 Hello, and welcome to the EFF Town Hall, copyright for Internet Creators. My name is Catherine Trendecosta. I am the Associate Director of Policy and Activism for the Electronic Frontier Foundation. And today's Town Hall is sort of based on the idea that there's been a lot going on with copyright and that if you make things online, you should know what's going on and know what resources are available to you so that unlike the three of us on this panel, you do not have to devote your life to understanding copyright. So I'm going to introduce the other two panelists and get started. So first we have Casey Fiesler. Casey, you want to introduce yourself? Sure. I'm Casey Fiesler. I am a professor at University of Colorado. I'm also on the legal committee for the organization for transformative work. And also from EFF, we have Kara Gagliato. Kara? Hi, everyone. I am a staff attorney at EFF, and I work mostly on copyright and trademark issues. I'm also on our coders rights team, which primarily advises security researchers and do a little bit of kind of anything else. So let's first talk about what happened at the end of last year. So if you are extremely online, as many of us are, I am also very sorry. My cat loves these things, and she always is going to walk across at me, okay. So the end of last year, you may have seen a hashtag called Stop DMCA. And what that was about was that in the giant 5,000 page omnibus bill that was passed at the end of last year and signed in December, there were sort of two copyright provisions that despite not having hearings, despite not doing anything that they normally did just suddenly appeared and became law. And one is the felony streaming provision, and the other is what's called the case act. And if you do things online, let's sort of talk about what you need to know about those two things first. And I think because it's the sort of easiest to dispense with the felony streaming act, which is actually a lot less scary than it sounds. Kara, Casey, you want to sort of summarize that? I'll let Kara do that one. We don't care a whole lot about that one. Sure. So, you know, like Catherine said, the felony streaming act certainly isn't a good thing. It's not anything we support because we simply don't need more laws about copyright infringement on the books, especially not laws making things a felony. The good news is that it really won't apply to most of you watching. It pretty much only replies to streaming services that are specifically for copyright infringement or market themselves as being for copyright infringement. It generally won't apply to just users of those services, which is what we figure will be most internet creators if you don't, you know, have startup your own streaming service that says, hey, we're the great infringing streaming service that maybe consult a lawyer before doing that. Because again, to be clear from the top, we can't give legal advice, we can give legal information. But if you have any questions about your own specific activity, you should consult a lawyer, which can include emailing us at info at EFF.org. So yeah, so that's the felony streaming bill, largely not going to impact most people. I would note that the reason this was so scary is because the text of it wasn't released until very late in the process. So all people heard was that there was something that was going to make streaming a felony. And that is one of those problems that we have with it is that there wasn't time for people to read it, to understand it before it became law. The next one is a slightly bigger deal, and that is the Copyright Alternative in Small Claims Enforcement Act. That's the case act. Who wants to summarize what the case act is? I can give you this short attempt to do a neutral version of what this is. So the case act creates essentially a small claims court within the legislative branch. So it's creating this system in which the Copyright Office is empowered to adjudicate copyright infringement claims up to $30,000, that's meant by small. And it's staffed by claims officers as opposed by judges or juries. And it was put forth as being sort of this solution to how complicated it is to, for example, sue someone for copyright infringement. And so it was put forth as this way for small creators to be able to collect on copyright infringement claims. So that is the explanation of what it is. Did I miss anything significant there? No, you did a better job than I do. I have trouble describing the case act without cursing a lot because I hate it. How is the neutral description of what it is supposed to do? Yeah, I'd say one thing that will kind of bridge us, I think, from neutrally describing how it works into our gripes with it is that technically the Constitution says if someone sues you, you have a right to a jury. The way that Congress has tried to get around that is saying, well, you can opt out of this process. So someone can say that they're suing you in this copyright claims board, but if you opt out and they haven't actually told us how you can opt out yet, that's TBD, then you don't have to do it. But that has all kinds of problems associated with it. I'm sure we'll get into. Yeah, I just want to sort of describe the differences. I'm sure it's very clear, but I want to be extra clear about the difference between opt in and opt out. So opt in would be, I affirmatively say, I want to be part of this system. I click the box and now I'm part of it. Opt out is if you don't click the box, you are presumptively part of the system. And I say click the box, that would be a relatively simple way to do it. We actually have no idea how complicated opting out will be because huge chunks of the case act are sort of just left up to the copyright office to figure out. And so we can describe what the law says, but we can't describe specifically what it looks like. The other thing to note is that when we say opt out, you have to opt out every time you get one. There's no sending a notice to the copyright office that says, I never want to be part of this. Like, never, ever. You have to do it every single time you get one, which can be very confusing and complicated. So I'm going to pose the question to you guys. Is this an operation now? Do people have to worry about getting case act notices, like, immediately? I can take this. No. And that is because of the part Catherine mentioned that Congress really left the entire very critical chunks of the law and how it will be implemented and how it will work to the copyright office. So this copyright claims board doesn't even exist yet. The copyright office still needs to come up with it, figure out who will be on it, how it will work, etc. They still need to figure out what will be the requirements for notifying someone that they're being sued in this court. Before this board, what will be the opt out procedures. So for now, we can say that if you get a letter saying, like, you are being sued before the copyright claims board, not true, because there isn't one. So that would definitely be a situation that, you know, might want to talk to a lawyer, but you can at least know for now that it's not legit. So I would say, so just add, statutorily, the copyright office is supposed to have the case act system up and running a year from when it was signed. So a year from December 2020, which is December 2021, they can ask for a 120 day extension, which I am almost certain they will because I can't imagine, given the number of things that the bill does not describe that they have to figure out how to do. They'll actually be up and running by December, but that is sort of when they are supposed to be up and running. So December 2021, latest March, April of 2021, 2022, sorry. So I want to talk very quickly too about the the problems that we're concerned about with the case act beyond the bizarreness, beyond the like weird things we don't know, and just the general issues we have with a system like this. And if you were to describe your biggest gripe, how would you describe it? I'll start with you, Casey. So I think one issue is that it seems unlikely to even address kind of the problem that it's supposed to be, you know, supposed to be solving OTW and other organizations like that are obviously appreciate like, you know, the challenges that small artists and content creators can have for enforcing their copyrights. But one thing is that it seems so, A, I have a feeling, as you have implied, that