Re:Create Files 512 Reply Comments

The Re:Create Coalition submitted the following additional comments regarding the subject of the DMCA safe harbor provisions contained in 17 U.S.C. § 512.

Pursuant to the notice of inquiry published by the Copyright Office (the Office) in the Federal Register at 81 Fed. Reg. 78,636 (Nov. 8, 2016), later extended at 82 Fed. Reg. 8,629 (Jan. 27, 2017), the Re:Create Coalition submits the following additional comments on the notice regarding the subject of the DMCA safe harbor provisions contained in 17 U.S.C. § 512.

Re:Create was founded in 2015 to educate and start a conversation on the positive impact the Internet has had on creativity and innovation over the last 25 years. Collectively, the members of Re:Create operate over 100,000 libraries visited by the public 1.5 billion times per year; fight censorship by repressive regimes globally; provide platforms that enable music and video content to reach a global audience; create new and interesting works of art, literature and video enjoyed by wide audiences; invest in new startups and entrepreneurs; and generate billions of dollars in revenue for the motion picture, recording, publishing and other content industries. While our individual organizations maintain diverse views of specific issues, we are united in our overarching respect for copyright and concern for its future.

Our members are the American Library Association, Association of Research Libraries, Center for Democracy and Technology, Computer and Communications Industry Association, Consumer Technology Association, Electronic Frontier Foundation, Engine, FreedomWorks, Harry Potter Alliance, New America’s Open Technology Institute, Organization for Transformative Works, Public Knowledge, and R Street Institute. Most of them are individually or jointly filing reply comments in this docket and we refer you to all of their replies. We are also filing these reply comments on behalf of the coalition in response to the Notice of Inquiry.

Re:Create had the opportunity to testify at the hearing the Copyright Office held after filing its initial comments in this proceeding. Our additional comments are in direct response to filed comments and the testimony at the two hearings. We have already filed our direct views on Section 512 of the Digital Millennium Copyright Act (“DMCA”) as, to quote our earlier filing, “the foundation for the success of the Internet and…cornerstone of the overall U.S. economy.”

I. Characteristics of the Current Internet Ecosystem: The Copyright Office Needs to Take into Account Diverse Opinions of Creators and Innovators

There is a professional class of advocates and lawyers that represent many from the traditional creative industries in the United States. They were out in force both in the filing of comments and as witnesses at the hearings in New York City and San Francisco. And they are an important part of this debate. However, it became apparent in the comments and during the testimony, that the views of many creators were not reflected.

Thanks to the openness of the user-generated platforms on the internet enabled by Section 512 of the DMCA, there is now a growing and important class of “new creators” that have not yet caught up to their traditional counterparts in understanding either the need for or the value they would add to public policy debates. Just one of these creators, Rebecca Prince, testified at the field hearings. But Rebecca represents the millions of Americans who are uploading creative works onto a diverse array of platforms every minute. In a recent survey conducted by Public Policy Polling, Americans across the country indicated their belief that the internet should remain a free and open space for exchanging ideas and content. A near unanimous 94% of Americans say they regularly go online, and of that group, 78% share information online routinely.[1]

A recent NPR piece highlighted one example of how the Internet, and thus Section 512 of the DMCA, is allowing for creators of color to go around traditional gatekeepers in the creative community. [2] In another great example, a Missouri town was revitalized by a YouTube quilting sensation and the resulting economic boom that occurred. [3] We don’t yet know how many of these new creators are out there and how they are generating both economic activity and making cultural contributions, but we can say they are numerous and growing and that they are generating significant economic activity. hey are creating and distributing all sorts of video and music content, building out new independent journalistic platforms, writing blog posts and big think pieces, self-publishing fantastic books, creating fan communities with brilliant creative activity, and creating repositories of knowledge like Wikipedia and the Internet Archive. They are using platforms like Etsy and Shapeways for art, Medium and WordPress for writing, Amazon for publishing and SoundCloud for podcasts and music. This is not just about sharing cat videos on YouTube and Facebook — it is about a broad array of creative and innovative content, platforms and ecosystems that depend on Section 512 safe harbors and the notice and takedown system for their existence.

