Intellectual property, this is about two hours. Come to order. Well im disappointed we cant all be together in person today, im grateful to the chairman graham, and our clerk for facilitating this through web apps. I want to be clear that this subCommittee Hearing is not distracting from the full committee. Congress must address issues of Police Brutality and horrific circumstances that led to the murder of george floyd, and the senseless deaths of so many of our African American brothers and sisters. Thats why im grateful to senator graham for holding eight full Committee Hearing until the sink in america and i fully support that effort. We also have to continue to address the covid19 crisis in the impact its had on millions of americans and livelihoods. Just this morning the full Committee Held a conference on covid19 and its impact on tension. Centers im also glad mcconnell and several republican senators will take up the protection program. We are going to continue to address this crisis. Its also crucial that Congress Continues its important work. Im glad that we have technology that helps us to do that. When we started the review in february, we had no idea of the economic challenges that would soon grip our nation. The Creative Industry has shouldered outside losses as the country deals with the coronavirus pandemic. Small, craters independent artists, creators, and musicians have suffered terribly during this pandemic. Life venues have been shuttered, many may never. Reopen retail sales have plummeted, and yet the Creative Work online has not slowed down. Now more than ever, these small creators are dependent on the internet he cosystem. Strong efforts to combat policy to sustain their livelihood must move forward. Moving forward we should figure out how to ensure that these Small Business owners get adequate compensation for their work. For those men and women, those creative individuals who are being decimated by the twin hammers of covid19, and at equated copyright law that lets policy run rampant. That said, this is the subcommittee on the dmca. Our first two hearings were more academic and it focused on how are our foreign counterparts handled copyright material. Today were to talk about it more practical and invasive aspect of the dmca. Section five notice of provisions and takedowns, when the dmca was initially enacted, it was a in exchange for receiving infringing activities from their users, Online Platforms are supposed to follow certain criteria to curb online piracy. This includes making reasonable efforts to remove pirated material once they received notice that it was online. Unfortunately, as the Copyright Office recently noted in its report on section five, 12 that grand bargain is no longer working, and the notice and takedown system isnt achieving the policy goals that congress intended. Technology is continuing to advance. Paris is becoming easier and faster and much much more common. Every year, copyright owners have to send hundreds of thousands of takedown notices only to see infringing pirated material reappear on the same website, sometimes just minutes later. At the same time, Internet Service providers, Tech Companies of all sizes, and members of the general public have to spent countless hours replying to take down notices. Instead of having that time to develop new and Innovative Products and services have to do that. So clearly for the content crater and content user perspective, the Current System is failing, and its failing badly in my opinion. The Copyright Offices report is informative about the problems in the Current System, and what can be done to rebalance and correct the current framework. But i dont think fixing the current framework is, enough i think we might be at a point where we need to design a new system to combat online piracy. One that captures, recapture is the balance that congress intended and modernizes the internet ecosystem for the 21st century. Thats why last friday we sent a letter to the Copyright Office and asked them how they would design a anti piracy system if they had to start from scratch. I want to thank the senator for leading with me on this effort. Also for his interest in this reform. He was a leader on this issue before i was in politics. Im grateful to him and his team for their engagement during this year long review. What we wait for the corporate offices to reply, im hoping that our panel of witnesses and experts will provide us with information about whether the consistent works or doesnt for. Them one of the things that i learned in this process is that the dmca reform bill will have to answer to questions of scale. As rebecca noted in our first hearing, if we designed dmca reform around market participants, all were going to do is ensure that those individuals and Companies Continue their market dominance. Thats why todays hearing is going to hear from both content creators and users that operate on stale, and those who dont. I want to understand the differences among the types of craters and Tech Companies whose actions are guided by section 5 12 and how this affects our ability to send and respond to takedown requests. I think understanding this difference will be helpful as we draft the dmca reform measures and acknowledge the issues of scale faced by many in the internet ecosystem. Im excited to hear from our experts and, witnesses it should be a fascinating discussion. Senator, thank you for allowing me to deliver the longest Opening Statement ive ever made. I think it speaks to how seriously i think this topic should be taken. Thank you. As you noted in your opening, were convening this hearing at a moment when our nation is driven by deep anger over the murder of george floyd. Protests on the long standing griefs is that relate to policing, racial inequalities in the country. I appreciate your opening comments mister chairman that recognize that its critical and urgent work we need to get to us both the senate and country. We also had a constructive full Committee Hearing to talk about the tension and incarceration and how the pandemic is impacting. That i agree with you that even in these challenging times we have to find a way to Work Together on issues that as are not as perhaps visible to the whole country, but play a Critical Role and whether or not we continue to be a vibrant and Critical Role in society. Thank you to the witnesses testifying remotely. I also want to thank the great work of the people that published a report after studying multiple round tables and more than 90,000 Public Comments made. I was struck by the reports conclusion that congress is original intended balance has been tilted askew. Takedown notices have not remedied the issue of piracy. Chairman i look forward to a production discussion about whether we need to look at the dmca again, i know we have a lot of experts on that heavy. Topic i look forward to todays conversation. Thank you. Thank you. I will now introduce our panelists. Witnesses for the first panel. Mr. Don henley is a record, producer and former drummer for the eagles. Hes given lead vocals on hotel california. I told him earlier today that eagles was the first Live Performance that i saw back when i lived in nashville, tennessee. Who knew that we would end up at a Senate Chamber to do what we can for the creators. Hes also spent many years advocating on behalf of artists and music related. Issues it is our honor to have you before. Us mr. John, it is interim president and ceo of the Internet Association where hes also general counsel. He leads regulatory initiatives for the association whose members include, amazon facebook, google, microsoft, and twitter. Hes a publisher. Mister president has taught nonfiction writing at princeton university, and contributed signs articles to the new yorker and other magazines. In 2019 he was elected president of the authors killed. Americas oldest and largest professional organization freighters. Mr. David hansen is an associate University Librarian and lead policy officer at Duke University. He is responsible for duke universities library General Services and collections. The development of the Library Collections and the support of creating and disseminating research and establishing its real world impacts. Well go through the order of witnesses in terms of Opening Statements, in the our order that i introduce. You may present your Opening Statement. Chairman, members of the subcommittee, thank you for inviting me to participate in todays hearing. My name is don henley. I come here today with a heavy heart. Im aware of the chaos and pain that has engulfed this nation. Im aware that people in my industry have decided to contemplate today. I mean