Previewing Copyright & Technology 2016 (NYC)
Interview with Bill Rosenblatt, Giant Steps Media Technology Strategies
For podcast release Monday, January 11, 2016
KENNEALLY: It’s a truism in intellectual property that copyright legislation is in a never-ending race with technology, and always playing catch-up. When copyright and technology first found themselves in this circular arrangement, the disruptive technology of the moment was the player piano.
Welcome to Copyright Clearance Center’s podcast series. I’m Christopher Kenneally for Beyond the Book.
Later this month at New York University, attorneys, bureaucrats, entrepreneurs, and educators will take turns untwisting the tangled relationship of copyright and technology at a one-day conference. Among the unusual perspectives is a look at how piracy-related data could drive business innovation, as well as predictions for the future of collective licensing schemes, first conceived in the 1940s. Copyright and Technology Conference organizer Bill Rosenblatt joins me now with all the details. Welcome back to Beyond the Book, Bill.
ROSENBLATT: Thanks, Chris, it’s really great to be back.
KENNEALLY: We’re looking forward to the conference and to chatting with you about it, and a very timely program it is, too, particularly related to a blog post of yours on your own blog, copyrightandtechnology.com which looks at the implications of a recent notification from the U.S. Copyright Office that they’re looking for public comments on two important elements of the Digital Millennium Copyright Act.
Before we get into some of the details, and it is kind of hard to follow unless you do so on a daily basis the way that you and I do, first we want to note that Jacqueline Charlesworth, who’s the general counsel of the U.S. Copyright Office will discuss this particular notice and much more, of course, when she gives the keynote speech of the conference on Tuesday, January 19th.
But really, the issues here are important because it’s about how technology helps and hinders what’s behind copyright, after all – the efforts to promote the progress of science and useful arts. So tell us briefly about Section 512 and Section 1201, and the issues that have been raised over the last 15 years or so, since the DMCA took effect.
ROSENBLATT: Sure. Well, first of all, I’d like to get a couple of things out of the way. I’d like to mention that your good self will be moderating a panel at our conference, and we’re always very excited to have you come and do that because you do such a great job.
KENNEALLY: Thank you, indeed.
ROSENBLATT: And also want to just give out the URL for those who want to not have to wait until later in this podcast to get more information about our conference. It’s copyrightandtechnology.com/conference – very simple. That’s copyrightandtechnology.com/conference.
OK, so you asked about the two segments of the Digital Millennium Copyright Act. They are pretty different in what they cover, and they were put together into this one piece of legislation. They’re known as Sections 512 and 1201 because those are the places that they ended up in the overall copyright statute, which is US Code Section 17.
The one that is getting the most attention these days is Section 512. Section 512 is essentially an attempt to strike a balance between the need of copyright owners to protect their copyrights online and the needs for service providers to be able to run their services with a reasonable minimum of effort to enforce copyright. So it contains what are known as safe harbors, which are ways that service providers can avoid being held liable for copyright infringements that are alleged to be committed on their services. Basically it depends on what kind of service provider you are – whether you’re an ISP or a hosting site such as a YouTube or a SoundCloud or some other type of service, – which of the safe harbors you may quality for.
But generally, in order to qualify, you have to satisfy some threshold conditions such as you have to agree to terminate the accounts of any subscribers or members that you have who are repeat copyright infringers, and there are a couple of other things. If you do these things and you fulfill some other criteria, then you pretty much get a blanket liability from copyright infringement.
So that’s Section 512 and that applies, as I said, to online service providers of all kinds.
Section 1201 has to do with digital rights management, or as they call it in the law, technical protection measures that control access to a copyrighted work. It’s essentially a law that makes it a violation to hack DRMs, to circumvent technical protection measures. So if you publish a hack to, let’s say, an e-book DRM, like Amazon’s DRM or Nook DRM from Barnes & Noble, then you could be held liable under this law, or indeed if you even use a hacking tool of some kind, you could be held liable under this law.
These are laws that, as you noted, were passed quite a long time ago – 1998, to be exact. It’s really a challenge for them to be worded in such a way that they can apply when the technology is changing on a constant basis.
KENNEALLY: Right. And the issue here –and you gave a pretty succinct summary of the two aspects of the copyright code, Section 512 and 1201 – but for those listening who may wonder why this should matter to them if they’re not an IP attorney, it matters because many individuals are impacted by this. In the case of 512, it’s about the use copyrighted material and so-called notice and take down, and then in Section 1201, it’s about owning an iPhone, for example, or another type of device, and not being able to essentially modify it in any fashion that you care to. So really this does have an impact on individuals, whether they’re copyright holders or simply users of copyrighted content.
ROSENBLATT: Well, yeah, it absolutely impacts individuals, and in fact, one of the aspects that the Copyright Office wants to study – one of the many, many aspects that the Copyright Office wants to get input on – is on how these laws affect individuals and small entities. So if you’re a service provider, you aren’t necessarily Google with armies of engineers or people to administer take-down notices which are specified under 512. You may be a small service provider that would find it a problem to be deluged with these notices. On the other hand, you may be an individual songwriter or novelist or photographer and you can’t hire a bunch of people to be generating all these notices.
So that’s a problem for some people and some entities, and they want to address that. Under the 1201 banner, you may be tempted by things that you see that enable you to remove the DRM from an e-book or a movie or something like that, so you can play it for legitimate reasons or reasons that are potentially legitimate, such as on other devices that you own. There may be legal reasons why that’s OK to do, but if you circumvent a DRM in order to do that, then that may be an issue. So the public needs to understand what’s OK and what’s not OK, what could get you into trouble versus what won’t get you into trouble.
