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SECTION 512 OF TITLE 17 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

COURTS, INTELLECTUAL PROPERTY, 

AND THE INTERNET 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

MARCH 13, 2014 

Serial No. 113–86 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

[Vacant] 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

HOWARD COBLE, North Carolina, Chairman 

TOM MARINO, Pennsylvania, Vice-Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

TED POE, Texas 

JASON CHAFFETZ, Utah 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

[Vacant] 

JERROLD NADLER, New York 

JOHN CONYERS, JR., Michigan 

JUDY CHU, California 

TED DEUTCH, Florida 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

JOE KEELEY, Chief Counsel 

HEATHER SAWYER, Minority Counsel 
(III) 

C O N T E N T S 

MARCH 13, 2014 

Page 

OPENING STATEMENTS 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Chairman, Subcommittee on Courts, Intellectual 

Property, and the Internet .................................................................................. 1 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Ranking Member, Subcommittee on Courts, Intellectual 

Property, and the Internet .................................................................................. 2 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 4 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Ranking Member, Committee on the Judiciary, and 

Member, Subcommittee on Courts, Intellectual Property, and the Internet .. 5 

WITNESSES 

Sean M. O’Connor, Professor of Law and Founding Director, Entrepreneurial 

Law Clinic, University of Washington (Seattle) 

Oral Testimony ..................................................................................................... 8 

Prepared Statement ............................................................................................. 10 

Annemarie Bridy, Alan G. Shepard Professor of Law, University of Idaho 

College of Law 

Oral Testimony ..................................................................................................... 15 

Prepared Statement ............................................................................................. 18 

Paul F. Doda, Global Litigation Counsel, Elsevier Inc. 

Oral Testimony ..................................................................................................... 31 

Prepared Statement ............................................................................................. 33 

Katherine Oyama, Sr. Copyright Policy Counsel, Google Inc. 

Oral Testimony ..................................................................................................... 42 

Prepared Statement ............................................................................................. 44 

Maria Schneider, Grammy Award Winning Composer/Conductor/Producer, 

Member of the Board of Governors, New York Chapter of the Recording 

Academy 

Oral Testimony ..................................................................................................... 54 

Prepared Statement ............................................................................................. 56 

Paul Sieminski, General Counsel, Automattic Inc. 

Oral Testimony ..................................................................................................... 59 

Prepared Statement ............................................................................................. 61 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Judy Chu, a Representative in Congress 

from the State of California, and Member, Subcommittee on Courts, Intellectual Property, and the Internet ...................................................................... 78 

Material submitted by the Honorable Ted Deutch, a Representative in Congress from the State of Florida, and Member, Subcommittee on Courts, 

Intellectual Property, and the Internet .............................................................. 86 
Page

IV 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Material submitted by Maria Schneider, Grammy Award Winning Composer/ 

Conductor/Producer, Member of the Board of Governors, New York Chapter 

of the Recording Academy ................................................................................... 120 

Material submitted by the Honorable Darrell E. Issa, a Representative in 

Congress from the State of California, and Member, Subcommittee on 

Courts, Intellectual Property, and the Internet ................................................ 124 

Response to Questions for the Record from Sean M. O’Connor, Professor 

of Law and Founding Director, Entrepreneurial Law Clinic, University 

of Washington (Seattle) ....................................................................................... 215 

Response to Questions for the Record from Annemarie Bridy, Alan G. 

Shepard Professor of Law, University of Idaho College of Law ....................... 222 

Response to Questions for the Record from Paul F. Doda, Global Litigation 

Counsel, Elsevier Inc. .......................................................................................... 233 

Response to Questions for the Record from Katherine Oyama, Sr. Copyright 

Policy Counsel, Google Inc. ................................................................................. 236 

Response to Questions for the Record from Maria Schneider, Grammy Award 

Winning Composer/Conductor/Producer, Member of the Board of Governors, 

New York Chapter of the Recording Academy .................................................. 239 

Response to Questions for the Record from Paul Sieminski, General Counsel, 

Automattic Inc. ..................................................................................................... 241 

Prepared Statement of the Library Copyright Alliance ....................................... 242 

Letter from the Directors Guild of America (DGA) .............................................. 249 

Prepared Statement of Cary Sherman, Chairman and CEO, Recording Industry Association of America ................................................................................... 254 

Prepared Statement of the Assocition of American Publishers (AAP) ................ 260 

Prepared Statement of the Computer & Communications Industry Association 

(CCIA) ................................................................................................................... 271 

Prepared Statement of the Future of Music Coalition ......................................... 276 
(1) 

SECTION 512 OF TITLE 17 

THURSDAY, MARCH 13, 2014 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 9:31 a.m., in room 

2141, Rayburn Office Building, the Honorable Howard Coble, 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Coble, Goodlatte, Marino, Smith of 

Texas, Chabot, Issa, Poe, Chaffetz, Farenthold, Collins, DeSantis, 

Smith of Missouri, Nadler, Conyers, Chu, Deutch, Richmond, 

DelBene, Jeffries, Cicilline, Lofgren, and Jackson Lee. 

Staff Present: (Majority) Joe Keeley, Chief Counsel; Olivia Lee, 

Clerk; (Minority) Heather Sawyer, Minority Counsel; Jason Everett, Counsel; and Stephanie Moore, Counsel. 

Mr. COBLE. The Subcommittee on Courts, Intellectual Property, 

and the Internet will come to order. 

Without objection, the Chair is authorized to declare recesses of 

the Subcommittee at any time. 

We welcome all of our witnesses today. Thank you all for appearing before the Subcommittee for this important part of our copyright system, the notice and takedown provisions of Section 512. 

Online piracy continues to grow to scale, harming the ability of 

individual artists and companies to add to our Nation’s economy. 

The notice and takedown provisions of Section 512 are designed to 

help copyright owners protect their works from online infringement 

while enabling good-faith ISPs to avoid potential liability for the 

actions of their users. 

A review of the written testimony shows disagreement about the 

proper role and action of an ISP in independently identifying and 

responding to infringing content. While no one seems to be suggesting that the ISPs routinely seek out infringing files, it does 

seem unreasonable that once an ISP has received thousands of notices for the same content from the same copyright owner, it then 

acts at least somewhat differently than it would after receiving the 

first notice. 

A growing flood of notices is not necessarily a sign of success either, except perhaps by pirates who deprive the copyright owners 

of any income for the work that they have produced. 
2 

In other legislation recently passed by the House, this Subcommittee has targeted those who have abused the patent system 

from their own ends. It appears that some are also abusing the notice and takedown system in order to remove speech from the 

Internet they don’t like or the website of a business with whom 

they compete. Actions such as these leaves a negative impact upon 

the copyright system as a whole, and it needs to be stopped, in my 

opinion. 

I appreciate all your willingness to appear before our Subcommittee today, and I will now recognize—well, first of all, let me 

officially welcome the gentleman from New York, Mr. Nadler. Jerry 

has fulfilled the vacancy created when Congressman Watt resigned. 

It is good to have you as Ranking Member, Jerry, and I recognize 

you for your opening statement. 

Mr. NADLER. Well, 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 you, Mr. 

Chairman, with the full Committee Chairman, Mr. Goodlatte, with 

Ranking Member Conyers 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 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 was intended to provide meaningful protection to rights holders who, understandably 

concerned with the increasing ease and speed with which copyright 

works could 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 was 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 material or activity, 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 by the need to do so by 

rights holders. 

Although Section 512 does not condition protection on a provider 

affirmatively monitoring infringement, except to the extent consistent with standard technical measures, providers must, among 

other things, remove material when there is actual knowledge of 

infringement or when infringing activity is apparent—in other 
3 

words, when the provider has red-flagged knowledge of infringement. 

More than 15 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 

the notice is sent, users simply too often re-post the material that 

has been taken down using a different URL. As in the arcade game 

Whack-a-Mole, the copyright holder succeeds in having the material taken down, only to have it pop back up almost immediately, 

requiring an endless stream of notifications relating to the same 

content. 

To deal with this problem, Section 512(c)(3) allows the sending 

of a representative list of copyrighted works and information ‘‘reasonably sufficient provided 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 percent of the search results specified in takedown requests between July and December 2011. Nonetheless, Congress sought to 

minimize the 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 Section 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 to help identify 
4 

and address online infringement in a timely and effective manner, 

and Internet innovation has continued to thrive, allowing and inspiring greater collaboration and commerce. 

Artists and musicians from superstars to startups 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 today provide a diversity of perspectives and a 

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. 

Mr. COBLE. I thank the gentleman. 

The Chair now recognizes the distinguished gentleman from Virginia, the Chairman of the full Committee, Mr. Goodlatte, for his 

opening statement. 

Mr. GOODLATTE. Well, thank you, Mr. Chairman. It is a pleasure 

to be here, a pleasure to welcome this great panel of witnesses, and 

it is also a pleasure to welcome the gentleman from New York, Mr. 

Nadler, as the new Ranking Member on what I think is a great 

Subcommittee that I have had the opportunity to Chair in the past, 

and I look forward to our work together on issues related to intellectual property and our courts and the Internet. 

Enacted in 1998 at a time when bulletin boards were still a popular destination for many Americans, Section 512 was designed to 

achieve two important policy goals that were crucial to the success 

of the Internet: first, enabling good-faith online service providers to 

operate without risk of liability for the actions of their users; and 

second, enabling copyright owners to quickly remove infringing online content without flooding the courts with litigation. 

These two goals have mostly been met with the rapid growth of 

the online economy. However, like all legislation related to technology, issues have arisen that were not anticipated during the 

drafting and enactment of Section 512. These issues have posed 

challenges that have led some to call for updates to 512. As the 

Committee undertakes its review of copyright law, the time is right 

to consider these issues and proposed solutions to them. 

Our witnesses today will mention issues of interest to them, and 

I am interested in delving into three issues in particular. The first 

is referred to as the whack-a-mole game by copyright owners. By 

most accounts, good-faith service providers have acted expeditiously in responding to Section 512 notices by removing or disabling links to infringing content. 

However, copyright owners are increasingly facing a scenario 

that simply wasn’t anticipated during the enactment of 512, the 

need of copyright owners to send a voluminous amount of notices 

seeking removal of infringing content, followed by the almost immediate reappearance of the same infringing content. In an interesting twist, different groups point to the same statistics showing 

the mammoth amount of notices being sent today as proof of either 

the system working as designed or the system not working as designed. 

A second issue that has been raised is the quality of the notices 

and the impact upon other important legal doctrines such as fair 
5 

use and the First Amendment. While there is little disagreement 

over the need to expeditiously remove clearly infringing content, 

how Section 512 intersects with these other legal doctrines is subject to court cases still underway. 

Finally, some have begun to engage in behavior that abuses the 

rationale for Section 512 by sending outright fraudulent notices 

with little risk for penalties being imposed upon them for their actions. Although the number of such cases appears to be low percentage-wise, this Committee should consider ways to reduce such 

blatant abuse. 

Section 512 was the product of balancing a number of interests 

to resolve various issues to improve the copyright system for all. 

As the Committee conducts its review of our copyright system, we 

should keep this consensus model in mind while examining challenges and potential solutions. 

I appreciate the willingness of the witnesses to testify this morning and look forward to hearing from them. 

Mr. COBLE. I thank the Chairman. 

The Chair now recognizes the gentleman from Michigan, the 

Ranking Member of the full Committee, for his opening statement. 

Mr. CONYERS. Thank you, Mr. Chairman. 

I welcome the witnesses as well and congratulate Jerry Nadler 

for his long continuing interest in copyright law and suggest that 

the hearings today provide an important opportunity for us to examine online service provider liability and the effectiveness of Section 512 of Title 17 of the Code. 

Section 512 creates a mechanism that immunizes certain service 

providers from liability as long as they don’t derive financial benefit from infringing activity and take down infringing material that 

they know about or are notified about by rights holders through a 

notice and takedown process. That process allows copyright owners, 

without having to go to court, to request that certain types of service providers remove infringing material. 

So as we examine Section 512 today, there are several factors to 

be kept in mind. To begin with, although much has happened since 

512 was enacted in 1998, part of the Digital Millennium Copyright 

Act, especially with respect to the Internet and the online landscape, many of the same concerns that led to the enactment of this 

law still remain. 

Fifteen years ago, the Internet was in an early stage of development and extremely different from the way it is today. For example, there were very few blogs and search engines, and social media 

services such as Facebook and Twitter simply didn’t exist. Even 

then, however, copyright owners were legitimately worried that 

Internet users could spread near-perfect copies of copyrighted 

works instantly around the world without first securing permission 

to use the works. 

At the same time, Internet service providers worried that they 

would be held liable for actions of their users even if the service 

providers themselves were not directly infringing. 

In the 15 years since Section 512’s enactment, advances in technology and the globalization of the Internet have presented numerous challenges for those seeking to apply Section 512 to the new 

and evolving digital distribution systems. So it is important today 
6 

that we assess how the law has kept up with the technology. I am 

concerned that some courts interpreting Section 512 have done so 

in a way that may be more restrictive than we intended when the 

statute was enacted. The law as interpreted by some of these 

courts imposes significant burdens on copyright owners to monitor 

the Internet and specifically identify sometimes millions of infringing files. At the same time, courts have narrowly interpreted the 

circumstances under which providers will be deemed to have sufficient red-flag knowledge of infringement to trigger the duty to take 

material down. 

In addition, Section 512 has also generated a large amount of 

litigation, particularly with respect to issues presented by new 

technologies such as cyber lockers and peer-to-peer file sharing. 

These advances in particular have facilitated copyright infringement in a manner that we in Congress did not fully envision when 

we enacted the Section 512 safe harbors in 1998. And as a result, 

the statute has proven largely, frankly, ineffective in combatting 

the massive amounts of infringement that occurs using these technologies. 

We must continue to work to decrease the amount of infringing 

content on the Internet. There continues to be an increase in the 

number of sites that provide access to infringing copies of movies, 

television shows, music, and other content. Further, we must consider how we can improve the process for identifying and handling 

repeat infringers. 

When takedowns occur, copies of the same works often are put 

up immediately elsewhere, resulting in the whack-a-mole scenario 

that forces rights holders into a never-ending cycle of takedown requests. While some content owners use automatic systems to locate 

huge quantities of online infringement, this generally produces a 

large number of notices that may include repeat requests concerning the same infringing file. 

We should also consider whether search engines can somehow 

prioritize results that don’t contain infringed material. In today’s 

environment, search engines have initiated practices to demote or 

alter search results in other contexts, for example, where users attempt to manipulate their rank or to address allegations that 

search results that prioritize a service provider’s own products over 

those of its rivals is anti-competitive. Today, however, there has 

been a resistance to do so for copyright holders. We here should explore whether these practices are suitable in this context as well. 

So finally, I want to encourage all stakeholders to continue to develop voluntary initiatives to fulfill the DMCA’s goals to limit copyright infringement. Copyright owners, online service providers and 

users are in the best position to assess practices with respect to online copyright material, and to that end, the 2013 Copyright Alert 

System provides a useful model. 

This system is an agreement between major media corporations 

and large Internet service providers to monitor peer-to-peer networks for copyright infringement and to target subscribers who 

may be infringing copyright materials. We are listening carefully 

for other suggestions that may come from you that may be helpful 

in this area and look forward to your testimony, and I join in con-
7 

gratulating our witness, the Grammy-winning composer, Maria 

Schneider. 

I yield back my time and apologize for taking more than should 

have been allotted me. 

Mr. COBLE. I thank the gentleman from Michigan. 

Without objection, opening statements from other Members will 

be made a part of the record. 

Prior to introducing our distinguished panel of witnesses, I would 

like to swear them in, so I would ask you all to rise, please, and 

I will administer the oath to you. 

[Witnesses sworn.] 

Mr. COBLE. Let the record show all witnesses responded in the 

affirmative. 

Professor O’Connor, I believe, Ms. DelBene, is your constituent, 

so I think you would like to introduce him to the Committee. 

Ms. DELBENE. Thank you, Mr. Chairman. It is my pleasure to 

welcome a fellow Huskie to our hearing today. Sean O’Connor is 

Professor of Law and Founding Director of the Entrepreneurial 

Law Clinic at the University of Washington School of Law in Seattle, just outside of my district. His research focuses on how legal 

structures and strategies facilitate innovation, and his teaching 

and law practice specialize in transactions and the role of the general counsel in startup companies. 

Professor O’Connor received his law degree from Stanford Law 

School, a Master’s degree in Philosophy from Arizona State University, and a Bachelor’s degree in History from the University of 

Massachusetts. 

Prior to law school, he was a professional musician and a songwriter for 12 years, and I understand that he still performs now 

and then at IP conferences around the country in a rock band 

called Denovo. So we can hear about that more later, too, possibly. 

Thank you very much for being here today. 

And, Mr. Chair, I yield back. 

Mr. COBLE. I thank the lady. 

Professor O’Connor, do you also do bluegrass? I am a bluegrass 

advocate. [Laughter.] 

Mr. O’CONNOR. I try to be very careful with that. 

Mr. COBLE. Good to have you. 

Mr. CONYERS. What about jazz? [Laughter.] 

Mr. COBLE. Good to have a fellow Huskie with us. 

When you mention Huskie, Ms. DelBene, my mind synonymously 

thinks of Norm Dicks, and we miss Norm. He was here for a long, 

long time. I hope he is doing well. 

Ms. DELBENE. Yes, he will always be remembered as a Huskie. 

Mr. COBLE. Pardon? 

Ms. DELBENE. I said he will always be remembered as a Huskie. 

Mr. COBLE. Oh, yes. Thank you. 

I will be introducing the remaining panel. 

Our second witness is Annemarie Bridy, Professor of Law at the 

University of Idaho College of Law. Professor Bridy teaches courses 

at the college’s Intellectual Property and Technology Law Program. 

Professor Bridy received her J.D. from Temple University School of 

Law and her Ph.D. and M.A. from the University of CaliforniaIrvine, and B.A. from Boston University. 
8 

Professor, good to have you with us. 

Our third witness is Mr. Paul Doda, Global Litigation Counsel at 

Elsevier, Inc. In his position, Mr. Doda is responsible for legislation 

and copyright enforcement. Mr. Doda received his J.D. from the 

Philadelphia University School of Law and his B.A. from Montclair 

State College. 

Professor, good to have you with us. 

If I appear to be reluctant as I am introducing you, I am having 

difficulty with my spectacles. I have to get them changed, but bear 

with me as I stumble along today. 

Our fourth witness is Ms. Katherine Oyama, Senior Copyright 

Policy Counsel of Google, where she focuses on copyright, creativity 

and policy. From 2009 to 2011, she served as Associate Counsel 

and Deputy Counsel to Vice President Biden. Ms. Oyama is a graduate of Smith College and the University of California Berkeley 

School of Law. 

Professor, good to have you with us, as well. 

Ms. Schneider, good to see you again. I visited with you briefly 

yesterday. 

Our fifth witness is Ms. Maria Schneider, an American composer 

and big-band leader. 

No such luck it would be bluegrass, Ms. Schneider. I am not 

going to let this die. [Laughter.] 

Mr. COBLE. She is also a Grammy Award-winning composer and 

member of the Recording Academy’s New York chapter. Ms. 

Schneider received her Master’s in Music from the Eastman School 

of Music and studied music theory and composition at the University of Minnesota. 

Ms. Schneider, good to have you with us. 

Our sixth and final witness is Mr. Paul Sieminski, General 

Counsel for Automattic, Inc., best known as the company behind 

World Press. Mr. Sieminski received his J.D. from the University 

of Virginia School of Law and his B.S. from Georgetown University. 

Professor, good to have you with us. 

Folks, you will notice there are two timers on your desk. They 

go from green to amber to red. When the amber light appears, that 

indicates that you have a minute to go. So if you can wrap up your 

testimony in about 5 minutes, we would be appreciative to you. I 

will keep a sharp lookout on that. You won’t be keel-hauled if you 

violate the agreement, but try to stay within that timeframe if you 

can. 

Let’s start with the gentleman, the Huskie from the University 

of Washington. 

Mr. O’Connor, good to have you with us. 

TESTIMONY OF SEAN M. O’CONNOR, PROFESSOR OF LAW AND 

FOUNDING DIRECTOR, ENTREPRENEURIAL LAW CLINIC, 

UNIVERSITY OF WASHINGTON (SEATTLE) 

Mr. O’CONNOR. Thank you, Chairman Goodlatte, Chairman 

Coble, Ranking Members Nadler and Conyers, Members of the 

Subcommittee. Thank you for having me in here today to speak 

about Section 512. I have already been introduced, so I will dispense with some of my remarks except to just make clear, of 
9 

course, that I am speaking on my own behalf and not on behalf of 

any of the organizations or clients that I represent. 