no disrespect to those who have chosen to set aside this day. I wish to state for the record that i stand in solidarity with my brothers and sisters in the Creative Community who seek a better and more just world. As a 55year veteran of the Music Industry, i was asked by the chairman of this subcommittee to testify today on behalf of the Creative Community. Some, risers musicians, all of whom who are known today as content providers. Im present today not to be contrary, not to advance or push an agenda, at age 73 and indefinitely homebound by the covid19 pandemic im in the final chapter of my career. When i come here i have a sense of duty and obligation to those artists and creators who paved the road for myself and my contemporaries for those who will travel the road after us. Its patently unfair and unfortunate that the Music Industry is perceived only in terms of its most successful and wealthy celebrities, when in fact there are millions of people working in the industry, struggling in relative obscurity. People whose voices would never be heard if not for the hearing held today. Im compelled to csis opportunity to discuss the discuss aspects issues that are for most in the National Conversation at the. Moment i have been targeted by the digital gatekeepers. Its began last friday in a newspaper that belongs to jeff bezos, behind a pay. Wall it continues today. Big tech was probably hoping that this hearing would be canceled and that i would be intimidated to the stent that i wouldnt testify. I will not be silent on this issue. I want to do everything in my power to strip them of Property Rights of all ages, races and creeds, all styles of music. Rhythm and blues to jazz and folk to heavy metal. I want to change or improve outdated laws or regulations that have been abused for over 20 years by big tech. The enormous digital platforms that facilitate millions of copyright infringements monthly. Let me answer the question at hand, the notice and takedown system of the dmca doesnt work for artists and songwriters. When a simple Online Research for a song returns a endless list of options, never passed a penny to the artist for the use of their music, the system isnt working. Today when the marketplace has matured, the digital platforms continue to use section 512 as negotiating leverage to pay license fees well below market, the system isnt working. Would coffee infringements on platforms, who own and operate the platforms, the system isnt working. The system is antiquated and badly operating, the community is think a steep price. I worked hard to establish my career and reputation and ive enjoyed success, but for me this is a matter of principle. Im speaking out for those some writers and recording artists who are struggling to make a living. Particularly now, as our industry has been decimated by the pandemic. We need equitable compensation for the rights guaranteed to all those under the constitution. Given the correct ban on large gatherings and definite ban on Live Performances, could be the only real source of revenue artist can rely on for the foreseeable future. So the devaluation of music which is a direct result of dmca needs to seize. As a result graders are paid a fair market rate for the music across all platforms. At the dawn of the internet age dmca was supposed to provide platforms with safe harbor from liability and protection of creators works. It was meant to provide a proper bounds and symbiotic relationship that benefited all parties. And strengthened the legitimate online marketplace. Two decades later that balance is decidedly off. In a world were more than 500 hours of video are uploaded to youtube every, minute would billion videos on tiktok are viewed every day. And there are 5 million active users on instagram daily. Its clear that the massive Online Services are flourishing, will artists have no control over the rampant infringement that occurs align. The Balance Congress intended when it established section 512 is a skew. Content owners pay hundreds of millions in notices. Often for each infringing link taken down a dozen more will pop up in its place. Even worse due to the antiquated procedures dictated by the dmca Internet Services with clear oversight and control of content posted on their website are continuing to monetize and collect advertising revenue on media including music, even one flagged as infringement. How is that fair . The astronomical number of infringement notices sent by artist isnt a sign that the system is working as some defenders of the dmca suggest. That would be i can instead we need to seek out the real causes of the fires and implement preventative measures to ensure they dont reignite. They had the tools to do just that. They had the tools, they had the capability to monitor infringement on their platforms and provide enhanced protections to their clients. They are capable of tracking individual likes and dislikes, and fans to visit the platform with frightening accuracy. And we are event to believe that the lack of protection to content is beyond the control . Decreasing traffic decreases their ad revenue. They rely on copyrighted material whether licensed or not to keep consumers engaged. Those companies have no incentive to improve technological safety measures. The courts have facilitated this world view watering down obligations rant Online Services and eliminating consequences. The result is a and the make takedown system that still allows big tech to rake and revenue by monetizing access to unlicensed work, despite being notified of the infringements, or even repeat infringements. We simply cant continue like this. I applaud and thank the subcommittee for shining a light on the damage caused by the unfulfilled promise. Craters need recourse for the illicit use of their work online. The dmca is not providing that to them. Like a classic song, classic album or band, some creations stand the test of time, resonating across generations. Other products are best left in the past were updated to reflect a modern world. The the dmca has shown its age. The dmca is a relic from the my space air in a tiktok world. Most Small Businesses deserve a better system that recognizes clients. Only then can we truly achieve the trump proper balance and legitimate thriving this institution invasion many years ago. Thank you. Thank you mr. Henley, please correct me if i mispronounce your name. I knew i butchered it on the opening. Youre welcome. Please present your testimony. Members of the subcommittee, the chairman, thank you for giving me the opportunity to testify today. I am the Internet Associations interim president and ceo. Before i saw my opening remarks i think i need to acknowledge that our nation is yet again trying to understand the unconscious sable killing of george floyd and many others. Raising awareness of this issue is critical because until we collectively acknowledge, understand, and prayer ties meaning full steps to and racism in this country history will repeat itself. This is something that we our elected leaders need to work to address. Turning to the topic at hand here, we represent diverse business models. They are distributors and licensees of all types of content. They are committed to working with the rest of the internet. Im grateful to testify before the subcommittee not just as a representative of these Innovative Companies but also as a attorney who spent much of the last decade protecting hundreds of software from infringement. Personal outreach, personal discourse, and good faith collaboration were all utilized to achieve success. Its my opinion that section 5 12 isnt being used as intended. First the dmca allows rights holders to take down infringement content. Second it hosts User Generated Content and the incentive to collaborate with other rights holders to combat infringement. Third, users can enjoy and create a wealth of legal content thanks to advances in technology that have been increasingly embraced by the content industry. The 512 report recognizes many of the contributions of the platforms to the community, and the need for legal certainty. Incorrectly concluded that section 512 has been tilted askew. This finding is inconsistent with my experience as a enforcement representative. It didnt take into account the changes of the changing landscape and the concerns of users and the weight of judicial decisions. There have been great developments in the past decades and the 40 years. We find ourselves in a golden age of content creation. And as consumers continue to demand new ways of accessing content, traditional content companies are investing in traditional distribution more than ever before. Second Online Service providers