[Chapter-delegates] What are we doing on a major U.S. free speech issue?

[Dave Burstein]

Folks

I don't think ISOC is credible addressing free speech issues far from our
headquarters in D.C. and Geneva unless we also take strong action in our
own part of the world. Brown and Wentworth have decades of experience
influencing policy in D.C. Let's put that to use.

Apologies to the non-U.S. members of this list for reporting something that
currently is mostly a U.S. issue but I'm sure the movie and record folks
will bring it to other countries if they win in the U.S.

The Internet Archive - the Wayback Machine people - issued a very strong
statement (below) that the new proposal in the U.S. Copyright Office "Would
Force the Internet Archive and Other Platforms to Censor the Web. ... the
Copyright Office is strongly considering recommending changing the DMCA to
mandate a 'Notice and Staydown' regime. This is the language that the
Copyright Office uses to talk about censoring the web."

The Archive is a highly credible source and others are jumping in. ISOC
founder and former board member Dave Farber just sent me the story.
"
Kathy, Sally

How do we get ISOC involved in this major Internet free speech issue here
in our home base? It appears the decision is being made by government
working closely with lobbyists. Civil Society and the public seem not to be
involved in the decisionmaking.

How can ISOC in the U.S. freeze this, at least until a multi-stakeholder
body is reviewing the decision? Should we do that through the chapters and,
if so, what kind of support can the two of you provide? I know that you
both have built relationships in D.C. that can open any door.

In particular, I'd like to get the documents about the discussions between
Patent office officials and corporate lobbyists, something equivalent to
the ex parter reports you handled at the FCC and Verizon. If I put in a
FOIA request, they'll probably bury me in months of paperwork and then
demand more than I can afford as a copy fee. An insider can probably get
everything quickly.

We all believe in an open, "multi-stakeholder" model to make policy
decisions. Let's try to make that work, both on U.S. Internet policy and
ISOC itself.

Dave Burstein


Copyright Office’s Proposed Notice and Staydown
​​
System Would Force the Internet Archive and Other Platforms to Censor the
Web
Posted on June 2, 2016
<https://blog.archive.org/2016/06/02/copyright-offices-proposed-notice-and-staydown-system-would-force-the-internet-archive-and-other-platforms-to-censor-the-web/>
 by Lila Bailey <https://blog.archive.org/author/lila/>

[image: censored]In May, the US Copyright Office came to San Francisco to
hear from various stakeholders about how well Section 512 of the Digital
Millennium Copyright Act or DMCA is working. The Internet Archive appeared
at these hearings to talk about the perspective of nonprofit libraries. The
DMCA is the part of copyright law that provides for a “notice and takedown”
process for copyrighted works on the Internet. Platforms who host content
can get legal immunity if they take down materials when they get a
complaint from the copyright owner.

This is an incredibly powerful tool for content owners–there is no other
area of law that allows content to be removed from the web with a mere
accusation of guilt. Victims of harassment, defamation, invasions of
privacy, or any other legal claim, have to go to court to have anything
taken down.

Unfortunately, this tool can be, and has been abused. We see this every day
at the Internet Archive when we get overbroad DMCA takedown notices,
claiming material that is in the public domain, is fair use, or is critical
of the content owner. More often than not, these bad notices are just
mistakes, but sometimes notices are sent intentionally to silence speech.
Since this tool can be so easily abused, it is one that should be
approached with extreme caution.

We were very concerned to hear that the Copyright Office is strongly
considering recommending changing the DMCA to mandate a “Notice and
Staydown” regime. This is the language that the Copyright Office uses to
talk about censoring the web. The idea is that once a platform gets a
notice regarding a specific copyrighted work, like a specific picture,
song, book, or film, that platform would then be responsible for making
sure that the work never appears on the platform ever again. Other users
would have to be prevented, using filtering technology, from ever posting
that specific content ever again. It would have to “Stay Down.”

This idea is dangerous in a number of ways:

   - *No Due Process.* Notice and Staydown would remove all of the user
   protections built in to the DMCA. Currently, the statute allows users who
   believe material they have posted was taken down in error to file a
   counter-notification. If the copyright holder does not choose to bring a
   lawsuit, then the content can be reposted. The law also prohibits the
   sending of false notices, and allows users who have been falsely accused to
   being a claim against their accuser. These protections for the user would
   simply go away if platforms were forced to proactively filter content.
   - *Requires Platforms to Monitor User Activity.* The current statute
   protects user privacy by explicitly stating that platforms have no duty to
   monitor user activity for copyright infringement. Notice and Staydown would
   change this–requiring platforms to be constantly looking over users’
   shoulders.
   - *Promotes Censorship.* Notice and Staydown has a serious First
   Amendment problem. The government mandating the use of technology to
   affirmatively take speech offline before it’s even posted, without any form
   of review, potentially violates free speech laws.
   - *It Just Won’t Work In Most Cases.* Piracy on the web is a real
   problem for creators. However, filtering at the platform level is just very
   unlikely to stop the worst of the piracy problem. Filtering doesn’t work
   for links. It doesn’t work well for certain types of content, like
   photographs, which are easily altered to avoid the filter. And so far, no
   computer algorithm has been developed that can determine whether a
   particular upload is fair use. Notice and Staydown would force many cases
   of legitimate fair use off the web. Further, intermediaries are not the
   right party to be implementing this technology. They don’t have all the
   facts about the works, such as whether they have been licensed. Most
   platforms are not in a good position to be making legal judgements, and
   they are motivated to avoid the potential for high statutory damages. All
   this means that platforms are likely to filter out legitimate uses of
   content.
   - *Lacks Transparency.*  These technical filters would act as a black
   box that the public would have no ability to review or appeal. It would be
   very difficult to know how much legitimate activity was being censored.
   - *Costly and Burdensome.* Developing an accurate filter that will work
   for each and every platform on the web will be an extremely costly
   endeavor. YouTube spent $60 million developing its Content ID system, which
   only works for audio and video content. It is very expensive to do this
   well. Nonprofits, libraries, and educational institutions who act as
   internet service providers would be forced to spend a huge amount of their
   already scarce resources policing copyright.
   - *Technology Changes Quickly, Law Changes Slowly.* The DMCA requires
   registered DMCA agents to provide a fax number. In 1998, that made sense.
   Today it is silly. Technology changes far too quickly for law to keep up.
   Governments should not be in the business of mandating the use of
   technology to solve a specific policy problem.

The DMCA has its problems, but Notice and Staydown would be an absolute
disaster. Unfortunately, members of the general public were not invited to
the Copyright Office proceedings last week. The many thousands of comments
submitted by Internet users on this subject were not considered valuable
input; rather, one panelist characterized them as a “DDoS attack” on the
Copyright Office website, showing how little the people who are seeking to
regulate the web actually understand it.
The Copyright Office has called for more research on how the DMCA is
working for copyright holders and for platforms. We agree that this
research is important. However, we must remember that the rest of the
online world will also be impacted by changes to the DMCA.​


-- 
Editor, Fast Net News, Net Policy News and DSL Prime
Author with Jennie Bourne  DSL (Wiley) and Web Video: Making It Great,
Getting It Noticed (Peachpit)
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