I sit at the intersection of artists, copyright owners and technology entrepreneurs, and this is where Section 512 has really 

come to a peak of interest. For example, I have two clients I have 

represented over the years, Rhizome.org, which is a non-profit set 

up to foster digital arts around the world, and Kolidr.com, which 

is a social media platform that allows people to put together multimedia collages to express themselves using various content that 

they can put together. 

The interesting thing about both of these companies is that they 

were started by artists who respect copyrights and want to help 

and make sure that those are respected among their fellow artists, 

but who also want to make content widely available. So they are 

sitting at the intersection, as I am. 

So I would like to make one point, which is that we are often trying to divide the tech world from the content world, and at least 

where I am, working with smaller artists and startups, there is 

often quite a lot of overlap there. 

Section 512 was an excellent solution to problems in the 1990’s, 

and there was much mention already in the introductions of the 

problems today about what was being addressed at that point. But 

over time, it has had some unintended consequences, and I think 

it has accidentally helped to foster a culture of copyright contempt, 

oddly enough, even though that was not its intent. 

Why? Well, because what I see, working with clients and the 

kind of advice that they are given when they are doing a website 

startup, is that they should not be monitoring for content for potential infringement. Why? Well, there is no upside for them. They 

can. Section 512 allows them to. But there is no upside. They get 

the safe harbor regardless of whether they monitor and check. 

On the flip side, there are a lot of downsides for taking a look 

and trying to monitor. Why? Well, as was mentioned about the red 

flags, if they start looking at any of their content that their users 

are posting, then they may have actual knowledge of an infringing 

post, or they will have awareness. If they have either of those, they 

have to proactively take down the content even though there has 

not been a takedown notice submitted. So why should they look? 

That is not the intention of the law but, again, this is the unintended consequence. 

I believe there is a lack of monitoring that has led to the situation we have now where, as was mentioned, there are takedown notices now filed on millions of posts every month. That is clearly 

unsustainable. 

What I wanted to focus on is not trying to take care of the entire 

problem but taking care of what I call the relentless repostings of 

clearly infringing works. So these are not the potential transformative use cases. These are not remixes, mashups and things 

like that. These are situations where it is just the book, the movie, 

the song in its entirety put up with no pretense of there being a 

transformative use. That, I think, is a large chunk of the postings 

that we could try to reduce. 

Since we don’t enforce right now and people are told not to look, 

that has emboldened, I think, the bad actors. They know that they 
10 

can just repost this stuff and that the websites, even the ones that 

want to do the right thing, are encouraged to not look. 

So what we would like to do is get the volume down. We won’t 

eradicate it entirely. There will still be a fairly high volume of 

takedown notices. But if we can take care, again, of what has been 

described as the whack-a-mole problem for the infringing works 

that are not even attempting to be transformative, I think we can 

help out our startups and our artists. 

Let’s step back for a moment and talk about 512 and how it came 

about. It was summarized, but I want to home in again on the common carrier doctrine. The most pressing concern in the 1990’s was 

that we wanted access to the Internet. We didn’t want the digital 

divide to get worse, so we needed to be able to allow everyone, 

through the telecomm companies, to get access to the Internet. 

Those companies, quite rightly, were concerned that they would be 

liable for things being sent through their system. 

Let me give a couple of proposals as I am running short of time. 

The first one is that there should be notice and stay-down. This 

would happen in two stages. First, it would be voluntary practices 

among the stakeholders to come together to come up with a system 

to stop the repostings, again for the clearly infringing works, and 

make some of these tools like Content ID available to the smaller 

OSPs that can’t afford them. Google has done a fantastic job in getting a lot of web-based tools. On my own blog I use Google Analytics. So there could be a way, then, to help the smaller OSPs get 

those. 

But stage two, if no agreement is reached in a reasonable time, 

we could amend the DMCA to add the duty to remove these reposted works or to lose the safe harbor. This would not be much 

different from terminating repeat infringer accounts. 

The second proposal is to codify willful blindness. Just like the 

safe harbor in some ways, with Congress setting policy after the 

Netcomm case, Congress could step in and set policy around willful 

blindness that now is being set by the courts in a confused array, 

as many of you have mentioned. What would happen, then, is that 

a website that had policies against monitoring and had a high volume of notices would lose the safe harbor. 

In conclusion, I think that these changes could reduce the volume of takedown notices to a manageable level, would relieve pressure on both artists and websites, and would help to change the 

culture of copyright contempt. No one wants a post-copyright 

world. OSPs and artists have valuable IP interests that they need 

to protect. 

Thank you for your time. 

[The prepared statement of Mr. O’Connor follows:] 

Prepared Statement of Sean M. O’Connor, Professor of Law and Founding 

Director, Entrepreneurial Law Clinic, University of Washington (Seattle) 

Chairman Goodlatte, Chairman Coble, Ranking Member Nadler, Members of the 

Subcommittee, thank you for the opportunity to testify today about the current state 

of notice and takedown provisions under the DMCA. 

I am a law professor at the University of Washington in Seattle and the Founding 

Director of its Entrepreneurial Law Clinic. We deliver a full range of corporate, IP, 

and tax services, focusing on business planning and transactions, to start-ups, artists, and nonprofits. I have also served as Director of UW Law School’s Law, Technology & Arts Group and its Law, Business & Entrepreneurship Program. I cur-
11 

1 Cindy Lee Garcia v. Google, Inc., Slip. Op. No. 12–57302 (9th Cir., Feb. 26, 2014). 

2 17 U.S.C. § 512. 

3For example, one can find the original recording of pretty much any popular commercially 

released music title posted to SoundCloud (www.soundcloud.com). This is not SoundCloud’s 

doing or fault necessarily. SoundCloud is a legitimate and useful service for musicians looking 

to post their own material. 4See Bruce Boyden, The Failure of the DMCA Notice and Takedown System: A Twentieth Century Solution to a Twenty-First Century Problem (Center for the Protection of Intellectual Property, George Mason Univ. School of Law, Dec. 2013), at http://cpip.gmu.edu/wp-content/uploads/ 

2013/08/Bruce-Boyden-The-Failure-of-the-DMCA-Notice-and-Takedown-System1.pdf (citing 

Transparency Report: Copyright Owners, GOOGLE (Sept. 8, 2013) http://www.google.com/ 

transparencyreport/removals/copyright/owners/?r=last-month). The Report also notes that printing out the list of sites for which Google received takedown notices in just one week ran to 393 

pages. Further, for the six-month period ending last August, member companies of the Motion 

Picture Association of America sent takedown notices for nearly 12 million files to search engines, and over 13 million directly to site operators. 

rently also serve on the Academic Advisory Board of the Copyright Alliance. Before 

academia, I was a full time attorney at major law firms in New York and Boston. 

I have continued an active private legal practice, with current social media clients 

such as Kolidr, and was General Counsel to Rhizome.org, a nonprofit arts organization for the digital and net art community. Before law school I was a professional 

musician and songwriter for 12 years, receiving airplay on college and commercial 

stations in the Northeast. Because of my multiple affiliations, it is especially important to state that my views here are my own and do not necessarily represent the 

views of any of the organizations I am or have been affiliated with. 

INTRODUCTION

The current litigation over the Innocence of Muslims video provides a timeliness 

to the hearing today, as the dispute started with a takedown notice from the actress, Cindy Garcia, to YouTube demanding that it remove the infamous video from 

its site.1 Putting aside the more complicated issues in that case, one of the defenses 

offered by Google (the owner of YouTube) was quite telling. Google asserted that 

taking down the video from YouTube would provide little relief to Ms. Garcia because it was so widely available on the Internet. Whatever the practical truth of 

this contention, Google’s claim that relief from infringing online content is essentially impossible reflects a common, disturbing narrative that we live in a post-copyright world where everything is available everywhere and there is nothing we can 

really do about it. 

This attitude is both a cause and a result of the main failure of the notice and 

takedown system that I want to address today: the relentless reposting of blatantly 

infringing material. This is not material that the poster believes he has rights to, 

either by ownership, license, or transformative fair use. It is simply posted as an 

end run around copyright law for fun or profit. This end run is largely made possible by notice and takedown and the safe harbor for online service providers. 

1. The Notice and Takedown system is not working for artists, copyright owners, or 

companies in the innovation and creative industries 

The current notice and takedown system under § 512 of the Digital Millennium 

Copyright Act 2 is not working for any of its intended beneficiaries: artists, copyright 

owners, or online service providers. For artists and copyright owners, the time-honored analogy of a whack-a-mole game sums up the situation. No sooner does an artist or owner get an infringing copy of their work taken down than other copies get 

reposted to the same site as well as other sites. It would be one thing if these were 

copies that at least purported to be transformative. And there are some of those. 

But holding them to the side, for many artists and owners the majority of postings 

are simply straight-on non-transformative copies seeking to evade copyright.3 This 

is the flagrant infringement facilitated by mirror sites and endless links. To give a 

sense of the scope, a recent report showed that mainstream copyright owners send 

takedown notices for more than 6.5 million infringing files to over 30,000 sites each 

month.4

If this infringement were restricted to ‘‘pirate’’ sites and others who are positioning themselves outside the legal system anyway, then this would be a different 

concern. That is a problem of combatting piracy and not specifically a problem with 

notice and takedown. But many of the infringing posts I refer to are on legitimate 

online service provider websites. These sites at least nominally claim to want to be 

in compliance. And many of them are truly sincere in this. I have counseled web 

start-ups that very much want to do the right thing. But there are challenges presented by notice and takedown that make this difficult. 
12 

5 And set up your registered agent with the Copyright Office. Privacy policies are recommended too, although this gets more complicated as to form and content. 6The exception is for offensive or obscene material (unless of course that is the point of the 

site). 7This is similar to a certain strain of advice from patent attorneys for patent applicants who 

want to do a ‘‘prior art’’ search to see what is out there that might affect the patentability of 

their invention. Because of the duty of candor to the U.S. Patent and Trademark Office 

(USPTO) for patentees and their patent agents/attorneys, the applicant must disclose to the 

USPTO any relevant prior art that it is aware of. But it is under no duty to undertake a prior 

art search. Thus, for some patent agents/attorneys, the less they and their clients know about 

the prior art, the better. There is no upside for disclosing, while there is significant downside 

risk that the very thing you disclose will be the art the examiner rejects your application on. 

The attitude is ‘‘let the examiner do the prior art search.’’ 8This is of course a play on the ‘‘information wants to be free’’ ethic. 

Entrepreneurs starting web businesses that allow user generated content are generally told two things by attorneys: i) put strong terms of service agreements and 

the § 512 copyright information page on your site,5 and ii) do not monitor content.6

Those who know the details of § 512 may find the second piece of advice curious. 

There is nothing in the law that prevents a service provider from monitoring content for copyright infringement. Further, doing so will not push the service provider 

outside the crucial safe harbor provided for in § 512. But the start-up IP lawyer’s 

perspective is that there is no upside, and some serious potential downside, for the 

service provider to monitor content. Because the service provider is shielded from 

infringement liability regardless of whether it monitors, then there are only costs 

associated with monitoring and no extra benefits. But even worse, given the ‘‘red 

flag’’ provisions under § 512(c)(1)(A), any service provider who monitors may well 

have actual knowledge of infringement or an awareness of facts or circumstances 

from which infringing activity is apparent. When this occurs (and this may be hard 

to determine), the service provider must expeditiously remove or disable access to 

the relevant infringing material, or else lose the safe harbor. Monitoring content is 

a pretty sure way to get actual knowledge or awareness of facts and circumstances. 

And then the service provider must act, even without having received a takedown 

notice, to preserve the safe harbor. Thus, the advice is ‘‘don’t monitor,’’ and don’t 

even look.7

At the same time, websites that want to do the right thing fear the ‘‘chump’’ factor. If everyone else is playing fast and loose with copyright—and making money 

or getting attention for doing so—why should they walk the straight and narrow 

path (losing eyeballs and money along the way)? Further, in an environment glamorizing ‘‘piracy’’ and adhering to the updated credo ‘‘everything wants to be free,’’ 8

then the copyright compliant website might look decidedly uncool. 

Related to this, because copyright infringement is so rampant, and so many 

websites are facilitating it, entrepreneurs question their attorneys’ credibility on the 

law. I cannot tell you how many times a web entrepreneur has asked me and other 

internet attorneys I know ‘‘are you sure about that?’’ The follow-up to our affirmative answer on the point of copyright law is ‘‘but [famous company x] is doing it; 

their lawyers must think it is OK.’’ I am now old enough to remember this line of 

questioning from my start-up clients when ‘‘famous company x’’ was Napster, and 

then Grokster. And we all know how that ended. 

Equally important is that web businesses want to focus on business, not mediating notice and counter notices. Many entrepreneurs are shocked when I put together the basic legal documents they need for their site. In particular, they chafe 

at the formality of the ‘‘DMCA copyright page’’ as we call it. They are also concerned 

about the flood of notices that will likely come their way if they host user generated 

content, and the requirement to register an agent with the Copyright Office. The 

natural response is to want to monitor the site, but this brings its own costs and 

downsides as mentioned earlier. 

Accordingly, no one seems to be happy with notice and takedown. Service providers are certainly thankful for the safe harbor. But the burden it creates on them 

is significant, especially for small to medium service providers that cannot afford a 

compliance staff. At the same time, artists, content owners, and others in the creative industries are burdened with the seemingly impossible task of protecting their 

lifeblood works through endless takedown notices. Most problematic is the unintended consequences: the current state of safe harbors may be contributing to the 

free-for-all attitude among service providers as there is little downside for turning 

a blind eye and a lot of upside. 
13 

9 Boyden, supra Note 4. 10 907 F.Supp. 1361 (N.D. CA 1995). 

2. Original purpose of the Safe Harbors versus current online service provider protections 

For context and potential solutions, it is important to recall where this all started. 

The safe harbors were carefully negotiated compromises among different interest 

groups solving specific Internet issues of the 1990s. But, as Bruce Boyden notes, 

that makes them a ‘‘twentieth century solution to a twenty-first century problem.’’ 9

In particular, there were two kinds of internet service providers that sought a safe 

harbor: telecommunications companies that provided access to the Internet, and 

websites that ‘‘distributed’’ content by hosting it on their servers. The former arguably had the stronger claim to a safe harbor. Both are discussed in the following 

sections. 

A. The common carrier doctrine and Internet open access 

In the earliest days of public access to the Internet, users’ access was somewhat 

limited. I remember having my first email and Internet access as a grad student 

in the early 1990s, which was a typical starting point for Internet users in those 

days. Those affiliated with universities, the military or government, and some large 

businesses, had reasonably easy (and free or low cost) access. Others had to find 

relatively obscure Internet service providers. Users were few, and the online community was small. 

As commercial providers such as America Online became more widespread, however, there was a question of who they would, and should, accept as customers. The 

government started calling for open access (similar to requirements for access in the 

earlier telecommunications revolution of widespread telephone service). Indeed, open 

access to any paying member of the public seemed ideal for both business and the 

growth of the Internet. However, service providers balked at one implication of open 

access: If they could not choose their subscribers, they had limited avenues for ensuring good behavior online, and thus feared liability for that bad behavior. 

The solution to this concern was an update on the common carrier doctrine that 

had served reasonably well in transportation and other regulated industries. If access to a carrier must be open to all, then the carrier should not have liability for 

the potential bad acts of those granted access. But this was generally held to apply 

only where the carrier was not directly involved in the activities and instead merely 

provided the conduit or vehicle. 

This concept led to the safe harbors under the DMCA for Internet access providers 

under §§ 512 (a)-(b). These providers would not have material residing on their servers or on websites they hosted. Rather, they provided access to the pipeline through 

which subscribers would send and receive materials to/from other points on the 

Internet. Thus, the materials would be transitory through the providers’ servers, 

routers, and networks. The safe harbor for this activity is under § 512 (a). Caching 

of frequently sent/received materials at nodes could speed up access and functioning 

of the Internet, and so this kind of temporary storage of materials solely for the 

caching function also was granted a safe harbor under § 512 (b). 

B. Online service providers and content distributors 

The common carrier logic did not apply as well to those providing websites hosting 

other people’s content. First, there was no call for these firms or individuals to allow 

everyone to use their sites. In fact, from the earliest days until now there have been 

many limited access sites protected by passwords and/or firewalls. Second, the content on these sites was not just passing through on its way from Point A to Point 

B. It was staying there either directly visible through a browser or downloadable 

from an FTP directory. 

Notwithstanding this, following the discussion of Internet bulletin board services’ 

liability for user’s postings in Religious Technology Center v. Netcom On-Line Communication Services, Inc.,10 website operators who allowed users to post and 

download content argued that they were acting more as content distributors than 

publishers. Accordingly, even though they were not providing access to the Internet, 

they argued that they were still a kind of conduit on the Internet and should likewise enjoy a safe harbor. While this is a less compelling argument, in my opinion, 

a safe harbor was nonetheless included for service providers who stored content at 

users’ direction and did not participate in decisions to post the content. Given the 

far lower speeds on Internet connections and smaller capacity of storage on users’ 

computers, there was not much concern that users would be able to routinely post 

high quality digital images, much less audio or video back then. Therefore, it may 

have seemed a safer compromise from the artists’ and content owners’ perspective 
14 

11 Note that the innovation that made YouTube famous was an easy to use solution to this 

exact problem. Users could effortlessly post relatively large video files that they could not before. 12See Boyden, supra Note 4. 

to allow a safe harbor even for these online service providers who were not performing a critical Internet access function. Nonetheless, the common carrier rationale still did not apply, and so there was less of the quid pro quo that justified the 

safe harbors for access providers. 

But the safe harbor for hosted materials was not a free pass to allow flagrant 

copyright infringement on one’s site just because a user had posted it without the 

operator’s participation. Instead, part and parcel with the safe harbor was the notice 

and takedown system so that copyright owners could let website operators know 

that infringing material had been posted. As the responsible party and ultimate controller of what could reside on the website, the operator was a natural party for 

such notice. Further, with the incidence of infringing posts assumed to be relatively 

low, this was not envisioned to be a frequently used procedure. 

Today, by contrast, we have a number of tools to post large content files easily, 

whether we have rights to them or not.11 This has resulted in a mind-boggling array 

of posts. Within these exist millions of clearly infringing content items. Notice and 

takedown, as a somewhat time-consuming task are not made for this kind of volume 

of infringement.12 But the lesson we should learn from this problem is not that 

copyright is too expansive or that we should simply roll back notice and takedown 

to make service providers’ jobs easier. Instead, the lesson we should take is that we 

need to find a way to reduce the amount of infringing posts. We do not live in a 

post-copyright world, and such a world would not be beneficial to service providers. 

It is easy to dismiss the importance of someone else’s intellectual property, but one’s 

own is a different matter. Innovative Internet start-ups hold intellectual property 

as core assets just as much as do creative industries firms. Accordingly, a solution 

to the overwhelmed notice and takedown system is in everyone’s interest. 

3. Proposed solutions 

Radical solutions to the notice and takedown problem could include revisiting the 

whole safe harbor construct and/or eliminating notice and takedown altogether. 

However, those could have far-reaching and unintended consequences. Instead, we 

should focus on solutions that simply return some semblance of sanity to notice and 

takedown. I propose two solutions. 

A. Proposal 1: ‘‘Notice and Stay-down’’ 

The highest volume of notices seem to be for reposted works, i.e., ones that have 

already been taken down on notice, yet reappear within hours often on the same 

site. Further, many of these do not even purport to be transformative or noninfringing. They are not mash-ups, remixes, covers, etc. They are simply the original 

work reposted repeatedly by unauthorized persons. That the posters do not seem to 

believe they have any real rights to the works seems supported by the surprisingly 

low number of counter notices submitted (relative to the enormous number of takedown notices). 

My first proposal has two stages. In the first stage, service providers should establish voluntary best practices to monitor for, and immediately remove, reposted 

works. We know that Content ID and other systems are reasonably effective at identifying copyright works generally. They could be even more effective when used to 

identify works that have been taken down under notice. The service provider knows 

what the work is now—because it has taken it down—and so it can add the work 

to the filter’s catalog. Such a system could then automate a ‘‘notice and stay down’’ 

regime. This would have benefits for all parties as it would likely result in a dramatic downturn in infringing postings and, concomitantly, in notices sent. The time 

and money savings for all parties could allow them to focus more on the difficult 

situations where arguably some transformative use has occurred and fair use might 

apply. 