it's probably going to be challenging for people to opt out of this system. You know, in terms of like, like, these aren't people who necessarily know a lot about the law and what this means. I mean, we're even having trouble explaining this thing. And so it seems that the most likely thing that's going to happen is that either people won't know to opt out or will fail to respond entirely, which is going to lead to default judgments. And so it's just going to turn into this, like, default judgment mill, which is obviously an issue. And then the other thing is, I think... Casey, can I just very quickly ask you to describe for the people who aren't lawyers what default judgments mean? Yeah, so basically, like, if you don't show up, you lose is a very simple explanation. And my understanding is that that's how this would potentially work. And then the other thing that comes to mind is it seems unlikely that, you know, so if, like, let's say that it is easy to opt out, it seems like then most people would do that. Like, because this wouldn't, you know, again, it wouldn't give people the opportunity to have a jury, et cetera. And so it seems like most defendants would not consent to being part of this anyway, which then kind of defeats the purpose of it. And it's setting up this new complicated system that, you know, has to be staffed. And it's going to seem like there would be better uses of administrative resources. So those are the two things that immediately come to mind for me as some of the problems. Cara? Yeah, so also have two main things I'll address. The first one is really building on what Casey was just saying in terms of how it won't solve the problem. It's saying it will. You know, another part of what Casey was saying about how opt out will end up affecting things is, especially if it's not super, duper clear how to opt out and like what all the pros and cons of the different choices are. What's most likely to happen is that the, you know, individuals who, you know, just like shared a meme and are now being told that they're on the hook for copyright infringement. People who aren't familiar with the law are the ones who are most likely to not know what to do and maybe not opt out, maybe even think this notice is fake and ignore it, which is part of why we're trying to make sure everyone knows this will eventually be a thing unless we can change Congress' mind. And at the same time, the really sophisticated actors who you would think would be the ones that Congress would want to make it easier to go after people who are really out there, like systematically pirating content and posting it online. They're going to know about this and they're going to know to opt out. So they are not going to be addressed by this at all. The other really, go ahead, Kevin. No, I just wanted to, I thought you were done. I just wanted to tell everyone that we're reserving half of the time of this town hall for questions. So we'll be, we'll be devoting 45 minutes to the questions at the end. Sorry, it was an administrative note. So my other gripe of my top two gripes is the extremely limited right of appeal. So one of the things that is already in the bill is that it will be practically impossible to appeal a decision by the Copyright Claims Board to a federal court, an actual real court. So like just because you think, like thinking that the decision is wrong and that they got the law wrong is not a grounds for appeal under the case act, which is a huge problem because A, these people are not actually judges with a lot of experience adjudicating Copyright Claims. There can be, there's no limit right now on what kinds of claims can come before it. The only limit is based on the amount of damages sought if it's below 30,000 or above, which really is no indication of how legally complicated the issues are. So there are a lot of really complicated issues within Copyright that we're just throwing to this board within the Copyright Office without any check on whether they're right. In contrast in the federal court system, sure you might get a judge who has never adjudicated a Copyright Claim before, doesn't know much about copyright and gets the law totally wrong. But if that happens then you get to go to the Court of Appeals and have a panel of at least three appeals judges that will between them surely have some experience with copyright cases and try to get them to correct the mistake. And then if they get it wrong you can even try to get the Supreme Court to take it up and sometimes they do. So that's really a huge difference in terms of the safety net that you have in court versus what you would have before this Copyright Claims Board. So I'm just going to throw two things in before we move on to our next session. The first is yes, we're talking mainly about United States law where U.S. law experts were and so we're talking about U.S. law but that doesn't change the weirdness of jurisdiction if the person who's in the U.S. wants to use the case act or if the target is. I just want to also sort of bring up another sort of sophisticated thing that we are concerned about which is copyright trolling which is if you know the case act and you know you could owe $30,000 and you get contacted by someone who says, hey, pay us $2,000 and we won't go to the case act board, right? Even if the claim isn't valid, if you're worried about the case act, you might pay that $2,000 and so there's also that sort of lever. We also want to note that like since the case act isn't up and running if you get a case act notification right now that's not a thing. If that happens, if someone says pay us or we're going to go find a lawyer, email info at EFF.org. Like don't get sort of stuck. In the stream right now you will see a link to a blog we did at EFF which sort of summarizes both of these laws and sort of broadly talks about what we were talking about. I am going to move us to our next session where Casey and Cara get to take a break and I turn into the Charlie Day meme and show you a chart on Content ID. So I've been told that Content ID is something that people are sort of desperate for answers on. I share that desperation in the process of writing a white paper last year called Unfiltered which was all about Content ID. I went very mildly insane trying to untangle it because if I'm sure you all have, if you make things on YouTube you will have encountered this. You type something into Google to figure out how Content ID works. You click a link and it tells you something and you're like that's not the answer and then you click another link and it's still not the answer and then you're like oh this will answer it, this other link and then it takes you back to where you started and hopefully with this we have made that slightly easier for other people. I say slightly because I'm about to show you my Pepe Silvia nightmare chart. So if the chart can go up on the stream there we go. So this is a chart made by our amazing graphics team. It is a sort of combination of pointing out where things are missing in YouTube's official help and just sort of a general flow chart. We're going to go through this pretty quickly and I very much apologize for that because it's confusing. So we will start here. So you make a video, you put it on YouTube. Content ID is what's called a copyright filter or a copyright bot. It is an automated system that matches content on YouTube to content in a database and that database is created by rights holders who Google has determined are important enough to be included in content ID. So you have to be of a certain size. It's not actually just open to any rights holder. That means that if you come up against a content ID match you are more likely to be coming up against a large music label or a major studio or just someone with more power than an independent creator really has. The algorithm could flag a match when you upload it but YouTube is constantly changing it. How many seconds of a match it makes, all of those things means that you can get matches years later after you've put it up. So if there's a match a claim is filed. Now there are two kinds of claims. We're focusing on automatic ones but if you are a major corporation and you want to employ people to make manual claims they can do that as well rather than an automatic one but when there's an automatic claim the holder who has been allowed to put their material in the database can also set an automatic