,

LAPOLTLAW
www.LaPoItLaw.eol1l
9000 Sunset Blvd, Suite 800
West Hollywood, CA 90069
tel:310.858.0922
fax:310.858.0933
Dina LaPolt
Sahrina Ment
John Meller
Josh Love
Jessie Winkler

Library of Congress
U.S. Copyright Office
101 Independence Ave., SE.
Washington, D.C. 20559-6000
Attn: Maria Pallante, Register of Copyrights
Jacqueline Charlesworth, General Counsel and Associate Register of Copyrights

RE:

Section 512 Study: Notice and Request/or Public Comment

Thank you for this opportunity to submit my comments regarding the United States Copyright
Office's evaluation of the impact and effectiveness of the Digital Millennium Copyright Act
("DMCA") safe harbor provisions contained in 17 U.S.C. 512 (the "Safe Harbor Provisions"). I
am writing this paper to urge that, as the Copyright Office considers revisions to the Safe Harbor
Provisions, it keeps the goal of providing fair and effective copyright protection for music
creators at the forefront of its mind.

I.

Introduction

My name is Dina LaPolt and I am the owner of LaPolt Law, P .C., a boutique transactional
entertainment law firm that specializes in representing music creators, including songwriters,
recording artists, producers, and musicians. Over the past several years, I have actively
participated in legislative reform efforts relating to copyright and licensing laws in Washington,
D.C. on behalf of my clients and the broader music creator community. In 2014, I submitted two
comment papers to your office in connection with your music licensing study and participated in
the Los Angeles roundtable discussions in connection with same. I am well qualified to discuss
the DMCA Safe Harbor Provisions since our office frequently submits takedown notices on
behalf of our clients.

I am submitting this paper to represent the music creator's perspective on this topic. Music
creators are the driving force behind the music industry and their interests must be taken into
consideration when evaluating the efficiency of the current Safe Harbor Provisions.
Due to the increasing amount of content online, the Safe Harbor Provisions have become
increasingly burdensome for music creators. Accordingly, Section 512 ofthe DMCA is in dire
need of revision in order to properly address the proliferation of online infringement.

II.

The Section 512 Safe Harbors Do Not Effectively Address the Concerns of Content
Creators and Must Be Modified to Reflect the Modern Digital Age

When the Safe Harbor Provisions were enacted as part ofthe DMCA in 1998, the landscape of
the digital world was completely different. 1 Thanks to technological innovations since then,
music creators' content can now be accessed and experienced through an ever-evolving array of
platforms and services. Ongoing technological innovation has drastically changed the music
industry to a point where content has never been more accessible and easier to share. Digital
technology has made it simple and inexpensive to copy and distribute content to millions.
However, the result of this has not be completely positive for music creators. Despite the
widespread availability and distribution of affordable lawful content, music creators are still left
with significant challenges in regard to online piracy. Due to the sheer volume of infringing
content on the Internet, changes need to be made to the Copyright Act to help curtail the
prevalence of online piracy. Section 512 has provided Internet Service Providers ("ISPs") with
unintended loopholes, which have essentially left music creators without an effective recourse to
shut down known instances of infringing activity. The Safe Harbor Provisions must be revised
in order to ensure our copyright system is appropriately handling the proliferation of content
online.

A.

The Section 512 Safe Harbors Are Not Working as Congress Intended

In enacting the DMCA, Congress highlighted "two important priorities: the continued growth
and development of electronic commerce; and protecting intellectual property rights.,,2 Even in
1998, Congress recognized that that a thriving online marketplace would provide endless
opportunities for creators to have their works distributed online. 3 These same technological
advances would, however, also facilitate the prevalence of online piracy. Congress never
I See Internet Users, Internet Live Stats, December 1, 2015, http://www.internetlivestats.com/internet-users/#trend
(In 1998 there were only 188 million internet users; there are over 3.25 billion internet users today).

