dmca - american_photographic_artists_-_first_round_comments.pdf

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THE INTELLECTUAL PROPERTY

GROUP

PROFESSIONAL CORPORATION

1050 30T STREET

NW

WASHINGTON, D 20007

Tel.: 202) 466-2787 TF: 888) 749-2787

www.Artlaws.com

April 1, 2016

Submitted By Online Submission

Procedure

Maria A. Pallante

Register

of

Copyrights

U.S. Copyright Office

, 101 Independence Avenue SE

Washington, DC 20559-6000

Reply To :

James Lorin Silverberg Esq .

Admitted Bars : DC NY MD

J Si

lverberg@I

PGPC com

Re: Ini tial Response to Notice

of Inquiry

78 F.R. 13094 Docket No 2015-7) Section 512

Study: Notice

and

Request For Public

omment

Prepared by James Lorin Silverberg, Esq.

The Intellectual Property Group, PC

On behalf

of

American Photographic Artists, Inc. APA)

Introduction:

The American Photographic Artists http://www.apanational.com) is a leading national

organization run by and for professional photographers. With its culture that promotes a

spirit

of

mutual cooperation, sharing and support, the AP A offers outstanding benefits,

educational programs and essential business resources to help its members achieve their

professional and artistic goals. Recognized for its broad industry reach, the APA continues

to expand benefits for its members and works to champion the rights

of

photographers and

image-makers worldwide.

American Photographic Artists thanks the Register

of

Copyrights, Marie A Pallante, for the

opportunity to submit comments on the Section 512 study. As stated in the Notice ofinquiry

the Office wishes to consider, among the issues, the costs and burdens

of

the notice-and

takedown process on large- and small-scale copyright owners, online service providers, and

the general public. The Office also wishes to review how successfully Section 512 addresses

online infringement and protects against improper o ~ i s

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A Background

Section 512 creates initial copyright infringement immunity for OSPs who have no statutory

damage or actual damage liability to copyright owners unless an OSP fails to qualify for, or

fails to properly comply with, take down procedures, or unless the OSP

is

itself a participant

in an infringement.

The purpose

o

this immunity

is

to shield the OSPs from claims that essentially surface from

posts y third parties for whom the OSPs have no direct responsibility, and to foster the

growth

o

the OSP industry. OSPs are essentially required to takedown infringing content

once properly notified by the rights owner, and

i

an OSP does this compliant with

procedures, they have no liability. In this way, the system is designed to operate under a

standard o neutral impact, in which the OSPs functionality is to remain uncompromised by

legitimate copyright interests when they are asserted. The immunity on the OSP s side

is

counter balanced with a takedown procedure designed to protect the rights owner, but only

from ongoing infringing use

o

their work.

The standards for qualification and for compliance

y

the OSPs are clearly set forth in the

legislation; as are the requirements for takedown notices. For OSPs there are moderately

complex procedures that result in heightened administrative costs for complying with

takedown notices. There is also extensive time, administration, and cost involved in

accommodating the dealings between the OSPs and rights owners . Rights owners are also

required to engage in complex, time consuming, and expensive procedures, to obtain a

takedown. Other submitters for this Section 512 study are speaking

to

the details

o

the OSP

procedures, and APA has joined in other submissions to the Copyright Office that document

the burden on rights owners. Much

o

the Copyright Office inquiry embraces concerns over

who should bear more or less

o

these burdens and costs, and how the procedures affecting

each might be adjusted.

B Recommendations

Under the current Section 512 paradigm, OSPs and rights owners, both o whom may seek

copyright compliance, are pitted against each other and are rendered responsible for dealing

with infringing uses utilizing their own time, at their own expense; all without consequence

to

infringers posting the content. This

is

much like holding the department

o

transportation,

and the manufacturer o an automobile, responsible for fixing the problem o drivers who

are going through red lights.

