Today, Congressman Jerrold Nadler (NY-10), the Ranking Member of the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet, delivered an opening statement at the hearing on Section 512 of the Digital Millennium Copyright Act. This was the first hearing of this Subcommittee with Congressman Nadler serving as the Ranking Member.
“I am honored to succeed our former colleague, Mel Watt – who is now serving as Director of the Federal Housing Finance Agency – and I look forward to working closely with Subcommittee Chairman Howard Coble, full Committee Chairman Bob Goodlatte, Ranking Member John Conyers, Jr. and all of my colleagues as we continue the Subcommittee’s important work. Today’s hearing is part of our comprehensive review of the nation’s copyright laws to explore how our copyright system is faring in the digital age,” said Congressman Nadler. “Our goal now – just as it was in 1998 – is to preserve incentives for service providers and copyright holders to work together to address online infringement in a manner that provides real protection for creators as the Internet continues to grow and thrive.”
The following is the full text of Congressman Nadler’s opening statement (as prepared for delivery):
“Thank you, Mr. Chairman. This is my first hearing as the new Ranking Member of this Subcommittee. I am honored to succeed our former colleague, Mel Watt – who is now serving as Director of the Federal Housing Finance Agency – and I look forward to working closely with Subcommittee Chairman Howard Coble, full Committee Chairman Bob Goodlatte, Ranking Member John Conyers, Jr. and all of my colleagues as we continue the Subcommittee’s important work.
“Today’s hearing is part of our comprehensive review of the nation’s copyright laws to explore how our copyright system is faring in the digital age. Section 512 of the Digital Millennium Copyright Act (DMCA) is a critical piece of this puzzle.
“Section 512 limits the liability of online service providers for copyright infringement by their users. Enacted in 1998 -- when YouTube, Facebook, Google Search, Bing and many other platforms and applications that we enjoy today were still on the horizon -- Section 512 sought to balance the concerns and interests of rights owners and online service providers by creating a collaborative framework for addressing online infringement.
“The mechanism established by Section 512 is intended to provide meaningful protection to rights holders who, understandably concerned with the increasing ease and speed with which copyrighted works might be disseminated to thousands of users, would otherwise have been reluctant to make their creative works available over the Internet. At the same time, Section 512 is also intended to address service providers’ concerns that misconduct by users might subject them to liability.
“To find shelter in Section 512, providers cannot know about infringing activity or material, cannot receive financial benefit from such infringement, and must implement procedures that allow them to “expeditiously” take down infringing content when they know about it, or are notified of the need to do so, by rights holders. Although Section 512 does not condition protection on a provider affirmatively monitoring for infringement (except to the extent consistent with standard technical measures), among other things, providers must remove material when there is actual knowledge of infringement or when infringing activity is apparent – in other words – when a provider has “red flag” knowledge of infringement.
“More than fifteen years have passed since the DMCA’s enactment and new technologies have fundamentally changed the Internet, bringing many new benefits but also new problems that were not foreseen in 1998.
“Among other things, it is now possible for users to share vast amounts of high-quality content with thousands of others, and largely on their own terms. As a result of this and other innovations, online infringement has skyrocketed. Last year, for example, Google received notices requesting removal of approximately 230 million items.
“This volume is staggering, even for large companies sending or receiving these notices. For smaller artists, musicians, and businesses, it is a practical and financial nightmare. Maria Schneider – a GRAMMY-award winning musician and one of my constituents, who is here to testify today – has been unable to stop online infringement of her works. The resulting loss of income, combined with the cost of monitoring the Internet and sending takedown notices, threatens her ability to continue creating her award-winning music.
“As we will hear today, when infringing activity is identified and a notice is sent, users too often simply re-post the material that has been taken down using a different URL. As in the arcade game “whac a mole,” the copyright holder succeeds in having material taken down, only to have it pop back up almost immediately, thus requiring an endless string of notifications relating to the same content.
“Section 512(c)(3) allows the sending of a “representative list” of copyrighted works and information “reasonably sufficient” for a provider to locate infringing material. I am interested in hearing from our witnesses whether these statutory guidelines have proven sufficient, and how best to address this key problem.
“Some providers have also expressed concern about potential misuse of the notice process to take down non-infringing content. Such claims appear to be a small portion of the millions of infringement notices that are sent. For example, Google reports that it “removed 97% of search results specified in [takedown] requests” between July and December 2011. Nevertheless, Congress sought to minimize abuse by penalizing anyone who knowingly misrepresents that material is infringing. And Section 512(g) provides users with the opportunity to challenge the removal of content by filing a counter notification. But are these protections proving sufficient?
“These are examples of some of the challenges that have arisen under Section 512. I am also interested in hearing how courts have interpreted the statute and whether key stakeholders have come together to develop standard technical measures for identifying and protecting copyrighted works, as is required in 512(i).
“As we undertake this review, however, we should also keep in mind that – along with its challenges – there have been many Section 512 successes as well. The notice and takedown system has resulted in the quick removal of infringing content on countless occasions. Some stakeholders have come together to develop “best practices” and have entered into voluntary agreements that help identify and address online infringement in a timely and cost-effective manner. And Internet innovation has continued to thrive, allowing and inspiring greater collaboration and commerce. Artists and musicians – from superstars to start-ups – now use various Internet technologies to make, market, and sell their creative works.
“Our goal now – just as it was in 1998 – is to preserve incentives for service providers and copyright holders to work together to address online infringement in a manner that provides real protection for creators as the Internet continues to grow and thrive. Our witnesses provide a diversity of perspectives and wide range of experience with Section 512 and I look forward to hearing from them.
“With that, I yield back the balance of my time.”
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