penalty and those penalties are either that the video is blocked so that the public can't see it that the rights holder monetizes the video that means they either take the money being generated by ads or if there weren't ads on the video ads are placed and they take the money from that or they can decide to leave it as is but they also get access to the information about the viewership that is being collected by YouTube. So if you get one of these claims you have a couple of options. You can accept the claim and just like if it's not being blocked just let the tracking or the monetization happen. You can re-edit the video and try to take out the things that have been claimed and then put it back up and then go through as you can see this loop over and over again or you can dispute it. You can say as you would with any kind of copyright claim no I either have the rights to this or this is what's called fair use I'm using parts of it for a purpose that does not require me to get permission or to pay the people who originally made it. So if you dispute it this weird mystery can happen which is YouTube says that if the video was blocked and you dispute it while the dispute is under consideration the video can go back up. It doesn't say why it doesn't say how it just says can happen. I have my bets on what criteria YouTube uses to make that determination but it's just my guesses. But once you dispute it the content owner is given 30 days to respond. If they do nothing your video will go back up or the monetization will go away and the money that was helped if you dispute it and they monetized it the money gets held in escrow and then if you win the dispute you get the money. So if they do nothing the video gets restored the way you intended it to be. If they release the claim they decide yes you're right we were wrong and I hear people laughing at the idea that people would say that. If they say that then the video is again restored the way you intended. The money goes to you or it has no ads whatever. They can also uphold the claim. They can say I disagree with this person's dispute. I say they're wrong. At which point you can accept their refusal and go back to the beginning re-edit go through this whole loop again or you can appeal their rejection and then you go through this system all over again. It's a constant like mobius strip of the same things is really what happens here. They get 30 days to respond if you appeal. They can once again release the claim and the video goes up do nothing after 30 days or it goes up. They can also at any point really move away from this voluntary system. Content ID is not a legal system. It's just something YouTube has decided to do and this is why people stay in the content ID system is because at any point the rights holder can decide you know what screw it I'm moving to DMCA and if you get a DMCA takedown a bunch of legal requirements kick in and YouTube has to take your video down. So rather than monetization where they just took the money away now the video is gone and you get a copyright strike and as everyone knows if you three copyright strikes within a certain period you will lose your account. The other thing that happens within content ID is a rights holder can issue a delayed DMCA takedown and say listen if you don't accept our content ID claim within seven days we're going to send you a DMCA notice and it goes and it's going to go your video will go down and you'll get a strike. So that's the sort of levers of power that's why if you've gone through this system YouTube says to you a bunch of times you could lose your account you could get a strike just so you know if you if you challenge this at all this can happen. So what happens is that content ID is nestled inside of the DMCA with the DMCA as sort of a backstop and as sort of a threat because content ID isn't as long standing so everyone knows that they do not want to copyright strike and they do not want to use they do not want to lose access to their account and so content ID exists as a way to say hey you can avoid all of that if you just give all your money over to the rights holder or you just keep editing the videos so that it passes content ID. That is an incredibly streamlined version of this I will say among other things that the white paper will sort of guide you through more of the details and if you have questions or you have a story or if you have anything you want to say about copyright filters or content ID you can always always always email me I'm Catherine at EFF.org you can email info at EFF.org you can tag me on Twitter I I spend a lot of my time not by choice but by hatred trying to figure out how content ID works and how best to help creators navigate what I see as an incredibly inequitable system and one that is locked in a mystery box that the vast majority of people cannot untangle and shouldn't have to quite frankly it it I literally just started screaming Carol and pointing to a bunch of strings on a wall nine months into this process last year while while trying to chart out exactly how this worked and that is incredibly unfair on creators to have to do that so cue up your content ID questions I'm sure you have them we're going to do one last portion where this panel talks and then we're going to throw it over to questions that are being said in the chat and then raised to us by our moderators and that is so we have the case act and felony streaming past last year the DMCA has existed for 20 something years what's happening now and what's happening now is stupid let's say that Casey your car do you want to summarize the absolute joy that is the DCA sure so let's say if case act and felony streaming are a dumpster fire the digital copyright act senator Tillis's draft bill is an entire garbage dump on fire um it takes bad to a new level um and there are honestly so many different things that it does that I don't know that anyone wants to hear us go through every single one of them but some highlights are essentially requiring filtering or what uh proponents like to call notice and stay down uh which is where they say that once someone uh sends a takedown notice about a certain piece of content the platform that receives that takedown notice not only has to take it down that time but also has to make sure that no one else puts up any similar content that really can only be done with filters uh if you aren't going to have a whole team of people individually reviewing every single uh post that goes up and it even if they were doing that you know would have to be making difficult legal decisions like just because one time it might be infringing and getting hit with a takedown notice doesn't even necessarily mean it was infringing in the first place doesn't mean it will be another time because remember under copyright law it's not a particular you know piece of content that is infringing it's a use that is infringing so it's all about context um so that's one of the things we hate about this bill um it also would move the copyright office to the department of commerce and make the register who's currently appointed by the librarian congress a presidential appointee would set a confirmation this might sound really boring and technical but for now I'll just say the mere fact that it's being proposed to move the copyright office from the library of congress to the department of commerce which has as its mission growing the american economy really shows you how wrong and narrow these people's perspective is that copyright is solely about the economy and markets and forget the public interest and creativity and intellectual freedom and free expression let's focus on the money and industry uh so that we would expect to make the industry capture issues there even worse um one of the things that would be kind of like one of the bill's only redeeming qualities is that it proposes some changes to section 1201 which is the anti circumvention rules about bypassing drm uh that would be improvements but a it doesn't go far enough the real solution is to get rid of 1201 entirely because it doesn't really do anything helpful and just prevents lawful uses and be uh these changes are not at all worth the trade-off of the other provisions um so maybe i'll that's me talking for a while already let kasey talk about any other aspects of the draft bill uh yeah i mean i i i think the point you made about how this is sort of based on the commerce of copyright law