provide online tools beyond what dmca requires that makes legal content more easy to find and illegal content more difficult to access. Infringing material has been excluded for their systems. These are the result of thoughtful engagement with copyright owners. Careful consideration of the rights of consumers and efforts to guard against fraudulent misuse of copyright enforcement tools. Third, users of Online Services rely on flexibility of the dmca, as they both create and enjoy online content. This has assured us into an era of unprecedented creativity, in which the average consumer can create high quality audio video content and share with the world using the same device they used to order takeout. Hundreds of thousands of hours of video are uploaded to platforms every, day hundreds of millions of videos and photos are uploaded every hour. This explosion integration is well aligned with the copyright systems original objective to promote the science and useful arts. As the majority of this is non infringing. Every video, three it is a copyrighted work owned by someone, deciding whether a piece of content is not or is infringing requires knowledge of the type of work, the type of west used to protective, and in many cases their use analysis. Notice the takedown system works because the powers of people who own the content to make a good faith determination about infringement, it has a clear direction of platforms for their takedown notices, and allows users to protect their rights as creators and consumers by creating notices for their content when it is erroneous late flag for infringement. Finally, it is crucial to remember that an overwhelming majority of infringement is on face time websites outside the reach of u. S. Law. This is a fact that is being long understood. The best way to attack this problem may be through the inclusion of a dmz a style treaty with other nations. Other than domestic legislation. Disturbing the balance of the dmca, will do little to curb there. And will greatly increased threats with thriving u. S. Digital ecosystems that truly fosters creativity. I appreciate the opportunity to be here today. Thank you. Thank you. Mister president it,. I would like to thank the chairman, and chris and the other members of the subcommittee to invite me to testify today. I am the author of 35 books of fiction and nonfiction, im also president of the Authors Guild, the oldest and largest society writers in the country with 10,000 members, nobel laureates, firsttime authors, all points of view, and political persuasions. I just want to say how glad i am that my fellow creator don henley is with us today. So many are struggling to make a living because of the pandemic and will be for sometime. We both felt it was important despite the terrible events of the past few days to come here today to speak on behalf of creators and the challenges they face earning a living and having their voices heard due to racial discrimination, inequality as well as rampant piracy. Now i will move on to my testimony. I will never forget the sickening feeling i had when i first came across a book piracy website, seeing all my books, my entire lifes work, stolen, stripped of digital protection and put up on the internet. If any of you have come home to find your house robbed, you know how i felt. That was 12 years ago, since then piracy has exploded. Every day i get email alerts, pointing need to half a dozen freshly pirated ebooks posted on the line in the last 24 hours. For a while i went after the pirates, then i realized as thousands of other authors, it is a hopeless task. I will explain in a moment. The current situation, is enraging and disheartening, it is like being mugs every single day. It the last ten years, fulltime authors have experienced a 42 drop in their writing income of 20,300 dollars a year. Much of that decrease is due to rampant piracy. It is hard enough to make a living writing books. Piracy now makes it almost impossible. Today, there are hundreds if not thousands of websites devoted to book piracy such as lid jen, he popped up pub and others. Online marketplaces such as ebay google shopping and social media platforms like facebook openly offer thousands of illegal ebooks for download. Many stolen ebooks of mine can be found on the google shopping main page right now. The reality today, is that the internet has become a virtual candy store for stealing of the Creative Work of our authors. With the dmca was meant to balance the Internet Service providers and copyright holders. To achieve this legislation provided a safe harbor against isps for it if and only if they complied with a half dozen criteria intended to induce cooperation. But that is not how it is working today. A series of quick decisions, separate quite eerie it will be reduced to one. Isps canal benefit from the safe harbor merely by complying with takedown notices, those takedown notices must stay specific address or you are l for each item of infringing content. As a result, isps now only have to take down the specific ebook from the specific url for which it receives notice. These sites have tens of thousands of url them. In past practice as soon as a link is taken down, another identical one pops up at a different url. Creating an unending deal for those of us who are sending takedown notices. Now you can see why i gave up. As soon as i sent a takedown notice, the pirated ebook file pops right back up on the same website, posted by the same person, and often more copies popup. In 1998, representative good luck, it eloquently stated their intentions with the law. If americas creators do not believe that there works will be protected when they put them online then the internet will lack their Creative Content it beads to reach its full potential. If american Service Providers are subjected to litigation from third parties from the drop of a hat, they will lack the incentive to provide quick and exit efficient access to the internet. Congress is clear intention has not been sheathed. The author skilled is asking congress to restore section 5 12 to what it was intended, which is a notice and takedown, but a notice and stay down, instead of a notice and takedown law. Congress clearly intended that and isp take down and keep down proven pirated content. In section 5 12, cannot be advised then the Authors Guild is very much in favor of tossing it out and coming out with a much more modern and efficient and effective way of stopping rampant piracy. My written statement has examples of members frustrating experiences with the Current System. It includes recommended wording on how to adjust as the Copyright Office recommended. A dmca is 22 years old. It is an antiquated law, it needs to be updated for the 21st century. Thank you. Thank you. Mr. Hanson. Chairman, members of the committee, first i would like to thank you for your remarks at the beginning for what happened to george floyd and the situation has affected us all across the country for the last week or so. I am glad to hear that other parts of congress law are focused on that. For today i want to thank you for that opportunity given to me to share my thoughts about how the dmca notice and takedown system works. For Research Libraries especially and universities. My testimony is about my experience at Duke University and also reflects many libraries like ours and like our university across the United States. That includes members of this ocd shin of Research Library, Collagen Research library, American Library association and the American Association of law libraries. I mentioned those because they asked that i present this testimony on their behalf. I am happy to do that. Our mission, as a university and Research Library is almost identical to that of the copyright act. We exist to promote the progress of science in a useful arts, ultimately our goal is to help our nation and world better understand each other and the world around us. From a very first copyright act in 1790, an act for the encouragement of learning, Higher Education in libraries was central to the design of copyright law. Generators of so many scientific discoveries and stewards of ideas. I know there are many stakeholders interested in 1 12, our Technology Companies and entertainment, i hope that research and teaching will not be an afterthought for section 5 12. It would be a central set to asian. Duke, like most other Research Universities and libraries, travels both sides of 5 12. We operate as a Service Provider but we also have some difficulties producers of copyrighted content and are right holders. In that perspective, section 5 12 generally works well. We do not believe its overall balances askew. Though there