by Michelle Davis, FMC legal intern

Having had time to digest a 100+ page report on digital copyright policy,  we can report back that this “green paper” covers a range of issues around copyright and technology with an understanding of the complexities for creators. The report is a product of the Department of Commerce’s Internet Policy Task Force (IPTF) with input from the U.S. Patent and Trademark Office (USPTO) and the National Telecommunications and Information Administration (NTIA). We wouldn’t say that the green paper is a good beach read — and not just because it’s after Labor Day — but it does lay out very clearly the challenges and opportunities of the digital marketplace.

Of course, we’re mostly concerned about how these issues impact musicians and composers. This is why we’re also delighted to announce that one of the contributors to this report, Shira Perlmutter, Chief Policy Officer and Director of International Affairs at USPTO, is going to give a keynote at the Future of Music Summit (Oct. 28-29, Georgetown University, Washington, DC). Don’t miss the chance to hear from the horse’s mouth about how executive branch agencies are dealing with the issues that impact YOUR livelihood — registration is open now (with a limited number of musician scholarships available)! 

Now, back to the report. Media coverage of the green paper have thus far has focused on one tiny recommendation that is getting pretty blown out of proportion, if you ask us. But the Task Force addresses much more than what some seem willing to discuss. We  think all of these issues should be open to debate, and not just the ones that can be turned into attention-grabby headlines.

We’re a bit tickled that many of the issues the Task Force tackle are those we referenced in our own filing with USPTO and NTIA back in 2010. Of course, technology and the marketplace move faster than government reports, so further public comment will be sought on a number of key issues — that’s what makes this report “green.” This is but a tentative report, and a deeper dive on the issues covered is expected and necessary. That’s where you come in.

We’re still waiting for the Task Force to announce dates for the next round of public comments, as well as the order in which these issues will be addressed. But why not get a head start? The following is a cheat sheet hand-tailored for the music community to prep you for filing in the next Inquiry (because that’s totally a thing you can do).

The Internet Task Force will seek public comment on the following issues:

1. Remix Culture

The Task Force recognizes that digital technology has made it easier than ever to create using pre-existing expression, but sampling and remixing still raises “daunting licensing issues,” according to the report. Some headway has been made here, with services like Limelight making it easier to secure mechanical licenses and YouTube’s Content ID system allowing rightsholders to choose monetization instead of takedowns for user-uploaded content that contains their stuff, but there is still a good bit of confusion over what may be construed as a “fair use” and under what conditions a license is required.
  

When it comes to remixes, the Task Force asks the following questions:

• Is there a need for new approaches to smooth the path for remixes, and if so, are there efficient ways that right holders can be compensated for this form of value where fair use does not apply?
• Can more widespread implementation of intermediary licensing play a constructive role? Should solutions such as microlicensing to individual consumers, a compulsory license, or a specific exception be considered?
• Are any of these alternatives preferable to the status quo, which includes widespread reliance on uncompensated fair uses?

If you want dig further into the history of sampling, hip-hop and the ongoing tensions between remix culture and copyright law, we highly recommend Creative License by our very own Board member and Northwestern University professor Peter DiCola and his co-author, Kembrew McLeod, of the University of Iowa (available via Duke University Press). It’s the most comprehensive and readable scholarly works on these issues we’ve come across.

2. Statutory Damages Against Individual File-sharers and Secondary Liability for Large-scale Infringement

Although the report recognizes the futility of lawsuits against individual filesharers and does not seem to advocate pursuing criminal charges against them, there are still statutory damages in place should an individual be held liable for infringement. Are these amounts too high? Do they serve as effective deterrents? What about secondary liability—claims against those who participate in the infringement of others? If nothing else, it’s probably time to have a look at existing standards to see if they make sense for today’s music marketplace.

3. DMCA’s Notice and Takedown System, AKA: the Game of “Whack-A-Mole”

In order to enjoy the protections of safe harbor under 17 U.S.C.§ 512, Internet Service Providers (ISPs) must take action to remove infringing material once its presence is known. The Task Force explains that while an ISP has no affirmative duty to monitor for infringing content, requiring some action once knowledge is established was meant to “ensure that ISPs were not burdened with the duty of proactively investigating but at the same time could not deliberately turn a blind eye.” At least, that seems to have been Congress’ intent back in the mid-1990s.

In practice, the Digital Millennium Copyright Act (DMCA) notice and takedown system hasn’t been impeded by lack of compliance so much as ineffective compliance. There are perfectly reasonable arguments on all sides of the issue, which tend to break down to who bears the burden of enforcement, at what cost and under which conditions.

According to the report, “the DMCA requires that the content be taken down only from the specific location identified in the notice. That limitation, coupled with the lack of any affirmative duty to monitor by ISPs, leads to infringing content often being quickly put back up on the same site. Rightholders report that they find themselves in a game of ‘whack-a-mole’—a never-ending cycle of sending notices about infringing content that may be taken down, only to reappear a short time later in a new location on the same website… They have therefore called for an understanding that notice and takedown should mean notice and staydown.”

This is an especially difficult hurdle for smaller companies and independent artists who don’t have the time and resources for constant vigilance. On the other hand, safe harbors are important because they allow for the development of innovations that power the legitimate marketplace that musicians use every day. We can’t claim to have the answers here, but maybe you do?

4. Voluntary Private Sector Initiatives

While some of the pressing copyright issues making their way through the court system might require legislative solutions, others may be better addressed via private sector initiatives. FMC has looked at a few of these in the past, including the Copyright Alert System, credit card processors, and ad networks.These were all strategies championed by former Intellectual Property Enforcement Coordinator Victoria Espinel, so it’ll be interesting to see how the industry proceeds now that she has stepped down. What private sector initiatives do you support? What problems are better left to regulatory agencies and Congress?

5. Enhanced Incentives for using public registration

We discussed the benefits of voluntary copyright databases in June of 2012, with a focus on the Global Registry Database (GRD). In fact, FMC has been advocating for rights databases for years. It appears the government is starting to think along these lines, as well. There are similar databases already in place, of course. The U.S. Copyright Office has a useful if limited registration system, and many private sector organizations have databases of copyright records, but not all of those are public. The Task Force concludes that despite  “this combination of resources …significant gaps remain.” So how should we go about closing them?

6. Role of Government in improving online licensing

One major theme of the Internet Task Force green paper is the importance of realizing the potential of the Internet as a legitimate marketplace for copyrighted works. Better, easier access to legitimate services is perhaps the greatest piracy deterrent. While the private sector has taken great strides in shaping this marketplace from a technological standpoint, we have yet to see compensation structure(s) that equitably and transparently compensate musicians and songwriters on every platform. For example: even the legit streaming services seem to have some crucial imbalances—artists, songwriters and independent label often lack sufficient leverage and are forced to fight blindly for rights in an all-too murky arena.

We know how complicated (and charged) these debates can be. Our take on the issues around non-interactive music services (webcasters like Pandora; satellite radio) is laid out in our Rising Tides Campaign. We’ve also explored artist and label concerns about interactive models(on-demand platforms like Spotify). At some point soon, there will be an opportunity for you weigh in directly with the Task Force.

What are your thoughts on the changing landscape of copyright? Get those gears turning, and we’ll keep you posted as soon as public comment opens on each and all of these topics.