 on the internet. We're going to give folks a couple of moments so that the attendees on the Zoom call can pile in as it were, and we will get started shortly. Everybody, well, welcome to the panel that I have, I can officially say is could probably be the highlight of my December. A wolf in sheep's clothing, how the DMCA is used to inhibit free expression on the internet. My name is Meredith Rose. I'm senior policy counsel at public knowledge. Joining me today, we have an awesome panel of guests. We have Lindsay Ellis, science fiction author and video essayist. You want to say hi, Lindsay? I'm mute. Hi, sorry. Hi. Thank you for having me. I look forward to discussing a topic. Oh, wait, hold on. I got to get in costume. Okay. Now I'm ready. Let's do this. Excellent. Suit it up. We also have Corinne McSherry, legal director at Electronic Frontier Foundation. Hi there. Happy to be here. Always good to talk to DMCA and how to fix it. And we also have Casey Feasler, assistant professor at the University of Colorado Boulder. Hi. A little sad. I don't have a costume. Excellent. $10 on Amazon. I think this is what I paid for this. I mean, it's great because it's got paws and pockets. You need to put your phone in it. All right. So just as some background serve what we're going to be talking about today, the DMCA, when it was passed in 1998, was intended to protect copyright holders from having their work stolen or reproduced online without permission. Too often, however, the DMCA, especially its takedown provisions, are used as weapons for rights holders to bully competitors, critics, and even fans discussing their work online. Lindsay, who is a prominent YouTube creator, will discuss her run-ins with some of the more interesting parts of the internet ecosystem and the DMCA notice system after she published a video that was critical of a romance author. Casey is a member of the legal committee for the Organization for Transformative Works. And Corinne, as legal director of EFF, will be also providing helpful context about how the DMCA has been used in practice to quash free expression on the internet. So I want to make sure, folks, we will be able to take some questions from the audience at the end, so I do want to leave some time for that. But just to kind of get us started off, Lindsay, could you sort of just give us an overview of kind of what happened for the folks who you haven't had the chance to watch your extensive... Right, my two-hour opus. Watch if you get the chance. They're absolutely worth two hours of your time and then some. Well, I guess long and short is that we... I was looking for topics that were outside of what we normally do because I was getting kind of sick of like ragging on live-action Disney remakes. And notice that there was this trend like on YouTube that we're talking about like fandom and fan works was kind of picking up steam. And so we were looking for a topic that was under that umbrella but hadn't really been discussed much on YouTube. And I remembered this New York Times article back in, I think, April. And I, you know, suggested this to my co-writer. I was like, what do you think about this? And she's like, actually, yeah, this sounds like a lot of fun. And so the article itself was very... I don't want to say both sides. It was it was basically detailing a court case where one author who had a pen name, Addison Cain, sent a bunch of DCA takedowns. So she would say her publisher sent them on her behalf to another author, Zoe Ellis, whom Addison Cain accused of plagiarizing her. And this, these DMCA's happened over a period of like a pretty deadly over a period of six months, basically to every major platform that, you know, sells e-books. And eventually Zoe Ellis kind of got fed up with this because, you know, she felt like she didn't plagiarize anything, which she did was basically right within a genre, which is Omega first, which is if you know anything about the genre, it's, I mean, it's pretty funny, but like the tropes of the genre are basically like, it's basically romance novel, but like with, you know, bad wolf science, Alpha, Beta, Omega, Dynamics laid over top of it. So Zoe Ellis, Sue's, Addison Cain stopped doing these DMCA takedowns. And so it's just like this big mess. And it goes on for a couple of years and kind of fizzled out slash ended in the middle of this year. And I mean, I guess in some ways you could argue it's still ongoing. But basically, in the course of our research, like I, you know, I kind of like built on top on, I kind of built on that New York article and, you know, talk to other people who'd been following the case. And, you know, basically, you know, the conclusion we came to was that this really kind of one side that was in the wrong here. And that was Addison Cain for, you know, sending these malicious DMCA takedown notices and then doubling down really, really hard after she got called out on it and turning it into this sort of like cause celebrity with, you know, I am going to be the champion of author copyright and I'm, you know, I'm fighting for authors and this is a moral thing I'm doing actually. And we thought that that was kind of wrong and bad. So we kind of said as much in the video, the first video rather, and then like the very next day I hear from her lawyer saying, you know, this is slander and you need to take it down. And and then it just kind of got even crazier from there. So I guess we can, we can leave it at that. That's definitely