Additionally, during the San Francisco field hearing, the views of the user community were dismissed, many of these users being both consumers and creators themselves. At one point, the comments of over 80,000 users who took the time to file comments with the Copyright Office was dismissed by a witness as a DDoS attack intended to attack the Copyright Office. This could not be further from the truth. Users are an extremely important stakeholder in this conversation. Ratcheting up the rhetoric in this debate to comparing the Internet community to sharecropping [4], slavery [5] or attempts to exercise one’s first amendment rights to cyberwarfare [6] have no place. Their voices are important, and failing to listen to them would be to ignore the core mission of the Copyright Office and any government entity — to serve the public.

II. Operation of the Current DMCA Safe Harbor System

There is a dichotomy that clearly exists within the broader creator community between those who argue movement away from the current Section 512 system is necessary and those that argue that without Section 512’s protections, they would not have platforms to consume and create content for. Just because one of those communities has been around longer, or is louder, or has more money, or is better organized does not mean that their opinion matters more or they are contributing more to society. The goal should be to promote creativity from the perspective of the public interest. If we were to move to a notice and staydown system, the traditional creative community would be happy. However, it would absolutely chill creativity from the new creator and user creator communities. It would have deleterious impacts. On the other hand, under the current system music is getting made, movies are getting produced, books are getting published and television is in a so-called golden era. Clearly, despite the noise, creativity is still happening from the traditional creators while the new creators are flourishing on online platforms. The safe harbors seem to be working very well for encouraging creativity and the public consumption of it, despite the complaints from one community.

III. Submission of Empirical Research to Aid the Study

We agree with the Copyright Office that more studies and data are needed on this issue. We hope the Copyright Office will continue to encourage more studies to be done on Section 512, DMCA takedown notices and other important aspects of that debate. In that vein, we think it is important to note here that studies should be treated respectfully. Over the four days of the New York and San Francisco hearings, the March 29, 2016 study on Notice and Takedown by Jennifer Urban, Joe Karaganis and Brianna Schofield [7] was subjected to numerous attacks, many of which had nothing to do with the actual study and which were personal in nature. If we are going to encourage companies to make data available for studies and researchers to participate, it is important that the researchers are treated with respect. This does not mean that the studies should not be subject to rigorous peer review and scrutiny — by all means, they should. But in this case, basic research concepts like using a sample came under attack, as did the personal integrity of the researchers. That should be unacceptable to the Copyright Office.

Good studies take time to complete. From conception to funding to completion can take more than a year. Additionally, in such a dynamic marketplace, the data and information from two years ago, while informative, is already potentially outdated. The Copyright Office has made a call for more data and information which groups will respond to – they just need time.

[1] Justin Mayhew, Poll: Overwhelming Majority of Americans Oppose Restrictive Copyright Policies, Re:Create, Jan. 12, 2017,
http://www.recreatecoalition.org/6865-2/.

[2] Jessica Diaz-Hurtado, Why Storytellers Of Color Ignore Usual Gatekeepers, Take A Chance On The Internet, NPR Code Switch, Feb. 11, 2017, http://www.npr.org/sections/codeswitch/2017/02/11/514487439/why-storytellers-of-color-ignore-usual-gatekeepers-take-a-chance-on-the-internet.

[3] Quilting company saves small Missouri town, 41 Action News, June 12, 2013, https://www.youtube.com/watch?v=kc3FiBr5oes.

[4] See Public Roundtable, U.S. Copyright Office Section 512 Study, San Francisco, CA, May 12, 2016 at p. 315.

[5] See Comments of Pilch, Janice T, U.S. Copyright Office Section 512 Study, April 1, 2016 at p.4 (“The success of the internet is not unlike the explosive expansion of the U.S. cotton industry in the 19th century through expropriation of land and unfair exploitation of human labor.”)

[6] See Public Roundtable, U.S. Copyright Office Section 512 Study, San Francisco, CA, May 13, 2016 at 75-6.

[7] Jennifer M. Urban et al., Notice and Takedown in Everyday Practice (UC Berkeley Pub. Law Research Paper No. 2755628, 2016), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2755628.

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