are some minor changes that could be made. As a content creator, that generates 10,000 Research Articles a year, along with books, videos, educational content and all type of work. Virtually all of that content, our primary aim is to get people to engage with those idea. We disseminate those works as widely as we can, for the most part with no financial return or royalties. We often seek to say for example, recently at duke faculty member are shared a paper on a method of decontamination of respirators. Really important that that type of Research Gets out quickly. In our research in widespread dissemination of ideas, our preference is a system that keeps content online unless there is significant evidence that infringement has occurred. The Current System does not always do that. For example, some academic law who are trying to share their own research, they faced barriers because lack of barrier around rights. Several years ago for example, a dutch owned publishing conglomerate reportedly issued 100,000 takedown notices to a site called research gate. That is a for profit site, but most of the content has been placed there by academic authors who are trying to share their own research with the world. Most of those authors i work with responding to a takedown notice to their own research is discouraging, intimidating, and a time consuming process. Second, perhaps most important, is that fair use is absolutely critical for research and scholarship, whether youre talking about quotations and literary critiques, or copying charts or graphs in scientific publications, or reusing works that comment and criticize art. Courts have consistently found that fair use supports academic scholarship, but other parts of the act can make it a challenge. Section 5 12 is one of those. Section 5 12 does not explicitly direct the takedown process. Denied circuitss decision with the dancing baby, where they Welcome Development that what we know is that another factor in the system is the automated content identification which can limit access to work that are in dependent on various. We think that automated content ideas should be limited. Service upright ors play an Important Role in fair use, some are proactive by requiring more supporting documentation for those making takedown requests. Unlike the Copyright Office, that is critical of those 5 12. And believe that Service Providers should be protected in doing so. As a Service Provider, duke also operates a large network. We have about 40,000 people, if our network were its own county it would be bigger than a third of all the other counties in the state. It handles the same type of traffic that other isps, streaming content, email, but it serves another purpose. It is the technological back bone. It is the Research Pipeline through which faculty and students get research materials. The provisions in 5 12 that require Service Providers to implement access it, and plans to terminate access for repeat infringers could be problematic. Denying Student Access to a network could be debilitating. Especially right now where virtually all construction has moved on line. Depriving a student of Internet Access would almost be equivalent to expulsion. We also serve in normal times as an access point for people to use terminals in our network for that connect them to the internet. We reply heavily on 5 12 for safe harbor, to safeguard against internet activity. But given how dependent we all are on Internet Access, i would encourage this subcommittee to think card of whether the termination of Internet Access would be a good remedy. Duke also acts as a Service Providers in other ways. It descendants aides that scholarship itself. I will be pleased to talk more about. That but i want to and just by saying, i realize that some stakeholders feel that 5 12 is needing significant change. I hope that this subcommittee will consider the unintended consequences that change section 5 12 could have on teaching and research which are core to the constitutional objective of copyright. They are very different from those of music or film. It is important that it is caste to not also dragged down research. Thank you. We are going to go ahead and move into questions. I will go first. I know senator will be back momentarily. From extend point, copyright owners have to worry about infringement that could not have been anticipated in 1980. The black market for illicit streaming devices sold with libraries of films are two examples. Illegal streaming now accounts for 80 of digital piracy. I guess, i could go on one of the reasons that i inherently believe that we have to modernize is that we are dealing with a different world. Mr. Henley said we have my space regulations governing tiktok technology. Mr. Jon berroya, did i get it right . I have a question for you. I know the tech sector opposes any changes to five 12th, why would the tech sector want to continue to be governed by a law that couldnt possibly have anticipated the environment where in today . We are dealing with modems and dial up, now we have ubiquitous broadband. Why wouldnt we have this opportunity to look at modernizing, to consider this to be helpful . Thank you for the question. Well your point is well taken, i think it is important to remember that there is been a great deal of innovation on the side of platforms as well as isps over the course of the past decade. The other piece of that is that the dmca is a floor notice ceiling. It set standards for what Companies Need to do if they want to enjoy the benefits of safe harbor. But it does not limit them from doing more than that. That is what our Member Company platforms have done. We have stepped up and had conversations with many on the creative side of the conversation, but there are creators in many cases, they are very much aligned with the desires of creators to ensure that infringement materials get taken down off their platforms. They do not want to profit from these things. But a legal change is not necessary to create incentives for work that is already being done. But i understand that some of the larger players anticipating that these kind of actions could take place and on congress, to take steps in the right direction, but the question i have today is with a completely different Technological Infrastructure that we are working with. Before it was said that we had the dmz a, when we didnt understand the capabilities of the internet. Now it is more available, powerful, and a bigger magnitude, and easier to obscure illicit activity. The question is why wouldnt we be learning from some of those good faith efforts and creating a higher bar to reduce their amount of piracy we see . Mr. Henley, i am curious from your perspective, i know that you have made this clear in your Opening Statement that you think there is a need for changes, but you want to speak to why you believe that is necessary from a technological point of view . I would be happy to. Thank you. The notice and takedown is unduly burdensome on the artist. Let me give you a perspective of the magnitude of the problem. There are currently about six billion post on youtube. And out of those six billion post, four billion are on claimed we. Out of those six billion posts, 84 of them have music. Lets say it takes two minutes to file a claim, two minutes per claim, it would take 200 million hours to claim them and take them all down. At minimum wage, it would cost two billion dollars. Of course by then there will probably be another billion post on youtube. As has been said, this is an endless game of whackamole. The notice and takedown system is badly broken. Universal music group has a team of 60 people, 60 people who sit in a room with computers and all they do all day long for five days a week, sometimes six days a week, is deal with the platform such as youtube and facebook. They file claims an issue takedown notices for the eagles and for myself. Those amount to between 200 and 500 claims a week. When a claim is filed, the person who uploads the infringing content can appeal that claim. Can dispute it. There is a process where it goes back and forth, you have a claim, appeal, counter notice. That process can go on a nod until finally a stalemate is reached, if the uploader refuses to take down the infringing content, then the artist has no choice but to file a lawsuit within ten days. Most artist cannot, they do not have the time or the wherewithal, to file a lawsuit. The process is simply overly burdensome on the artist. It is a ridiculous, outdated process. Artist shouldnt have to deal with it. Our job is to create music, art. Not to police the internet for infringing content. That is the job of the huge platforms. The