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RIAA boss leads with takedown-and-stay-down and some Twitter dissing in latest Congressional safe harbour debate

By | Published on Thursday 17 December 2020


The latest discussion on America’s Digital Millennium Copyright Act by the US Senate’s intellectual property sub-committee earlier this week confirmed again that takedown-and-stay-down is now a key lobbying priority for the music industry. Oh, and that Twitter is vying with Twitch for the title of most pesky safe harbour dweller. Which is good news for fans of alliteration.

The IP sub-committee has been holding discussions about the DMCA all year as senators consider whether it’s time for a good old review of the 1990s copyright legislation. And in particular, of the good old safe harbour it provides internet platforms, so that they can avoid liability for their users’ copyright infringement providing they operate a takedown system via which copyright owners can get infringing material removed.

The latest discussion on Tuesday put the spotlight on those takedown systems. Among those speaking was Mitch Glazier, CEO of the Recording Industry Association Of America, who said that safe harbour dwelling websites should offer much more efficient takedown systems, actively helping copyright owners to monitor those sites for infringing content as well as processing takedown requests.

He also wants takedown-and-stay-down, the safe harbour reform that wasn’t part of the safe harbour conversation around last year’s European Copyright Directive, but which is certain to become part of the now ramped up platform responsibility discussions in the UK and EU.

“Platforms should keep infringing material they know about off their sites”, Glazier told the sub-committee. “This is the essence of the DMCA. Trafficking in unlawful material to draw users should not be part of a business model. That means once infringing material comes down, the same infringing material should not be allowed to reappear consistently on the same service”.

“The sheer volume of infringement online is already staggering, and it is exacerbated by the routine reappearance of the same infringing content on the same service almost immediately after removal”, he went on. “This produces a never-ending, largely futile effort to enforce rights that Congress intended copyright owners to have. It wastes time and resources, creates an impossible situation for creators, devalues intellectual property and licensed services, and renders the notice and takedown process a sham”.

When safe harbour reform was being discussed as part of that copyright directive in Europe, the whole debate was very much framed as the music industry v YouTube. However, in Content ID, YouTube has a pretty decent takedown-and-stay-down system. Yes, it is much more effective for managing recording rights than song rights on the YouTube platform and is only available to bigger rights owners, but for many of the RIAA’s members, it’s a pretty good rights management tool.

Plus, even though YouTube continues to oppose the safe harbour reforms contained in the EU copyright directive – which specifically increase the obligations of user-upload platforms – even in the final stages of that directive being negotiated some in the record industry were softening their previously aggressive stance against the Google video site.

That was partly because YouTube had launched its music subscription service and was proactively pushing paid for music via its main free-to-access site. It was also serving significantly more ads on that main site in key markets meaning the labels’ share of the service’s ad income was rising. And maybe the major labels were also already anticipating the next stage of the safe harbour debate – ie the push for takedown-and-stay-down – where YouTube isn’t really the enemy.

And while there is still some YouTube dissing in the music community, in recent months the music industry – and especially the music publishers – have become much more critical about another safe harbour dwelling video platform owned by a web giant, ie Amazon’s Twitch.

However, behind the scenes there has also been plenty of griping about all the unlicensed music on Twitter and how slack that social networking site’s takedown systems are. And Glazier decided to specifically criticise Twitter this week. Possibly because he knew that IP sub-committee chair Thom Tillis was already pissed off that Twitter had declined to take part in this week’s debate.

“I’ll give you one real-life example from this year for one track”, Glazier told the committee. “In that case, despite sending repeat notices for the same sound recording to Twitter continuously for months, the same track kept reappearing on Twitter. As a result, over a ten month period, RIAA had to send notices for nearly 9000 infringements of that same track. Let me repeat that. We had to send 9000 notices over a ten month period for the same exact track. Unfortunately, we must do this all the time for hundreds of tracks on many different services”.

Technologies do already exist to power takedown-and-stay-down, he reminded the senators, before name-checking YouTube’s Content ID as well as third party audio recognition services Audible Magic and Pex. These technological solutions – or ‘standard technical measures’ – exist but “have not been implemented uniformly or, in many cases, meaningfully”, Glazier argued.

“Establishing uniform and meaningful implementation of [standard technical measures] was one of the original goals of the DMCA, which calls for the voluntary development of these standards ‘pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process'”.

“That’s right”, he added, “current law already provides for a voluntary process to make the DMCA effective. But this process has never occurred in the 22 years since the enactment of the DMCA, because Congress’s intended balance of incentives that would have achieved this, as indicated by the Copyright Office, is ‘askew'”.

That latter remark references the US Copyright Office report on the copyright safe harbour published earlier this year that concluded that efforts to balance the interests of copyright owners and tech companies via the DMCA safe harbour had been “tilted askew”, and that lawmakers might want to consider fine-tuning the rules accordingly.

Tillis has indicated that he supports more significant changes to the DMCA and the safe harbour than mere fine-tuning. Whether he’ll get such significant changes properly onto the legislative agenda in US Congress remains to be seen.

Despite much of the music community being excited and relieved that the Donald Trump presidency is nearly at an end, the tech sector lobby will arguably be more powerful with the Democrats in the White House, and especially if they end up controlling both chambers of Congress. Which will likely make decent safe harbour reform harder to achieve.

When it comes to increasing the specific liabilities of user-upload platforms like YouTube, the tech lobby will almost certainly tell Congress that it should wait to see how reforms in Europe turn out before meddling with American copyright law. But takedown-and-stay-down is a different debate, and could therefore become the music industry’s lobbying priority in the US as well as the UK and EU.

Fun times. Plus, expect plenty more Twitter and Twitch dissing. Which Twit’s the bigger offender? Place your bets!