Report of the House Commerce Committee on H.R. 2281, the Digital Millennium Copyright Act, H.R. Rep No.
105-51, pt 2., 23 (1998), https://www.congress.govII05/crptlhrpt5511CRPT-105hrpt551-pt2.pdf.
3 Id.
2

proposed to dissuade ISPs from monitoring their services for infringing activity.4 Instead, this
legislation was intended to promote the cooperation between ISPs and copyright owners "to
detect and deal with copyright infringements that take place in the digital networked
environment. ,,5
Although Congress clearly understood the importance of addressing online infringement as
technology continued to advance, it never could have anticipated the online marketplace as we
know it today. Each day millions of unauthorized copyrighted works are uploaded by Internet
users. The Safe Harbor Provisions were written to prevent isolated infringement by third parties
through the use ofISPs and the notice-and-takedown provisions would have alone been an
efficient alternative to legal proceedings if the Internet landscape had remained relatively same
as it was in 1998.
However, today, music creators are faced with the overwhelming burden of detecting these
instances of infringement and notifying the service provider every single time a user posts and
re-posts the work. Unfortunately, changes in the marketplace have presented the music
community with the insurmountable burden of notifYing ISPs for millions of instances of
infringements which occur by the posting of links on thousands of unauthorized sources. After
18 years of changes in the marketplace, the balance of burdens placed on ISPs and creators to
monitor for copyright infringement has greatly tipped in favor of the service providers.
The language of the Safe Harbor Provisions is outdated and must be adapted to meet music
creators' needs in the digital distribution era. The music industry has always done its best to
monitor for infringing activity and prevent the availability of unauthorized works online.
However, ISPs, which are able to use the Safe Harbor Provisions as a defense, must bear more
responsibility when infringing material of which they have already been notified reappears
online. This would coincide with Congress's initial intent to foster cooperation between
copyright owners and ISPs. If the Safe Harbor Provisions remain unchanged, they will
ultimately serve as an impediment to copyright enforcement and the music community will
continue to be harmed by the infringing activity the DMCA was created to prevent.

B.

The Limitations on Liability Afforded to Internet Service Providers under

Section 512 Do Not Adequately Protect the Rights of Copyright Owners

The Safe Harbor Provisions were enacted because Congress was concerned about the liability
imposed on ISPs from the infringing activities of third parties on their services. 6 Congress never
4

See Conference Report on H.R. 2281, the Digital Millennium Copyright Act, H.R. Rep. No 105-796,73 (1998),
https:llwww.congress.govIl05/crpt/hrpt796/CRPT-1 05hrpt796.pdf.

See H.R. Rep No. 105-51, pt 2. at 49-50.

See S. Rep. No. 105-190, 19 (1998).

anticipated the creation of online services which were created solely or primarily for the
distribution of infringing content. Therefore, while these services end up profiting from the
advertising revenue which increases as the unprecedented amount of free illegal content
available online material grows, the music creators are left with an insurmountable value gap for
their works.
Although music adds value to all types of online services, even when the music is properly
licensed, music creators are not receiving their fair share for their works because legitimate
services realize they have the leverage to create discounted licensing systems. Legitimate online
services, who pay for music licenses, must also compete with services which are offering all of
their content, stolen or not, for free. Services such as SoundCloud and YouTube, which
distribute and monetize music uploaded by their users, are taking advantage of the liability
limitations that the Safe Harbor Provisions afford them. 7 The Safe Harbor Provisions, which
were enacted to limit the liability of passive intermediaries should not an exemption for active
digital music services from having to fairly negotiate licenses with rights holders. 8 Online music
distributors further exploit this situation by offering music creators lower royalty rates, which
music creators are left to accept if they want their music to be available to consumers online
legally.
The Safe Harbor Provisions end up imposing an unfair burden on music creators while
simultaneously providing a means for services such as YouTube to host infringing content under
the guise of DMCA compliance. Although music creators can notify these services when their
content is illegally posted, users often repost the same content almost instantly, making it
impossible for creators to prevent the unauthorized distribution of their work. Creators are stuck
using their own resources to police these numerous and repeated po stings instead of using the
time to work on their craft and business. Then, despite even their best efforts, music creators are
ultimately unable to control whether or not the infringing content gets removed (many sites do
not even acknowledge or process DMCA takedown requests), and they are left bearing the costs
oflitigation if the service does not comply. To make matters worse, even if music creators are
able to secure ajudgment against rogue sites like MP3Skull, the infringing actor responsible for
hosting the site may be impossible to locate, which again leaves the music creator without any
remedy. 9
The Safe Harbor Provisions have essentially left music creators without an effective way to
permanently remove their works from services which consistently host infringing content. This
Frances Moore, Artists and Record Companies Need A Fair Digital Marketplace, IFPI, July 29,2015,
http://www . ifpi.org/news/Artists-and -Record-Companies-N eed-A-Fair-Digital -Marketp lace.