The second stage would take place if service providers cannot agree to or implement a meaningful private ordering notice and stay-down system. Congress should 

then consider amending the DMCA to add an affirmative duty for online service providers to monitor for, and remove, reposted works that they had already received 

notice on. In fact, there is already an analog to this in the DMCA requiring termination of users’ accounts that have been repeat infringers under § 512 (i)(1)(A). In 

other words, while we might allow more leeway for first time infringers, and first 

posts of infringing works, repeats should not require repeated notices from copyright 

owners. In its strongest version, the proposal would also have Congress amend the 

DMCA so that service providers who do not implement a system to remove reposted 
15 

13See Viacom Int’l Inc. v. YouTube, Inc., 679 F.3d 19 (2d Cir. 2012). 14 Id. 15See, e.g., UMG Recordings, Inc. v. Shelter Capital Partners, LLC, 667 F.3d 1022 (9th Cir. 

2011). 

works would be taken outside the safe harbor for any reposting of already noticed 

works. 

B. Proposal 2: Reassert or strengthen ‘‘red flag’’ provisions 

The ‘‘don’t monitor’’ advice and glamorization of a piracy culture means that many 

websites are in fact turning a blind eye to extensive infringement on their sites. 

Courts have grappled with whether the common law concept of ‘‘willful blindness’’ 

as a kind of constructive knowledge is consistent with, or abrogated by, the DMCA 

red flag provisions.13 The Court of Appeals for the Second Circuit recently found 

that the DMCA limited, but did not abrogate, the applicability of willful blindness 

to online service providers.14 The district court on remand failed to find willful 

blindness or actual knowledge even where there was an extremely high volume of 

apparently infringing works on the defendant’s site (YouTube). Other courts have 

failed to find actual knowledge or awareness of facts and circumstances indicating 

infringing activity even in situations where significant infringement was occurring.15

My second proposal, then, is that Congress consider amending the red flag provisions to codify a stronger version of willful blindness than courts are currently 

using. Willful blindness could be defined to include any institutionalized policy prohibiting monitoring of content or consistent discouraging of employee monitoring or 

investigation of content posts. Evidence could be internal memos, emails, or other 

communications establishing a de facto ‘‘do not look’’ culture or policy in the case 

where the service provider’s site has already significant takedown notices. 

CONCLUSION

The notice and takedown system is not working for anyone—except possibly those 

who are posting flagrantly infringing works for their own purposes. Start-up online 

service providers are hit particularly hard as they cannot afford significant compliance staff. Similarly, independent artists cannot begin to keep up with the volume 

of takedown notices they would need to send to keep infringing versions of their 

work off the Internet. Returning to the origins of the DMCA safe harbors reminds 

us that a major initial justification was the common carrier doctrine: if we wanted 

open access to the Internet, then we had to immunize access providers from the bad 

actions of their subscribers. But this perfectly good notion does not stretch to online 

service providers who are not obligated to give open access to their sites, and at any 

rate are not providing access to the Internet itself. Accordingly, two solutions were 

recommended. First, notice and takedown should mean notice and stay-down in 

which service providers must take steps to limit the flagrant reposting of works already taken down under notice. Second, the red flag provisions should be strengthened by codifying a strong version of the willful blindness doctrine. Together, these 

solutions should reduce the enormous volume of takedown notices, while strengthening copyright enforcement. This could help reverse the ‘‘post-copyright’’ mentality 

permeating the innovation industry ecosystem and help artists earn the money they 

deserve for their works. The value of both our innovation and creative industries 

is too important to allow them to continue in conflict over a system neither of them 

support (in its current form). We can fix this, and we should. 

Mr. COBLE. Thank you, Professor. 

Professor Bridy? 

TESTIMONY OF ANNEMARIE BRIDY, ALAN G. SHEPARD PROFESSOR OF LAW, UNIVERSITY OF IDAHO COLLEGE OF LAW 

Ms. BRIDY. Mr. Chairman and Members of the Subcommittee, 

thank you for the opportunity to appear before you today. I appreciate the opportunity to address the effectiveness of Section 512 of 

Title 17. I would like to make two points about Section 512 that 

I believe are important to bear in mind as the Committee con-
16 

templates the scope and shape of what Register Pallante has called 

the Next Great Copyright Act. 

My first point is that the balancing of interests struck in Section 

512 is both sound copyright policy and sound innovation policy. 

Section 512 has three groups of beneficiaries: owners of copyrights 

in digital content, users of copyrighted digital content, and online 

intermediaries that act as conduits and repositories for that content. Over the years, all three groups have been well served by the 

nuanced enforcement framework embodied in Section 512. 

The second point I will make and one that I think may not be 

shared by some in the room is that Section 512 has proven to be 

resilient in the face of the Internet’s evolving culture and technology. No one doubts that the scale of copyright infringement online is massive or that willful infringers online are adept evaders 

of enforcement. But perfect copyright enforcement online is a chimera. It is technically impossible and economically infeasible. 

I think what Section 512 facilitates is not perfect enforcement 

but fair and workable enforcement. The notice and takedown regime in Section 512(c) has scaled well for enforcing copyrights in 

the voluminous content hosted by online service providers. Corporate copyright owners and OSPs have cooperated to automate 

the notice-and-takedown process to the greatest extent possible, 

thereby lowering the significant costs associated with enforcement 

for both groups. 

For copyright owners who can’t afford automated systems, many 

of the larger online user-generated content platforms provide 

fillable forms that can be electronically submitted. I think it would 

be a good idea for this to be expanded beyond the larger online 

UGC platforms. It is true that Section 512 has scaled less well for 

enforcing copyrights over peer-to-peer networks. Statistics show recently, however, that usage of such networks has been declining as 

legal download and streaming services expand for both music and 

video. 

Under the division of labor created in Section 512, copyright 

owners are responsible for investigating and identifying specific instances of infringement, and online service providers are responsible for removing or disabling access to infringing material when 

they know about it. The framework imposes significant costs and 

responsibilities on both parties, in recognition of the fact that online enforcement must be collaborative if it is to be effective. 

The legislative history of the DMCA frames the statute as a 

means of ensuring the continued global growth of the Internet. If 

growth of the Internet is a metric by which we can gauge the success of Section 512, then Section 512 has been successful. Fifteen 

years after the DMCA’s enactment, there are over 2.4 billion Internet users worldwide, a growth rate of over 550 percent between 

2000 and 2012. 

As the Internet has grown and thrived, so too have the copyright 

industries, which have successfully adapted their business models 

to meet robust consumer demand for music and films distributed 

online at reasonable prices in digital formats. 

According to the IFPI, global revenue from digital music sales 

was $5.8 billion in 2012, which represented growth of 8 percent 
17 

over the previous year. There were 4.3 billion paid downloads, a 12 

percent global increase. 

If the music industry stumbled in its initial transition to online 

distribution, it has since returned to a very secure footing. Thanks 

in no small part to the workable balancing of interests accomplished by Section 512, copyright owners, OSPs, and the American 

public are all sharing in the fruits of the Internet’s cultural and 

commercial flourishing. 

Thank you. 

[The prepared statement of Ms. Bridy follows:] 
18 
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Mr. COBLE. Thank you, Professor Bridy. 

Mr. Doda? 

Mr. Doda, I think your mic is not activated. 

TESTIMONY OF PAUL F. DODA, GLOBAL LITIGATION COUNSEL, 

ELSEVIER INC. 

Mr. DODA. Thank you, Chairman Goodlatte, Chairman Coble, 

Ranking Member Conyers, Ranking Member Nadler, and Members 

of the Subcommittee. I appreciate this opportunity to address the 

Committee on Elsevier’s behalf. 

Elsevier is a 130-year-old publisher of books and journals. We 

also create technology-driven products that allow researchers to leverage massive amounts of data to pursue science and medical 

breakthroughs. 

I have been a lawyer for 23 years, the past 7 at Elsevier. During 

that time, I have become familiar with the challenges that Elsevier 

faces addressing online infringements under the DMCA. There are 

many challenges for a company like Elsevier. With global content 

and a large portfolio of works to cover, we can’t possibly search for 

all of our content all over the Internet. We focus on sites with the 

most Elsevier content. 

The main challenges we face with these sites are a growing volume despite having issued notices for years, the need to repeatedly 

send notices for the same infringing works, and the speed at which 

infringing copies are re-uploaded. It has truly become impossible 

for Elsevier to keep pace. 

Elsevier issued over 240,000 takedown notices for book infringements in 2013, with zero counter-notifications. That is because we 

take our DMCA responsibilities seriously. We take three steps to 

verify that entire copies of our books are being offered before 

issuing notices, but there is a cost for playing by the rules. It 

makes it more difficult to keep pace with the infringements. 

Here are some examples from 2013. The main sites that comply 

with takedowns continue to have 500 to 1,000 infringements 

monthly without any significant drop-off. Many of these infringements are for the same books re-uploaded to the same sites. On a 

site called 4shared, we found a book re-uploaded 571 times, and 

another book 384 times. On a site called Uploaded, we found a 

book re-uploaded 231 times and another book 112 times. It takes, 

on average, seven to 9 days to have books taken down. During that 

time, the books are exposed to millions of users for download. 

I have one final example beyond book piracy. It shows the damaging ripple effect that can occur from piracy. Elsevier publishes 

confidential exams used to prepare nursing students for national licensing requirements. In some instances, the exams have been stolen from schools and offered on the Internet. We have issued takedown notices to certain sites with little effect. We have not been 

able to prevent the stolen exams from being sold by the same sellers because takedowns have not been uniformly honored and repeat infringer policies have not been adequately enforced. 

When stolen nursing exams are shared freely, it hurts not only 

Elsevier; it undermines the academic process itself. It also affects 

the quality of nurses trusted with patient care. 
32 

We think these examples show that the system is out of balance 

and breaking down. But the question, of course, is how can we 

make improvements to address these challenges without going too 

far, without stifling creativity and freedom of expression. We think 

the answer is in reasonable technical measures like filtering, which 

is not a new idea but one that we think should be revisited urgently by all good-faith stakeholders. 

The most successful filtering solutions have resulted from collaboration between rights holders and sites with significant useruploaded content. In the book publishing industry, we think the 

website Scribd is a good example of how targeted filtering can be 

applied in good faith and work in a fair and effective manner. 

Scribd uses fingerprinting that involves the creation of a digital 

reference database containing unique characteristics of copyrighted 

books. User uploads are checked for matches against the reference 

database. The fingerprint system uses best practices that we endorse. It only catches matches, and users are promptly notified so 

that they can dispute the rejection of their uploaded content. 

But while Scribd is a good example of what works, we need more 

examples of collaboration in the publishing industry. That is why 

we would urge Congress to help bring together all relevant stakeholders to work on standard measures to reduce online infringement. Without that intervention and oversight, there are not sufficient incentives for the parties to come together in a timely way. 

Elsevier remains concerned, however, that notwithstanding a 

government-mandated process to create voluntary measures, some 

sites that need them the most will drag their feet. If these sites 

refuse to consider reasonable measures that peer companies are 

adopting, it may be necessary for Congress and the courts to step 

in to provide remedies to copyright owners. 

Today, Elsevier sends hundreds of notices to the same sites for 

the same books year after year. It does so in good faith in compliance with the DMCA as it exists today. If these sites will not meet 

us halfway, in fairness, we should not be left without a remedy. 

Thank you for the opportunity to testify today. 

[The prepared statement of Mr. Doda follows:] 
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Mr. COBLE. Thank you, Mr. Doda. 

Ms. Oyama? 

TESTIMONY OF KATHERINE OYAMA, 

SR. COPYRIGHT POLICY COUNSEL, GOOGLE INC. 

Ms. OYAMA. Thank you, Chairman Coble, Ranking Member Nadler, Chairman Goodlatte, Ranking Member Conyers, for inviting me 

to testify today. It has never been a more exciting time for creativity on the Internet. With the Internet as a global distribution 

platform, more musicians, filmmakers and artists are creating 

more content than ever before. And with that in mind, I just want 

to emphasize two points today. 

First, the technology sector has been the engine of U.S. economic 

growth and job creation. Online services have created new markets 

and generate billions of dollars for the content industry, and this 

has only been made possible because of the legal foundation that 

is provided by the DMCA. 

And second, Google’s experience shows that the DMCA’s notice 

and takedown system of shared responsibilities strikes the right 

balance in promoting innovation and protecting creators’ rights online. 

The DMCA’s key principle, that Internet platforms are not held 

liable for every comment, post or tweet by their users, is an essential feature on which every Internet company today relies. Before 

the DMCA became law in 1998, companies like Yahoo, Google, 

eBay, they faced the prospect of crushing statutory damages for 

providing their services. And today on YouTube, more than 1 million creators are earning revenue from their videos. And in the last 

several years, Google has sent more than $1 billion to the music 

industry alone, including new revenue streams for user-generated 

content. Companies like Netflix who use Spotify and Pandora have 

transformed the ability of creators to grow new audiences, and this 

is just the beginning. With more than 5 billion users coming online 

in the next decade, the market for digital entertainment is expanding rapidly. 

The foresight Congress showed in crafting the DMCA has helped 

enable this economic success. The notice and takedown process creates legal certainty to incentivize venture capital investment and 

new services, and it protects rights holders. Only copyright owners 

know what material they own and where they want their works to 

appear, and when they send takedown notices, online platforms 

disable access to infringing content in response. This cooperative 

process allows for innovation and encourages investment, and 

hugely popular platforms like Facebook, Twitter, Pinterest would 

not be possible without these. 

As for Google, we take our responsibilities under the DMCA very 

seriously. We have made our takedown process faster and easier 

for rights holders to use than any other online platform. And despite a dramatic increase in the volume of DMCA takedown notices 

that we receive, our average turnaround time for removing content 

from search results has actually decreased to less than 6 hours. 

And even now, the notices that we receive cover far less than 1 percent of all of the content that we index. 
43 

There are, unfortunately, abuses of the system, and we work 

hard to detect and reject them. Attempts to use the DMCA to censor criticism, attack a business competitor, or gain political advantage are relatively rare but are very important to guard against. 

The legal certainty provided by the DMCA has allowed companies like Google to develop innovative systems that generate new 

revenue for rights holders. For example, YouTube’s Content ID system enables rights holders to choose in advance whether they want 

to track, monetize, or remove user-uploaded videos that match 

their content. All of the major record labels and movie studios use 

Content ID, and most of our partners are choosing to monetize 

their content rather than having it all come down. 

We are also devising new ways to highlight legal content in order 

to make it easier to find. When you Google a TV show like ‘‘Game 

of Thrones,’’ or a film like ‘‘12 Years a Slave,’’ we provide a prominent link on the right-hand panel for you to buy that show or 

movie instantly through services like Amazon and Google Play. If 

you search for a film playing in theaters, the first result you will 

likely see is going to include local show times, a link to purchase 

tickets, and other things like trailers. 

We recognize that despite all these steps, piracy remains a serious problem. The most effective way to combat rogue sites is to attack their sources of revenue. For our part, we have expelled over 

73,000 rogue sites from our advertising services over the past 2 

years, mostly based on our own detection efforts. 

In conclusion, I urge the Committee to preserve the current 

DMCA framework to ensure that the U.S. Internet industry remains at the forefront of the global economy, and we should incorporate DMCA-like safe harbors in our trade agreements to encourage the innovation and growth in other countries that the DMCA 

has enabled in the United States. 

Thank you. 

[The prepared statement of Ms. Oyama follows:] 
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Mr. COBLE. Thank you, Ms. Oyama. 

Ms. Schneider? 

TESTIMONY OF MARIA SCHNEIDER, GRAMMY AWARD WINNING COMPOSER/CONDUCTOR/PRODUCER, MEMBER OF THE 

BOARD OF GOVERNORS, NEW YORK CHAPTER OF THE RECORDING ACADEMY 

Ms. SCHNEIDER. Chairman Goodlatte, Chairman Coble, Ranking 

Members Conyers and Nadler, and Members of the Subcommittee, 

my name is Maria Schneider. I am a composer, bandleader, and 

conductor based in New York City, a three-time Grammy-winner in 

the jazz and classical genres, and a board member of the Recording 

Academy’s New York Chapter. The Recording Academy is the trade 

association representing individual music creators. I am deeply 

honored to speak with you this morning about my personal experiences with the notice and takedown provisions of the DMCA. 

I come here as an independent musician in the prime of my career, grateful for a steadily growing fan base and critical acclaim. 

But my livelihood is threatened by illegal distribution of my work, 

and I cannot rein it in. 

The DMCA creates an upside-down world in which people can illegally upload my music in a matter of seconds, but I must spend 

countless hours trying to take it down, mostly unsuccessfully. 

It as a world where the burden is not on those breaking the law, 

but on those trying to enforce their rights. It is a world with no 

consequences for big data businesses that profit from unauthorized 

content, but with real-world financial harm for creators. 

Like most artists, I love technology. I became a pioneer in online 

distribution when my release ‘‘Concert In the Garden’’ became the 

first Internet-only album to win a Grammy, and it also heralded 

the age of fan funding. 

Yet today, I struggle against an endless number of Internet sites 

offering my music illegally. After I released my most recent album, 

I found it available on numerous file-sharing sites. I am an independent artist, and I put $200,000 of my own savings on the line 

and years of work for this release, so you can imagine my devastation. 

Taking my music down from these sites is a frustrating and depressing process. The DMCA makes it my responsibility to police 

the entire Internet on a daily basis. As fast as I take my music 

down, it reappears again on the same site, like an endless whacka-mole game. 

The system is in desperate need of a fix, and I would like to propose three commonsense solutions. 

First, creators of content should be able to prevent unauthorized 

uploading before infringement occurs. We know it is technologically 

possible for companies to block unauthorized works, as YouTube already does this through its Content ID program. But every artist 

should be entitled to this service, to register their music once and 

for all. Just like the successful ‘‘do not call’’ list, creators should be 

able to say ‘‘do not upload.’’ If filtering technology can be used to 

monetize content, it can also be used to protect it. 

Second, the takedown procedure should be more balanced. Most 

of my fans who upload my music probably have no intention of 
55 

harming me. But to upload my music, one simply has to click a 

box. On the other end of the transaction, I must jump through a 

series of hoops, preparing a notice for each site, certifying documents under penalty of perjury, and spending hours learning the 

sites’ unique rules for serving the notice. Creators should have a 

more streamlined, consistent process to take content down. 

Internet services should be required to put consumers through a 

series of educational steps to help them understand what content 

can be lawfully uploaded. If consumers had to go through a more 

robust process to upload others’ content, the system would be more 

efficient for everyone. 

Third, takedown should mean stay-down. Once a service has 

been notified of an infringement, there is simply no excuse for the 

same work to show up again and again on the same site. 

Mr. Chairman, my fellow creators and I have an important job. 

We create art, the fabric of life for our citizens. It is our greatest 

ambassador to the world. Our Founding Fathers gave authors the 

right to copy and distribute their own work in order to incentivize 

creation. It is such a powerful concept that it is in our Constitution. 

But I must tell you that the current environment does not fulfill 

that constitutional mandate. The majority of my time is now spent 

simply trying to protect my work online. Only a small fraction of 

my time is now available for the creation of music. So instead of 

the Copyright Act providing an incentive to create, it provides a 

disincentive. The simple changes I have outlined would make great 

strides in fixing a broken system. 

Mr. Chairman, our Founding Fathers showed great wisdom in 

seeking to protect creators. I have hope that you and your colleagues will also show great wisdom in ensuring that this protection will soon apply to the digital age. 

Thank you. 

[The prepared statement of Ms. Schneider follows:] 
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Mr. COBLE. Thank you, Ms. Schneider. 

Mr. Sieminski? 

TESTIMONY OF PAUL SIEMINSKI, GENERAL COUNSEL, 

AUTOMATTIC INC. 

Mr. SIEMINSKI. Thank you, Mr. Chairman, Members of the Committee. I am General Counsel of Automattic and appreciate the opportunity to testify to you today about our experiences with the 

DMCA notice and takedown process. In particular, I would like to 

talk about ways that we have seen the DMCA process misused and 

how this misuse can harm companies like us, our users, and especially freedom of expression on the Internet. 

Automattic is a small company that has a big impact on the 

Internet. We operate the popular WordPress.com publishing platform where anyone can create and publish a website for free in 

minutes. WordPress powers some of the largest media properties in 

the world, as well as millions of small business websites, law firm 

homepages, and family blogs that are used to share updates with 

friends and family. We host more than 48 million websites that receive over 13 billion page views a month, and we reach this huge 

audience with only 232 employees and one lawyer. That is me. 

The DMCA’s safe harbor provisions provide important legal protections to us as a small and growing company, and its systems 

work reasonably well overall. However, we have recently seen a 

troubling rise in the misuse of the DMCA takedown process. 