a roller coaster ride. Corinne, can you kind of talk about, you know, what sort of what were the copyright things at issue here? You know, how did EFF get involved in all of this as well? Yeah, absolutely. So so I should say that so Lindsay Ellis is a client and we represented her in this case. And so because of that, I'm going to be just a tiny bit careful because privilege. But but you know, there's lots and lots I can tell you about this crazy thing. But so so what happened is, you know, we heard about this situation. And you know, the bad news is, I'm sorry to say that this is not unique. There's many unique facets of this particular situation, which are particularly crazy. But but the use of the DMCA to take down criticism to take down speech you just don't like is not new. It's actually been happening pretty much since the beginning of the DMCA take down process. And we hear about it way too much at EFF. And we can't always intervene, we can't always get involved. But this was one that was just so egregious. And so we felt like, you know, we wanted to help Lindsay out and help respond. And which is not to say that Lindsay wasn't doing a perfectly good job by yourself in many respects. But sometimes you need a lawyer. And I want to flag that because not everybody can get a lawyer when they need one. And that's a really, you know, difficult process because EFF can't, there aren't a lot of pro bono intellectual property lawyers out there. I have to tell you, I know many of them. And we're not a huge number. And a lot of people don't don't have that ability. And so then the so they really struggle to respond to to DMC abuse, you know, when people are using the take down process to challenge perfectly legitimate works. And a thing to understand is that for for a company for a service provider, like YouTube or Patreon or Twitter or whomever, when they get a notice alleging copyright infringement, they have very little incentive to check and see if that's a legitimate notice. If it fills the requirements of the law, they're usually going to assume that's a legitimate notice. And they're going to take the content down. And that puts the creator in a very difficult position because they have to figure out how to respond. They have to figure out what someone's accused me of copyright infringement. Should I get a lawyer? What's a lawyer going to tell me? Where will I find a lawyer? And how do I respond to get my content reinstated? It's a complicated process. So back to this particular situation, you know, we took a look at it is very clear that there was no legitimate DMCA complaint here whatsoever. Okay. That that wasn't complicated. But it did also seem to me that we had a level of abuse that really needed a response to to the to the other side, right, rather than just simply a counter notice, which is a process you can do. But sometimes you really need to talk to the other side, explain to them what they should already know before they send the takedown notice, which is fair use and how fair use works. And that there are plenty of ways in which you can use someone's original work for purposes of commentary and criticism that are lawful under copyright law and therefore you shouldn't be sending DMCA notices to challenge them. So we wrote that response. And but unfortunately, the recipients did not take it incredibly seriously. And I guess, and really still doesn't understand fair use. And so we got another response back that was really, you know, a very person who was very, very confused about copyright law. And and so, you know, we responded once again. And for now, that it's gone quiet. But it the whole back and forth is pretty it's funny. But it's also worrisome. Because what we have here is we have someone who's using a legal tool that's very powerful. And all you have to do is a ledge copyright infringement. And the content comes down based on nothing more than an allegation. People who are going to go around wielding that weapon seems to me really have an obligation to spend a little time actually understanding how the law works, and how the weapon works before they go ahead and and use it and put the creators in a very difficult position. And I think he has plenty more to say about that. So I might pause for a minute. That's actually that's a great segue. So Casey, you know, how do we see these kinds of notices in fan community? So you're an academic, you study a lot of fan communities, how they interact online. Is this something we see often in fan communities? Like what does it look like? What happens if a creator can't afford to fight them? Kind of where does this go? Yeah, so I would say it's the most common place actually that this happens to fan creators is on YouTube. And again, it's because of these, you know, because of content ID and these automated notices. I actually got a copyright flag on a video that I uploaded recently about fair use. Because I used about 10 seconds of a fan vid in my video to explain what fair use was and the fan in a fan vid of course has a song in it. And so it automatically flagged it. And I had to go through the counter notice process, which I as someone who, you know, I'm an expert on fair use was perfectly happy to do in fact quite thrilled to do. But for a lot of people, you know, you see like, Oh, there's this legal process. And, you know, I've talked to a lot of fan creators who have gotten DMC takedowns and their response has been, that's too scary for me to deal