APA therefore recommends that any adjustments made to the existing Section 512 equation,

should be directed

to

increasing the responsibility

o

the infringers; as they are the ones who

are violating the law. Currently the infringers bear no practical cost for the administrative

toil and expense they cause OSPs. Nor

do

they, as a practical matter, bear consequence

to

the rights owner. Unlike the OSPs who have qualifying regulations, and administrative

burdens for dealing with the take-down procedures, and unlike rights owners who must

submit time-consuming and frequently ineffective takedown notices, the infringers may post

content with

no

pre-requisite adrninlstrative cost, and without taking any pre-posting

compliance measures.

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The legislative assumption for why the existing Section 512 system might work may be that

a burden has already been placed on the party posting infringing content due to existing

provisions and remedies o the copyright law. However, the immense, exponential, growth

o Internet infringement itself amply demonstrates that existing copyright law and current

damage provisions encourage infringers; these are not an effective deterrent

to

infringement.

This

is

especially the case where statutory damages are unavailable due to infringement o

an unregistered work, and where the actual damages or license fees for an infringing post

will

be

nominal based on the market rates for use that might be recovered under the law and

where an infringement may have occurred.

However, apart from the question o the adequacy o damages for copyright violations on

the Internet, it might be considered that section 512 itself not only fosters an opportunity for

this infringement to occur, it tends to encourage

it. This is because, as infringers are well

aware, i an infringer posts infringing content anonymously, their identity may not be

revealed unless the OSP responds to, and the rights owner files for and obtains, a United

States District Court subpoena. APA members consistently report that on-line infringement

o their work continues to grow, take down procedures are not an adequate deterrent to

infringement, and that infringers actually flaunt Section 512 as an obstacle to an effective

infringement remedy.

In addition, AP A members consistently report that the costs and burdens o the process

usually outweigh the remedies

to

which they may be entitled. The costs o obtaining a

subpoena elevate the break-even point at which copyright litigation may be pursued. To

obtain a district court subpoena in a miscellaneous case (where that may be possible) the

costs are no less than 750 in legal fees. It takes approximately 1 hour - 3 hours oflegal time

to

prepare, process, serve, and return a subpoena, with accompanying paper work, and

filings. And this must generally be filed through a CM/ECF filing account (which can only

be obtained after training and registration i done pro se . There are associated costs

o

75-

100 with service o process and return o the subpoena. And the filing may itself be an

invitation to ongoing litigation, e.g., a motion to quash the subpoena, or other proceedings.

Beyond this, and in some instances, it may be necessary to file a civil case . This may

involve drafting fees o several thousand dollars, and district court filing fees in the 400

range, in addition to service costs . And, in the face o the cost and burden, there

is no

assurance that,

i

a subpoena is issued, the OSP will have accurate, useful, or up-to-date

information identifying the infringer that would enable further contact or proceedings . This

is

a significant burden when pursuing a remedy for the infringing online post o a

photograph, where the remedy may be a license fee, even i the license fee were as high as

5

,000, and certainly

i

it were 100 or less.

As any infringer can readily surmise, the net effect o Section 512 is to create a e facto

immunity for anonymous infringers seeking to evade copyright liability. Absent the filing o

a case in the United States District Court to obtain a subpoena, and absent a resulting court

order, obtaining their identity may not be possible. And, even

i

such proceedings were to

occur, and typically they do not, liability for infringement will be nominal. As a result,

infringers are empowered

to

infringe. In addition to being a safe harbor for the OSPs,

Section 512 also becomes a e facto safe harbor for the infringer.


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Section 512 has now spawned a new genre o publication. Just

as

the novel and short story

emerged as literary genres

o

their day, there have now emerged websites created almost

entirely out

o

anonymous user generated content ( UGC ). AP A members commonly

complain that these sites are structured as online magazines , or as multi media entertainment

venues, specifically designed to accommodate un-cleared material. They confront sites that

sell commercial advertising space for OSPs. But the sites are populated with, and rely upon,

UGC posted posthumously or anonymously. Structured to qualify as immune OSPs, these

sites enjoy immunity for infringing posts and are able

to

monetize the content. APA

members, many o whom use search tools or services to identify infringing material, report

that thousands o

their images are being used

to

populate these sites.