The most egregious cases we have seen are notices from those 

who fraudulently misrepresent that they own a copyright at all in 

order to strike content from the Internet that they simply don’t 

agree with. Other examples include DMCA notices sent by companies to remove articles that are critical of their products or copyright holders who send overly broad blanket DMCA notices to take 

down content even though it is being legally and fairly used. 

At Automattic, we do our best to review and weed out abusive 

DMCA notices, and given our limited manpower, these efforts, on 

top of the time we spend processing our volume of legitimate notices, take resources away from other important pieces of our business. More importantly, DMCA abuse suppresses legitimate free 

expression and erodes trust in our system of copyright enforcement 

overall. 

We certainly appreciate the frustrations that rights holders voice 

about the DMCA system. Piracy is a real issue on the Internet, but 

we see abuses by those who submit takedown notices as well. 

The DMCA gives copyright holders a powerful and very easy-touse weapon, the unilateral right to issue a takedown notice that a 

website operator like us must honor or risk legal liability. Under 

the DMCA safe harbors, the safe thing for an Internet service provider to do is to comply with the notices it receives with no questions asked. Unfortunately, this puts the full burden of defending 

content on users of Internet platforms who themselves are often 

small, independent artists, musicians, and amateur publishers. 

Very often, these individuals don’t have the resources or the sophistication to fight back. 

To make matters worse, unlike the large statutory damages that 

exist for copyright infringement, there are no real deterrents under 
60 

the law for misusing the DMCA. So most instances of abuse result 

in successful takedown of targeted content and on repercussions to 

the abuser. 

The only counter-measure available is an action for misrepresentation under Section 512(f) of the DMCA. We recently joined with 

some of our users who were victimized by abuses in filing two such 

lawsuits. These suits were expensive to bring, time-consuming to 

prosecute, and we expect very little compensation in return. Still, 

they are the only resource available under the current statute, and 

the only deterrent that we saw to prevent future abuse. 

In closing, the DMCA has succeeded in its goal of fostering a vibrant social Internet on a scale that no one could have imagined. 

Today you can create a Facebook page, Twitter account, or your 

very own WordPress website for free. These innovative tools allow 

anyone to publish a cooking blog, build a business as an independent publisher, or even organize a democratic, grassroots overthrow of an oppressive regime in the Middle East. 

The Internet’s communication and sharing tools are used by literally billions of people, and all of them grew up under the DMCA. 

For the most part, the statute has worked to encourage the growth 

of innovative platforms and businesses like ours, but we should be 

mindful of the ways that the law doesn’t work for everyone and can 

be abused to suppress the freedom of expression that it has been 

so successful in fostering. 

Automattic is very focused on trying to correct the issues we see 

in our own corner of the Internet, and I would urge the Committee 

to keep companies like us and our community of creators in mind 

as we think about the laws governing copyright on the modern 

Internet. 

I thank you again for the opportunity to talk to you today and 

I look forward to your questions. 

[The prepared statement of Mr. Sieminski follows:] 
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Mr. COBLE. I thank all of the witnesses for your contribution 

today. I commend you that you did not abuse the 5-minute rule, 

and for that we are appreciative. We will try not to abuse it on our 

end, as well. 

I will start with Professor O’Connor. Professor, your testimony 

suggests several changes to Title 17 to modernize its impact. To the 

extent that changes are warranted, should such changes be written 

in detail or left to broad parameters in order to account for the future technological changes? 

Mr. O’CONNOR. Yes, thank you for your question, Chairman 

Coble. I am always a little nervous about getting too detailed in a 

statute because, as you mentioned, technology will change. That is 

why in the first stage of my first proposal I suggested again that 

we have a voluntary stakeholder process to try to come up with it, 

and only if that doesn’t happen to then move on to some changes. 

I know that the USPTO and the Copyright Office are both trying 

to work through some of these voluntary arrangements. It could 

very well be that Congress could do a change to the statute that 

would then authorize the Copyright Office to then do some regulations around it. 

Mr. COBLE. I thank you, Professor. 

Mr. Doda, should there be a numerical threshold of notices or 

other measures above which ISPs are required to undertake more 

action related to online infringement and below which ISPs’ obligations should be more limited? 

Mr. DODA. Thank you, Chairman Coble. 

Mr. COBLE. Pull that mic a little closer to you, Mr. Doda, if you 

will. 

Mr. DODA. We do not think there should be limits on the number 

of notices so long as, of course, the notices are issued in good faith 

and there is sufficient vetting that the copies are infringing. We 

would not support limits on the number of notices. 

Mr. COBLE. I thank you, sir. 

Mr. Sieminski, do you think that the provisions currently in Section 512(f), which create liability for damages, costs and attorney 

fees in the case of misrepresentations, is notice to adequately protect against the likelihood of abusive takedown notifications? How 

have courts interpreted this provision? 

Mr. SIEMINSKI. Thank you for the question, Mr. Chairman. And 

I think the answer is we don’t really know, and I think the reason 

is the volume of cases that have been brought under 512(f) have 

been so low. The reason for that is there is just a great imbalance 

of power between, I think, those that are sending the notices and 

those that are receiving them. By that I mean the companies that 

are sending takedown notices are often big corporations. The people 

on the receiving end are often individual users. So in order to bring 

a case, we have only seen a few of them, and I think we, as I mentioned in my testimony, brought a couple recently alongside our 

users. Without, I think, our intervention, those cases would not 

have been brought. 

So I think the number of cases that we have seen and the 

amount of case law we have on 512(f) is just very small, so it is 

very hard to say. 

Mr. COBLE. Thank you, sir. 
69 

Professor Bridy, should Congress create incentives for voluntary 

systems to be created to address infringement? And if so, what 

types of incentives would be most appropriate? 

Ms. BRIDY. Thank you, Chairman. I think that the market has 

created sufficient incentives as evidenced by the fact that we have 

seen some really meaningful voluntary agreements entered into recently. I think also, at the behest of the Office of Intellectual Property Enforcement Coordinator, which has taken a role in trying to 

encourage these voluntary best practices agreements. One, as I 

think you may have mentioned, is the Copyright Alert System between copyright owners and ISPs, Internet access providers. We 

have also seen some voluntary best practices agreements with ad 

networks, as Ms. Oyama discussed. (Google has entered into that 

voluntary best practices agreement.) And also payment processors, 

online pharmacies. 

So I think that the industries have been working together cooperatively without statutory incentives to do so. So I am not sure 

they would be necessary. Thank you. 

Mr. COBLE. Thank you, Professor. 

Ms. Schneider, are there other areas besides technical measures 

that Congress could create incentives to reduce infringement? 

Ms. SCHNEIDER. I think that all I have come up with, my ideas, 

are the three points that I have put forth here, and I think those 

kind of measures, maybe lawyers are better equipped—we have 

five of them here—to come up with that. I don’t know. 

Mr. COBLE. Does anybody else want to weigh in on that? 

[No response.] 

Mr. COBLE. If so, I see the red light has been illuminated, so I 

will recognize the gentleman from New York, Mr. Nadler. 

Mr. NADLER. Thank you, Mr. Chairman. 

Ms. Oyama, we have heard that one of the biggest problems, 

maybe the biggest, certainly from the content provider’s point of 

view, is the whack-a-mole problem. You serve notice on an infringing thing, it gets taken down, it reappears instantly, and this can 

go on over and over and over again, and you never catch up. 

Professor O’Connor suggested a notice and stay-down procedure. 

Would you comment on that proposal as a solution or a possible solution to the whack-a-mole problem? 

Ms. OYAMA. Yes, thank you. I think all service providers are also 

very sensitive to this issue because the service providers haven’t 

done anything wrong, and we are also working extremely hard to 

rid our systems of any of this type of bad content. And I understand why the notion of a stay-down notice and stay-down might 

be attractive. 

I think you really have to look across the products. I think Congress got it right. When they created the DMCA, they did not impose these types of pre-filtering and pre-monitoring obligations on 

service providers. So companies like Facebook, Twitter, Google, we 

can allow our users to post content in real time without having to 

filter every comment and tweet. 

I also think we have to think about the scale of the entire Internet. So there are something like 60 trillion web addresses, and almost anything on the Internet can be copyrighted. 
70 

Mr. NADLER. Let me focus in a bit more. Ms. Schneider writes 

a song. That song is improperly posted. She sends you a takedown 

notice. You take it down. Somebody else immediately re-posts the 

exact same song. Is there the technology so that, having received 

a takedown notice on that song or that nursing exam or whatever 

and taken it down, that the moment someone re-posts exactly the 

same thing it can be automatically taken down again? That is what 

I take it you mean by ‘‘stay-down.’’ 

Ms. OYAMA. The notice and takedown system is the best system 

for that because the copyright owners themselves are the ones— 

they know what they own, not the service providers. They know 

where it is authorized and where it is not. 

Mr. NADLER. They have notified you, somebody has notified you 

that this song is unauthorized. You have taken it down. The exact 

same song gets re-posted. You don’t need a second notice. Is the 

technology available, and is it easy to use or terribly hard to use, 

so that you could say that the moment something that has already 

been taken down gets posted in exactly the same thing, it automatically doesn’t go up or it gets taken down automatically without 

the necessity of a second takedown notice? Is that practical? 

Ms. OYAMA. It depends on the platform. It is not practical as a 

technical mandate on all service providers because if somebody 

says this is my song and it can only be on two sites, everything else 

has to stay down, that does not account for fair uses in U.S. law. 

Members have content of news clips that go up on their websites. 

There is a lot of different uses for content, and the intermediaries 

in the middle don’t actually know who are the rights owners and 

where is the content allowed to be. 

So this notice of the cooperative approach, where we get a notice 

and it comes out as the right way, I think there have been some 

great models in the private sector. On YouTube, because we have 

Content ID, because these are hosted platforms, we have copies of 

all of the files that are uploaded, we have copies of reference files, 

businesses can build on top of that and build new systems. 

In our hosted platforms, there is a way rights holders in advance 

can give us their files and tell us before anything goes up what 

they want to have happen. 

Mr. NADLER. Okay. Thank you. Thank you very much. 

Professor O’Connor, Congress also did allow for red-flag knowledge triggering obligations. So at what point should repeat notices 

trigger some obligation on providers’ part? And in answering that 

question also, if you feel it is advisable, you might want to comment on Ms. Oyama’s answer to my question about your proposal. 

Mr. O’CONNOR. Thank you, thank you. The issue on the red flags 

is the way the courts have been addressing it is to use this doctrine 

of willful blindness, but willful blindness is not in the statute. So 

we are seeing quite a division among the courts. So I think that 

what would be very helpful is for Congress to decide on policy, on 

what willful blindness should mean, and then put it into the statute. 

I would also then respond respectfully to Google about the situation with identifying content with my own anecdote, which is that 

I had videos where I was demonstrating copyright, about how songwriters should think about copyright, using my own guitar, al-
71 

though not playing bluegrass but playing ZZ Top songs. I had posted it on YouTube, and very quickly it was taken down. 

I was impressed. First I thought that it was because of my rendition of ZZ Top’s La Grange the electronic algorithm picked it up, 

but I think it was because I also played a little recorded snippet. 

So again, the important thing is that those kinds of fair use 

transformative uses, those are a different category. I think the 

technology—again, I am not at Google, so I certainly can’t speak 

for them. But I believe, from my experience, the technology is 

strong enough to recognize that here is the entire song. So again, 

if it has been already noticed and taken down, then that could stay 

down. 

Mr. NADLER. Thank you. 

Mr. COBLE. The gentleman’s time has expired. 

Mr. GOODLATTE. Mr. Chairman? 

Mr. COBLE. Chairman Goodlatte? 

Mr. GOODLATTE. Thank you, Mr. Chairman, and I want to thank 

everyone on this panel. It is an excellent panel of witnesses and excellent presentation of a number of ideas. 

About 16 or 17 years ago, then-chairman of the Judiciary Committee, Henry Hyde, asked a relatively junior Member of the Committee to sit in a very hot hearing room—it is no longer a hearing 

room; I think staff has to use that room now—with about 30 representatives of various interests on this issue, content community 

representatives and Internet service provider and technology community representatives, and some with a foot in both camps. I was 

that junior member, and I had literally no idea what I was getting 

into. 

But my job was not to figure out how to solve this problem of 

getting great content onto the Internet in a digital format but to 

keep everyone in that room until we succeeded. All of these representatives succeeded in coming up with the notice and takedown 

provisions and the safe harbor, which were incorporated into the 

DMCA. 

So now, nearly two decades later, how does one measure the success of Section 512? Is it by, as some might suggest, the number 

of notices sent, or is it, as some others might suggest, by the 

amount of infringing content that not only is taken down but stays 

down, or by some other measure? 

Let me start with you, Professor O’Connor. 

Mr. O’CONNOR. Thank you, Chairman Goodlatte. And again, I 

want to make very clear that we all very much appreciate the work 

that was done to put Section 512 in place in the first place. It has 

on many counts for many years been very successful. 

Mr. GOODLATTE. I have a very limited amount of time, so can you 

get to the question? What is the best measure of success? 

Mr. O’CONNOR. Okay. I think the best measure of success is 

whether it is a balance between the parties, whether you have artists feeling like they can, in fact, get their material taken down and 

it stays down and that they don’t have to engage in the whack-amole. 

Mr. GOODLATTE. Professor Bridy? 

Ms. BRIDY. Thank you. I think the best measure of success is in 

terms of empirical numbers about the growth of the Internet and 
72 

*The witness inserts the following text to complete her response: 

. . . abuse of the current notice and takedown system is very rare and the issue is used 

as a distraction from the real issue of rampant online infringement. Congress should 

focus its efforts in this area of the law on making the notice and takedown process 

meaningful and effective for creators and copyrights owners. 

the growth of the industries that distribute content over the Internet. I think those numbers are good news on both sides. 

Mr. GOODLATTE. Ms. Oyama, I want to come at the issue that the 

gentleman from New York was asking about but from a different 

perspective. Should ISPs be required to respond differently to a 

takedown notice when it is the 50th or the 50,000th notice of the 

same content? 

Ms. OYAMA. I think generally you want to have a consistent set 

of obligations. So we have YouTube. We have over 100 hours of 

content that is uploaded in an hour, a vast amount of content. We 

need to know each time whether the use is appropriate or not. So 

just looking at the specific quantity wouldn’t be enough. 

Mr. GOODLATTE. Mr. Doda? 

Mr. DODA. Certainly in some circumstances. I think the key is 

that one size does not fit all, and I think my written statement and 

Google’s written statement share that sentiment. Where sufficient 

matching can occur, I think it is appropriate for stay-down. So 

Google provides, as I understand it, flexibility through the Content 

ID system, that when sufficient matches occur, they can either be 

monetized or the rights holder can direct that they be taken down. 

So I think it is a question of collaboration and coordination in order 

to achieve that goal. 

Mr. GOODLATTE. All right. And the last question I want to ask 

I will let all of you answer, and that is on this whole issue of 

whether appropriate penalties exist for those who abuse the notice 

and takedown system. So I will start with you, Mr. Sieminski. Do 

you think appropriate penalties exist? And if not, what should the 

penalties be? 

Mr. SIEMINSKI. I would say, from our standpoint, I would say no, 

just because of the volume of these abusive notices that we are seeing and really just the fact that—— 

Mr. GOODLATTE. Do you have a solution? Because I am down to 

a minute, and I have five more people to answer. 

Mr. SIEMINSKI. No. I mean, I think we have statutory damages 

for copyright infringement. We should have—— 

Mr. GOODLATTE. Something like that. 

Ms. Schneider? 

Ms. SCHNEIDER. I think that if the proper things are in place to 

keep improper uploading, once it is up and I say it is down and 

it goes down, we don’t have to worry about punishing people because there are stops to bad Internet behavior. 

Mr. GOODLATTE. But you would say there are not adequate penalties now? 

Ms. SCHNEIDER. Absolutely not, because——* 

Mr. GOODLATTE. Ms. Oyama? 

Ms. OYAMA. I think we want to incentivize transparency. We 

have Google’s copyright transparency report by showing actually 

which sites are targeted and who is sending them. That has helped, 

I think, everybody in the system figure out who are the best ven-
73 

dors here, how does automation help, and then who are the bad actors. News reporters have looked at this, as well. That constantly 

improves the system to make it more efficient and more accurate. 

Mr. GOODLATTE. Mr. Doda? 

Mr. DODA. First I think that it has to be placed into context. The 

number of abuses and mistaken notices are exceedingly, exceedingly rare. 

Second, I think the statute itself, as I understand it through the 

counter-notification process, already provides that if a response to 

the counter-notice is not made, that in fact the content can be put 

back up. 

In terms of 512(f), we are certainly in support of a level playing 

field in terms of abuses being addressed, whether it is in the nature of an abuse of a notice or an abuse of a counter-notice. 

Mr. GOODLATTE. Mr. Chairman, I know my time has expired, but 

if we could allow Professor Bridy and Professor O’Connor, I would 

like to hear them. 

Mr. COBLE. Without objection. 

Ms. BRIDY. I think the remedies that currently exist are not adequate, and I think statutory damages or some enhanced measure 

of damages might be appropriate. 

Mr. O’CONNOR. I think that they are adequate now for the abusive notices, as we have seen in some of these cases where services 

have denied actually taking down things. 

Mr. GOODLATTE. Thank you very much. 

Thank you, Mr. Chairman. 

Mr. COBLE. The gentleman’s time has expired. 

The distinguished gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. 

I congratulate all of the witnesses on their testimony. It has been 

very important. 

But since I don’t question Grammy winners too often, I would 

like to ask Ms. Schneider and attorney Doda about 512 that places 

primary burden of finding online infringement on rights holders, 

and because of the rapid increase and availability of infringing material we have gone through some changes, and I noticed that we 

got two recommendations from Professor O’Connor, and then we 

had two more recommendations from Professor Bridy, and then we 

got three recommendations from Ms. Schneider. 

What do you think of these? How do we ensure, especially for the 

smaller artists and musicians and businesses? Because those are 

the ones I am mostly concerned with, because the big corporations 

are going to usually take care of themselves. But give me any 

views that you have on this kind of an approach, and then I will 

open it up for everyone else. 

Ms. SCHNEIDER. I would like to share with you what I encounter 

on the Internet when I find an abuse. 

Mr. CONYERS. Please do. 

Ms. SCHNEIDER. This is what it takes and what typically you see 

when you upload material. [Witness holds up poster.] 

Now, you probably can’t read it, and actually you can barely read 

it when you are on a computer either. It has a little thing you can 

click talking about Terms of Use or something. But basically, it 

says nothing about accountability whatsoever. 
74 

Now, when I find the abuse, this is what I am given. [Witness 

holds up poster.] 

It is in larger print from the same site. I have not enlarged the 

print. This is telling me all the hoops I must jump through in order 

to take it down. 

Mr. CONYERS. Quite a few? 

Ms. SCHNEIDER. Yes, I will say so. It is pretty frustrating. 

Now, I will say, I want to congratulate YouTube because the 

takedown procedure is such a relief now. It is just so much better, 

but there is one issue. I took down something the other day, and 

now this is what the link sends to you. [Witness holds up poster.] 

Can you read it? It says, ‘‘This video is no longer available due 

to a copyright claim by Maria Schneider,’’ and then there is a sad 

face. Now, I find that that is designed to turn animosity toward 

me. That is, you know, when you put something up on YouTube, 

all you have to do is put a user name. I don’t know who the person 

is. And now suddenly I have been exposed as the meanie. I think 

this should absolutely be changed. But otherwise, I like their takedown procedure. It is much better. I think they need work when 

people upload. It needs to be very robust. 

Mr. CONYERS. Attorney Doda? Thank you. 

Mr. DODA. Thank you, Mr. Conyers. We accept that the onus is 

on the rights holder at the outset. I think one way to reconcile the 

relative burdens when you are dealing with a large corporation 

with resources or an individual creator obviously diverted from 

their creative endeavors if they have too much of a burden is, 

again, through the filtering process, and I would endorse what Ms. 

Schneider suggested, which is a contribution appropriately 

verifying that she owns a work, a contribution to a referential database, for example. 

I think another factor would be if a notice is sent and there are 

no counter-notices or objections and it is deemed valid, that her 

work should stay down. In terms of the difficulties that individuals 

have in navigating the notice requirements and the shame, if you 

will, I think those types of issues are properly addressed in a process like the PTO, as I understand, is undertaking to discuss the 

nuts and bolts, if you will, of the takedown system and improvements that can be made. 

Mr. CONYERS. Well, do you think, in closing, that the smaller artists, the non-Grammy winners, the musicians and businesses, 

aren’t they even in a more restricted position than other more successful people in the field, Professor O’Connor? 