with for various reasons. You know, for example, YouTube's copyright school video, which is sort of like the video they make you watch if you get copyright strikes, like a UI school. And they're like, Yeah, fair use is a thing. But like, it's so difficult to understand, you're never going to understand it. We recommend that you hire a lawyer. And if you, you know, if you do a counter notice, like, be very careful, because if you do something wrong, you're going to get in a lot of trouble. That's how the law works. And so that kind of thing can really scare scare people away. Or the other thing is that you have to give your real legal name to do a counter notice. And a lot of people, you know, use pseudonyms and for their YouTube channel for fandom and might not want to risk anything that will connect their real name to their pseudonym. And so a lot of times the result is just, well, you know, my fan work isn't that important, even if it is a really, really clear, fair use example, that happens a lot on YouTube. I mean, you know, I'm again on the legal committee for OTW. Very occasionally, we get DMCA takedowns for fan fiction on archive of our own, but not very often. And usually they're bogus when we do. So that actually sort of leads me to a question for Lindsey, you know, obviously you're a very seasoned YouTuber, you know, you've got a pretty big following. Was this, was this the first time you've gotten sort of a DMCA claim like this? I guess inside or outside of content ID? Yes. I mean, you know, I, you know, we tango with content ID every day. And that, I guess that was sort of like part of this journey was really learning that like, you know, content ID and DMCA takedowns, you know, technically exist in their own like fiefdoms, like they're related, but they don't really have anything to do with each other. But I guess this was for people who don't know what happened after I got the letter from Addison Kane's lawyers, you know, the irony of doing videos about her sending those malicious DMCA's to another author was she, she started doing them to me. And, but, you know, surprisingly, like the one she sent to Patreon, like Patreon immediately kind of, you know, sniffed it out for what it was. And, you know, we're like, Hey, do you want to hop on the phone? Talk about this. And, you know, she sent one to YouTube too. And to my, you know, absolute shock, YouTube actually looked into it and was like, No, we think this is probably bogus. So we're going to leave you up. And, you know, we can talk about why that is later. But yeah, this is, that was the first time that I had actually gotten a DMCA takedown notice. Never technically get one of those before. So what was it like? I mean, your videos are generally pretty long form, like 30 minutes to an hour, like, you know, how much time kind of just goes into making a regular video? How much time you had to burn on dealing with this in response? Well, I guess really, a lot of the time being burned on the response was also time making content to be perfectly cynical about it, because like, as soon as we started getting, like these emails from the lawyer and these DMCA takedowns, and I think what really kind of sealed it was out of the blue, I started getting emails from other authors she had targeted, like, you know, and I did not salute these all, like I just like Lisa Vino, who I talked about in the second video emailed me out of the blue, blushing books, the publisher that was involved in the lawsuit emailed me out of the blue. There was a couple other authors. And so the fact that like, it, you know, it wasn't just people that were involved in this lawsuit, like this woman had like a long history of harassing others and silencing people. And basically, then, you know, sometimes using the DMCA is one of her tools to do it, I thought was very telling. But I guess the other thing is like, I was in a very privileged position. The only reason I feel like I like, like another colleague at EFF, I've done some work with her in the past and, you know, specifically on the topic of content ID, which is part of why I know so much about content ID YouTube to other YouTubers. Also, like, knowing what, you know, BS, like, as Casey said, like the way YouTube frames copyright and, you know, claiming fair use as this sort of like massive risk that, you know, on the level of like tax evasion, if you want to fight it, you know, the only reason I know that was BS is because like the lawyer legal legal, you know, he, he does, you know, he'll like, kind of, he tries to like hashtag not legal advice, but like, he's very well versed in it. And so like our YouTube agency, he's sort of like, been the guy that's like, no, that's bullshit. You can, you know, you can, YouTube is lying to you. You're allowed to do this thing. And on top of that, the fact that like EFF immediately was just like, yeah, we'll, you know, if she comes for you, we will, you know, take this on. So I think I was in an exceptionally, I guess, privileged position, like, you know, where it was sort of like if, you know, knowing that we were in the right, and knowing that they had like no case at all. I, you know, I guess I was feeling kind of, I guess, empowered in a way that is rare to the point of non-existent, where this would normally happen to other YouTubers. So I guess in a way it was just like, well, this is a good opportunity to, you know, the second video being almost sort of like a, you know, a case study to inform