is a great is a great point like you know a lot of a lot of the changes that happen around copyright law are based on this kind of like antiquated idea that copyright is is all about or like content creation is all about making money right and copyright law needs to be built around protecting people making money which you know 20 years ago was a reasonable stance to have um but obviously you know these days a lot of people create content without intending to profit from it and you know that's the other thing about like the copyright office did this big study on dmca 512 notice and take down and you know wrote this report and you know there's some problems we want to make sure we think about the multiple stakeholders where the only stakeholders are big copyright owners and platforms and not like people making remix videos or whatever um and you know i i can't think of any redeeming qualities of the dca i mean you know the thing about the case act is like depending on how it's implemented like maybe it's actually possible that it could be useful for some small content creators i mean i find it kind of unlikely that any you know that it'll be easy enough to use and useful i i think it'll mostly be used by big copyright holders which kind of defeats the purpose but like maybe there's some possibility you know that um you know with with the help of otw or eff or someone like that like you know someone could could use it to uh to protect even like a fan work or something like that but it it seems kind of like overkill for that purpose but the dca like i i can't think of any good outcomes from from that one so the good news is that one hasn't happened yet i would also point out that that filtering thing it occurs like three separate times in the dca like it has notice and stay down it also gives a it makes platforms have a what's called a duty to monitor which means they have to in certain circumstances they have to keep track of what's going on so that they themselves don't get in trouble and then there are a bunch of like things where it's like create a new regulation about x which would again just be filters um so if you hate content id get ready for a filter system that doesn't even just take your money it's only about taking content down what a wonderful improvement to the current system it also by the way for everyone who's tired of youtube and wishes they could go somewhere else or tired of facebook and wishes they could go somewhere else the number of changes and the weirdness of the dca would make starting a new service very difficult and very confusing um i actually think about otw and a03 a lot like if the dmca were the dca with all of these other weird hoops it would have been much harder for legally for that to to pop up right kasey i i think so yes i mean um uh a03 gets gets you know dmca notices very very rarely um which makes sense because it's mostly fiction um but yeah i agree i mean i it's hard to know like exactly how what the dca would look like in practice but i do i i think it would certainly not be good for for for for a03 i think um you know also like i don't want to panic everyone like i think it's very important that we're pushing back against this but i i don't know am i not even thinking that like it seems quite unlikely that this would actually happen i i i agree i think it's unlikely to happen what i think is the big concern are two things one is the clear trend between the dca and the copyright office's 512 report that everyone is thinking about copyright in this very limited very hollywood or national-centered version of copyright and not the version of copyright that literally everyone else experiences so that's the concern and we want to make clear to congress that you are only listening to like five groups or five people when there are millions of americans and millions of just people in general who use the internet or make creations online who do not think of copyright the way you think creators writ large do so there's that and we want to push back hard so that it becomes clear that these kinds of proposals are not the starting ground ever again i also want to sort of point out that so last year before they produced this bill the senate judiciary subcommittee on intellectual property held a hearing every month every single month even in the pandemic even when both sides both hollywood and everyone was saying like we have more important things to talk about right now still held them almost every month very rarely were public interest or or creators that weren't major creators invited and it's what produced this draft and they produced this draft they released it in december and they've opened it up to comments uh do march fifth i believe it's fifth or sixth sorry um we at eff have written a a letter that's very basic it just says hey this bill requires a lot of filtering as someone who puts things online that's really upsetting to me and it's a petition you can sign it and eff is going to deliver it along with our more in-depth screaming about the various specific proposals in the dca so act dot eff dot org you can sign it and and we will deliver it for you um so that is sort of like i don't want to panic everyone but i do want to say that if you were seeing stopped dmca last year and you were like i should get involved i don't want this to happen this is how you get involved um this is how you stop this stuff from happening um so yeah i want to let's let's actually talk about that sort of broader dca stuff like what what trends does this mean to you and what would you rather see what do you think is a what would you rather see congress focusing its attention on um in the copyright world not generally because i have a long list of things before copyright i wish congress would would deal with but in this world in the creative space get creative 1201 it doesn't make sense uh to elaborate on that slightly for people less familiar with it 1201 uh section 1201 the dmca makes it illegal to circumvent technical protection measures which basically is drm stuff that that protects access prevents access to copyrighted works it kind of makes sense in theory the the goal is to prevent infringement but infringement is already illegal circumvention that's what's prohibited by 1201 is not always for purposes of infringement it might be to make a fair use it might be to do something that you don't even need to use the copyrighted work for but that same digital lock might be blocking access to something else you need like to repair your device um so you have this situation where they're essentially saying okay we're going to prevent copyright infringement by making it double illegal certain times if you're already willing to infringe don't think it's really going to stop you to know it's double illegal on the other hand people who really don't want to infringe just would like to do something not infringing but don't want to break the law are not going to be able to do that not infringing thing because they don't want to be on the hook for liability under section 1201 so and this extends not only to stuff like repair but other things that might be more clearly creative works like you know getting access to materials that you want to turn into a transformative work uh like by getting clips of a video for example kasey um yeah actually i like that answer a lot i i mean the other thing about 1201 is that it's it's it's like a it's a usability problem like you know this is the the reason why we get all these weird technological protections on things that then make them impossible to use uh and you know they don't allow us to like tinker and so i i agree with that and especially the point about like making it double illegal doesn't like it's just going to make people more scared about people who are who are afraid of accidentally infringing copyright i think are a kind of stakeholder group that is really overlooked like there are lots of people who really what they do they don't want to infringe copyright um i mean i've spent the last 10 years studying like chilling effects um on this kind of thing and i mean even even like a like a single thing which is like the way that youtube handles all of this has huge chilling effects i mean i have talked to so many fan creators who are just like yep i don't make remix videos anymore because one got taken down once and i'm really afraid that i'm gonna like get sued for copyright infringement if i keep doing