Mr. O’CONNOR. Yes, I think they are. If you are a smaller artist, 

you are a small web startup, you don’t have the compliance staff 

to try to get in the middle of the notice and takedown ping-pong 

match. That is why I do think that if we could have tools made 

available at reasonable cost to help them, again to stay-down the 

really infringing stuff, it would take down the volume and they 

wouldn’t have to have a compliance staff of that magnitude. 

Mr. CONYERS. That is where I am going to put my emphasis, out 

of all of the things that I have heard in this hearing, and I thank 

all of the witnesses. 

I thank the Chairman. 

Mr. COBLE. Thank you, Mr. Conyers. Your time has expired. 
75 

The gentleman from Ohio, Mr. Chabot, is recognized for 5 minutes. 

Mr. CHABOT. Thank you very much, Mr. Chairman. I thank you 

for holding this hearing. I think it has been very good so far, and 

I want to applaud, first of all, the efforts of Google and other online 

service providers, what they have done to address the copyright infringement by voluntarily working with content providers. The development of the content idea in similar systems is a testament to 

a free-market solution, protecting the interests of copyright owners, 

certainly not perfect, and businesses alike. 

This is a step in the right direction, but there is obviously still 

a lot more to be done, as we have heard here this morning. Only 

a collaborative effort between the content service providers, payment processors, and advertisers will ensure the development of a 

more finely-tuned technical system. It is my belief that the best solutions to this problem will be developed not by the government but 

rather by free-market collaboration. 

Clearly, copyright infringement takes an economic toll on both 

content and service providers alike. For example, Ms. Oyama, you 

mentioned that YouTube could never even have launched as a 

startup back in 2005 if it had been required to implement a Content ID system. In what ways and methods has this negatively impacted your businesses and other startup-type companies, and how 

has copyright infringement stunted growth and development for 

other online startups? And finally, what collaborations do you hope 

to see as you move toward a technological solution in addressing 

copyright infringement? 

Ms. OYAMA. Thank you. It is something that all providers face, 

as well as a challenge. It is something at Google we spend tens of 

millions of dollars investing systems to root out infringers and eject 

them from our services. But I think the overall picture is extremely 

positive, and the DMCA has provided a foundation of legal certainty that has allowed online services to thrive, and then it has 

also created an incentive to innovate, and we have a lot of mutual 

business incentives. 

So today on YouTube, we have licenses with all the major labels 

and all of the studios, and we have worked together to build a system of Content ID where rights holders now, when a user uploads 

content, rights holders can decide what to do. So they can remove 

it or they can monetize it. Actually, more often than not, the majority will actually now choose to leave the content up and share in 

the revenue. So they get the majority of the revenue as the rights 

holder, and then the user gets to keep their content up, and the 

platforms are also doing well and able to share this. 

So I think incentivizing those kind of business partnerships and 

collaborations so that everyone can kind of grow this pie together 

and get more content out there with users is the right way to go. 

Mr. CHABOT. Let me ask you another question. You had mentioned that you had identified and gotten rid of 73,000 rogue sites. 

Over what time period was that again? 

Ms. OYAMA. Those were in the last 2 years, ejected from our advertising programs. 
76 

Mr. CHABOT. The last 2 years? How many of those would you estimate were outside the U.S., originated outside the U.S. versus in 

the U.S.? 

Ms. OYAMA. A large, large number are internationally based. 

Mr. CHABOT. Okay, so outside the U.S. 

Ms. OYAMA. It’s a mixture. 

Mr. CHABOT. The vast majority would you say? 

Ms. OYAMA. I would have to go back and check on the percentage. 

Mr. CHABOT. Okay. If you wouldn’t mind at some point, I would 

be interested in seeing that. 

Ms. OYAMA. Sure. 

Mr. CHABOT. Ms. Schneider, let me ask you, if I can, I understand and sympathize very much with what you are saying. I think 

there are a lot of other people out there, maybe college students, 

maybe younger people, and older people as well, who sort of look 

like a lot of people in your position as being, well, they are really 

wealthy and they ride around in limos, and I am just a poor college 

student and I am really not hurting anybody, and this may be an 

opportunity for you—and you have, I think, quite eloquently thus 

far, but is there any message that you would like to say on the 

other hand, that there is another side to this? 

Ms. SCHNEIDER. You mean about the young college student? First of all, I am not driving a limo, you know. I am still $100,000 in 

debt, and that three-time Grammy-winning album that I made that 

should have long paid for itself if it wasn’t being pirated all over 

the Internet. And I do talk to young students all the time when I 

teach in business conferences at colleges. They ask how can I have 

what you have, and a lot of the conclusions that young musicians 

are coming to now is what is hurting us is that we are so diluted 

by being splashed all over the Internet. 

So we are slowly, as a community, coming to the conclusion that 

all this exposure is not coming to us in money. What it is really 

doing is diluting us, and once somebody sees us all over YouTube 

in a dozen different performances, they aren’t coming to our 

website and buying the record, and this is what people are finding, 

and they are hurting. Young people are really, really scared. I am 

telling you, I hear from them all the time. They ask me what can 

I do, and you know what I say? I say get educated, start advocating, and write to your congressman. 

Mr. CHABOT. Thank you very much. 

I yield back. 

Mr. COBLE. I thank the gentleman, the gentleman from Ohio. 

The gentle lady from California, Ms. Chu. 

Ms. CHU. Thank you, Mr. Chair. Before I begin my questioning, 

I would like to submit two items into the record. First is the oped that was co-authored by myself and Congress Member Marino, 

a member of the Creative Rights Caucus, about the notice and 

takedown. This editorial came out in today’s editorial section in 

The Hill, and it essentially talks about how our digital copyright 

system is not working for smaller and independent creators who 

are ultimately victims of theft but have to fight tooth and nail to 

protect their property and how we need to take a closer look to improve the notice and takedown notice under DMCA. 
77 

The second item I would like to submit is Chris Castle’s article 

in The Trichordist that talks about how the safe harbor is not a 

loophole and documents five things that we could do right now to 

make notice and takedown work better for individual artists and 

creators. 

Mr. COBLE. Without objection. 

[The information referred to follows:] 
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Ms. CHU. Okay. Thank you so much. 

Well, MPAA did a study which showed that search engines are 

the main means by which people get pirated content, so I would 

like to ask Ms. Oyama some questions about this. 

We felt that it was such a positive step in 2012 when you 

changed your algorithm by taking into account the number of takedown notices for any given site in the ranking system for search. 

This change could have resulted—it should have resulted, that is, 

in sites with high numbers of removal notices, takedown notices, 

appearing lower in the Google search results, therefore helping 

users find legitimate, quality sources of content more easily. 

Yet, several months later, studies show that the sites for which 

Google received hundreds of thousands of infringement notices are 

still appearing at the top of search returns. Actually, while we were 

sitting here and I was listening to your testimony, I decided to see 

for myself whether I could watch ‘‘12 Years a Slave’’ for free, or 

‘‘Frozen’’ for free. So I had my iPad here, and I just input into it 

on the Google search, and I input ‘‘watch 12,’’ and I only got to ‘‘12’’ 

before something popped up that said ‘‘Watch 12 Years a Slave online free.’’ So that was the number-two search term that came up. 

And then I wanted to see if I could watch ‘‘Frozen’’ for free, and 

so I input ‘‘watch Frozen’’ and clicked that one on, and the numberone site that comes up is ‘‘Mega Share Info Watch Frozen Online 

Free,’’ and the number-two site is ‘‘Watch Frozen Online, Watch 

Movies Online, Full Movies.’’ 

So there seems to be no real improvement in this algorithm 

change. Why do we continue to see your search engine ranking the 

illegitimate sites high? 

Ms. OYAMA. Thank you for the question. I think there has been 

a lot of improvement. When we started working on this problem, 

what we heard from rights holders was they were concerned, when 

they were searching for movies and music content, that there were 

certain results that they were unhappy with. The vast, vast majority of users who are using Google search, they search for movie titles, they search for artists’ names, they search for artists’ song titles. 

So if you go to Google Search Trends—it is a public, open database—you can actually type in the terms and you can see relatively 

how popular are certain queries. So if you go in and you type ‘‘12 

Years a Slave,’’ that is going to be a very highly, highly frequented 

query, and the results there, because of these signals and other 

things, working with rights holders, they are clean. They are to 

movie trailers. There are links to purchase, information about the 

film or its website. 

You can also type into the Search Trends ‘‘12 Years a Slave, 

watch free.’’ You can add those other terms that we are talking 

about. And I just want to make sure that we are informing this 

conversation with data and being very clear that there are still conversations happening about those very specific queries that end in 

‘‘free’’ and ‘‘stream’’ and ‘‘watch’’ and ‘‘download.’’ I think there is 

a lot of collaboration there. It involves a lot of technical steps about 

optimizing things that are legitimate, and part of that is working 

with retailers to make sure that the pages there have words like 

‘‘stream’’ and ‘‘free’’ and ‘‘download’’ so that those will also surface. 
83 

But if you look at actually what users are looking for, the vast 

majority are looking for artists and songs. They are looking for the 

types of queries that you can go to Google today, look at those results, they are clean. We are talking about a very relatively small 

set of queries that we are still working on together. 

For those queries, we need something legitimate to surface. So 

if a film is not available online, it is hard for us. We also lose 

money if someone goes to pirate sites. We have Google Play, where 

we would love to rent and—— 

Ms. CHU. Okay. I wanted to make this point. I didn’t put the 

word ‘‘free’’ in any of my search terms. I just said ‘‘watch Frozen,’’ 

or ‘‘watch 12 Years a Slave.’’ So the ‘‘free’’ wasn’t in there at all, 

and yet it came up as number one or two in the search results. 

Ms. OYAMA. But the search engine will show what people actually look for, regardless of what you see in the auto-complete. 

Ms. CHU. Okay. Well, then I would like to follow with this, which 

is what I understand your algorithm to be, which is that the takedown notices must exceed 5 percent of the total transactions on 

that site or there is no algorithm change. And that means that an 

infringing company could, say, have 500,000 movies uploaded for 

free. Five percent equals 25,000. So if the number of the takedown 

notices is less than that—say, 20,000 takedown notices—then it 

doesn’t qualify for an algorithm change. And yet, to me, 20,000 

takedown notices is a lot, and it would seem that it could qualify 

to at least go down on the search. 

So my question is, does such a policy exist? And if so, how do 

smaller and independent creators with limited resources expect to 

have any impact when sending notices with regard to the search 

rankings? 

Ms. OYAMA. There is no minimum threshold to trigger that part 

of data. So we are using as a constant feed the copyright removal 

notices that we get kind of into the algorithms. So there is no baseline threshold of a 5 percent. I think when we are talking about 

those smaller set of queries, we are actually talking about piracy, 

which is something we all want to prevent against. We are heartened to see more creativity online. We are heartened to see revenues for these industries increasing and for creators to be using the 

web tools. 

But we also have to realize if we are actually talking about truly 

bad actors, if we are talking about sites that are popping up that 

are dedicated to illegal content, we also need to be targeting them 

at their source, and I think that is where some of the ‘‘follow the 

money’’ strategies and other things to get them off of the web are 

really going to be more effective. So targeting the problems, and 

then making sure we are all working together to direct consumers 

as much as we can to great content that they are happy to pay for. 

Ms. CHU. Thank you. I yield back. 

Mr. COBLE. The gentle lady’s time has expired. 

The gentleman from Texas, Mr. Farenthold. 

Mr. FARENTHOLD. Thank you, Mr. Chairman. 

I would like to start with Ms. Schneider. I appreciate that you 

own some songs and some rights. Let’s say I want to put up a video 

of my cat and put some music behind it. How easy is it for me to 

get a license to put your music, or somebody else’s music, under my 
84 

cat video? I mean, how many hoops are there to jump through on 

that? 

Ms. SCHNEIDER. You know, anybody who wants to use my music 

for something, all they have to do is ask me for permission, and 

that is up to me to give you permission. 

Mr. FARENTHOLD. Okay. So I then have to go Google your name, 

find out who you are. Then I have to go Google the performer and 

find out who they are. I mean, this is a very complicated process. 

Ms. SCHNEIDER. Not really. Why don’t you just go to 

MariaSchneider.com, my ArtistShare website? You can contact me 

there. 

Mr. FARENTHOLD. I guess the point I am trying to make is we 

saw a dramatic drop—we actually saw Napster and some of these 

peer-to-peer really drop when legitimate music became much more 

viably available. Isn’t there an opportunity for your industry and 

some of your artist groups to come up with a way to make it easier 

for innovators or somebody who wants to create derivative works 

to license your content and do it legally? 

Ms. SCHNEIDER. That is legalese to figure out how to do it. But 

I am telling you that if my music is used in many different ways 

without my permission, that is violating my copyright. 

Mr. FARENTHOLD. And I appreciate that, and I want to respect 

your copyright, but I might also want some music on my cat video. 

Let me go to—— 

Ms. SCHNEIDER. Public domain. 

Mr. FARENTHOLD.—Ms. Oyama. I am sorry if I got your name 

wrong. 

I am a little bit concerned that search engines, not Google in particular but any search engine, is an enabler for copyright infringement, and I am wondering if your industry might be better served 

to take a lesson from the MPAA, the content creators. When Congress was threatening to go in and regulate movie content, they 

created the rating system voluntarily. Isn’t a good corporate citizen 

something that maybe your industry should work together on and 

finding a way, especially on this whack-a-mole? I can get Shazam 

in a noisy room and identify a song. It seems like large companies 

like you guys and Bing, the big companies ought to have the technology to do something more about that and maybe not be required 

to but do it on a voluntary basis. 

Ms. OYAMA. I think there is a lot of ways that we are always 

working to address this. One of the biggest things that we have 

done for search is use automation to improve this process so that 

rights holders can, as easily as possible, let us know. So we have 

very simple-to-use web-based complaint forms across all of our 

products. 

For search, we are actually processing public information on the 

transparency page, more than 20 million notices per month, so that 

is every 30 days. 

Mr. FARENTHOLD. I am just curious about the other side of that. 

Of that 20 million takedown notices you get, how many do you get 

a counter-notice on? 

Ms. OYAMA. Small. We say on the transparency report that we 

process about 99 percent. So the remaining 1 percent were rejected 
85 

because they were either erroneous or because there was a counternotice. 

One more thing just on the search? 

Mr. FARENTHOLD. Sure. 

Ms. OYAMA. We absolutely agree with you on wanting to direct 

users to legitimate content. So if you look for something like ‘‘Frozen,’’ you may also see at the top a very new feature that we have 

added, which would be some advertising services to direct people 

on one click to go purchase it. There are also the knowledge panels 

on the right, which is authorized content. 

I just wanted to be clear, we do not want infringing links in 

search, and as much as possible we are always trying to direct 

them to YouTube or Play and platforms that make money for everybody involved. 

Mr. FARENTHOLD. And I think we have to be careful as we draft 

regulations on this. Expecting something of a large company like 

Google is very different from expecting something from a small, 

independent website owner or even smaller ISP. On your YouTube 

platform you will have the technology and expertise to do this 

screening, but if I have a bulletin board up and somebody uploads 

a copyrighted photo, I don’t think I would have the resources to go 

check to see whether or not that was copyrighted or not. I could 

easily deal with a takedown notice. 

So again, I encourage the industry to cooperate with the artist 

to find a way to end that. 

I am out of time. I had plenty more questions, but in respect for 

the 5-minute rule, I will yield back. 

Mr. COBLE. I thank the gentleman from Texas. 

The gentleman from Florida, Mr. Deutch, is recognized for 5 minutes. 

Mr. DEUTCH. Thank you, Mr. Chairman. Mr. Chairman, I would 

like to request that a letter from the Copyright Alliance be submitted for the record. 

Mr. COBLE. Without objection. 

[The information referred to follows:] 
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Mr. DEUTCH. Thank you. I think this letter highlights some of 

the problems that creators have with the way that the DMCA is 

currently working. As we look at the strengths and weaknesses of 

the current system, it is important to keep in mind, as I think so 

much of this hearing has done, the experience of artists and creators, especially independent artists, Ms. Schneider, who rarely 

have access to the resources and infrastructure that are needed to 

keep up with this Internet piracy whack-a-mole. That is the difficulty that you face. 

I agree with, I think, most of the witnesses that the balance 

struck by the DMCA to encourage cooperation and to preserve protections for technology companies acting in good faith is the right 

one. As many have already said today, without the DMCA protections, it would be hard to imagine the growth of the Internet and 

other digital services that we have seen over the past decade. 

This hearing and the Committee’s subsequent work examining 

copyright law will be a much needed opportunity to ensure that the 

current balance of the DMCA is working for creators and technology providers without imposing undue burdens on either side for 

takedown notices, and it is this balance that I am concerned about. 

I think the letter of the law was clear that the DMCA was designed 

to protect good-faith actors from liability but not to protect people 

who were benefitting financially from pirated content. But the reasonable division seems to have become obscured as courts have 

looked at it. 

Ms. Oyama, I just wanted to ask you about that. It is my understanding—and I would like to give you the opportunity to help me 

understand how we are coming at this issue—that Google has intervened as a friend of the court in a number of cases, including 

those against infringing file-sharing and cyber locker sites, to press 

the view that the DMCA is available as a defense not only for innocent service providers but also for those who are actively inducing 

copyright infringement, which is surprising to me. As the Supreme 

Court defined inducement, it applies specifically to people who act 

with, and I quote, ‘‘an unlawful objective to promote infringement, 

and premises liability on purposeful, culpable expression and conduct.’’ 

In one of these cases, the district court described inducement liability and the safe harbor as inherently contradictory and how 

there is no such safe harbor for such conduct. But my understanding is that Google has strongly rejected that view, arguing instead that the DMCA protects qualifying service providers against 

all claims of infringement, including inducement. 

So something would seem to be wrong if the safe harbor offers 

liability protection to people who are engaged in purposeful, culpable expression and conduct with an unlawful objective to promote 

infringement. I would like to hear your views on that. Help me understand where you are coming from to clarify the issue. 

Ms. OYAMA. I am not aware of the specific briefs there, but I 

think the DMCA, the critical purpose there was to incentivize providers to participate in this cooperative process to give them legal 

certainty so that they can grow their services, and today we are 

seeing tremendous boost to the creative industries based on these 

platforms. 
93 

The case law that I am aware of has been very good in distinguishing bad actors, sites where they have been found to be committed to engaging in piracy, things like the Hot Files, from legitimate services like YouTube and Google. We have also been targeted by these types of lawsuits. We have had to spend a lot of 

money defending ourselves, and today these are the platforms that 

are helping more than a million different creators earn revenue, 

sending more than a billion dollars just back to the music industry. 

Mr. DEUTCH. So the law shouldn’t be used to shield those engaged in copyright infringement and inducement from liability. 

That is not the purpose of the law, is it? 

Ms. OYAMA. No. The law should be—if you are a good actor and 

you are abiding by the DMCA in your responsibilities, I think you 

don’t want to be the target of litigation. If you are not, there are 

bad sites that don’t operate within the DMCA, they are pursuing—— 

Mr. DEUTCH. I just want to be clear, though. It is not a question 

of operating within the DMCA. It is whether the purpose of the site 

is to induce infringement of copyright. Then that site and those site 

operators shouldn’t be entitled to the safe harbor provisions of the 

DMCA whether they are technically falling within them or not. 

Ms. OYAMA. That sounds reasonable. Sometimes in amicus briefs 

there are many different issues that come up. I would be happy to 

follow up with you on that. 

Mr. DEUTCH. In the last few seconds I have, if others on the 

panel have thoughts on this? Professor? 

Mr. O’CONNOR. Well, I think one thing that should be clear here 

is that there are mechanisms, then, to allow content to be legitimately licensed. So I think the issue is that we should not be using 

the safe harbor to shield people who are just putting up clearly, 

blatantly infringing material. There are easy ways to get at it legally. 

Mr. DEUTCH. Thank you. 

Thank you, Mr. Chairman. I yield back. 

Mr. COBLE. I thank the gentleman. The gentleman’s time has expired. 

The distinguished gentleman from Pennsylvania, Mr. Marino. 

Mr. MARINO. Thank you, Chairman, and thank the panel members for being here. 

I hear dozens and dozens of war stories from creators who have 

come to personally see me and they have shared their nightmares 

with me, almost exactly the way Ms. Schneider has genuinely and 

eloquently stated what she has been going through. So with that 

in mind, Mr. Sieminski, I see that you mentioned in your statement that you have seven people that are devoted to addressing 

the notice and takedown requests full time. So pursuant to that, 

if you receive hundreds of notices and takedown requests for content posted by the same user on your site, is there a process of how 

you can interact with that user? Number one. 