people like, you know, about like DMCA as a silencing tactic, rather than the ins and outs of what DMCA takedowns actually, how they actually work. Yeah, actually, that's a good question for Corinne. Can you kind of walk us through like, what is, what is the DMCA supposed to look like in theory with its takedown provisions? And what is it supposed to accomplish versus kind of what we're seeing in the context of like, you know, like takedowns that get sent to Lindsay? Sure. So, so what that DMCA was supposed to be, and partly is, is kind of a grand bargain between copyright holders, service providers, and users, and the users often get forgotten, but they were actually part of the bargain. And the idea is that copyright holders were very worried when DMCA was enacted in that time period, 1990, in late 1990s, and, and they're worried about online infringement, and they're worried that it's going to be very hard if they have to sue everybody individually, and they say, so they go to the service providers, service providers for their part are very worried if they're going to be liable for all the potential potentially infringing content on their services, you know, the legal liability will kill them immediately, right, they just can't take the risk. So, so, but at the same time, Congress is worried about protecting free expression online. So what Congress does is it says, look, we're going to set up this notice and takedown system, you get protection from liability for what your users do, if when you get a notice of copyright infringement on your service, it's a very, very basic version of it, that complies with certain requirements, you take the content, then you're protected from liability. And, but what you, but then Congress built in some protection. So it said, on the other hand, we realize that sometimes those notices are going to be wrong. So if someone's a target, one of those notices, you can counter notice, you can respond and say, no, this is not illegal. And you're basically calling the copyright holders bluff. Because what you are also saying is, this is not illegal. And if you really want to go after this, you have you can sue me, and you can sue me in this court and say where you are, this is why you have to say what your name is. And you say where you are. And you agree to submit to the jurisdiction of court. But this is very scary language for normal people. But this is the magic words that you have to use. And then the other protection that was supposed to be built in was section 512 F. And what section 512 F says is if you make a misrepresentation, if you alleged something's infringing when it's not, then you can be held liable for damages and attorneys fees. That last provision has not unfortunately been as effective as we would like, because the Ninth Circuit Court of Appeals has interpreted it to mean that you have to subjectively know that your takedown notice is wrong. So basically, you have to know that the use is fair, that the use is lawful. And if you still send the notice, then you're liable. And this is the Dancing Baby case, right? Yes. So what that does is it tells, it gives rights holders an incentive to actually learn nothing about fair use, because then they can say, I didn't know, seemed like infringement to me, and be protected from liability. And so yes, so the Dancing Baby case is lens versus universal. This is a case that I litigated for a very long time personally is dear to my heart. And that was the case where a take to a DMC notice was sent for a 29 second video that a mom took in her kitchen of her kid dancing to Let's Go Crazy by Prince, which you can't really even hear very well. It's like on a boombox. This is 2007, okay? And it's obviously a fair use, but Universal Music Group sent the takedown notice anyway. And that's the kind of example where it's just a little thing, but there's no way it's illegal. And this content should never have been taken down. And unfortunately, you know, this is what we see all too often. And a last thing, but the way it is supposed to work is there's notice and there's counter notice, and there's a deterrent to abusing the system. But that deterrent isn't working. And so the abuse continues uninvaded. And people are afraid to counter notice, as we've already talked about. So it can have really dangerous consequences for speech. And one of the things that rights holders will say is, well, it's only a small fraction of the notices that are abusive. And that's actually probably true. But a small fraction of millions of takedown notices equals a lot of lawful speech that's being taken down. And the last point that I would make is that one of the things that we see in particular is not only sort of individual notices targeting targeting specific content, but another thing people will do is they'll send a flurry of notices and have an entire account taken down. Because for many services, including YouTube, if you get more than three strikes, your whole account can come down. And so people are very, very afraid, not just of one copyright strike, but what if they get a whole bunch of takedown notices? And even if they're false, by the time you got it cleared up and you counter noticed and you've gone through that whole process, your account's been down for weeks. And that's really scary. And it's why people don't counter notice because they just or why people just don't even want to get into the fight in the first place because they just don't want