And not all

o

these have a surreptitious motive and a specific intent to shield infringers.

PA members routinely confront sites that are legitimate on-line publications that simply

rely upon the provisions

o

Section 512 as a liability management tool. These sites are

structured as OSPs to rely upon independent writers to post material as third parties. And

numerous are the reports that the infringing material

is

actually posted

by

the OSPs own

staff members, posing

as

independent third party contributors. In either case, the publishers

are using an OSP immunity model, simply as a liability management tool. Authorship o the

non-infringing and infringing content is denominated, for example, as by Mary. Many o

these publications are further enabled by windowing other sites with copyrightable

content. Thus, entire online magazines are now built upon a Section 512 model, and the use

o

anonymous or posthumous third party postings and windowed content, none

o

which has

been cleared.

This new publishing model now supplants the licensing model for content in which material

to be posted or published was cleared and paid for. AP A members report that their entire on

line marketplace for visual content is now being reduced to a single-sale first-post-

o

-the

work market. After that, anyone can access their photographic material, legally or not,

by

windowing it from other sites and through anonymous postings, without consequence.

Because their sale or license

o

material to a single authorized publisher can now be enjoyed

by

thousands

o

other publishers, the residual market for their work

is

gone.

While the problems inhering in this paradigm are not all owing to Section 512, APA

endorses modifications to Section 512 where these changes will help restore what is now a

complete and total failure o the marketplace for the licensing o their work. More

specifically AP A endorses modifications

o

Section 512 that will alleviate the financial and

administrative burdens on innocent OSPs and rights owners with valid copyright claims, and

that shifts the burden to infringers that are engaged in illegal activity.

Consequently APA recommends that consideration

be

given to the following questions:

Should infringers, or at least repeat infringers, be required

to

bear some

o

the burden

o

Section 512?

Should infringers be required to reimburse OSPs and rights owners for the administrative

costs, and time they cause by illegally posting content?


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Should infringers who assert counter-takedown notices, and who increase administrative

burdens and costs for OSPs and rights owners be required to compensate for the time and

costs associated with the counter-takedown notices?

Should there be a forfeiture fee associated with, and should identification

be

required for,

filing an unsuccessful counter-takedown notice?

Should OSPs be legally sheltered for divulging identifying information for infringers?

Should the law require infringers to identify themselves to rights owners as parties in

responding

to

, or for failing to respond to, a takedown notice, and should a process for

identification be implemented that does not require a subpoena, provided the rights owner is

able to state a prima facie case for infringement?

To

encourage the day-lighting and responsibility

of

third parties posting content, should

there be consequences, or negative inferences, for unattributed, anonymous, or

posthumously posted content that infringes an author s copyright?

What measures are appropriate, and should be adopted for, OSPs who facilitate , induce, or

help conceal infringement, when they have a fmancial interest in the online service that

is

posting infringing content?

What measures are appropriate for OSPs who adopt policies of willful blindness, and should

they be exposed to vicarious or contributory liability, greater remedies, and penalties, than

those OSPs who have no interest in the sites they host?

Should standard technological measures

be

expressly defined to include copyright

management information, in the context

of

OSPs hosting sites on which they advertise or

have a commercial interest?

C Conclusion

PA wishes to thank the Office and the Register for this opportunity to submit comments as

part

of

the Section 512 study. The construction

of

an Internet marketplace for copyrightable

content ultimately does not rely upon a tailoring

of

the administrative burdens and expenses

of

OSPs and rights owners under Section 512. These burdens and expenses are symptoms

of

the underlying infringement problem.

f

infringement

is

left unaddressed, the costs and

burdens will continue to grow as infringing activity continues to expand . Thus, AP A hopes

that the burdens

of

Section 512 can be lifted from the shoulders

of

the OSPs and rights

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owners, and that they can be fairly shifted to the infringers who are their source . Unless

greater accountability materializes for the infringers, AP A believes that the marketplace for

their member s copyrightable content will continue to erode and that copyright infringement

will simply increase.

Lorin Silverberg

Attorney for

American Photographic Artists, Inc.

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