. Copyright Office’s
Dec. 31, 2015 Notice of Inquiry at 7 (Apr. 1, 2016);
Tr. at 19:5–11 (May 12, 2016) (Devon Weston,
Digimarc).
28
See, e.g., Ellen Seidler, Fast Girl Films,
Comments Submitted in Response to U.S. Copyright
harbor system.
12
Participants
emphasized that the DMCA counter-
notice process is an important
mechanism to protect the legitimate
online speech of individual Internet
users, and that the proliferation of
diverse platforms and services made
possible by the DMCA safe harbors
provides a critical benefit for the public.
B. Operation of the Current DMCA Safe
Harbor System
While some study participants
asserted that the section 512 safe
harbors are currently operating
effectively and as Congress intended, a
number of participants identified
various shortcomings and barriers for
content creators, ISPs, and individual
Internet users. These differing views
were especially stark when comparing
the experiences of content creators
(large and small) with the experiences of
online service providers.
13
ISPs
generally painted a picture of a thriving
and vibrant Internet ecosystem that was
largely the result of the safeguards and
protections of the DMCA safe harbors.
14
While ISP participants acknowledged
the ever-increasing volume of takedown
notices that are now being sent, they
viewed the ability of larger ISPs to
accommodate the increased volume as
an example of the overall success of the
system.
15
In stark contrast, many
content creators of all sizes bemoaned
what they saw as the inefficiency and
ineffectiveness of the system.
16
These
participants complained about the time
and resources necessary to police the
Internet and viewed the ever-increasing
volume of notices as an example of the
DMCA notice-and-takedown regime’s
failure to sufficiently address the
continued proliferation of online
infringement.
17
ISPs, civic organizations, and content
creators also expressed differing views
regarding the extent to which false or
abusive notices are a problem under the
current system, and the effectiveness of
the counter-notice process for ensuring
access to legitimate content. Several
ISPs and civic groups pointed to abusive
notices as one of the primary
shortcomings of the safe harbor regime.
They pointed to the length of time
required to have material replaced after
a counter-notice,
18
and argued that
having non-infringing content removed
even for a few days can severely impact
a business.
19
Several groups cited recent
data released by researchers at the
University of California, Berkeley
School of Law as evidence of the scope
of the problem.
20
Some content creators,
on the other hand, expressed the view
that abusive notices are in fact quite
rare
21
and that the number of improper
notices pales in comparison to the
overwhelming volume of infringing
content. They argued that the counter-
notice process sufficiently protects
legitimate material,
22
and pointed out
that the financial burden of bringing a
federal court case to prevent the
reposting of infringing material within
days of receiving a counter-notice makes
the provision unusable in practice.
23
Both content creators and ISPs
identified shortcomings in their abilities
to efficiently process notices under the
current system. ISPs identified the
difficulty of receiving notices through
multiple channels (e.g., email, web
form, fax, etc.),
24
as well as incomplete
or unclear notices,
25
as barriers to
efficient processing of takedown
requests. Several ISPs have reported
moving to the use of web forms for
receipt of takedown notices in order to
overcome some of these difficulties.
26
In contrast, many content creators
identified ISP-specific web forms as a
barrier to effective use of the notice-and-
takedown process, increasing the
amount of time required to have the
same material taken down across
multiple platforms.
27
Other barriers to
use of the notice-and-takedown process
identified by content creators included
additional ISP-created requirements that
some claimed go far beyond the
requirements of the DMCA,
28
and
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