to get involved or have any challenges. So that's interesting because a lot of the places that we see that kind of power imbalance that exists with power, both power imbalance and financial imbalance and knowledge imbalance between sort of major like who we think of as like the big rights holders versus YouTubers and sort of smaller creators and DIY type folks. You know, obviously that I feel like that kind of comes to an apex when you talk about fandom communities where you really do have, you know, a community that is centered around a TV show or something else, you know, where the copyright is held by usually some corporate entity. So Casey, what do we see like when, you know, we all sort of know the old joke about those of us who grew up in the fanfic community know that you know, sort of put like no copyright infringement intended, I don't own these characters at the top of your fanfic. But sort of how do we see this this imbalance both in terms of like knowledge and power like actually manifest when we talk about these communities? Yeah, so fan, fan creation definitely depends on on fair use. And it's also, you know, it's a very easy fair use in our argument non commercial fan fiction, especially, you know, and we haven't seen litigation around like, you know, non commercial fan fiction, for example. And I think that part of the reason is because like copyright holders know that would be a very bad look. But also it's very possible that, you know, at various points people have been threatened and I know that this has happened, especially in the early days of fan fiction. But you know, again, if your choices are like, take down my fan fiction that I'm not getting paid for anyway, or hire a lawyer, you're probably just going to take it down. I mean, and you know, and this is one of the reasons why I'm glad that that the organization for transformative works exists because we do sometimes get inquiries from people looking for information about, you know, what to do about a DMCA take down or that kind of thing. I mean, the other thing is that they're really strong social norms and fandom around copyright around things like, again, non-commerciality, and, you know, even things that don't necessarily matter for fair use like attribution, and sort of like the amounts that you can use of something, etc. And these norms are so strong that I actually think that they've made this sort of copyright related behavior and fandom quite good. There's very little, you know, outright copying or plagiarism in the fan community. And like, if one fan plagiarizes from another fan, for example, like people will come after them with pitchforks, like very, very strong norms around that, which I think has helped. I'll also note, though, that there have been some experiences where fans have sent DMCA takedowns. Because, for example, occasionally, there are aggregators of fan content that will like, for example, scrape A03 and grab stories and then put them on a website that they've been charged for. And in those cases, the DMCA has actually worked, I think, as intended, in part because, you know, there's not that huge power imbalance. And in that case, it's actually sometimes arduous for the fans to figure out how to do that. And this seems to happen kind of en masse. And so, you know, OTW will have like, you know, here's something that you can copy and paste, you know, to do this. So, there are some cases in which this is kind of working as intended. But I think that the big problem tends to happen in the cases that we've talked about where there's this huge power imbalance, where it's way, way easier for, you know, a big copyright holder with lots of lawyers to send tons and tons of DMCA notices without considering whether something's very used, without considering, you know, the consequences, and very hard to, you know, to file a counter notice or at least scary. So that's interesting because we see these power imbalances kind of, you know, the story of copyright is really, you know, in design is supposed to rectify power imbalances in practice, often ends up perpetuating them. I think this is also interesting because we also see it in these private agreements that websites have created these like, sort of private systems, like content ID, where we have, you know, a system that is the private solution that YouTube has developed to not to sort of layer on top of DMCA and the sort of private ordering and it's really designed to help YouTube's business model and to, you know, help the business models of the really big content owners who can get access to the back end of being able to use it. Having said that, I think a lot of people conflate content ID in the DMCA. So like Lindsay and or Corinne, would you guys just kind of mind walking us through like, what is the difference? Like, how does, what is content ID versus like, what is the DMCA and how do we keep those things, how do we think about those things separately in our brains? I feel like content ID is a way to, is a way for YouTube to not have to deal with the DMCA. It's basically their way of trying to like, use DMCA as a very, very, very last resort, you know, which in theory makes sense, but like in practice, they have to automate it and, you know, and, you know, they say that if you request a, they say that if you request a, you know, a human to review it, then they, you know, they, they will, but I'm sure that 95% of the time when I've challenged content ID, no human looks