Number two, do you put a hold on their account? Number two. 

And number three, do you relay some sort of warning against 

posting more content in the future? 

And if you need me to repeat any of those, just tell me. 
94 

Mr. SIEMINSKI. Thank you for the question. To answer your question, yes, as required by the law, we have a repeat infringer policy, 

as most websites do, and if a user does receive over a certain 

amount of notices for their site, their account is suspended permanently. So the answer is yes. 

Mr. MARINO. All right. Thank you. 

Ms. Oyama, you and I had the opportunity a couple of weeks ago 

to talk about many issues, this being one of them, and it was very 

enlightening. I mean, you showed me a lot of what was being done. 

I guess I am looking at this from a proactive approach. We talked 

about the red light/green light system a little bit by which a provider would denote in a search result those sites which may have 

been tagged as likely to contain infringing content with a yellow or 

red light or some explanation. 

Would you be willing to create with the providers that you can 

work with, or you at Google create a method to implement this 

type of system? And further, would you be willing to move these 

authorized, legitimate results to the top of the page? 

Ms. OYAMA. I think we always want to have authorized, legitimate results appear. We have done a lot of great work, especially 

using the signal and other things, working with rights holders to 

make sure that for the vast majority of queries that are related to 

media and entertainment content, the ones that I discussed earlier 

about looking for films, that the legitimate results are surfacing. 

I think the red light/green light concept that we talked about was 

in the context of kind of flagging for users that sites might be good 

or they might be bad. I think we just have to remember that 

DMCA applies to all service providers. There are 66,000 or more. 

Mr. MARINO. I understand that, but I am really one that does not 

want the Federal Government to get involved in what it is involved 

in now. I am a states’ rights guy, and I want to see less Federal 

Government in my life. But we need to ramp this up a little bit, 

and I am looking toward the industry. I am having some faith, for 

the time being, in the industry and the providers to come up with 

methods. I mean, Google, you are a smart operation over there. I 

am very impressed. But I am looking to you to create a system 

whereby people like Ms. Schneider are not damaged as they are. 

For example, when someone types in a ‘‘movie free,’’ can you not 

do something? I can’t believe you cannot. I think we can. If we can 

put a man on the moon and we can transplant a heart, we certainly can say that when someone shows up ‘‘free,’’ do something 

about that. Help me out. Give me some suggestions, please. 

Ms. OYAMA. Yes, okay. So I think we cannot strike the word 

‘‘free’’ from search. There is a lot of legitimate free music and movies, and that is good for everybody. It is good for consumers. Some 

artists, the first thing they want is they want people to know about 

who they are. They want to get their name recognition out, and 

from there they use popularity. Songs go viral. They go number one 

on iTunes. They travel the world. These are good things to have 

the Internet available to have distribution of music. 

I think the key place here that we all can continue to work together is how do we surface legitimate content. So if we want to 

fight piracy, we need to increase the availability of legitimate offerings. 
95 

Mr. MARINO. Let me stop you there for a moment. I mean, there 

has got to be a process by which, when certain words come up— 

‘‘free,’’ ‘‘I don’t want to have to pay for it’’—that that can be 

flagged. 

Ms. OYAMA. Right, yes. 

Mr. MARINO. My 18-year-old daughter, my 14-year-old son make 

these little programs to do some things that I just can’t believe 

they are doing. 

Ms. OYAMA. One of the places we have had some good conversations with folks about is if you want legitimate pages to surface for 

a query for ‘‘free,’’ the pages should have the word ‘‘free.’’ So you 

could say ‘‘free music sample,’’ anything with that word ‘‘free’’ that 

would help it surface. 

We are also trying to use additional space in search on the 

knowledge panel and the advertising to get customers to purchase. 

Mr. MARINO. Let me get to another question concerning mobile 

apps. Malicious and—— 

Mr. COBLE. Very briefly. The gentleman’s time has expired, but 

one more question would be fine. 

Mr. MARINO. The mobile app. 

Thank you, Chairman. 

There have been quite a few high-risk Android apps and growing, 

from 6,000 in the first quarter of 2012 to 1,100,000 in 2013. 

Malware in apps is a huge concern. What can we do about it? 

Ms. OYAMA. Apps is a tremendous space. We have Google Play. 

As folks move to mobile, being able to purchase legitimate content, 

we are really hopeful that is going to grow opportunities for artists, 

from independent creators to the biggest companies. We are super, 

super excited about the direction of mobile. 

For apps, the biggest thing there I can just tell you in terms of 

DMCA, we have notice and takedown procedures. We kicked out 

about 20,000, 25,000 apps last year under this notice and takedown 

system. 

Mr. MARINO. Chairman, thank you. 

Mr. COBLE. You are welcome. The gentleman’s time has expired. 

For the information of all the Members, we will have 5 additional 

days for the Members to submit appropriate questions and for the 

witnesses as well to respond, so nobody is being cut off. 

The gentleman from Louisiana, Mr. Richmond. 

Mr. RICHMOND. Thank you, Mr. Chairman. 

Let me just say that, especially in my time in the state legislature, sometimes we are forced to act, and I acknowledge that we 

are probably not the best people to act on this because technology 

changes so fast. But if we are forced to act, I don’t think anybody 

is going to like what we do because it wouldn’t be a comprehensive 

solution. So I would suggest that stakeholders get together and figure it out. 

But let me just start with you, Ms. Oyama. You mentioned the 

auto-complete. I guess my question is can you all manipulate or 

manage the auto-complete? Because someone who is just going to 

Google about ‘‘12 Years a Slave,’’ once you get to ‘‘12 Years’’ and 

you see all of them come up, and one says ‘‘free’’ or ‘‘watch for free,’’ 

then you are pushing them to that space even if they didn’t want 

to go there. 
96 

I am thinking of my mother, who is probably not an Internet sophisticated person. So if I can get her to go Google ‘‘12 Years a 

Slave,’’ and she sees ‘‘free,’’ you kind of are enticing her to go that 

way. So can you all manipulate auto-complete at all? 

Ms. OYAMA. I just want to be clear on the interaction between 

auto-complete and search results. You can go into Google Search 

Trends today and you can actually see what real users are actually 

typing in, and you can see that it is the movies and artists. You 

can go into Google, type those queries, and there are clean results. 

On any links that are a problem, we will take them out. We take 

out more than 23 million—— 

Mr. RICHMOND. No, no, I understand the results. But I am strictly speaking of the auto-complete. 

Ms. OYAMA. The policy that we have, actually, it has been a good 

ongoing conversation with rights holders. So our policy is we will 

accept terms. If rights holders are concerned that these terms are 

closely associated with piracy, we have accepted them. We have actually accepted almost every term we have received. 

But a word like ‘‘free,’’ you can’t strike. A word like ‘‘music,’’ 

things like that, there is actually a lot of legitimate content offerings. But if they pass that threshold, there has been a good amount 

of coverage on this. There are definitely terms and words, services 

that have been removed, and it is not a finished conversation. So 

if there are more words that are concerning to folks, that should 

be an open conversation. There are always new services popping up 

or new bad actors, and we want to make sure that that does stay 

updated in real time. 

Mr. RICHMOND. Well, let me ask your opinion on something. I 

represent New Orleans, which is a hotbed of creativity, whether it 

is independent filmmakers, whether it is musicians, and whether 

it is small authors who self-publish. What advice would you give 

them in terms of protecting their copyright, considering they are 

probably not a big corporation and they are just someone who loves 

music and would like to earn a living singing, whatever they are 

singing about? 

Ms. OYAMA. Yes. You know, some of the advice I actually get 

from them, which is how excited they are about the web and how 

important it is for them to be looking at new distribution models. 

So I think 5 years ago if we were having this conversation, everyone, probably even in the industry, was very focused on takedown, 

things we don’t want on the web, or we want total control, and 

today we are seeing tremendous opportunities. When users are getting excited about music, that is awesome for the original creator, 

and they are, in turn, being able to monetize that, get revenue, 

grow their audience. 

So I would really encourage them to stay focused on the enforcement, and different people are more focused on that than others, 

but to also think about the other ways that they can use the Internet to enable their businesses. There was an op-ed that I read this 

morning by Jo Dee Messina, a really well-known country artist, 

and it was titled ‘‘How the Internet Saved My Career.’’ It is about 

how she used things like analytics that would show her where 

users are based who are watching her videos or listening to her 

music, and you can actually add those to your tours. So for the cre-
97 

ators that you are working with there, they may not even realize 

that there was a population of fans in Canada, and they could add 

that city to their tour, things like that, things about collaboration. 

So different artists working together on the web and joining different fan bases together, figuring out I think pretty quickly what 

it is you want as your monetization strategy. So for YouTube, we 

have the ability to run advertising around the content so that the 

rights holder gets the majority. 

Mr. RICHMOND. Right. But I would just ask that you use your 

legal mind and pretend that the artist is your client and think 

about how you would advise them in protecting their copyright and 

making sure that others are not making money off of something 

that they shouldn’t, especially when you look at the investment 

sometimes that people put out in life savings. We don’t want others 

to just come in and take it. 

Ms. OYAMA. Absolutely. 

Mr. RICHMOND. So it is a delicate balance, and I would just ask 

that everybody look at it from the other person’s side so that we 

can get to a good place here where everybody is maybe not happy 

but content and pleased that we are understanding each other. 

With that, Mr. Chairman, I yield back. 

Mr. COBLE. I thank the gentleman. 

The gentleman from Missouri, Mr. Smith. 

Mr. SMITH OF MISSOURI. Thank you, Mr. Chairman. 

Mr. Chairman, I want to express my thanks again for holding 

these copyright hearings. It has been very beneficial and helpful to 

get down to the point. 

And I want to thank all of you for appearing here today. 

And I also want to thank all the stakeholders for working together to help solve this problem outside of this room, and I think 

you can do a lot of that upon your own work. 

But my question is for Mr. Doda. In your written testimony, you 

mention the need for the private entities to enter into voluntary 

agreements to help combat infringement in some sense, and I definitely agree with you, as I mentioned earlier. I tend to be a fan of 

less government involvement in most of our way of life, but we 

have already seen some of these agreements, and for that I applaud the parties involved in those agreements. 

But I would like for you to briefly elaborate on some of the key 

components of what you think these agreements should look like. 

Mr. DODA. Thank you for the opportunity, Congressman. We are 

encouraged at Elsevier by some of the voluntary private agreements, particularly with respect to ad services and payment providers. The difficulty we see with some of those agreements are 

that they, in effect, are a bit cumbersome to accomplish their task. 

I could follow up in more detail, but my recollection of the voluntary agreement with respect to ad services, for example, essentially imposes another layer of notifications. So that would be one 

issue. 

The voluntary measure that I am aware of in the payment sector 

is one that unfortunately is not well suited to a problem that we 

experienced with these host sites that are overrun with useruploaded content. That mechanism, by virtue of the way that pro-
98 

gram operates, would not, in fact, we think, adequately capture 

those types of sites in terms of stopping the payment processing. 

Mr. SMITH OF MISSOURI. All right. Thank you. 

Ms. Oyama? 

Ms. OYAMA. Yes. 

Mr. SMITH OF MISSOURI. We heard a lot today about Google’s 

Content ID program. Could you briefly highlight for us how and 

why this tool was able to be produced, and do you think there are 

ways of improving on it? 

Ms. OYAMA. Yes, thank you. I think the DMCA played a big role 

in providing the foundation for companies like YouTube to develop 

really great tools like Content ID. So YouTube is a well-known 

brand today, but it did start also as a couple of guys in their garage with a great idea, and what the DMCA does is it provides this 

playing field, it provides a system that if you are a new company 

and you are launching your service, you are launching your startup, you can be clear on what the rules of the road are. You can 

get investment and you can start to build, and then over time 

maybe your business gets bigger and maybe you become more well 

known, it becomes more sophisticated. When YouTube became a 

part of Google, we really injected a huge amount of effort, so more 

than $60 million, more than 50,000 engineering hours went into 

building this system. 

What it does today is it allows us to get fingerprint files from 

rights holders. So they will give us the technical fingerprint of their 

film or their song, and then that allows us, when users are 

uploading their content, we scan more than 15 million fingerprints, 

and if there is a match we go back to the rights holder and we ask 

them what they would like to do. They can take it down if they 

want, they can track and use analytics, or they could monetize. The 

vast majority actually choose to monetize. 

We sent more than a billion dollars just back to the music industry alone in the last couple of years. But many more independent 

creators are also making easily six figures on this through those 

channels. This is the way that they grow their audience, the way 

that they reach new fans, and actually how they get revenue. 

So from people like songwriters to artists to filmmakers alike, 

they are using this system extremely well. 

Mr. SMITH OF MISSOURI. All right. Thank you. 

Thank you, Mr. Chairman. 

Mr. COBLE. I thank you, sir. 

The gentle lady from Washington. 

Ms. DELBENE. Thank you, Mr. Chair. 

And thanks to all of you for being here today. 

One thing we haven’t quite talked about as much yet is that 

there are really no borders on the Internet, and we know that as 

we discuss what we do here domestically, we still are going to be 

impacted and content will be impacted internationally. 

So I wanted to get feedback from all of you on what you think 

might be doing well in other places, what issues we should be 

aware of as we look at the impact we are going to have from international laws, international content or people, international 

websites and how they deal with content. 
99 

So I just wanted to start with you, Ms. Oyama, since you deal 

with this already, on how you see what the challenges we face or 

what we need to keep in mind. 

Ms. OYAMA. Thank you. So on the enforcement side, a couple of 

places. One is when we know that sites are based in foreign countries, sometimes they are with countries where we don’t have very 

good diplomatic relationships. Other times we actually do. They 

could be an allied country. So I think figuring out how to better 

apply and coordinate some international diplomatic pressure to target bad actors would be a good place. We have also endorsed ‘‘follow the money’’ strategies, that if we can actually get to those foreign sites, drying up any U.S. ties or any incentives to help them 

with their revenue is super smart. We are really happy to have the 

ad networks best practices in place. 

There are actually hundreds of other ad networks in the ecosystem. So although the leading ones have now stepped up, we love 

to see that spread further so that the real financial incentives of 

those business models isn’t just to get a new ad network but actually to have no advertising. 

The third thing I would add on the foreign policy side is I think 

there is an increasing awareness that there are tremendous 

amounts of the U.S. economy that are economically reliant on these 

other parts of U.S. law. So the exclusive rights have been extremely important for creators. We want to continue to press on 

them. But things like fair use and these safe harbors, many U.S. 

companies, every Internet company relies on these to exist. So if 

we see those safe harbors threatened or eroded in foreign countries, 

that means we wouldn’t be able to deliver our services like Play or 

YouTube into those countries. That wouldn’t be good for the creators for making revenue or for the American companies. 

So I think having that ongoing conversation with new companies 

that are starting to build up their Internet policy frameworks 

would be fantastic. 

Ms. DELBENE. Ms. Schneider, how about you in terms of I don’t 

know if you have had any interaction there. 

Ms. SCHNEIDER. Well, one thing I would say is that sometimes 

I hear people say, oh, we don’t have to do anything really because 

the whole world is such a mess, and I just feel like we should set 

the bar as an example to the world about how to go ahead protecting artists. I mean, a company that is making billions on their 

own patents, thousands of patents, and on artists’ intellectual property, now look at me and my community and what we represent. 

We are hemorrhaging red ink on our intellectual property. There 

has to be something that brings these two sides together and 

makes it sustainable. 

I want to feel good about this whole world. I want it to benefit 

me. I don’t want it just to benefit the big players. And like Ms. 

Oyama said, there was somebody on YouTube that did so great and 

had millions of views. That is like going into a poor neighborhood 

and finding one person that won the lottery and saying, wow, look, 

you won the lottery, while everybody else is suffering. So that is 

my view. 

Ms. DELBENE. Thank you. 
100 

Professor O’Connor, you talked about the kind of blurriness between what we think of as content creators and providers. So as 

we look around the world, do you have feedback on what we need 

to do and what we need to keep in mind and not have just pure 

categories of industry players who are either just content creators 

or are just service providers? 

Mr. O’CONNOR. Yes, thank you for that question. As Ms. Oyama 

was saying, there are a lot of exciting platforms now for artists to 

try to promote their careers, so more and more artists are stepping 

over into being entrepreneurs themselves. So what we need to do, 

though, is to allow them an environment in which they do know 

that they can do the right thing, respect rights, and not be taken 

advantage of by people who then will just relentlessly repost. 

So, in other words, if we don’t give them the right space and 

tools to be able to do the right thing, then they will have to start 

acting like the other side that just relentlessly infringes. 

Ms. DELBENE. Thank you. 

My time has expired. I yield back, Mr. Chair. 

Mr. COBLE. I thank the gentle lady. 

The gentleman from Georgia, Mr. Collins. 

Mr. COLLINS. Well, thank you, Mr. Chairman. 

You know, we are talking about songs and your deep love of bluegrass. I am from the north Georgia mountains, and also remember 

that you helped a gentleman named Earl Scruggs. Here you go, Mr. 

Chairman, here is some bluegrass. 

[Music.] 

Mr. COBLE. Pardon my immodesty, but I was invited to present 

Earl Scruggs with his Grammy Award, oh, I guess five or 6 years 

ago, and I will never forget. He reached over and touched my 

shoulder. He said, ‘‘Thank you, man, for coming out here.’’ Thank 

you for that. 

Mr. COLLINS. I wanted to bring back good memories for you, Mr. 

Chairman. 

As many of you know, I try to bring it back to what the bottom 

line is. That is the user and that is the person, that is the creator, 

that is the formats. And again, that is just from our Chairman’s 

perspective, but we all have those memories. 

Ms. Bridy, I have a question for you. In your written testimony 

you say that it is reasonable for cost of enforcement to fall more 

heavily on content owners. But what about the individual songwriters and the independent filmmakers? They often have limited 

or no technical expertise or software at their disposal to ease some 

of these costs to make enforcement meaningful. 

We met with the Directors Guild, 15,000 independent directors, 

true creative incubators. These are small players who can’t afford 

to absorb those costs with those practical mechanisms to operate 

within the DMCA framework. 

How do you address the small creator issue? 

Ms. BRIDY. I think it is a great question, and I think it really 

is important to remember on all sides of this issue that the different actors are differently situated, right? There are large corporate rights owners and small creators; there are also large Internet service providers—online platforms like Google, and then also 

very much smaller ones. 
101 

So I think that one key would be to make it easier for people like 

Ms. Schneider to navigate the takedown process by having fillable 

forms like Google does. I think it is probably not that expensive for 

most smaller Internet companies to just have a fillable form for 

DMCA compliance so that there can be electronic submission of 

takedown notices. I think that is probably a fairly easy place to 

start. 

But I think it is also important to remember that companies like 

Google have the money to be able to make the investments to have 

these really sophisticated tools. We also have to be careful to think 

about the startups that don’t have that money and to be careful 

when we are imposing burdens to make sure that they are not 

going to be felt disproportionately by small Internet companies. 

Mr. COLLINS. And I appreciate that because that is a concern. 

Ms. Oyama, we have talked before, and I am glad you are here, 

and these are interesting issues. But in a follow-up to that discussion, again concerned about the smaller creator in this, you mentioned just a few moments ago that YouTube was once a small 

startup; Google was as well. Now it has grown to the point where 

my folks in northeast Georgia have the world literally at their fingertips as far as access not only to your platform but others. 

Because of your success, we need your continued help with the 

Internet ecosystem. The small creator needs your help, and I don’t 

want Congress to have to legislate. It has been talked about that 

this is something that we can work on. I want the industry to be 

able to use voluntary agreements to effectively fight online piracy, 

and you guys are doing a pretty good job at that. But I am afraid 

the volunteer agreements may not be taking into account the quieter voices of some of the smaller creators. 

Is there anything that Google can do to help navigate Section 

512? And I have a follow-up to that, as well. 

Ms. OYAMA. Sure. I actually really very much agree with what 

Professor Bridy said. So making this process as simple and automated and low cost as possible for everyone I think is a place 

where automation can play a big role, so the web forms that we 

have across our products. 

The second piece would be there is actually a very thriving vendor market in this space, so people that are becoming very specialized in sending these notices. So no one is touching keyboards. It 

is automated on one side, it is automated on the other side, and 

many different people can use those services. Those folks that have 

specialties in this area are getting smarter and faster about it because it is their expertise. 

So if we can also bring them into the conversation, if they have 

tips and tools about how to find piracy and how to quickly send so 

it is quickly removed. 