this and it's and so you know i could i could think of changes to the law but also like youtube needs to change um how they how they do like i and again you know i'm not a lawyer i'm you know i'm basically a computer science professor at this point and like i i i youtube needs to like they're intentionally making their policies seem terrifying um like i don't know if any of you have seen their copyright school video which i can't believe is still up like people have to have been complaining about this for the past 10 years um but like it it it literally is like fair use is so hard you're never going to understand it it will literally crush you if you if you want to like file a counter claim for a dmca then you better get a lawyer because if you're wrong you're going to get a lot of trouble that's how the law works that's like direct quote um and this kind of thing scares people even if they think they have you know a decent understanding of fair use and even if they think they might be in the right like it's really scary for someone to tell you like oh maybe you should hire a lawyer before you know posting your non-commercial remix video so i also think there are things that platforms can be doing yeah that's like when i was studying content id they nestled it too within the dmca and are like if you do anything you're going to end up in the dmca and then you'll need a lawyer and you don't want to do that it's it i hate it um i think i've been pretty clear um i would say that the other thing i so the two things i would focus on is similar to kasey um is sort of the antitrust part of it which is a lot of people i've talked to say i'm on youtube because i have to be on youtube i do i have to or i i'm on facebook because i have to be on facebook um and the things like the dca don't fix that problem like many large creators are like angry with youtube but this doesn't actually fix that it just entrenched youtube and makes them easy to deal with and i think they should look more along the lines of why creativity as a business is so concentrated why is that happening and and is that good for culture spoiler alert no um but there's that and the other thing that i would say is a thing called digital first sale digital first sale is the concept that even if i if you pay for something even if it is a digital thing you actually own it rather than the way we have it now which is your only ever licensing things you never own anything anymore um and that's why if you buy a digital copy of an e-book you can't give it to someone else when you don't want it anymore the way you can a physical book first sale applies to physical things that's why you can sell used things and um that should also be the case for anything you buy regardless of whether or not it has software in it um so those are my things um we're going to move to questions um going back to the beginning isn't having the for the case act isn't having the legislature acting like a court a problem problem for separation of powers tara gacy it sure is uh we think um you know that that's something that uh a lot of people are are kind of exploring and writing about and debating right now part of the reason why it's so difficult is this is completely unprecedented like there is no other what we'd say article two court right so courts in the judicial branch are article three courts um in the executive like uh executive agencies you say article one tribunals this would be because it's within the legislative branch an article two tribunal and that is not something that exists or has existed before um so it's really out of left field uh and people are really trying to figure out how to approach that um the other question is how does representation work in case act do you need a lawyer does that lawyer need to have a be specially barred what what are the provisions so right now it says you don't i believe you don't need to be represented by a lawyer but you can uh so you can be represented by counsel and there are no special barring requirements for counsel except that they have to be either an attorney or a law student who is qualified under certain law to represent parties and legal proceedings and who provides that representation on a pro bono basis so if you're familiar at all with the concept of law clinics which is where you know law students are supervised by a practitioner uh and work on actual litigation this is that kind of thing um which you know sounds benign enough and could be helpful to getting people you know affordable representation but we also are keeping an eye out for abuses of this we've already uh seen uh some things going around about a law firm that's basically a copyright troll law firm i believe uh saying that they're going to be partnering up with a law clinic to do this but on a contingency basis which means if they recover money they actually do get paid which would not be a pro bono basis uh does not seem to comport with this but so we're keeping an eye out to make sure that you know trolls don't try to like farm out their work to law students uh who they can get to work for them for free uh and you know file file even more of these claims so we're hearing also like is are there places the case act would be helpful or beneficial why was existing law insufficient or existing frameworks insufficient um so again we don't know exactly how this is going to be implemented so i think it's a little bit difficult to say for example you know how easy it might be for so so let's so let's use a fan fiction writer as an example so uh there are people who infringe the copyrights of fan fiction writers you know something that happens sometimes is that people will take will take stories off of archive of our own and post them elsewhere and occasionally even try to sell them um and so in theory someone like that could use the system it seems like it might you know be difficult to navigate etc um but also you know in that case um the dmca works quite well for that kind of thing um and uh and otw frequently you know will give information to fan creators about how to file a dmca notice on these like websites that pop up fairly frequently that are that just like you know steal fan works and put them online but you know one of the interesting thing is like in that case someone's trying to recover money right they just want control of their work like it's a it's a control issue and a privacy issue and in that case the kind of existing um system works works quite well for that um and yeah i mean i yeah i don't know car if you have any any insights into like how this might work well for say someone who is trying to recover money and might not want to say hire a lawyer yeah i mean i i'd say the thing is that i mean hey you already can represent yourself when you say pro say uh if you're an individual in federal court so it's not like you're required to hire a lawyer in federal court and i understand the appeal at least the surface appealed case for all the reasons kasey said i totally appreciate the frustration of small creators who might have encountered like actually bad actors who you know when they try to take down when the creator tries to you know do a takedown notice the bad actor sends a counter notice that's just totally fraudulent um you know i think more often it happens the other way fraudulent takedown notices but you know and then they don't want to have to go to court to challenge that i do sympathize with that my issue is that when you think about it the reason that case act proceedings can be easier and cheaper for plaintiffs is because you get fewer rights that is what makes it cheaper and easier it's not because it's like oh the judicial branch is just inherently difficult and expensive the things that make it cheaper and simpler are that like the defendant doesn't get a right of appeal you don't have the same rights as as far as you know what all you can do to challenge it you know a lot of the details are still up in there so it's hard to say even uh completely what rights there will be um but you know there's really nothing inherently different as far as i can tell about the going through the case act and going through a federal court aside from these reduced protections for defendants and keep in mind also reduced for plaintiffs i mean plaintiffs can want to appeal as well but you know they're they're the ones who are choosing where to go in the first place here yeah there's a question about