at it, you know, and I have to kind of go through back channels to, you know, whine to the manager to be like, no, this isn't fair. And, you know, I've actually, and I've had to do it on behalf of smaller YouTubers too. So yeah, that's, you know, and it's, and it's, oh yeah, I'll let Karen speak to it more knowledgeably, but yeah, it's a, it's, it's basically like YouTube's internal process to sort of like create a buffer between like, you know, actual or basically the beginnings of copyright claims and DMCA, but in this case, obviously content ID could not be involved because it's a book. And, you know, how are you gonna, because the thing about content ID is it scans for visual media and it's really sensitive to audio. Like that is honestly like, that's why there are so few music reviewers rap relative to like movie reviewers on YouTube. Like I think like there's two with more than 100,000 subs. And like a big reason for that is because content ID is so sensitive to audio. And also the fact that like for whatever reason, music rights holders tend to be a lot more aggressive than film rights holders. But with a book, it's like, how are you going to scan for that? You know, it's just like, you'd have to, I can't like, I don't even begin to know. So it's like one of those issues like that the the rights holder would immediately have to skip to DMCA because there's no way you could put a book into the content ID system. Yeah, so so content ID is, you know, it's YouTube's filtering system. And it's used in a lot of different kinds of ways actually. But what it basically does is it's a massive database that rights holders, big rights holders mostly can, you know, throw content into and then if they and then when someone's trying to load something up, load up a video, it scans it against this database and it sees if there's a match, if there's a video match or there's an audio match. It also does it proactively in the sense that sometimes, you know, a video could have been up for a long time and then suddenly there's more content added to the database or there's some re-scan and a video that past muster at one point, now is going to get flagged. And this can have a big effect, particularly on fandom, because of course the whole point of a lot of, you know, video and fan art is that it's commenting on something. So you have to use, you have to have portions of the original work in order to engage in your criticism and commentary. And according, EFF just published this week, a white paper which I think is linked in the chat about YouTube's content ID system and the way that it works and some of the problems it has, particularly as Zanzi suggests with respect to music, where it's very, very sensitive and ends up and one of the things that means is it ends up shaping what we see online, because if you can't get past YouTube's filter and you can't reach yourself out, you're not going to be able to reach a lot of people because YouTube is so powerful as a space for expression. The way that it interacts with the DMCA, just to circle back to that, is that one of the things that happens is, so if you get a content ID flag, you can appeal it and there's a process and it's kind of complicated and definitely confusing. At the end of that process, if you continue to appeal and the rights holders continue to insist that your content should be taken down, is you can escalate essentially to a DMCA. So you basically can end up telling the rights holder like, no, I'm standing my ground. If you really want my content taken down, you have to send a DMCA notice, which then means I can counter notice, but also potentially section 512F liability. Rights holders don't always want to do that, but also unfortunately creators are very scared to do that because if the rights holder does send it, well, now they've got a DMCA strike. So now they're two strikes away from having their content taken down and that's very intimidating for many people. So they don't want to get to that point, but that's how they interact with each other. So content ID is it's the informal YouTube internal system. The other thing I would say about it is that content ID, unfortunately, it gets things wrong a lot. It flags things that are perfectly legal all the time. Public domain music, music that's original to the person in the first place and they'll find their own music as being flagged as being violating copyright and it's like their music, but also like performances of public domain works. Anyway, there's a lot of problems with content ID and a lot of mistakes that got get made. Nonetheless, there are unfortunately many folks who look to it and say, oh, that's the model. That's what all services should be doing. Everybody should have something like content ID. Everyone should have some kind of filter because that's the only way we're going to stop online infringement. And, you know, that's very, very dangerous because filters like content ID simply cannot be calibrated to allow for fair use. They just can't do it. So one more plug for the white paper because we walked through why in that, but I'm sure Casey can give tons of examples. So I'll stop there. So I think it's definitely true that an algorithm will not be able to just say whether something is fair use. I mean, that's been, you know, that's been an issue for a while now and YouTube is definitely the place where like it's really come to bear. And, you know, again, that sort of that imbalance of power, like, you