See Id.

Bruce Houghton, RIAA Wins $22 Million MP3Skull Judgment, But They'll Never See A Dime And The Site Is Still
Online, Hypebot.com, February 27, 2016, http://www.hypebot.com/hypebot/20 16/02/riaa-wins-22-millionmp3 skuIl-j udgement-but-theyl l-never-see-a-dime-and-the-site-is-still -online.html.

has caused a distortion in the market where streaming services are not paying the rates they
should be because they know music creators are limited in ways they can now monetize their
music. As such, revisions must be made to the Safe Harbor Provisions in order to curtail the
negative impact these services will continue to have on the future earnings of music creators.

III.

The Notice-And-Takedown Process Must Be Modified

The notice-and-takedown process was supposed to be used as a mechanism for copyright owners
to prevent known infringing activity which was taking place through the use of innocent ISPs.
As technology continues to advance and online activity continues to increases, the Safe Harbor
Provision must scale to fit the current marketplace. The notice-and-takedown process, as is,
provides an unreasonable enforcement mechanism for music creators while simultaneously
creating a discounted licensing system for music streaming services. In order to keep music
industry growing and maintain the balance intended by Congress, this Safe Harbor Provision
must be changed to a notice-and-staydown policy.

A.

Section S12's Notice-And-Takedown Process Does Not Sufficiently Address

the Reappearance of Infringing Material

After a music creator notifies an ISP of infringing material, Sections 512(c) and (d) direct the
ISP to "expeditiously" remove this content. Although allegedly infringing materials are
routinely removed from websites after receipt of such notices, this prompt method for obtaining
the removal of infringing material does not work when there are increased instances of infringing
material being reposted by the same service that removed the initial link.
Rightsholders often equate the DMCA take down system to "Whac-A-Mole", the classic arcade
game where, just as the player hits a motorized rodent with a mallet, identical rodents pop up
elsewhere. For music creators, this Whac-a-Mole game has grown to be increasingly frustrating
and demonstrates that the current notice-and-takedown provision is untenable. To present an
idea of the scope of the daunting task at hand for music creators, a 2013 report revealed that
every month, copyright holders were sending takedown notices for over 6.5 million infringing
files, which were available on more than 30,000 websites. 10 This Whac-a-Mole problem defies
the central purpose of providing ISPs with a safe harbor. Many of these unauthorized po stings
occur on legitimate online platforms, which claim to want to be in compliance with the Safe
Harbor Provisions but are no way obligated, under the current law, to improve this problem.

See Bruce Boyden, The Failure o/the DMCA Notice and Takedown System: A Twentieth Century Solution to a
Twenty-First Century Problem, Center For Protection of Intellectual Property, December 2013,
http://cpip .gmu. edulwp-content/up loads/20 13 /08/Bruce-Boyden -The-Fai lure-of-the-D M CA-Notice-and-TakedownSystem I.pdf.
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ISPs currently have an unreasonable economic advantage when it comes to exploiting the
content of music creators---content which does not belong to them. They are not incentivized to
prevent the reposting of infringing content which they have already been notified about because
this content increases the service's popularity, which in tum translates into more ad revenue.
These services must be required to take proactive steps against repeated po stings of the same
unauthorized work.
Furthermore, ISPs are now being used by torrent and pirate websites as a tool to locate content
which has already been taken down. Torrent sites have used Google's own service to identify
and "bring back to life" content which was taken down as a result of DMCA notices. I I The
advancement of technology has gotten to a point where services can manipulate publically
available copyright notices to repost infringing content. This technology must be considered
when revising the Safe Harbor Provisions.
Technological advances caused the implementation of the Safe Harbor Provisions and
technology must therefore be used, and ISPs held accountable, for curtailing the infringement
that has taken place since. The deterrence of rampant infringement is necessary to maintain a
sustainable entertainment industry and the Safe Harbor Provisions must be revised so that the
burdens are balanced equally between all parties who are benefitting from the online distribution
of content.