like what about small copyright holders who have their work stolen is case act better and what i want to sort of point out is that the iniquities of whatever systems you're talking about aren't eliminated by case act they are replicated because it is opt out and the way it is set up the people you really want to go after the people who have stolen your work and have money to pay you the damages you are owed also have the money to pay for lawyers like they would in a court to opt out and force you into court the same way they would if they sent you a fraudulent counter notice um so the only people you can really recover from are going to be people who don't know what's going on or don't have the money in the first place and so if if they don't have them if they are what are called judgment proof that means they don't have money to pay you what you really want is your work to be taken down in which case again the dmca exists for that so i like sympathize i really do i understand that there's a problem but the iniquities that exist aren't eliminated by the case act they're replicated fair use question i am an educator and i'm trying to make online versions of my classes most originally taught at university years ago i'm worried about copyright takedowns for use of figures tables graphs particularly things that were in textbooks some older editions and some even out of print i have some content at youtube usually just single topic lectures but i'm trying to get uh out the m o o c options getting copyright on all materials is next to impossible what constitutes fair use on a uh academic information um so i will throw this on but i will say one of the fair uses is education that is one of those things that are listed as as education as a as a use kara okay so as the lawyer i do want to clarify though because this is a common misunderstanding that does not mean that all educational uses are fair use a lot of people think that like i'm using it for education therefore fair use not the end of the inquiry it can still be infringement uh in terms of this question you know i we can't really get into uh like i said earlier legal advice about very specific situations um you know the most i can really say right now is it it will come down to the same fair use factors uh that you usually see and as katherine mentioned the fact that it's for an educational use will certainly favor you on the first factor which looks at the nature and the purpose of the use the second factor looks at the nature of the copyrighted work so in the case of like figures and graphs those are often going to be pretty minimally created more factual works and that tends to favor you know finding a fair use on that factor um so it's kind of really a sliding scale like the more creativity involved uh or the more likely the less likely to be a fair use the more factual content involved the less likely um the third factor is you know how much and how significant a portion of the work are you using so that really comes down to the context again of the whole work like if you're taking a one line from a book that's going to work in your favor versus like reproducing an entire article and then on the the fourth factor looks at kind of the basically the economic effects the effect on the market for the work so there uh you know that's where something being out of print might be relevant uh because if it's out of print and that like the owner isn't you know actively licensing it uh you know you'd have a stronger argument that you're not really harming the market because you didn't have an option but you know it really these are all just factors that will be balanced and it's so so context and fact specific that um you know if if you're not sure about something it really is best to try to consult with the lawyer uh and again that can include uh emailing us at info at eff.org um I also want to yeah I I also want to be clear to people that um that's sort of the legal structure as as you may have experienced when there's a filter or there's a private agreement with whatever you're hosting they may have different rules that are not copyright based and um that is incredibly frustrating you may have the legal right to use something but not the actual ability which is um a problem what do small presses and individual copyright holders do to one protect their work and two protect themselves from large corporations claiming infringement by small groups when filter is auto determining infringement um I uh I guess I mean part of the answer to this right and so if we're talking about filters like for example content ID um uh then you know again it is possible to go through the these sort of appeals and counternotice uh processes and it can it can seem scary to do that but you know I think that's one of the most important things is that you know there's this huge imbalance of power right um like Catherine was was describing earlier like it's it's you know to to be it you know to get your your content you know as part of content ID so that it gets flagged automatically and you don't even have to do anything it's just spots um you know that's the the the big copyright holders um who who have that and then the you know the process of appealing it to filing a counter notice again seems kind of scary and like oh do I need to hire a lawyer to do this and so um I don't know that this is a full answer to the question but part of it is like yes appeal when um when appropriate would be part of the answer to that anyway um I'm going to add that appeal or appropriate talk to lawyers um when this happens this is I like I have this thing where I say all the time like this is these these services are broken and attention is not a substitute for an appeal system that functions but if you are in trouble if you are right if you have been blocked even though you own something talking about it on twitter uh emailing someone that you know and it getting public can can often cause that problem to get resolved just by virtue of attention and that makes it very difficult right because when we say this stuff is happening here are examples we've seen the companies would be like yeah but that was resolved like it was only resolved because we saw it like how many things are we not seeing um and so while I am not advocating this as a answer because I think these these systems should be fixed um it can work um we can help many many people can help um a support system can help um I forgot to bring something up earlier which was in addition to signing the petition we are starting a mailing list for internet creators who want to be kept up to date about what's going on with the dca what's going on in copyright law and what they can do to fight it as we move through the various steps of the process um you can email Catherine at EFF.org K A T H A R I N E sorry I have to specify that my name is called weird at EFF.org and I will add you to that list we promise not to use it that much EFF has some really um intense privacy policies so your information will not be shared we do not sell those lists we don't do anything with that um and I promise not to abuse it it will mostly be just sort of circulating information and if if things start to pick up and we need mobilization that is that is a way we will tell you you can also just follow EFF OTW all of these places I promise you the that we will as things happen you will hear about it from us we will we will not be quiet if these things happen okay who is pushing for the dca youtube benefits as the major players in compliance is cost prohibitive for rumble librae and other alt text sites um institutional copyright holders have too much juice so who is pushing for the dca kari you're muted all right as far as we know uh you know the usual suspects but actually you know there is some tension in that you know this is so this is really senator Tillis's bill and a lot of it is addressing calls from the content industry like I said kind of the the usual players here though it is worth noting that they even they aren't happy with all of the bill both in terms of not thinking it goes far enough and also are unhappy with things like the proposed changes to section 1201 and the anti-circumvention provisions so I'm not sure I'm aware of anyone who's happy with the dca in full aside from senator Tillis um but I think you know we're still kind of at an early stage where this the draft bill was just released and and you know