Mr. COLLINS. And very quickly, most of your requests are taken 

down within a matter of hours, but there is a small percentage that 

do not get taken down quickly, and one of the reasons given is you 

need additional information. While we are talking about this, what 

is the additional information? And if we are looking at making 

changes here, how could we incorporate that into the discussion 

here? Why is there an additional information lag? 
102 

Ms. OYAMA. I think the web forms have a pretty simple place to 

fill those out. So if they are rejected because of a lack of information, it would be a deficiency that someone hasn’t filled in the basic 

requirements of the form. So one example could be if you were unclear about who was the owner of the copyright. 

So the notice and takedown regime I think rightly, as Congress 

set it up, gives rights holders, the creators, the owners of the work 

the ability to send, but you wouldn’t want somebody else in the 

public saying what to do with Ms. Schneider’s work. 

So if it is not clear, you are not saying you are the authorized 

person—— 

Mr. COLLINS. And we are just trying to figure out how can we 

help make it clear to say this is what you need to do. But I appreciate it. 

Thank you, panel. 

Mr. Chairman, I yield back, Earl Scruggs and everything. 

Mr. COBLE. I want to say to the gentleman from Georgia, thank 

you for that intro. 

And for the benefit of the uninformed, the late Earl Scruggs, the 

late North Carolinian Earl Scruggs was generally recognized as the 

world’s premier five-string banjoist. 

Thank you again, sir. 

The gentleman from New York. 

Mr. JEFFRIES. Thank you, Mr. Chairman. 

Let me thank the witnesses for what I think has been a very informative discussion. 

Let me begin with Professor Bridy. The Supreme Court in the 

1975 decision—I believe it was written by Potter Stewart—20th 

Century Music Corporation v. Akin, made the statement, ‘‘The immediate effect of our copyright law is to secure a fair return for an 

author’s creative labor. But the ultimate aim by this incentive is 

to stimulate artistic creativity for the general good,’’ a statement 

made by the Supreme Court about the underpinnings of our copyright law. 

Would you agree with the sentiment that was expressed by the 

Court in this opinion? 

Ms. BRIDY. I do very much agree with that. I think that it is very 

important to secure to creators a return on their investment so 

that they are incentivized to create more creative content for the 

public, but that ultimately the system is designed to deliver creative works to the public. So I very much agree with that statement, and I think that the DMCA has really worked a good balance 

to try to help that policy objective to thrive in the digital environment. 

Mr. JEFFRIES. Now, I agree with your observation that the 

DMCA should be or is correctly about promoting a balance between 

sound copyright policy on the one hand and sound innovation policy 

on the other. And in the context of sound innovation policy, is it 

fair to say that a robust safe harbor provision is important to allowing for innovation to continue to flourish in the digital age? 

Ms. BRIDY. I think it is crucial. I think there is no question. 

Mr. JEFFRIES. Now, as it relates to the applicability of the safe 

harbor provision to Internet companies, it is my understanding 

that if there is either actual knowledge or red-flag knowledge of in-
103 

fringement activity, then that safe harbor provision is no longer applicable; correct? 

Ms. BRIDY. That is right. It puts them outside the safe harbor. 

Mr. JEFFRIES. Now, in the context of how courts have defined 

red-flag knowledge, could you provide for us some clarity as to 

what the current state of the law is in this area? 

Ms. BRIDY. Sure. I think we are going to get some more guidance 

in not very long from the Second Circuit on this issue because the 

Viacom v. YouTube case is on appeal for the second time in the 

Second Circuit, and one of the issues that is live before the Circuit 

now is what the interaction is between red-flag knowledge and this 

doctrine of willful blindness about which Professor O’Connor spoke 

earlier. 

So I think that most of the courts that have decided this issue 

have said that red-flag knowledge is knowledge of facts or circumstances from which infringing activity is apparent and that the 

knowledge in question can’t just be generalized knowledge. It has 

to be red-flag knowledge of specific instances of infringement on a 

service provider’s system. 

Mr. JEFFRIES. Thanks. 

Now, Professor O’Connor, in your view, have the courts provided 

either sufficient guidance as it relates to red-flag knowledge? And, 

as they have defined this area, has it been sufficiently robust to 

make this particular provision meaningful? 

Mr. O’CONNOR. Thank you, Representative Jeffries. Respectfully, 

I don’t think they have adequately taken care of the doctrine. I 

think that, as Professor Bridy is saying, they really are limiting it. 

Well, she might not be saying that, but to where you have actual 

knowledge of that particular work. So it gets narrowed and narrowed, so that even if you have a sense that there is lots of infringement going on, you can still essentially turn a blind eye to 

it, and I don’t think that was the intent. 

So I do again suggest respectfully that Congress could consider 

setting the policy on what willful blindness should be. If you are 

aware there is infringement going on on your site, you should take 

some steps to mitigate it. 

Mr. JEFFRIES. Now, I would note that in other areas of the law, 

you have a commonly understood principle of either actual knowledge or constructive knowledge. The term ‘‘constructive knowledge’’ 

doesn’t appear in the DMCA, but presumably that is part of what 

Congress had intended in terms of bringing this particular provision to life. 

But, Ms. Oyama, I would also note that perhaps there is a reasonable argument that the Internet context is different. In the 

fraud instance, for instance, constructive knowledge requires a 

duty of inquiry which it appears the DMCA explicitly did not impose in this particular instance. 

What are your views as it relates to whether red-flag knowledge 

should be more broadly defined? 

Ms. OYAMA. I think, actually, the Internet context makes the requirement of knowledge of specific infringing acts even more important because of the diversity and the ecosystem and the different 

ways that creators are engaging with content. 
104 

So just because—imagine we were even able to say this is a song 

and this is all the places that it appears. Artists have very different 

standards on where they want it to appear, who they are authorizing, who is not allowed, who is allowed, and so that is why we 

need that cooperative process where they specifically tell us this 

one is okay, this one is not okay, this one I didn’t know about but 

actually that is really cool, that one can stay up. 

I think you want to make sure that we are not giving the wrong 

incentives to online services and platforms to build and innovate in 

this space. So if you narrow the safe harbors and you make it more 

risky for providers to be innovating in this space or building on 

their own above the law, filtering and monitoring and things like 

Content ID, you are going to make everybody very fearful that they 

are going to hit up against this legal liability. So I think creating 

a very clear and certain platform that then allows people to experiment and build better systems so that all of the businesses can be 

licensing and earning revenue from the content is the right direction to go. 

You don’t want to inject a lot of fear and confusion into the ecosystem, especially with small companies that are trying to get investment. They don’t want to get sued out of existence. If you start 

to impute more things of you might be taking actions and this will 

show you are willfully blind, no one understands what those standards are. They are very vague. That is going to be the wrong incentive, because they are not going to be trying to fix these problems 

voluntarily. 

Mr. JEFFRIES. Mr. Chair, if I could just ask one brief follow-up 

question. 

At the beginning of my remarks I referenced the Supreme Court 

decision that notice and principles, laws that can be boiled down 

to fair return and stimulating artistic creativity as underpinnings 

of our copyright law. Would you agree that those still remain, even 

in the Internet context? 

Ms. OYAMA. Absolutely. 

Mr. JEFFRIES. The value of the innovation economy is a strong 

thing for us to consider? 

Ms. OYAMA. Yes. I think incentivizing creativity is the place that 

we should all be looking toward and kind of working backwards 

from in terms of policies that we would support. It is an exciting 

time. There are more creators that are able to gain access to the 

tools of creation, to distribution, and to monetization. These industries are changing, but I think that is an exciting thing. There is 

more creativity out there than ever before. 

Mr. JEFFRIES. Thank you, Mr. Chair. 

Mr. MARINO [presiding]. You are welcome. 

The Chair recognizes the Congressman from Texas, Judge Poe. 

Mr. POE. I thank the Chairman. 

Thank you all for being here. 

As a former judge, I don’t like stealing, sneaking around and taking somebody else’s property. It is just bad, especially car thieves. 

My Jeep was stolen, and I was mad until they found the outlaw 

who stole it. But that is what we are dealing with in this whole 

thing, Internet thievery, piracy, if you will. It is a little different 

than most crimes in that generally in criminal situations you have 
105 

law enforcement involved. Here, we are trying to solve this problem 

through the private sector. I think that is the biggest difference. 

And hopefully we can move down the road so people quit stealing 

from Ms. Schneider and Willie Nelson and everybody else. 

I have some questions for all of you. I will just see how far I can 

go before he gavels me. 

I want to thank Ms. Oyama and Google for what you have done 

on Internet trafficking issues and what you have done on the sites 

and helping stop this scourge, especially of child trafficking. Google 

and others are to be commended for this because it is just dastardly, and I hope we can solve that issue and catch those folks. 

Going to a specific thing while we are here, apparently we have 

all been on our iPhones looking up things on the Internet while 

this has been going on. I preferred to go to ‘‘House of Cards’’ to see, 

fantasy House of Cards. How does Google rank people who are— 

I think I am a typical person that uses the Internet. You go to one 

of the first three sites, you don’t even have to go to the second 

page, and it seems to me like the first, maybe the first one was 

valid, but the second two I was kind of suspicious. 

Is there a way you can do this with your algorithms to make sure 

that the bad guys aren’t at the top of the page when you look up 

House of Cards? 

Ms. OYAMA. Yes. I think the system that Congress set in place, 

the notice and takedown system, is extremely well suited for that, 

because as soon as we are alerted, link 2 and 3 were bad, those 

are gone. So our average turnaround time is—— 

Mr. POE. How did they get to be 2 and 3 to begin with? That is 

my question. 

Ms. OYAMA. Well, I think ‘‘House of Cards’’ is a great example. 

It feeds into the conversation we were talking about, what types of 

results are showing up. So if you Google ‘‘House of Cards,’’ take a 

look at what is there, it is going to be legitimate stuff. It is going 

to be the show’s website and hopefully the knowledge panel and 

things about the actors. 

Just in terms of kind of feeding back into the Search Trends conversation—— 

Mr. POE. Just a second. Let me interrupt, because you have already lost me. I pull up ‘‘House of Cards,’’ I think I see the valid 

‘‘House of Cards,’’ but I think I see some thievery going on, like the 

2nd and 3rd, maybe the 4th one. How does that happen? Is there 

a way to prevent that from ever getting to be in those places without having to take them down? That is my question. 

Ms. OYAMA. You could attack the people that are putting that up 

at their source. So sometimes it is a mistake, and I think the notice 

and takedown process is a good place there. 

Mr. POE. Okay. I am a thief. I am stealing ‘‘House of Cards.’’ 

How do I get it to be number 2 when you pull up ‘‘House of Cards?’’ 

That is my question. 

Ms. OYAMA. It is not number 2. 

Mr. POE. Okay, 3, 4, right up near the top. 

Ms. OYAMA. It is not near the top for ‘‘House of Cards.’’ 

Mr. POE. Those are all legitimate sites. 

Ms. OYAMA. They are going to be legitimate results, and ‘‘House 

of Cards’’ is something like 121 times more popular than ‘‘Watch 
106 

House of Cards.’’ So my point is the users are searching for ‘‘House 

of Cards.’’ Those are the types of shows they look for, and then you 

can look in Google search results. Those are legitimate, clean sites 

because they are popular and we have done a lot of strong work 

there. 

If it is a really bad actor, so if it is a company that is dedicated 

to spreading this kind of content and that is what has appeared, 

there is a role for intermediaries, and we are always working on 

building better and faster tools so that those will be removed. All 

we need to know is know that there is a problem, there is a link, 

we will take that out very quickly, 6 hours or less. You don’t have 

to go to a court. It is a very special power. 

But if there is really a rogue actor out there that is determined 

to just keep resurfacing these, we have to figure out how to also 

direct our strategy to the source of the problem so that all of the 

service providers aren’t in the same situation as the rights holders. 

We are all here together trying to scrub this stuff out. You have 

to disincentivize them and strike their business model or use civil 

law enforcement. 

Mr. POE. I am going to reclaim my time. I have two more questions. 

Seventy-three thousand takedowns in 2 years; is that right? 

Ms. OYAMA. Just out of the advertising system. Total, it is about 

230 million last year. 

Mr. POE. Okay. How much does that cost? How much does that 

cost? Make it so I can understand it. 

Ms. OYAMA. It is pretty much unquantifiable because we have 

hundreds of folks that work on it. We have invested tens of millions of dollars into these systems. It is a huge burden. 

Mr. POE. So you don’t know. 

Ms. OYAMA. A total number, no. It is lots of people and lots 

of—— 

Mr. POE. Okay. Take 6 hours to take down one site. How many 

people do you have reviewing those sites to take them down within 

6 hours? 

Ms. OYAMA. That is a great question. So for the most part at this 

point, because of the engineering effort that we have invested in, 

the tools, the bulk submission tools, trusted users, where we realize 

95 percent of the requests that we were getting are actually from 

a fairly limited number, like 50 major rights holders, we have developed faster tools to do that better. 

Across the company we have hundreds of people that work on 

these things, from engineering to legal, developing our policies, 

making them really clear. We prohibit infringement on our products. We don’t want that. We have the same incentive as the content industry and the rights holders in that we are building businesses like Google Play and YouTube that are licensed. They are 

licensed with the studios, the labels. Independent creators can use 

these. We share revenue if creators are getting revenue. No one is 

making any money if somebody clicks on something in search and 

they are going to a bad place. So we are all losing money there. 

Mr. POE. You don’t know how many people, just hundreds of people? 

Ms. OYAMA. Hundreds of folks, yes. 
107 

Mr. POE. Okay. Well, I hope you all can figure out a way to solve 

the problem without really getting a whole lot of government involved in this. Sometimes the government makes it worse, not better, no examples to be used. So I understand the problems and I 

hope we can figure out a way to solve this so people like Ms. 

Schneider stay in business and the thieves quit stealing. 

And I will yield back to the Chairman, who has let me go over. 

I appreciate it. Thank you. 

Mr. MARINO. Thank you. 

The Chair now recognizes the gentleman from Rhode Island, 

Congressman Cicilline. 

Mr. CICILLINE. Thank you, Mr. Chairman, and thank you to the 

witnesses. 

I think that protecting the creative products of artists and creators and the long-term success of the Internet and technology are 

more closely aligned than maybe we all realize. So navigating 

through these issues I think is particularly important. I am new 

to this Committee, so this hearing was very useful to me. 

But one thing I wondered is, in the very creation of Section 512, 

I mean, I have seen in the past safe harbor provisions that are created often after an actor is required to try to do something and has 

tried in good faith but has been unsuccessful, and so they are offered safe harbor. Section 512 doesn’t require that at all. 

So I guess one remedy would be to add a section that says the 

service provider has engaged in a good-faith or reasonable effort to 

prevent infringement of copyright. I think the reason that that was 

included—and I wasn’t here—was we wanted to protect the certainty and the growth of the Internet and not put that burden on 

the service provider, and I think for all good reasons. 

But in light of what we have seen over the last several hours of 

testimony and what we know, it seems as if this kind of re-posting 

problem has made the notice and takedown provision a bit of a 

mockery. While there has been a lot of conversation about how we 

have improved it to make it easier to file it and quicker to respond 

to it, if you can just re-post it instantaneously, that is all well and 

good but it is not really having the effect we would want. 

So I suppose one other remedy we could provide is in this Subsection C where it says ‘‘obtaining such knowledge or awareness, 

acts expeditiously to remove or disable access to the material,’’ and 

we could add ‘‘and prevent its re-posting.’’ So that is another mechanism that would seem to me an obvious solution. 

I recognize that it is much better if the industry figures this out, 

and I hear that from artists, and I hear that from creators, and I 

hear that obviously from technology entrepreneurs. But it does 

seem to me that if the technology exists when notice is provided 

that this is a copyright infringement, that we ought to have the 

ability not only to have it taken down but to prevent it from reoccurring. That doesn’t solve all the problems, but I think it is what 

Professor O’Connor spoke about, Mr. Doda spoke about. But isn’t 

that the responsibility of the industry to figure out how you, as 

Judge Poe said, not put all of this burden on the victim of the 

crime? And isn’t it at least saying once you go through the burden 

of identifying it, notifying us, we will at least honor your request 

by not requiring you to do that non-stop all day? 
108 

I don’t know who wants to respond to that, but it seems to me 

like a pretty obvious solution. 

Ms. SCHNEIDER. May I again make these points? Okay, I think 

what could really solve and save companies like YouTube a lot of 

takedown is just to have for the person uploading some educational 

steps that they go through, not just clicking one box but asking 

them certain—are you sure? Is this something you wrote? Okay, if 

not, et cetera. Who knows? I mean, that has to be worked out. 

Mr. CICILLINE. Right. 

Ms. SCHNEIDER. And then the streamlined, I applaud definitely 

the streamlined takedown. But, you know, the other thing is the 

Content ID, stopping it before it is there, like they do. I mean, if 

you didn’t have Content ID for those big companies, I can’t even 

imagine how big your takedown numbers would be. They would be 

insane. So imagine if Content ID worked for everybody and if we 

all then could find other ways to either stop or monetize. 

Mr. CICILLINE. Thanks. 

Mr. Doda? 

Mr. DODA. Thank you, Congressman. I think hand in hand with 

what you identified is that many times the re-uploaders are repeat 

infringers. So another way that we can attack the problem is to 

have strengthened repeat infringer policies, clearer policies, clearer 

parameters around tracking repeat infringers and ensuring that 

those actors are kept out, because they contribute substantially to 

the re-upload problem. 

Mr. CICILLINE. Professor O’Connor? 

Mr. O’CONNOR. I want to follow up on Ms. Schneider’s comment 

and make it clear, too, that one of the educations that could be 

done would be directing people who want to upload things to copyright clearance centers, licenses. There are a number of mechanisms that, as Representative Farenthold was curious about before, 

is it hard? Do they have to contact Ms. Schneider directly? There 

are many mechanisms to do this legally to put up the content you 

want. 

Mr. CICILLINE. Ms. Oyama, I just want to say thank you for all 

the work that Google has done in this area. I know that there is— 

while you are not the only one, there are obviously thousands and 

thousands of providers and search engines, but certainly the leadership of Google matters a lot, and I hope this is an issue that you 

will take on and lead to really figure out how we prevent this sort 

of re-posting and protect the creative products of artists and musicians and writers in a more effective way, and this sort of re-posting problem, which has really been identified as a serious one, I 

hope Google will help be part of the leadership that solves this 

problem. 

Ms. OYAMA. Thank you. I think the education points you made 

are really well taken. It is something we worked really hard on. We 

have a YouTube Copyright School. If you get a strike against you, 

we send you to Copyright School to kind of learn some of the basics 

and earn your strike off. We have a very strong repeat infringer 

policy where if you are a repeat infringer you get ejected. 

I just do want to flag, I think some of the language that you read 

in the beginning, I can understand why that would sound attractive to impose on all service providers this requirement to prevent 
109 

re-posting, but those service providers, they don’t know if it is infringing or not if they don’t hear from the rights holder. So that 

kind of duty, if it was enacted into legislation, it would require a 

service provider who has linking or comments or tweets on their 

system to somehow, before that user is able to add a link and a 

comment, somehow filter that out, know who was the rights holder, 

who was authorized. It would really chill the same services that 

are sending hundreds of thousands and hundreds of millions of dollars back into the content industry. 

So I just think we need to be careful when we are thinking about 

what those types of words would do on innovation. 

Mr. CICILLINE. No, I think that is exactly right, which is why I 

think all of us are very hopeful that the industry will come together with all the stakeholders and develop good standards and 

good, responsible actions so that we don’t attempt to try to solve 

this problem, because I think you are right, we may do more harm 

than good in the end. 

I thank all the witnesses and yield back. 

Mr. MARINO. The Chair recognizes the gentle lady from California, Congresswoman Lofgren. 

Ms. LOFGREN. Thank you very much, Mr. Chairman. I think this 

has been an instructive morning. I am thinking back to when we 

crafted the DMCA, and clearly, without safe harbor notice and 

takedown, there would not be an Internet. It wouldn’t exist. So I 

think it is important that we recognize that and, as with the doctors, first do no harm. 

Thinking about what Google has done with YouTube, it is really 

impressive to spend that amount of money, $60 million, 50,000 

hours of engineering time, so that you can actually give a tool to 

artists to protect themselves. I want to commend you for that. Not 

all the artists know about that. So there may be some efforts that 

you might want to make to further publicize the opportunity, because sometimes I meet artists and they don’t know. 

But the other thing that I think is interesting is that you own 

the data. I mean, you own YouTube, and you can take the fingerprint, and you can match it against your files, and that is entirely 

different than search and information that is out there. So as I am 

thinking about Content ID, I mean, it is a trivial matter to make 

a minor change to encryption or something else on re-posting. 

There is no way technologically that you could use the Content ID 

system to automatically scan on re-posting, is there, Ms. Oyama? 