B.

The Notice-And-Takedown Policy for Addressing Online Infringement Is

Not be a Workable Solution for Content Creators and Must Be Changed to a
Notice-And-Staydown Policy

A "staydown" clause must be added to the Safe Harbor Provisions to effectively address the
concerns of music creators. Switching to a notice-and-staydown policy would make this system
more balanced and hold ISPs accountable for preventing already identified infringing content
from resurfacing. Specifically, once a music creator identifies an infringing work and submits a
DMCA notice, the notified service should then remove all other unauthorized links that contain
the same identification information. Subsequently, it becomes the responsibility of the service to
delete or block new postings matching the identification information already submitted by the
music creator. Unless this sort of system is implemented, services will continue to host reposted
infringing content without facing any legal ramifications.
Notice-and-staydown is a necessary step to put an end to the Whac-a-Mole problem and actually
give music creators the ability to control the dissemination of their work online. The Safe
Harbor Provisions should not be available to ISPs who choose to continue linking to an
11 Andy, Torrent Site Uses Google To Resurrect Taken Down Content, Torrent Freak, October 28,2014,
hrtps:1Itorrentfreak.com/torrent-site-uses-google-to-resurrect-taken-down-content-141 028/.

infringing work after being notified of its identity by the copyright owner. Once copyright
owners have notified ISPs of a specific infringing work, the burden of monitoring the work
should be shifted to the ISPs.
The key point to takeaway is that ISPs are able to hide behind the Safe Harbor Provisions after
music creators notify them of infringing content. Even though Google and other ISPs have the
means to keep their services mostly free of pirated content, the Safe Harbor Provisions allow
these services to profit from increased tractions they receive when their services are used for the
distribution of infringing content. 12
It is readily apparent that the cost for copyright owners to defend their works, in terms of time
and labor, is significant and reduces the amount of money and time music creators have available
to create new content. Individual copyright owners and small companies do not have the
resources available to send notices each time an unauthorized copy of their work appears online,
let alone, enough to keep sending notices for re-postings of the same work. Music creators
should be spending their time honing their craft instead of sending the same take down notices to
the same ISPs to protect the same work.

Further, the current DMCA notice and takedown system is highly inefficient and burdensome to
music creators and their representatives. Music creators must currently submit their notices
manually even though ISPs like Google have the resources to create systems which can
efficiently respond to the increasing number of takedown notices they receive. Copyright
owners, on the other hand, lack access to the third-party services and resources, which could help
them monitor for infringing uses.
Recently, our client Joel Zimmerman, publicly known as "deadmau5", brought a YouTube user
to my attention who used the deadmau5 trademark in his or her username and posted nearly 400
videos containing deadmau5's copyrighted material. We reached out to YouTube to request the
removal of all the user's videos or deletion ofthe user's entire account since he or she was all but
impersonating our client. Y ouTube responded that we must provide URLs for each individual
infringing video, despite the fact that the user's entire YouTube channel consisted of infringing
videos. Thus, an attorney at my firm spent nearly four hours compiling a list ofURLs, a task
that could have easily been avoided if YouTube had a more efficient way to address large-scale
infringement by a user.
Such a scenario puts a music creator in a lose-lose situation. A creator who wants to issue
notices for a large number of infringing uses, even by a single infringer, must choose between
12 See Cory Doctorow, The pirates of You Tube, The Guardian, December 12,2011,
http://www.theguardian.com/technology/20 II/dec/12/pirates-of-youtube-cory-doctorow ("Rights holders upload
copies of their copyrighted works to YouTube and identifY themselves as the proprietors of those works, and
YouTube scours its files for videos or audio that appear to be connected with those copyrights.").