know, it is perhaps reasonable that YouTube cannot have a human look at every piece of content in order to see if it's copyright infringement. And this is the problem that we're facing with content moderation in general, right? Like this tension between, you know, the toll that's taken on human content moderators versus the, you know, inaccuracy of algorithmic content moderation. But the problem is that, you know, on the algorithmic content moderation side, it's all like, it's always hurting the same types of like it's hurting, you know, non infringing users. And so, you know, for certain types of content, you can understand why you might want to, you know, really dial it, dial it really far up knowing that you're going to get a lot of false positives because it's really important to like keep hate speech or whatever off of the Internet. But, you know, in this case, like, you know, who's going to be hurt more? Like, you know, the huge copyright owners because there's some video on YouTube uses 10 seconds of their song or like the small content creator who like thinks that they're a fair user and is just, you know, just trying to get a few views on their YouTube video. Like, I actually think that it's a different kind of calculus here than it is for other kinds of content moderation. And, you know, I feel like at the very least, YouTube could make it not seem as scary as they're doing right now. Like, I mean, you know, reform for DMCA aside, I think there are easy things that YouTube could be doing in terms of in terms of their policy to, you know, not to help with this power imbalance. But I'm not also not sure what their incentive is to do that. That actually raises a good point, which is that, you know, as somebody who's a beltway beast, like I live and work in Washington DC, we have a lot of conversations about this, you know, with lawmakers, and other kinds of policy folks, you know, the dichotomy you always hear is, well, we need to protect creators. It's like, well, like Lindsay, you're a creator, like you create a whole boatload of content. So how do you think about this, you know, what kinds of things do you as a creator, like what sort of things would you need either to change or out of a copyright system? Like what kind of things do you think people just really are missing right now in the calculus that they really need to think about? Well, it's like Corinne said it, like there's no way to automate fair use. And I think that just really demonstrates little cares about it. Like they say they care. And, you know, they have all these things on their website about how like, you know, fair use is important. And, you know, we try to take this into consideration. But if that was true, then they would, you know, find some way to, you know, incorporate this into their systems. And like, you know, when they do manual reviews, you know, like if they do it, like there's no real way to like really suss who is doing that because they contact it out to people all over the world. And like how do you find out if you have like a subcontractor in India doing manual reviews of content ID? How do you know if that person has even like the remotest of understanding of how fair use in the United States? Like you're asking like contractors all over the world to have a nuanced understanding of US law. And, you know, that's the best that YouTube has done. So I feel like, you know, it's just they they're trying to do this as cheaply as possible. And, you know, why not? There's really no incentive for them to act behave otherwise, you know, no one's going to sue YouTube for like, not doing a fair use good. So I think it's just, you know, I whenever I have had a problem with it, I've just kind of had to kind of go around the system, you know, like whenever we do the process of content ID, you know, sometimes what will happen is like YouTube will say like after one of the steps with content ID is like, you know, after 30 days, if the rights holder doesn't do anything, we release the claim and then you're good to go. But we have definitely had it happen where the 30 days will pass. And it's still on, you know, it's still in purgatory. And you don't we still don't know why like how does this work within YouTube system or content ID system? I don't know. It just it the rules genuinely are completely arbitrary. And so like, I guess, and so I've often had to just kind of bully my way into like, get, you know, shaking it loose. Like one time I, when we were in one of those situations where like the 30 days had passed, I just had to start like, I'm pretty it was you use your music group, right? It started like bullying them on Twitter. And it worked. Or like sometimes I'll have to like go through, you know, like my YouTube agency who has a contact at YouTube, that usually works. And or sometimes we will email rights holders directly, because there's basically a form letter that you can send that's just like, you know, kind of kind of I forget what it's called. You know, basically it's like, if we know if we are to enter a lawsuit, you were you can't like dispose of any document taining to this particular issue. Nine times out of 10, that works. So basically, it's really messed up that in order to, you know, we have to go around it. And like, and that just kind of requires like a level of networking, a level of like, you know, a large platform with a lot of people to the point where it's like, it's a bad look if you publicly are, you know, flouting