people are still submitting their comments and forming opinions about it I don't know if Catherine or Casey either of you have more specific things to add um yeah what I'll say is the the bigger problem is actually less who's pushing for it and who's not pushing back if that makes sense um often in these fights and if you were around for sopa pipa way back when um this is much worse um but that was sort of defeated because the internet got together and said this is bad but also there was institutional support from youtube and google and these platforms who didn't want to do i they didn't want ip blocking because it would also affect them I can't say what these platforms would do what I can say is that we haven't seen the sort of organized upset from these platforms because right now in what's called the tech lash right big tech is reviled by everyone and they're not going to push back on copyright they need they're going to push back on the things that they think are are much more dangerous especially now that they're large enough that doesn't cost them anything to like turn on a filter they're large enough that that's not a concern um and so the money on the other side doesn't exist quite the same way it used to and so it really is incumbent upon grassroots advocacy um like what we're doing that's why we're having this town hall is we want to gather people so that it isn't corporations slugging out who gets the money about copyright that doesn't help us we want to make sure that the focus is on users and creators and the people who actually will end up affected um and so this is early in the process but we want to tell people in advance we don't want it to come out of nowhere if we suddenly start saying this is important we need you to show up we want to let you guys we want to let everyone know from the beginning and we want it to be an inclusive process that's sort of where we differed right from congress which has sort of shut us out our goal is that everyone gets heard and that it's clear what the actual space looks like um have any platforms youtube twitter instagram tumblr etc expressed how they will respond to these copyright changes in regards to fan works and creative content i assume that's literally any of these changes case felony streaming or dca i don't know the answer to that i haven't i haven't heard of of of anything our kind of our own has not said anything officially about those except kind of like dca is bad you know uh in terms of the in terms of the case that uh that we think it's probably bad but if it's useful for fan creators will help them figure out how when the time comes um i will say that while we don't haven't heard anything i think the past is instructive um so there's there are two laws that give websites and services immunity in certain certain circumstances there's section 230 which you've heard too much about and the dmca section 230 has been under assault for a while and there was a law passed called sesta fosta which changed the liability concerns and in reaction to that the platforms that have changed their rules and so tumblr's amazingly poorly executed adult content ban was an attempt for them to respond to a number of pressures they were getting which included this change in liability and so one of the reactions that i i can anticipate and in the same by the way in the same way sesta fosta the platforms backed off because they they they didn't want to have that fight and they accepted it and and so that's why i think it's instructive if they back off if something passes their response isn't going to be let's come up with a really bespoke system that protects expression it's going to be blanket banning because that is safer and easier um so that is is part of of the the concern is that even if they write laws that are very narrow companies aren't going to apply them narrowly that that leaves them too too vulnerable they're going to apply them broadly okay if a case act claim came down to a dispute between an artist and a label publisher would copyright ownership be determined by the panel or would they send it to be decided in court good question um yeah so my reading of the statue is that the copyright claims board can make determinations of ownership for the purpose of resolving claims before it but it specifically says that those determinations wouldn't have any binding legal effect outside of that specific proceeding so like you could still fight about it later in court could even fight about it in another case act proceeding later um i'm not sure whether it's possible that uh some of the regulations that the copyright office puts in place um will involve some uh kind of narrowing of you know what they actually will decide but it looks like based under the statute uh yes that can be decided but it would have limited effect only in that case um there's a question in the chat about like why we're focusing on one kind of creators KC is focusing on fan creators because that's otw's work that is their stated mission um i want to say that we're not saying that the only people worth protecting are people who use bits of other people's work but what we are saying is the a large number of people do that without thinking right we all like sharing means is a form of sharing a piece of work um quoting something is a form of sharing other people's work that's sort of how culture grows culture builds on itself all of disney's original work is based on them reinterpreting works that were in the public domain um and the extension of copyright into other realms into realms that aren't context-based into realms in which it's just i own this thing is bad for everyone it's bad for all creators because you may not think you're using something from someone else but as several cases have shown other people may claim you are and and that's important to protect you from many musicians will claim that some piece of music that they completely made up sounds like another piece because there's only so many sounds in the world um so i think it's it's really important to to think about the fact that the binary way that copyright is thought of that it's just people who own things and then people who take advantage of those things that are owned is is incorrect and that cultures are much more complicated in nuanced world than the world of ownership um and this isn't just about people who incorporate other people's work in their own it's about all of us and it's about the world we want to live in that's really preachy and earnest and i don't like to do it i tend towards sarcasm but i i really wanted to underline that point okay why are some content creators able to use music in their videos while others receive copyright notice for instance there are many makeup artists that use music in their videos how does that work you guys can answer this i can answer it i spent a lot of time on music and copyright uh when writing the white paper do it so some people can use music and some people can't and this is very frustrating because you can pay a license fee to use music or you can use fair use music or music that's in the public domain or music that came with your editing software that you were given the license to um and all of those things you have the rights to you can get a takedown notice in two ways you can get a dmca takedown notice which means someone decided they own the thing you're using and would like you to stop that is standard or you can get caught by a filter and filters can't tell the difference between music that it can only tell the difference between music that is in their database and music that is not in the database so if you're using music that's in the database if you use that music in your video it is presumptively infringement basically and they they will either notify you or take it down or monetize or whatever they've decided to do this applies to facebook's felt every filter that's just sort of how that works so if the music's not in the database it won't trigger a match and if someone hasn't watched the video and decided they own the music it won't get a dmca takedown so that's why some people don't get takedowns and some people do some people will get those takedowns because they used music that they have the rights to but something else in the database also used it or it's a music it's a piece of music that's in the public domain anyone can use it but someone did their own recording which they didn't have a copyright