two undesirable options. First, the creator can solicit the help of an attorney, and potentially
spend thousands of dollars for the attorney's services. This also impacts the creator, and the
attorney's other clients, by taking up the attorney's time that could be best spent on more
important tasks. Alternately, the creator can waste hours of his or her own time issuing notices
through YouTube's cumbersome online form, distracting them from their music and their careers
(not to mention, because creators are not usually educated in sophisticated copyright issues, they
might issue incorrect notices, wasting YouTube's time and their own).
This impacts us all-when creators cannot devote their full attention to their craft, they cannot
effectively produce their art for the benefit of our culture. Creators should not have to devote
substantial time to enforcement procedures; we must improve the DMCA's efficiency so that
creators can focus on what is important: making art. Ultimately, music creators are unable to
make any real impact on Internet piracy without changes to the Safe Harbor Provisions, which
rebalance the burden of policing infringing between creators and ISPs.
C.

Internet Services Providers are Not Utilizing Existing Technology, Which

Would Improve Both the Efficiency and Effectiveness of the Notice-andTakedown Process

In order to qualify for safe harbor protection, ISPs should be using content identification
technologies to block the unauthorized distribution of copyrighted works by third parties.
Technology already exists which can identify and filter pirated material. This technology is
available at a reasonable cost and the use of this technology must be considered when
determining whether an ISP falls under the Safe Harbor Provisions.
Google and YouTube currently use "Content ID" technology, which uses metadata submitted by
the copyright holder to identify and monetize matching videos that are uploaded onto YouTube.
Currently YouTube users must "apply for Content ID" on the service's website. 13 The Content
ID technology utilizes "Digital Fingerprinting," which transforms audio and video files into its
own unique code. 14 In 2013 a digital fingerprinting company called Digimarc invented software
that embedded a work's copyright identification information into "a unique ID."lS With this
technology any user viewing the work can determine its copyright information regardless of
where the work ends up online. 16 Additionally, other content distributors like Facebook and

\3 How Content ID Works, YouTube,

https://support.google.comlyoutube/answer/2797370?hl=en&reCtopic=2778544.
14 Steve Schlackman, Google's Content ID Program Allows Infringements on YouTube, Art Law Journal, October
24, 2014, http://artlawjournal.comlgoogles-content-id-program-infringements-youtube/.

15 Steve Schlackman, An Invisible Watermark? So Cool, Art Law Journal, June 23, 2013,
http://artlawjournal. com/invisib le-watermark!.
16Id

SoundCloud use technology by Audible Magic, which can recognize audio and video files across
all streaming and broadcast platforms.
Clearly, antipiracy technology exists. This technology, however, must be made mandatory for
all ISPs which they want to reap the benefits of the Safe Harbor Provision. ISPs must be using
this technology on all of the platforms they use to distribute content, unlike Google who only
uses this for its YouTube platform. Technology allowed for the explosion of the piracy market
and therefore technology must be responsible for keeping piracy in check.

IV.

The Repeat Infringer Policies in Section 512

Protection for Content Creators

meA) Do Not Provide Sufficient

Under the Safe Harbor Provisions, ISPs must "adopt and reasonably implement" procedures to
terminate "repeat infringers" in appropriate circumstances. 17 Since this language has not been
more clearly defined by Congress, it has been left up to the interpretation of the courts. This
provision must be revised to provide ISPs with more specific requirements to ensure they are
using a repeat infringer procedure that is actually working. If ISPs are not obligated to be
transparent about their repeat infringer policies and without more clarification in the law,
copyright holders and ISPs will be unable to cooperate in reducing piracy as Congress
intended. 18

A.

The Repeat Infringer Policies are Ineffective and Fail to Discourage or

Prevent Infringement

The Safe Harbor Provisions already include limitations on the monitoring requirements for ISPs.
Since ISPs bear no policing duty, an ISP that has never terminated a user's access can still meet
section S12(i)'s requirements if the copyright holder has not informed the service that such user
is a repeat infringer. The burden is unreasonably on copyright holders even though ISPs are in a
better position to detect infringement on their own networks.
Additionally, ISPs must be more transparent about the procedures they put in place to terminate
repeat infringers. Under the current state of the law, ISPs attempt to undermine the Safe Harbor
Provisions by placing roadblocks and loopholes which make it difficult for copyright owners to
file a legitimate complaint. 19 Without transparency, copyright holders who decide to pursue
litigation have no idea of knowing how the service terminates its repeat infringers, which causes
1717 U.S.c. 512(i)(l)(A).
18

See H.R. Rep No.1 05-51, pt 2. at 49-50.