huge platforms claim that they are just a conduit to which all this content comes through. But they engage with that content. They curated. They manage it. They identified likes and dislikes, but they cant seem to identify copyrighted material. There is a process that has been instituted. Again, it is simply not working. The content i. D. Is what they call it. Our publishing administrator contacted google and asked them if they could please cooperate with us in taking down infringing content. They said if you send us your copyright registration numbers, we can flag your content and take it down. Never happened. Then she was eventually after a year led to this content i. D. Business. But the continuity is like a big net with huge holes, millions of infringing content falls through this process. It is not effective at all. It is not effective for reprieve infringement, it does not ignore red flags, patterns of infringement by certain users. Youtube touts content i. D. As an iron required benefit, it is not an an required benefit, it is far from perfect. Again, still allowing billions of contents to slip through the system. There is no realistic way that rights holders can review trillions of web pages to identify infringements and protect their rights. But Online Services can. They are the gatekeepers, not us. Thank you Mister Henley. Mr. Hanson, i may ask you to talk about the same subject. Mr. Henley i think you are really describing, on a broader basis, the sheer number of people that are experiencing the frustration of feeling that they had been robbed as mr. Preston described. Before i go to ranking member, president of the artist right society which represents more than 122,000 artist Members Around the world, his letter points out the challenge that individual artists face. That objection will be entered into the record. There is also from the copyright alliance, the 13,000 organizations, more than 1. 8 million creators. The letter states that piracy is one of the greatest threats to welfare and Economic Security to individual creators. Without objection i would like to enter into the record a another letter calling on congress to act on the recent findings of the 5 12 report. Ranking member. Thank you chairman. Thank you to this impressive panel of witnesses. I have a lot of questions, but we dont have a lot of time. I am going to ask of the entire panel, that you would answer a combination question. Based on your testimony, the Current System works well for some and is broken for others. Congress had envisioned rights holders and online providers working together to standardize voluntary measures to protect piracy. Why has that not happened . How you would suggest we combat digital piracy without stifling free speech or innovation. And most importantly, propose what a immediate change for the takedown framework, what would it be . I welcome to hear from each of the members of the panel. Starting with mr. Henley. Mr. Henley, as someone whos Creative Works inspired a lot of the critical moments in my life, i was hearing the song and of in the innocence playing in my minds. I never thought life in the fast lane would involve looking at each other through digital screens. Mr. Henley. Life is full of surprises. I agree with my colleague who is representing authors. There needs to be a notice and stay down regulation. The notice and takedown process is simply not working. We need to go to a notice and stay down process. The safe harbor in the 5 12 is not supposed to be a get out of jail free card. It was explicitly intended to promote corporations between creators and Online Platforms. So that original arrangement needs to be rebalanced, it will not threaten the internet, it will enhance the internet by ensuring a viable online marketplace for Creative Works and Online Services for the benefit of everybody. Let me just tell you what the streaming rates are forced perspective. Per stream, apple pace, seven thousands of one cent. You toupees per stream, 30 5 10 thousands of one dissent. Its hard for creatives to exist with rates like that. Especially on top of all the infringement. That is all i have to say at the moment. Thank you Mister Henley. Thank you senator. From our members perspective what is needed here is additional collaboration. Our members have effectively worked with many large content industry groups, many large publishers to identify some of these challenges. I will acknowledge as somebody who has personally directed programs focused on enforcing copyright online, i understand the challenge. I understand the challenges are particularly acute for Small Artists who dont have the ability or an organization that is helping them pool their resources and finding a way to Leverage Technology in order to more effectively manage the takedown process and work with some of the websites. Especially jewish stick stone the lack of collaboration is at the heart of a lot of the current challenges. The law as it currently stands incentivizes collaboration and has produced a great deal of collaboration. Which means platforms and content producing companies and those that represent them. I would respectfully disagree with that. I respectfully appreciate your comment, mr. Henley. But i am speaking from my own experience for this as well. I have had conversations personally when i was representing a large trade organization, that protected the rights of Large Software companies. I reached out to a foreign jurisdiction that does not have a usa dmca. We talked about the challenges we were facing, they were not we cry or to have a takedown process, through negotiation and working with them to effectively police their rights on a collection of sites that were causing huge problems. My suggestion here is to think very carefully. Just shifting the burden to platforms, when we are talking about this scale, i will acknowledge mr. Henley that it is huge and growing every single day, the volume that is growing every day. The problem is platforms with all their technology cannot decide and produce reliable fair use analysis. They do not know how particular piece of music is license. There are cases where rights holders are not as careful as you come and other representatives. They make copyright claims that arent in good faith in an attempt to take down fair use copyrights. There is a very delicate balance here. I think there is a lot of factors that contribute to making it better. But first and foremost is increase dialog. Technological pieces that are in play, and they have improved greatly over the last several years. But i think the whole oldfashioned dialog and working with one another to understand these rapidly changing problems is an important first step. Thank you mr. Preston. The internet platforms collaborate with only a few of the Largest Companies in the country. They do not cooperate with millions of individual writers or other creators. Many authors i know of the Authors Guild have tried many ways to engage with the large internet platforms like google and ebay, it is an absolutely frustrating experience because these platforms are simply not capable of engaging with small creators. To answer your second question, what we are asking for is noticed and stay down. That simply means that one isp has been informed that a certain ebook title is pirated content, it has to keep that stolen title from being reposted. If you have a pawn shop and the cops come to take away a bracelet, and the next week the same bracelet comes in to be sold, you cant just put it up for sale again. That is all we are asking. One isp has been informed in the proper legal way, that it is stolen property, it stops allowing the sale of it. The other side of this coin is that, but if the same person upon shop brings in multiple stolen items repeatedly, the pawn shop owner has an obligation to stop dealing with that person. If a website or in the example of google, if they are responding to certain requests and getting people from that website and they have received thousands of takedown notices, the isp should stop dealing with that website. I will give you an example, there is a notorious piracy website called epoch dot pub. Google was sending people to it freely. Anyone that could type in free ebooks, google would send them their. This website had received, according to a study by york university, over 40,000 takedown notices and still google was indexing that website right at the top of its search page. It wasnt until the Authors Guild went to google and said, hey what is going on here . This is a notorious website. Google then demoted that website lowering it in its search. It didnt deindex it, it demoted it. We are just asking for isps to make a