in they're a major copyright holder their music's in the database turns out the filter can't tell the difference between two people playing the same copyrighted same public domain music on the same instrument that's going to sound pretty similar to a robot so that's sort of what's happening there and that's why actually a lot of my time has spent helping people figure out if it's a dmca claim they got or if it's a filter claim they got because there actually is something different going on in those situations and Catherine before we go to the next question there's one that I think we missed in the chat from earlier that was a could the copyright office tribunal put in measures to screen out claims from trolls I can think of some rules for claimants that could work and to that I'd say yes they might be able to put in place rules that would mitigate that saying that I don't know that there would be any perfect solutions and it still wouldn't resolve our other problems with case act like the lack of rights to appeal but I wanted to address this in particular because in this process where the copyright office is going to be coming up with these rules and decide how to implement the case act it will be seeking input from the public and from stakeholders and we will be giving input in that process for sure and we'll also you know try to make a point of making sure you all know when this is happening and how you can contribute so you know watch out for those opportunities and and if there are ideas you have for how to make the system work better you know definitely share them with the copyright office okay so here's a question and I actually do not know if we'll be able to answer it um is my understanding correct that the standard for education fair use exemption requires that the use not be part of the teacher's regular curriculum um I don't think that's technically a legal rule um like it's it's not going to be a bright line um there generally aren't really any bright line rules like that in fair use um what you do see sometimes is like uh different groups like uh you know teacher organizations or like library organizations will kind of work together and come up with their own kind of industry guidance on fair use saying like these are what we think are good principles for people in our area to follow uh to you know avoid infringement and make sure what they're doing is fair use so it's totally possible that that is one of those guidelines or maybe some courts have considered that but as far as I know it's not a bright line legal rule um the next question is what is the definition and scope of transformative use hey kasey from the organization of transformative works what is transformation um so so uh as car mentioned earlier um uh transformativeness is one way to think about it is adding creativity from thing but basically thinking about how something is transformed from from the original right so you know when we're talking about copyright like um this is why piracy is kind of irrelevant to a lot of the stuff that I think about um because it has to be a new work that somehow transforms the original and where the lot you know and also as we were just talking about there aren't like bright line rules for fair use including commercial commerciality so um otw is only concerned with non-commercial transformative work but that doesn't mean that you know um commercial transformative works can't also be fair use um but there isn't like a you know a definition of exactly what would constitute a transformative fair use um or not um but you know the more the the more uh creatively different it is from from the original um you know the more likely something is to be to be a transformative work yes I I want to add um to those things so in the same thing in the economic sense this this has caused some confusion in the past especially I think from people who may have been used to hearing about fair dealing in other countries or moral rights if you use part of someone's work to explain that it is bad or that people shouldn't buy it or that people shouldn't see it that doesn't destroy the economic value of the work um that is extremely protected in the united states criticism is a perfectly fair thing and in fact using portions of things to show your point makes your argument stronger and that's what we are in favor of so using portions of someone's work in a way that explains why they are bad even and even if it causes people not to buy it isn't an economic harm um it it is it just isn't um similarly those people aren't entitled to money from you if you use their work when you discuss it in criticism that's my my biggest problem with content id in a way is it's never been the case that you have that the people who um make the thing that you are criticizing should get to make money off of your criticism of the thing um the the job of critic has existed for a very long time and it has never depended upon paying the people that you are criticizing it just that would be absurd um i think we're getting uh close to the end here i want to thank everyone who's tuned in thank you so much for being a part of this um i hope that this has been helpful i hope that you are aware now more about what's going on and about um what's available to you in terms of help um i i really hope that that you see that and that people rally behind this i think um copyright kind of rightfully gets a little uh lost um when more life and death things are happening and and i understand that but i think what we saw last year was when life and death things are happening it's really easy to sneak long-term bad copyright past people's attention and and let's make sure that that doesn't happen again let's make sure that much like they did in sopa pipa the new congress understands that the future doesn't depend on just hollywood um so i'm going to plug once again that um we have our petition up e f f dot act dot e f f dot org um and that you can sign up for the mailing list by emailing me uh Catherine at e f f dot org k a t h a r i n e at e f f dot org you can always email info at e f f dot org for any questions or any help you need if you are pressed and you want questions that's press at e f f dot org um kasey do you have any contact stuff you want to share or anything like that um you can find out more about otw at transformative works dot org um and anyone is also welcome to get in contact with me and my my twitter for example is at cp slur kara do you have any particular things you want to share that you think i missed you're muted well the answer was no um and i also said you're the pro at this which my muting uh backs up uh just echoing that yeah if you run into any issues where you're not sure whether something is legal or not and you could use advice and you don't know any lawyers don't know where to find a lawyer email us at info at e f f dot org um we aren't able to help everyone because we are a nonprofit with not a lot of lawyers um but when that does happen you know we we have a network of attorneys that are on a mailing list for us and we can often find people referrals um including ones that might fit your price range which may include attorneys willing to give free legal advice um so you know don't hesitate to reach out if if you could use help connecting with a lawyer and even if what you don't need is a lawyer if you just need information if you just need if you're just confused because you got something and you don't know what it means or you know something's wrong but you don't know what to do um you can you can oh you can also reach out i spend a lot of time just sort of walking people through like a content id match and what that means um you can i am also on twitter um k under dash trend to costa uh i am often there screaming about copyright and offering whatever help i can um i am often tagged when people run into copyright issues and i am gleefully happy to help people figure out what's going on um it is it like i want to make large change which is why we have the petition which is why we're urging you to sign up which is why i want to create a grassroots um coalition of people um but i also it like helping people individually is also a very valuable use of my time and the time i think of most of us um so thank you so much again i really want to thank kasey and kara for taking their time out on this friday um to talk about this issue um and i will hope to see you all on the internet