19 See Stephen Carlisle, 14 Strikes and You're Out! (Maybe): How Cox Communications Lost its DMCA Safe
Harbor, Nova Southeastern University, December 10,2015, htlp:llcopyright.nova.edu/cox-communicationsl (Cox
will review a user's account and consider termination after the fourteenth notice it receives)

large delays in discovery and increases the cost for copyright holders. As section 512(i)(A) is
written, even ISPs who are notorious for hosting infringing content are able to survive legal
battles for years before ultimately being shut down because of mechanisms they use to actively
prevent copyright holders from participating in the notice-and-takedown process. 20
Instead of providing an incentive for ISPs and copyright holders to cooperate, Section 512(i)(A)
discourages ISPs from actively helping with policing for infringing activity. This places
copyright holders in the unfair position of sending repeat takedown notices in an environment
where there is an infinite supply of users and ISPs waiting to exploit their works the moment
they appear on the Internet. Instead, the Safe Harbor Provisions' threshold requirements must
encourage companies to adapt to the digital marketplace. ISPs benefit from keeping as much
content as they can online while the costs and risks of pursuing legal protection falls on
copyright owners. The only way to effectively mitigate the reappearance of infringing actors
online is to revise Section 512(i)(A) and mandate the use of existing content identification
technology to block repeat infringers.

B.

Section 512(i)(A) Lacks Sufficient Clarity as to What Constitutes a Valid

Repeat Infringer Policy for Safe Harbor Protection

Section 512(i)(A) lacks sufficient clarity as to what constitutes a sufficient repeat infringer
policy. The Safe Harbor Provisions apply only where an ISP "upon notification of claimed
infringement ... responds expeditiously to remove ... material that is claimed to be
infringing.,,21 The policy implemented by ISPs must terminate its users who are "repeat
infringers" in "appropriate circumstances.,,22 The ambiguities are endless. How fast must an ISP
respond to a repeat infringer notification for it to qualify as expeditious? When do circumstances
qualify as "appropriate"?
Due to the vague language of section 512(i)(A), its interpretation has been left to the court
system, but courts have further been unable to specify the necessary steps ISPs must take to
satisfy section 512(i). This has left a grey area where ISPs can take advantage of the Safe
Harbor Provisions without actually removing any repeat infringers from its service. If a
copyright holder is not able to successfully notify the ISP of users who are repeat infringers, an
ISP can there still have "reasonably implemented" a section 512(i) procedure without ever
terminating a repeat infringers access. Leaving the interpretation of this provision to the courts
has proven to be an inefficient solution and the law must be changed in order to provide a
20 Glenn Peoples, Grooveshark Loses in Court Again, EMf Wins Summary Judgment in Copyright Case, Billboard,
April 2, 20 15, http://www.billboard.com/articleslbusiness/6523936/grooveshark-Ioses-again-emi-summaryjudgment-copyright-infringement
2117 U.S.C. 512 (c)(l)(C).
22 17 U.S.c. 512 (i)(l)(A).

10

uniform standard that all ISPs are responsible for adhering to. It is beneficial to both ISPs and
copyright holders that these laws be revised to expedite the process of removing repeat infringers
and avoid costly litigation.
V.

Conclusion

The Copyright Act was designed to encourage the creation of new works and ensure that
creators' rights are protected. Accordingly, the DMCA must be revised in order for the law to
continue to work effectively and provide meaningful protection against widespread online
piracy. Although the Safe Harbor Provisions were created to protect innocent ISPs from
liability, these protections should be afforded only to the extent the services utilize the
technologies that are available and cooperate with copyright owners to combat Internet piracy.
Thank you for your time and consideration.

DinaLaPo ,
c/o LaPolt Law, P.C.
9000 Sunset Blvd., Suite 800
West Hollywood, CA 90069
(310) 858-0922

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