good faith effort to keep that stolen property from being fenced again and again on their platforms. Briefly, mr. Hansen if you have something to add to that. Yes, just briefly i will comment on our experience as a Service Provider and the takedown notice we have received. On average to give you a sense of what we see over the past year. We are averaging like 380 takedown notices a month. It is not a significant number considering the size and volume of traffic that goes through our network. We have seen that number decline dramatically over the years. A lot of the takedown requests that we used to get were based on students uploading popular media. Reducing that number has not really been copyright innovations but businesses limit content has been made available at reasonable prices through reasonable means where students are able to purchase subscriptions. Netflix, hulu, spotify, those sort of things. The encouragement of licensing alternatives at reasonable rates and means is a major driver that would have more of an impact than anything. Whether there is an authoritative approach to stop things rather than providing legitimate means to consumers to see content. Thank you, thank you to the panel. Thank you to the ranking member, senator, and to our chairman for having this very important hearing. I will just say at the outset, this hearing is extraordinarily consequential because it involves a principle. The principle is accountability. The dmz are and the Community Decency act, section 2 30 accord in effect a broad immunity. And both seem to me to be in need of reform. Now, i strongly oppose the executive order on 2 30, i think it is meant to intimidate and express suppress freeze breach, it is illegal. I have supported narrow and targeted reforms to section 2 30, for sex trafficking, and other abuses where it has a responsibility and narrowly imposed legal responsibility that would be imposed by measures to reform. For example, this is such a measure of act. Such as child abuse, it is not a partisan issue, that measure is supported by a Bipartisan Group of us. Here, it seems to be accountability is also important. I heard reference earlier to oldfashioned collaboration. It seems to me that, oldfashioned collaboration is four an oldfashioned process that no longer really is appropriate to the president technology and the threats to rights that are in peril by lack of accountability and enforcement. So, i guess my question to the panel is number one, is there anyone on this panel that thinks the status quo is absolutely okay, no need for improvement and should be left alone. I hear silence, so i will conclude that everyone on this panel thinks that some type of improvement is warranted. Excuse me this is jon berroya, i pressed my mute button. I would disagree that it domestic log needs to change in order to do address a problem that is mainly overseas. So you want to just leave the system as it his . With the dmca . P. S. I think the dmca is working well. It reserves the critical balance between all stakeholders involved. The current stakeholders in this system exists in a way and are handled in a way that is consistent with what senator leahy and hatch had in mind. It functions effectively, that collaboration which i referred to is oldfashioned, i meant that its not technological. But the importance of that collaboration is as tech changes on the piracy side of the equation which happens rapidly, much more rapidly than any change in law would be able to catch up with. As those things change, collaboration between rights holders and platforms where those rights holders are finding infringing materials allows for a quicker response that may otherwise occur. The dmca does not limit that it encourages. It let me just say, im about to run out of time. That argument is absolutely belied by reports that i have heard from independent artists that i have heard who were forced to scour youtube and other platforms looking for infringements. It is not collaborative. It is a fulltime effort on their part. The burden is on them. And so rights holders are charged with monitoring the entire internet on their copyrights, that burden is problematic for independent artists who are more vulnerable to rights and infringing activities. I think that dismissing of these complaints, it may not be your personal experience but it is and many others, it in effect ignores the problem we need to address. Thank you. Senator. Thank you very much. If i could, im just going to ask two or three more specific questions. I understand the chairman is on his way back and we will introduce the second panel. If i could jon berroya hear, i understand the importance of fostering innovation on the internet in the ways in which the dramatic growth of the internet has brought benefits to our country, to our community, but i am also concerned that in some ways some of our most Profitable Companies have found success at the expense of the smallest members of our Creative Community. In your view, given that there is hundreds of hours of content uploaded every minute, how can a smaller artist possibly be expected to police this content . And shouldnt some of our largest and most sophisticated companies shoulder some of the responsibility for the infringing material that is being monetized on their platforms . We thank you, collaboration is essential. There were letters that were entered into the record today by number of organizations, one organization that represents a large number of independent artists and creators, pooling of resources to deal with this scale of global piracy is the only effective way to deal with the scale of global privacy. Putting the burden on any one of these platforms, certainly there are large ones and those platforms have reached out and will continue to do so to the Creative Community, and try to identify more ways to identify the system. The collaboration is essential for both that platforms understand the challenges that creators are facing, but the pooling of resources on the side of the creators so they can Leverage Technology and identify software and techniques used application protocols, quickly identify things and send takedown notices and track takedown noses. This can all help with the scaling process. I am not trying to suggest that the concerns that have been raised by independent artists are in any way overblown. If i was an independent writer or musician, i would be facing those same things and i know people who are facing those challenges. The reality is, until there is an effort to collaborate more, pool resources and scale the response to this Global Challenge we, it will continue to be a game of whackamole. That is not something that anyone on the platform side wants. Nobody wants piracy on their platforms. They dont want profits, they dont need that. They have legitimate businesses and the overwhelming majority of content on their platforms is legal content. Thank you very much, thank you to the panel. I want again to thank everyone for participating in the first panel. Mister henley, all the witnesses that youve given us very important information. I think mr. Henley mentioned the dramatic reduction in compensation eight or artist is likely to receive in the age of digital piracy. I think we should recognize the risk that that runs of decimating the number of people who are willing to take the time and effort to create something that we all benefit from. I believe that we have to look at reasonable reforms. I was glad to hear, im sorry i had to step out for a minute, that said hitter blumenthal also agrees that we had to modernize them. I have to believe in a world of technology that we live in today, where many of these platforms have the technology to virtually anticipate the next song you want to hear or the next thing that you want to buy that there is a way for us to come up with something that is sustainable, not disruptive, but helpful to our creators. I hope we continue to work towards a positive and. I appreciate all of my cloth colleagues who are of the same minds. I want to thank the first panel for being here today in testifying. Thank you Mister Henley for all the memories you have created. We will transition to our next panel, which digitally is a little bit easier. I can begin doing the announcements. Here we have abby rives. ,. Kerry muzzey and whose peace looking back was used for the courage love thing in the tv show glee. Meredith rose its a policy council for promote freedom of expression, and access to affordable communications, her portfolio focuses on copyrights dmca and property reform among other information policy fields. Mr. Jeff sedlik is an advertising photographer whose clients include nike, fedex, sony, at t. He is a professor professional arts and Design School and is the president and ceo of the plus coalition, a group working to simplify and facilitate that communication of image rights. Thank you all for joining today. We will start with abby rives testimony. Chairman, ranking members, members of the subcommittee. Thank you for a invited me to testify. I first want to add that the voices around the country, wealth that section 5 12 is for startups and their experiences are central component on this topic, we recognize that there is far more pressing issues today, we Hope Congress will meaningfully take up the more important conversation about inequality injustice in this country and i am heartened by your remarks on this matter. We are a nonprofit that bridges the gap between policy makers and startups, the Research Policy analysis. 