[The Copyright Office is preparing a new study on the effects of the “notice and takedown” clauses of the Copyright Act (often called the “DMCA takedown”.  The DMCA takedown law has been criticized by artists for creating a legacy system that puts 100% of the burden of policing unauthorized copies of the artist’s work on the artist. The history of this criticism is long and distinguished, but most recently articulated by manager Irving Azoff, Professor Jonathan Taplin, CNN Senior Legal Analyst Jeffrey Toobin and jazz composer Maria Schneider, among hundreds of others.

The Copyright Office consultation is a very important opportunity for the creative community to be heard on the ridiculously outmoded legacy DMCA takedown procedure that results in hundreds of millions of takedown notices sent in the whackamole environment.

Law student Rebecca Cusey of the Arts and Entertainment Advocacy Clinic at the Mason Law Center for the Protection of Intellectual Property was a panelist at the recent Copyright Office roundtable on the DMCA safe harbors.  She gives us her perspective on what went on inside (the Copyright Office is preparing a transcript).  You can read her timely post, “Middle Class Artists Want A DMCA System That Works.”]

Chris Castle:  I’m always interested in the epiphany moment in everyone’s story.  What was the epiphany that called you to law school and artist rights?

Rebecca Cusey:  I am what they call a second career law student. I was/am a movie critic and journalist, “was” because it was my job for many years, “am” because I still dabble on the side. I started out covering television and transitioned into movies, with a little bit of religion on the side (not as different topics than some might think!). You could say I love art, love film, love entertainment. Artists rights was a natural fit. If we are going to continue to produce the amazing quality and variety of art that we now enjoy, we have to be sure that people can afford to go into art as a career. Lots of people bump around Hollywood looking for their big break. That break needs to still be possible!

Chris Castle: Tell us a bit about the Arts and Entertainment Advocacy Clinic and your role there.

Rebecca Cusey:  Sandra Aistars founded the Clinic this year as part of George Mason Law’s Center for the Protection of Intellectual Property. Like most law school clinics, we work on real-life legal questions under the supervision of an experienced attorney, in this case, Prof. Aistars. I was a student lawyer in the clinic and, as part of my workload, co-wrote a comment to the Copyright Office on behalf of independent artists. My co-author, Terrica Carrington, just graduated but I have one year of law school remaining.

Chris Castle:  You participated in the Copyright Office roundtables held in San Francisco as part of the public consultations on how things are going with the so called “DMCA safe harbors” and the legacy “notice and takedown” structure.  (We call it “notice and shakedown” on MTP.)  It looked like the artist side was quite outnumbered, was that my cynical impression or did it feel that way on the panel?

Rebecca Cusey:  I did not feel we were totally outnumbered. There were some great artists who came to speak up, like East Bay Ray and Ellen Seidler. They have so much passion and experience, it’s great to hear their perspectives.

Chris Castle:  For those not familiar, what was the primary focus of the roundtable, what is the work product coming out of them, and what does the Copyright Office say they will do with the results?

Rebecca Cusey:  The Copyright Office is doing a study on the effectiveness of the DMCA and this particular bit of the study focuses on Section 512. I believe the Copyright Office will then advise Congress on how the Copyright Office believes the DMCA should be revised, where it is strong and where it is weak.

Chris Castle:  From an artist’s perspective, do you think that the powers that be have any idea how difficult it is for an independent artist to send even a handful of DMCA notices?  Or the cost involved in terms of productivity loss alone not to mention actual cost?

Rebecca Cusey:  I think the powers that be minimize and perhaps ignore the difficulty. In some cases, I think they prefer to make the process difficult in the hopes the copyright owner will just go away. I can’t imagine how they could legitimately not know how difficult it is to find infringing content and send notices because they have been told again and again and again.

Chris Castle:  Google expressly states that their legacy YouTube ContentID technology is only available to big users, and at that the user must take it warts and all.  Do you think that the powers that be understand how porous ContentID is and that it is not available to everyone?