Ms. OYAMA. In a context like search, no, because the basic differences between the hosted platforms and something like search, 

the hosted platforms, we have two sets of data. So we have the reference files from the rights holders. 

Ms. LOFGREN. Right. 

Ms. OYAMA. We have the user-uploaded content. For search, we 

don’t have either of those. We definitely don’t have the content of 

every website. We might have some text. We might be able to copy 

text on the pages, but we don’t have the embedded videos or other 

content. So there is no match on that side. 

And then without the cooperation of the rights holders, we 

wouldn’t know what the rights are in this setting. 
110 

Ms. LOFGREN. But let’s say you get a notice and takedown and 

you have the technological information on the file. You could just 

re-encrypt and upload and that would defeat the information that 

you were provided. Isn’t that correct? 

Ms. OYAMA. Yes, and that is why on the notice and takedown 

system it is important to continue to work on how to make that 

easier, more simple, faster, better for everyone. But that cooperative, kind of shared risk/responsibility piece, it is a delicate balance 

and incorporates a lot of different equities and has been the foundation for the Internet economy. 

Ms. LOFGREN. Well, I remember when we went into the SOPA 

battle. One of the things that it is important for us to keep in mind 

is to not suggest things that are technologically impossible and that 

might actually destroy the inner workings of the Internet, some of 

which have been discussed here today. 

I want to talk also about Google is a big company with lots of 

money. You spend a lot of money to deal with piracy. I thank you 

for that. I think you are probably going to do more. I thank you 

for that, as well. 

On the other hand, WordPress has 48 million websites. I think, 

according to your testimony, in the month of February, 740,000—— 

Mr. SIEMINSKI. New sites. 

Ms. LOFGREN [continuing]. New sites were established. The idea 

that you could provide the same kind of scrutiny—I mean, each 

post, it could be part of a poem, it could be a link to—I mean, how 

would you possibly accomplish what YouTube has done with millions and millions of people who are also creators? They are creating websites, commentaries, poems and the like. How would you 

address that? 

Mr. SIEMINSKI. That is a great question. Thank you. I think, 

number one, it is important to point out that YouTube, as you said, 

did great work in developing Content ID with $60 million and with 

hundreds of engineers, which is many times the size of our entire 

company. So what they can do technologically I think is very different than what we can do technologically, and there are thousands of companies that are much smaller than us that are also 

subject to the DMCA. 

But to your second point, I think that is a very important one, 

because even if we could develop technology to identify a file as 

copyrighted or what-have-you, that doesn’t answer the question of 

fair use or other rights that someone may have to post that to your 

website. You can’t answer that question with technology. 

Ms. LOFGREN. Let me just do a final question because there was 

testimony both from Ms. Oyama and also you, sir, about abuse of 

notice and takedown. When we wrote the DMCA, that was an issue 

that I talked about publicly because if you are the ISP and you get 

a notice and takedown, you don’t have an incentive to stand up for 

the First Amendment rights of the people whose stuff you are taking down. Your entire incentive is just to take it down and not 

cause a problem. I saw from your testimony that you have seen 

cases where, for example, someone criticized a poem, and the poet 

who didn’t like the criticism did a notice and takedown which was 

improper. 
111 

What percentage are you seeing of those kind of improper uses, 

both Ms. Oyama and yourself, and do you think that some kind 

of—I mean, there is a disincentive that is financial for someone 

who flouts the notice and takedown. Should there be the same kind 

of financial disincentive for somebody who blatantly abuses it from 

a fair use point of view? 

Mr. SIEMINSKI. Yes. I think the answer is yes to your second 

question. As I mentioned, there is statutory damages for copyright 

infringement, but there is no penalty at all for the other side of 

that equation. So, yes, I think there should be those penalties. 

We do see—it is not by any means the majority of the notices we 

get. It is a small handful. But even a little bit of censorship isn’t 

okay in our opinion, and I think that relative to the kind of whacka-mole problem or the other large-scale, the other types of issues 

we have been hearing about on the panel today, we don’t see any 

of that on our platform because we are not a filing-sharing platform. We are like most other sites on the Internet where we are 

providing a platform for people to post original content, and in that 

context the problem that we see is these abusive notices. It is not 

the majority of them, but it is the majority of the issues that we 

see. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

Mr. MARINO. The Chair recognizes the gentleman from California, Congressman Issa. 

Mr. ISSA. Thank you, Mr. Chairman. This is an important hearing, and sometimes these hearings are d?j? vu all over again. We 

have been here before, and I am sure we are going to be here 

again. But let me go through a couple of questions that I think will 

help make at least this moment in time accurate to the status quo. 

Professor O’Connor, happy St. Patrick’s Day. 

Mr. O’CONNOR. Thank you. 

Mr. ISSA. But more importantly, you are a law professor. I assume you went through law school some years ago? 

Mr. O’CONNOR. Yes. 

Mr. ISSA. Did you ever get a Xerox copy of something that was 

presented to you as a student? 

Mr. O’CONNOR. You mean from my professor? 

Mr. ISSA. Yes, a photocopy at a class. 

Mr. O’CONNOR. Yes. 

Mr. ISSA. And if he gave it to everybody in the class and it was 

a substantial portion of a copyrighted material, isn’t that a copyright violation? 

Mr. O’CONNOR. Well, there are interesting questions about classroom use and fair use, and I have to be quite honest that I don’t 

think I ever got something that was the majority of, say, a book. 

It was usually just a few pages or an article, so I don’t know that, 

especially my being a law student then, that I had the ability to 

say whether it was classroom fair use or not. 

Mr. ISSA. Okay. But you went through law school or to undergraduate school in the 1980’s or 1990’s? When was it? 

Mr. O’CONNOR. Eighties. 

Mr. ISSA. Eighties. So at that time, there was no Google, right? 

Mr. O’CONNOR. Correct. 

Mr. ISSA. Well, let’s just bring ourselves up to date a little bit. 
112 

Ms. Oyama, if today in the online world the equivalent is occurring—in other words, somebody is using it in an online class, they 

are posting it on a website, et cetera—and let’s just say that the 

professor here now wants to find out if somebody is doing the right 

or wrong thing, isn’t to a great extent what Google provides to the 

copyright community a virtually unlimited instantaneous ability to 

find copyright or potential copyright violations or abuses in the 

open web? 

Ms. OYAMA. I think that is right. Actually, there is this vibrant 

market that is growing of vendors that specialize in this. Sometimes I think they use these same tools to find where the problem 

is so they can then go on and attack them. 

Mr. ISSA. Well, Ms. Schneider, obviously as a composer, I would 

sort of do the same thing, a composer, writer, producer. You are 

much younger, of course, than the professor, but three or four decades ago you wouldn’t have known that somebody was ripping off 

your music unless somebody happened to report because they could 

photograph it, photocopy it. I can remember that the Catholic 

Church and other churches finally got called on using sheet music 

by simply mimeographing it and handing it out, but for generations 

they had not been held accountable to pay, and it wasn’t fair use 

but they would have implied that giving everyone in the choir a 

copy of somebody’s sheet music was okay. Do you remember hearing about that? 

Ms. SCHNEIDER. Do I remember hearing about that? 

Mr. ISSA. Yes. 

Ms. SCHNEIDER. Yes. 

Mr. ISSA. So a vast amount of this was going on, and for the most 

part it was impossible to track. Do you agree that today one of the 

disadvantages that leads to takedown is that it is fairly inexpensive for people to put things on the Internet? But isn’t one of the 

advantages the fact that you now can quickly, you or a service can 

quickly find infringers on the Internet where you couldn’t have 

found them, they were just copying for church on Sunday in Tuscaloosa? 

Ms. SCHNEIDER. You know, the digital age opened it up to such 

an expansive point. And I would like to point out that you were 

saying three or four decades ago. I mean, I don’t know, maybe we 

were talking about cassettes at a certain point, which weren’t very 

good quality, and then—— 

Mr. ISSA. I want you to know I was selling 8-tracks in college, 

so please do not lecture me on how bad they were. [Laughter.] 

But they were great in trucks when you couldn’t hear anyway. 

But the point is you are arguing that somehow this new opportunity, which is, of course, creating a huge amount of sales—the 

majority of songs soon will, if they are not already, be sold online. 

Aren’t we dealing with a balance of takedown allows for somebody 

to be essentially tried and convicted by an accuser? That is the current law, that you accuse. I am the copyright holder, I want to take 

him down. You get an immediate adjudication, effectively, and 

takedown, and yet I am being asked periodically to do more. SOPA 

and PIPA obviously was a discussion about doing more, having the 

Justice Department go out and criminalize this and do the work for 

copyright owners and so on. 
113 

Isn’t it today, unlike 10 years ago, 20 years ago, 30 years ago, 

the fact that you now can find and instantaneously, even automated, find and potentially accuse infringers and cause takedown 

notice? Isn’t that the status quo? I just want to establish not right 

or wrong, not whether there could be more done, but isn’t that really the status quo, that when the professor was in school, nobody 

knew whether his professor was making copies under fair use or 

not? It just wasn’t available. The music, those 8-tracks, the bootleg 

8-track industry, nobody knew how many were sold and whether 

a truck stop had legal or not legal. 

You know, or at least have the ability to know, don’t you? 

Ms. SCHNEIDER. I can tell you that—I am just going to take a 

little step back. 

Mr. ISSA. But the only thing I want you to do is—— 

Ms. SCHNEIDER. The answer is no, it is not good, because there 

is so much of my music out there now compared to 8-track cassettes. 

Mr. ISSA. Ma’am, I only wanted you to answer the question, and 

then you can talk as long as the Chairman lets you. 

Ms. SCHNEIDER. Okay. 

Mr. ISSA. Isn’t it true you now can find that out, where you 

couldn’t have when the 8-track was being sold at Pop’s Truck Stop 

30 or 40 years ago? 

Ms. SCHNEIDER. Of course that is true. I can find it now. 

Mr. ISSA. Okay. 

Ms. SCHNEIDER. But the quantity that is out there is just so vast. 

Now, I will tell you, in 2003 when this thing started, I happened 

to be—I consider myself the most well-equipped musician I know 

in the age of the Internet because I just happened to get on-board 

as the first artist with this company called ArtistShare. The whole 

idea was that we are going to connect directly with our fans. I am 

going to make a record, fan funding, and I am going to share my 

process. 

So I am a very insulated artist compared to most artists because 

I have established these questions. But even amidst this, with all 

these sites, there is so much of my content out there. The other 

night, in 20 minutes, I found 11 sites with just endless songs of 

mine that popped up again and again and again. 

So the ease and the scope at which people can do things now, it 

is impossible to rein it in, and it is so financially damaging to us. 

One point I want to make about this is that the vast, vast majority 

of artists now are paying for their own records. In the age of recording companies, the good part of recording companies is that 

when they invest, they took on the financial risk of a record. Now 

we are taking on the financial risk. All the record companies are 

done, and we are trying to pay back our loans, our mortgages on 

our houses, whatever we are doing to make these records in an age 

when everybody is stealing. It is really—I can’t tell you how impossible it is to negotiate this. 

Something has to change, and I am asking, please, Congress, do 

something to change this. 

Mr. ISSA. Mr. Chairman, if I could ask Ms. Oyama if she had 

anything to comment on, on the ability, the speed of takedown and 

the automation, if she has an answer to that. 
114 

Mr. MARINO. The Chair recognizes her for 30 seconds. 

Ms. OYAMA. I think we are seeing the volumes of takedowns 

going up because the World Wide Web is expanding, but the takedowns are going down. The turn-around times are going down, and 

that is the place where you want to incentivize more folks to do the 

right thing when they can develop automation and things like that. 

Mr. ISSA. Thank you, Mr. Chairman. 

Mr. MARINO. The Chair now recognizes the gentle lady from 

Texas, Congresswoman Lee. 

Ms. JACKSON LEE. Again, I would like to as well acknowledge 

this hearing as a very important hearing. 

Ms. Schneider, let me thank you for framing a very large issue 

for not only yourself but so many talented artists. Those of us who 

have served on this Committee for a period of time, we can recollect traveling to places such as Italy and Spain and China with 

then-Chairman Hyde on the issue of the question of intellectual 

property, and at that time it was in films and music. 

So I think this panel is very good because we have an appropriate balance and we have contributors to a solution to what you 

have just assessed. I want to find a solution. 

We are blessed to be in a new age, and I think I have heard 

quite a bit of compliments for Google. I will add mine because we 

need the continued technological inquiry to be able to keep moving 

and to find ways to address the respect for intellectual property, as 

well as for the new technology that we have. 

And that is why I want to go to Professor O’Connor and have 

him lay out for us, in Stage 2 of your first proposed solution that 

was in your testimony, you would have Congress add an affirmative duty to monitor for and remove re-posted works. Can you expound on that solution for a moment? 

I want to come back to Ms. Oyama again for a very exciting— 

I would just like to hear how it would work. The monetizing thing 

is a very exciting concept. Will it grow? Will you look for new technology to make it even more refined and more accessible? Because 

as I listen to the sophistication of Ms. Schneider, she is indicating 

that there may be rooms full of individuals that are not that sophisticated. 

But, Professor O’Connor, if I could. 

And I have a question for you, Mr. Sieminski, as well. 

Yes, Professor O’Connor? 

Mr. O’CONNOR. Thank you, Representative Jackson Lee. I appreciate this opportunity. I want to point out a couple of things. One 

is that we live in a digital world now, and so the content can be 

reproduced so much more quickly that simple mimeographs, as 

Representative Issa was talking about, really is not the world we 

live in now. So the reason why I want to have the red-flag provisions strengthened is because I believe that for the things that are 

the entire work and they are just being flagrantly re-posted, and 

because we do have Content ID, but as I mentioned before, it 

picked up even my song when I was playing a small snippet of a 

ZZ Top song, that is impressive technology. 

So I believe that we can do this. Again, let’s just target the flagrantly infringing material and try to get that taken down, lower 

the volume of takedown notices. 
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Ms. JACKSON LEE. And who are you going against when you do 

that? Because we have to be sympathetic to the providers versus 

those who have content. Where is that going to be focused? 

Mr. O’CONNOR. So I think everyone would agree that we really 

want to get the people who are posting in the first place. But at 

the same time, why I focus on strengthening willful blindness is because we can’t have this culture of copyright contempt where even 

startups are saying, look, I guess this is the game. The game is 

that I have to just turn a blind eye and let everyone post whatever 

they will. I can’t monitor or I will get myself into trouble. I think 

we have set up the incentives exactly backwards. 

Ms. JACKSON LEE. So I think what we would want is a really intense discussion listening from both sides of that. 

Ms. Oyama, you have made—well, let me just say, you all have 

looked for answers, as we understand it. So how far can we take 

that monetized approach that you are using, which I think is very 

interesting? I like the billion-dollar number. I like the partnership. 

How far can we take that? 

Ms. OYAMA. I think the sky is the limit. We are seeing a really 

big uptick in the number of consumers globally, so not just in U.S. 

consumers but globally that are trending toward mobile and other 

devices. So as markets expand, as there are more users, more consumers of music, movies, other types of content, the question I 

think we are all grappling with is how do you direct legitimate content to those users. So one of the things that we have really always 

believed is the best way to fight piracy is to increase the availability of legitimate offerings. 

So there are data that show in markets where Spotify has entered the market, rates of piracy have dropped like 25 percent. So 

those are the kind of things that we want to harness, how do we 

figure out our services. But there are also great innovations in the 

TV and film space that are getting into the home entertainment as 

well. How do we encourage rights holders to be comfortable getting 

their content into the digital space? How do we make consumers 

aware of it in compelling ways? And how do we all grow the pieces 

together? 

I think the one, just bringing it back to the safe harbors, these 

services are providing new and really tremendous opportunities for 

the industries. Their revenue continues to grow, as well as creators 

who can now access these types of tools that they wouldn’t have 

been able to independently. They can now do that on their own at 

lower cost. 

So we have to think broadly about what kind of policies stimulate more services like that, more license services that will be paying rights holders, that will be feeding revenue back to the content 

industry. The safe harbors there, they have been critical for every 

U.S. Internet company that exists. And in other countries, places 

like Europe, they don’t have the startup economy that we have. 

Southeast Asia, same thing. Silicon Valley is a precious part of the 

U.S. economy because of Congress’ foresight in the DMCA. 

So I would just urge folks to be very careful when we think about 

whether or not we would want to start tinkering with that very 

careful balance. 
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Ms. JACKSON LEE. Mr. Sieminski, if I might, you indicated that 

your company received in the neighborhood of 825 takedown notices last month. How many counter-notices did you receive as a result of that? 

Mr. SIEMINSKI. We received four last month on those 825. 

Ms. JACKSON LEE. How do you assess that? 

Mr. SIEMINSKI. I think—— 

Ms. JACKSON LEE. Because you are here to solve a problem. 

Mr. SIEMINSKI. Yes. I think the counter-notice system has many 

of the same problems that we see with the notice system. I think 

the counter-notice procedures are very difficult to navigate, especially for the average user, and I think a big problem with it is 

even if you receive a notice for content that you legally have the 

right to post, if a website takes that down, and even if you go 

through the counter-notice process, there is a 10-day period when 

that content is down for good under the statute. 

So the notice process provides for content to be taken down for 

at least 10 days, and then there is a complicated process for 

counter-noticing that most people can’t navigate. 

Ms. JACKSON LEE. I have just a follow-up question, Mr. Chairman, for Professor O’Connor, if I might, and I will conclude with 

Ms. Schneider on a yes-or-no answer. 

I wanted Mr. Sieminski to speak because he indicated that there 

are no damages available for those who misuse the notice process. 

While there may not be statutory language in 512(c), the statute 

does provide for damages and fees if someone is found to have 

abused the process. 

Mr. O’CONNOR. Courts can craft remedies, yes. 

Ms. JACKSON LEE. So is there a damage process, or do we need 

to make that more clear? Or do you believe there should be one, 

or believe there is one? 

Mr. O’CONNOR. I think it is not clear enough, and I think we 

should make sure that we can take care of the abuses if they are 

happening, although they should be happening on a relatively 

small scale. 

Ms. JACKSON LEE. I just want to read this and conclude with Ms. 

Schneider. I think it is important. You may have said this, Ms. 

Oyama, but this sort of crafts the difficulty that we are in. 

This is really, really a good one in terms of the experience of notice and takedown. A physician claiming a copyright in his signature sent a takedown notice aimed at a document related to the 

suspension of his license to practice medicine. So I wanted to leave 

us on that note because this is in your testimony about takedown 

notices, that sometimes it can get really off center. 

But I want to agree with Ms. Schneider and simply say as you 

listen here to the testimony around the table, monetize, talking 

about trying to find a balance, are you seeing that as being helpful 

to you by looking at a way to balance these issues? 

Ms. SCHNEIDER. The takedown notices? 

Ms. JACKSON LEE. No, not the takedown notices, just the idea of 

the utilization of your intellectual property monetized as a technology, looking at clarifying the law. Is that going to be helpful to 

you? 
117 

Ms. SCHNEIDER. No, because it is such small quantities of money 

for so many views, advertising on Google and various things. I 

mean, the thing that is frustrating from a musical standpoint is 

that if you imagined music here with this much volume of money 

that was coming in, we refer to it now as content, and the content 

is being used by a number of companies on the Internet to draw 

people, to draw eyeballs, and the more eyeballs they get, the more 

data they collect, the higher paying the advertising is. 

Ms. JACKSON LEE. So your answer is what? Your final answer is 

what, to the solution? 

Ms. SCHNEIDER. For me, the solution is that DMCA has to have 

a more robust upload, stay-down means takedown, and there 

should be a Content ID for every company so that everything is filtered, so that at least I can control what is being illegally uploaded 

out there. 

Ms. JACKSON LEE. Mr. Chairman, thank you for your indulgence 

and courtesies, and to the Ranking Member as well. I do think 

there is a call for us to work together. 

I yield back. 

Mr. MARINO. This concludes this hearing. I want to thank all our 

witnesses for attending. I want to thank our guests in the gallery 

for being here. 

Without objection, all Members will have 5 legislative days to 

submit additional written questions for the witnesses or additional 

materials for the record. 

This hearing is now adjourned. Thank you. 

[Whereupon, at 12:29 p.m., the Subcommittee was adjourned.] 

(119) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD
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Material submitted by the Honorable Darrell E. Issa, a Representative in 

Congress from the State of California, and Member, Subcommittee on 

Courts, Intellectual Property, and the Internet 
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Response to Questions for the Record from Maria Schneider, Grammy 

Award Winning Composer/Conductor/Producer, Member of the Board of 

Governors, New York Chapter of the Recording Academy 
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