5 12 sets up a false dichotomy, nearly 17 million americans have 6. 8 Million Dollars in 2017 by posting their personal creations on just nine platforms. Technology has democratized technology, these and other platforms has created a new way for creatives to reach new fans. Recent events in the u. S. Have highlighted the importance of this ecosystem. As we are all gathering and sharing news, working, learning, shocking and testifying we are more reliant on ever for platforms that did not exist before dmca. Overall 5 12 is working well. In 1998 Congress Said that isps that they would not be ida medically liable for when their users were accused of copyright. Today startups need the same certainty and the protections afforded to their predecessors. Changing them dmca would shift to the ground undertakes startups. Imposing the duty would be on workable and would make litigation even more. It could already cost half 1 Million Dollars, indeed the normal cost of lip occasion startups would not be able to afford to approve that their practices are reasonable such as safe harbor would have no value. The subcommittee posted three questions, first regarding the notice and takedown it is largely working well but there are significant abuses of the system and no means to retaliate. Most isps have actual very little infringement. For example, tumbler a multi media blogging site has half 1 million blogs, in the first half of 2019 they saw fewer than 5000 takedown notices. They removed less than 1000th of a percent of their user content. This would not catch much if any of additional moreover, they lack that information rights holders on the other hand know what their copyrighted works are and can identify potential infringement. Will section 5 12 has been successful, improper takedown notices are a problem. One example is at a musician posted a video of himself playing a publicly known song, he was given a he refused to back down when a magician disputed an incorrect claim. It is welldocumented that sections from 5 12. Users who receive bad faith notices have to wait ten to 14 days for content to be restored, that could be two weeks of sales from the holiday sales. This can be devastating. Faux takedown does work well it is subjected to substantial abuse. The second question was about safe harbor eligibility, changing the opposing affirmative duty is seriously detrimental. It would create new risks that startups are already operating on thin margins. Established incumbents are already arguing many parts of the infringement. They have the resources to absorb the risk. Startups do not. Filters have inherent limitations, they have high error rates, for many kinds of content there is no filter. Technology cannot importantly these filters are also out of reach for most startups, developing them with cost more than a startup can afford and licensing off but life filters is not okay for startups. Changes in how copyright for online content would be one of the biggest liabilities. The aptly explains that a large system policy might have and accommodate change and potentially resulted a negative impact for Small Businesses. Thank you again for inviting me to testify today. We know you review of the dmca will be an ongoing process. And we hope we continue to have a seat at the table. Thank you miss reeves. My name is kerry muzzey, im a film and composer. I am honored to be here and would like to thank you for being able to speak to the staff committee. The topic that effects my livelihood and all professional creatives, the dmca. I make my living as a composer, every single day i experienced just how broken it is. Before beginning no, i want to acknowledge something, im not a famous person, people do not know my name i am just working composer. My story and experiences wouldnt mean as much today if not for the fact that in these hearings i am allowed to stand shoulder to shoulder with someone like don henley, his name lends credibility to us all. I am so proud that i could make my statements alongside his. The opportunity to make a small difference here is very important to me, that is why im here. Before explaining how broken the dmca is. Let me give you some context. I am one of few and lucky independent artists who has access to Youtube Content i. T. System. Most of my experience with takedown has been with youtube. Content i. D. Has been my core, it is the what i use for the deaths on youtube. This is why im nervous about speaking out today. I feel retaliation by youtube and google. I am concerned that they might take content i. D. From me for raising these concerns publicly. Right now i am seven years into utilizing that Amazing Technology to locate uses of my music on youtube. It has located almost 110,000 videos that use my music without permission. These are not cute little kitten videos. These are commercial uses of my music for car companies, hotel chains, fortune 500, pharma, and doesnt of International Series that use my music as underscore. When i discovered these uses i issued dmz or takedowns. This is where the broken part of the dmca process shows itself. I received a false dmca notice through youtube. It every case the counter notification said that the uploaders use was a fair use under u. S. Copyright law. In 100 of these counter notifications, that was false. How did these takedowns usually play out . Shortly after issuing one i received an email from youtube saying the uploader is filed a counter notification and that pursuant to the dmca, i have ten days to file a lawsuit against the uploader or else youtube will reinstate that video. If i do not file that lawsuit in ten days, the uploader and youtube can then continue to display a monetize that video that still has my music in it. I have been lost that battle, times 110,000. Im not a corporation with a staff of lawyers, i am just a guy. I am a Small Business of one person. Copyright law tells me that i have the right of ownership to music i create. If i dont have a legal remedy with my work is stolen, do i really have that right . This is a situation that composers are in. The dmca gives me a remedy to File Lawsuits that is not a remedy. There is no remedy for me. I am a tidy david in a sea of tech goliath. Youtube, video, facebook, all of them feel insulated from liability because of the way that dmca safe harbors have worked. And because the likelihood of an independent artist like me will be able to see them, it is exactly 0 . The mental and emotional toll that this is taken on me having to spend time every single day for 70 years now, dealing with tens of thousands of individual thefts of my work in trying to resolve them is extreme. Those are ours i couldve spent making music, i will never know what creativity was raw boss will policing those. Senators of the ip subcommittee, i have the most unique opportunity to have in a lifetime, to ask members of my United States senate to fix a broken law. That is what i am asking. I am asking that you revise the dmca which is left individuals like me with no remedies. I understand todays Panel IncludesTech Companies who assure us that the system is working. I challenge them to experience the maddening experience here, and tell me with a straight face that the system is working. I am just one of hundreds of thousands who go through this every day. Artists of all socioeconomic backgrounds, not just the famous ones. If they want to truly look at the online space they have to face the reality. Senators, please realize that there are many tiny davids like me who need the governments help for protecting their work by Holding Nicholas accountable for the fact that they have so easily enabled we need practical and accessible remedies. If the worlds most tech savvy Companies Wont help artists like me, then congress should force them to. I am here to ask for your help. Please