Rebecca Cusey:  If you mean by “the powers that be,” the Copyright Office, the CO people in San Francisco seemed to be very interested in ContentID and were asking Fred von Lohmann detailed questions about it. They wanted to know why some people do not have access to it and what the contract terms were for accepting ContentID. I felt that was something they focused on.

Chris Castle:  That is good news.  Many artist rights advocates have raised “notice and stay down” as an alternative to “notice and takedown”.  This would probably involve hash blocking in search and some other relatively easy fixes like blocking access to adjudicated infringers or infringers who receive over x number of takedown notices.  What’s your view on the feasibility of “notice and stay down”?

Rebecca Cusey:  I’ve learned a lot over the last year, but the first time I heard the term “hash blocking” was during the roundtables. It’s something I’m currently studying so I can be up to speed on questions like this. There is a lot to learn in this field!

[See “The DMCA Is Still Not an Alibi:  How Google Search is Like the Ford Pinto” for a discussion of hash blocking.]

Chris Castle:  I noticed that Fight for the Future was both on the panel and called on their supporters to protest outside the San Francisco roundtable.   How did that go?  (For readers unfamiliar with Fight for the Future, the group is funded by the Consumer Electronics Association, Yelp, and the Center for Democracy and Technology among others, and is chaired by a former Google lobbyist.)

Rebecca Cusey:  There were no supporters protesting, so that fizzled hard. I did not see a single person protesting. I think the Fight for the Future people got to “speak their say” as the idiom goes, but they did not drive the conversation. The Copyright Office was much more interested in areas of potential cooperation and compromise than on hearing each side chant from its corner. The Fight for the Future folks are extreme in their positions and that doesn’t help anyone find a solution.

Chris Castle:  One more on Fight for the Future, the group apparently submitted 86,000 automated comments that supposedly were submitted by real people through a webform created 36 hours before the deadline on public comments that had been open for months.  I understand that some Members of Congress are making inquiries about the legitimacy of this process as FFTF was bragging in a fund raising email blast about “crashing” the Copyright Office servers with these roboemails.  Did that topic come up at all?

Rebecca Cusey:  It did. They mentioned it and tried to legitimize the comments, even bragged about it a little, saying that even if it was a form, there was a real person submitting that form and their voices should be heard. My perception was that most people in the room viewed that claim with skepticism. It does not necessarily follow, at all, that each of the 86,000 submissions represents a real person. Quite possibly the opposite, actually. Everyone knows that, including the good folks at the Copyright Office.

Chris Castle:  The BMG Rights v. Cox Communications case is a bit of a crossover to the “whack a mole” issue that in turn relates to the DMCA “knowledge predicate” or “red flag knowledge”.    The ISP in the BMG case was denied the safe harbor after what I view as extraordinary gamesmanship with the Court.  Did this topic come up, either whack a mole generally or specifically with respect to the BMG case?

Rebecca Cusey:  The red flag knowledge issue certainly came up, with Devlin Hartline of CPIP, among others, making a strong case for why courts have not interpreted that part of the statute correctly. Other students in our Arts and Entertainment Advocacy Clinic, Danielle Ely and Victor Morales, worked on a comment on behalf of law professors on this particular issue. It’s here: http://cpip.gmu.edu/wp-content/uploads/2016/04/Section-512-Study-Comments-of-Copyright-Law-Scholars.pdf

Chris Castle:  What’s your view on the path forward for the DMCA safe harbor?

Rebecca Cusey:  It seems clear that something has to give. You can’t have a lasting statute that effectively manipulates the market for artists’ work so that artists’ hands are tied on finding fair market prices for their work.  The Internet is a wild wild west of infringement, but that cannot be a lasting strategy. History teaches that wild wild wests eventually must be tamed.

Personally, I think two things would really help the situation. First would be some kind of collective action by independent artists, where they can band together and have some leverage like the bigger players do. It seems to have worked with ASCAP and BMI in a different setting. Maybe there is a way to make it work on the online setting.

The second thing that has to change in order for that to work is that there has to be some consequence for persistent and pervasive infringement. The artists bear the burden of that alone currently. Society cannot condone outright theft and stay prosperous. The context is new, but the basic principles are as old as history.