KENNEALLY: What’s remarkable about the times we live in, Bill Rosenblatt, is the way that copyright really does matter to our lives on a daily basis in ways that would have been unimaginable a generation ago, and it’s why conferences like your own, the Copyright and Technology Conference are so well received, because these are issues of daily import.
Why don’t we chat a bit about what you’re hoping to accomplish in a single day? There’s a lot in the program, a number of stars from the IP world will appear, as we’ve already mentioned. We will have the keynote address from Jacqueline Charlesworth – she’s the general counsel of the U.S. Copyright Office, and she will also be on the panel that you mentioned that I will moderate myself. But we have a number of other important panelists and speakers. Briefly tell us about a couple of them and about some of the themes of the conference.
ROSENBLATT: Sure. Well, we’ve been doing this conference – this is our sixth year now – and the general idea of the conference is copyright and technology are really intertwined, more and more so as digital technology pervades society. Lawyers who deal with copyright issues and technologists who deal with digital media and online digital services have existed, relatively speaking, in their own worlds, even though they really need to be talking to one another and learning from each other and adjusting to each other’s ways of thinking, perhaps. So this is a conference that attempts to provide a forum for that, to get all these people into one place and to get them interacting and talking, and to get panels to define sessions and panels and speeches that really tie together the themes of copyright and technology.
I’ll give you a couple of examples. You mentioned Jacqueline Charleworth’s keynote which will deal with the study notices that just went out last week over the DMCA. We also have, as it turns out, a presentation on some very interesting original research, fascinating research that was done by three researchers, two at the Berkeley law school and one at Columbia University on 512 and how the industry has been dealing with these issues of issuing take-down notices, processing take-down notices, using automated technologies to detect potential copyright infringements. How effective are they, or how fair are they? They interviewed lots of people and produced this huge study which isn’t even going to be published yet, but the public will hear about this for the first time at our conference in the morning.
So in the morning we have just one session track so that we get everyone together in one room. In the afternoon, we try to split things out into two tracks, one of which is more oriented towards technology, the other of which is more oriented towards law and policy. But, for example, your panel, Chris, is going to be on mass digitization, and this is going to be a particularly interesting panel because it has to do with things that have been going on now for the past several years, such as Google scanning millions of books, mass digitization of photographs and things of that nature.
There are a lot of legal issues surrounding that: What do you about this from a legal standpoint, the fact that these massive troves of material are being made available online. Is it legitimate to digitize these works and put them all in one place, or is it somehow a breach of copyright to do that. This has been the subject of a lot of litigations, and obviously there are technologies that we now use that didn’t exist even 10 years ago that enable – well, OK, let’s say 20 years ago – that enable such massive archives to exist.
Just looking through the agenda, let’s see, so here’s a panel in relation to 512 notices. One of the things that copyright owners don’t like about 512, the way it’s working now, is it depends on these take-down notices. You see something that you don’t like on an online service, such as your content on YouTube or SoundCloud or wherever else it might be, and you have to submit something called a take-down notice, which has to conform to a certain set of requirements. And then, if the notice is proper, the service can take down the file and not be liable for copyright.
But there are some copyright owners who say, well, the problem with this is that we’ll issue a take-down notice, the service will take down the file, and then the file will just reappear, almost immediately afterwards on the server because someone else has put it up there. Why can’t we have stay-down instead of take-down – notice and stay down instead of notice and take-down.
So we have a panel where we’re going to discuss not only what the law says about this, but also what technologies can be brought to bear on making it possible for there to be stay-downs instead of just take-downs. Is that even possible? Is it practical? Is it a reasonable burden to place on service providers and so forth? This is exactly the type of issue that we like to discuss that covers both technology and copyright issues.
KENNEALLY: What’s interesting about this, Bill, is that this is very much an evolving part of the law. There have been some recent cases on the mass digitization side. Of course, a finding of fair use when it came to Google’s Library Project, something which the Authors Guild has just announced that it will appeal all the way to the Supreme Court. There was also a YouTube case –
ROSENBLATT: That’s right.
KENNEALLY: – where I think it’s called the baby dancer –
ROSENBLATT: Dancing baby videos.
KENNEALLY: Dancing baby, there you go – baby dancer – dancing baby – really found that assertions of fair use by users should be considered when judges take a look at all this, and even, for that matter, when the ISPs take a look at a take-down notice. So it’s a really hot topic. They are all hot topics, and we look forward to the discussion of them at the upcoming Copyright and Technology Conference taking place in New York City at the Eisner and Lubin Auditorium, part of the Kimmel Center on the campus of the New York University on January 19th – Tuesday January 19th. Conference organizer Bill Rosenblatt, he’ll be there to emcee the program and carry us all through the discussions, and we thank you for joining us today on Beyond the Book.
ROSENBLATT: Thank you very much, Chris, it’s been a pleasure.
KENNEALLY: Beyond the Book is produced by Copyright Clearance Center, a global rights broker for the world’s most sought after materials including millions of books and e-books, journals, newspapers, magazines, and blogs, as well as images, movies and television shows. You can follow Beyond the Book on Twitter, find us on Facebook, and subscribe to the free podcast series on iTunes, or at our Website, beyondthebook.com. Our engineer and company-producer is Jeremy Brieske of Burst Marketing. My name is Christopher Kenneally. For all of us at Copyright Clearance Center, thanks for listening to Beyond the Book.