help me. Thank you for letting me tell my story. Thank you. Miss rose . Chairman, members of the committee, thank you for inviting me to testify today, from was appropriate social distance. I would like to take a moment to acknowledge protesters out in the streets, and the smallest of fractions of names that must be said, george floyd, tony mcdade, countless others that are all victims of police violence. This debate that we are having cannot happen in a vacuum divorce from what is going on in america streets. This is not about content versus tech, i am here to talk about how section 5 12 impacts more than over 229 million adults that use the internet is more than a delivery system. They use it to pay bills, work, learn, socialize, receive health care, and yet they are missing from the Copyright Offices 5 12. They are missing from the systems and procedures that govern their rights, and the debate on capitol hill. I am thankful to be here representing them today. Reforming the system requires that we acknowledge the way it breaks down. In particular, there are three problems for user speech. That dmca the notices, the inappropriateness of giving private third parties to without any width of due process remove of families access to broadband. We have to acknowledge that bad dmca form are real, they have a variety of causes, it a racist speech for the internet without any meaningful oversight even when contested. Extraordinary power of this division comes with a long and thoroughly documented history of weaponization. One study looked at 108 million notices and concluded that one third of them were problematic and 4. 5 million of them were from the mentally flawed. The cause of these bed notices is from algorithmic defects to abuse, there impact is still staggering. Senators can use takedowns for legitimate content. , some stakeholders still insist on faster takedowns with fewer takedowns, and more liability for the platforms that attempts to filter malicious notices. This is akin to discarding for a tank and asking for a new. We must understand the mechanism such as algorithmic content identification which has grown up a top 5 12. These solutions how good it theory but the reality that their implementation is messy and difficult. Because they operate automatically these algorithms can instantaneously remove space that could be political, newsworthy or educational. Policy makers must grapple with what users an artists like understand, the balance of equity in practice is determined less by the contours of law them by the aggregate result of technological limitations and Design Choices with no clear right or wrong answers. Finally, i want to address the elephant in the room. That is broadband access. We should not permit or strength in law to terminate a persons Internet Access unilaterally without a with of due process. There are several bills currently some stakeholders still consists that they need more power. When that dmca was cast in 1998, isps were Software Providers that operated over the telephone, being dropped by are isp bent on installing America Online and installing another one. In 2020 isps control software and physical connection into your home, for more than 100 million americans living in home service by only one broadband provider, being disconnected beans losing access to the internet in its entirety. The punishment is wildly disproportionate to the accused, the effects. We are at a moment of political, economic and social upheaval. Americans are in the streets, in their homes, and all the time they are online. They are debating, documentary across geographic divides. The internet is how we bear witness. It is how we see with the hope of understanding those whose experiences, struggles are not her own. It is how Many Americans were first exposed to the tangible reality of Police Brutality and systematic oppression. It is how the work of Community Activists and organizers amplified, and how justice is brought to the eyes of the world. To strike a new balance it must meet the needs of 229 million voices and their ability to speak in front of mine. Thank you, i look forward to your questions. Thank you. Chairman taylor, and other members of the subcommittee. My name is jeff sedlik, ive been a professional photographer for 35 years and the author and owner of hundreds of thousands of coal paraded photographs. I make a living creating and licensing photographs to appear in media. Photos i create are under u. S. Copyright law, at least in theory. In reality, i received very little protection because of the rampant infringement of my work that is permitted by Online Service providers and their websites. Instead of using readily available technologies to identify infringement, Service Providers hide in a safe harbor of 5 12. Allowing infringers to monetize their work unless anthill i submit a dmca notice. I have to spend my days and nights looking for infringement. Taking screenshots, collecting hundreds of thousands of infringement you or else. Combing through obscure websites to find the dmca agent. Responding to inane and unnecessary like followup questions to Service Providers. Once the infringement is taken down it will return often on the same day. Enforcing rights under the dmca isnt impossible task. Not just for me, but for my fellow creators across this nation. Most artists operate i micro businesses with no employees, like other creators in order to feed my family i need revenue by creating and licensing newark. But in licensing my works i am forced to compete with hundreds of thousands of unlicensed, unpaid infringements of might work. Essentially, competing with my own works. If i dont enforce my copyrights, my work has no value. But if i dedicate my time and effort to identify and enforce my copyrights, i have no time left to create new works. This is an untenable situation. What that i and others are forced to confront on a daily basis. Certainly this is not an effective balance system. The fact that millions of takedown notices are issued each day is not a sign of success. It is a sign of a ballast system that is on strain and on the verge of failure. I risk that i respectfully suggest the following revisions to 5 12, first revising clarify the knowledge requirements recognizing Service Provider was right and ability second, encourage Service Providers to collaborate with creators and other stakeholders that they can opt out and opt in registries by creators and rights holders. Third, provisional works, Image Recognition technology is available, it is highly accurate and suited for the task. In addition, Service Providers should search for infringing works. Require that upon receipt of a representative list of links to infringing materials, that they should have to identify and remove all other existing route infringements. We require that Service Providers have noticed and stand down procedure. Define repeat infringers, someone who is received two or more gm say notices, recognize with metadata and digital watermarks to require that Service Providers maintain and preserve all better data in all files uploaded to their files. Grant the register of copyrights to establish and maintain standard technical measures. Either wave the registration in, for filing infringement claims or toll the counter notice for the standard copyright application processing period. Prohibit Service Providers from publishing a. Clarify that infringements is a distinct exclusive, for riveted works from section 1 06. Require as a condition that Service Providers must disclose the identity of infringers. So that we can find a affordable and practical procedure. Lastly, as a condition of eligibility, require Service Providers to have rights withhold against their databases to identify any infringing works. In addition i agree with and recommend what the next two 5 12 report. I make sessions on photographers. It american psyche of Digital Media licensing association, National Press association, north america nation, professional photographers of america. In closing, again thank the subcommittee to improve the copyright act and i share my experience and for my testimony today. Until i 23rd 1967 detroit was hit by a riot the chart was hit by a riot, is that it could not happen, but it did. And the nation was shocked. This was a portion of the story that only 43 dad, and the city in flames. These films tell a part of that story. What do you think of all of that . I think its awful. They put in a position to suffer, although stores are closed one. Do you blame anybody for it . I dont know who to blame, but its really awful. Do you think that makes it right . No, it isnt right. Who are you angry . Are you mad . No, not exactly