a system that is not even popular to begin with, nobody likes content ID. So, yeah, I just there, there's no real good faith way to engage with this system as it stands right now. And so we just the way we have to do it is find creative ways to get around it. And so it's like, making a big stink on social media or emailing people till you get a response or emailing rights holders with like, thinly failed threats, you know, so. Yeah, it's just like, there's just no way within the current system to like actually engage with it. So we got a couple of questions from the audience here that I want to move on to. And for folks watching, you know, feel free to drop a question. I think there's a Q&A box available in the zoom or through comments on the YouTube channel. We got a couple of interesting ones. So one was just kind of a clarifying question about, you know, said so three DMCA notices on YouTube can get your YouTube account shut down. Question mark. How does that actually work in practice? Is it three DMCA notices to YouTube and poof? Yeah, I mean, that's the default. It's not just YouTube. I mean, the three strikes approach is actually you see it a lot of different places. Now, what YouTube did do a few years ago is institute a way of erasing some strikes by going to copyright school so you can case you alluded to this earlier. So you can go out of this thing, you watch some videos and they tell you things about copyright and fair use and they're not terrible, but they're kind of condescending and they're not really very encouraging about fair use as much as you might like. So so it's a little complicated on YouTube, but there is this kind of default thing across many, many services. If you get more than three strikes, or if you get three strikes, or if you get more than two, their default is they're going to take you down and there's a reason for that. The reason for that is because the DMCA includes a provision that's that it's called a that requires some service providers to have a repeat infringer policy. You have to have some way that you're going to deal with repeat infringers. Now repeat infringer is a misnomer. It is not a repeat infringer. It is a repeat alleged infringer. So it's someone who's been accused of infringement repeatedly, but doesn't mean they've actually done it. So what they do with these policies is they're trying to comply with that obligation, but it's not always very sensitive. I mean, I think the thing that happened in this case where YouTube actually did take a look at it, that's not the norm. That's not what usually happens. Usually a bunch of strikes come in and that's it. Account comes down. Yeah. And I'm oh, sorry. I feel like, you know, I having thought about it for like more than five seconds. I, you know, I feel like part of the reason it's not the norm is like, who is Addison Kane? She's a self published author on Amazon. And I at the time had just passed a million subs. So I really feel like for YouTube, there's this big cost benefit to where like, if the DMCA had come from universal or a large rights holder, yeah, they would have honored the DMCA. But like, since it was from a nobody against one of their like, you know, million plus creators with a, you know, fairly clean record, as far as DMCA is concerned, that was the only reason they had an incentive to look into it. It's like, you know, when you have a tiny, tiny rights holder that, you know, doesn't have any power, you know, I think, you know, after a certain point, YouTube, you know, is going to side with the thing that's making them more money. And in this case, obviously, it was, you know, their larger creator. And in that way, this kind of messed up because what if I had genuinely, you know, been like, you know, abusing this person's work and infringing it. Would you two have like, done the right thing? I don't know. But I think part of it does have to do with the fact that it was a small rights holder and not like universal. So that's, we had another question actually coming, it sort of falls in the tail of this is what do you usually see happening after you issue a fair use based counternotice to YouTube? Do the complainants usually die on the vine or do rights holders stick in their heels and try to fight it generally? Well, the automated system usually fights it. I'd say like, maybe 40% of the time they drop the claim. But usually they, you know, reject the, you know, counterclaim or counternotice, this is within content ID. So in my experience, usually they dig down. And so maybe we have to go through the process. And, you know, generally my rule of thumb is to like kind of take it to the end of the line. But sometimes like, all right, let me see, there's one that we've been dealing with for a while that like, I think it's in the rights holder ignoring it phase. Yeah, so it's an appeal. It has been an appeal. This is a, again, and this isn't like, this is part of why I don't tend to do videos about music. I did one. Let's see what, so it's add suitability, which is its own thing. But let's, what is, what is being? Okay, so there's a bunch that are in 24. And, you know, we just keep submitting appeals and keep submitting appeals and they keep rejecting it and keep rejecting it. And like, it's a video about like, specifically like music during the Bush administration, like it's all of it's pretty clear cut fare you so it's like, if it did go to court, like, you know, I feel like it, you know, we've been but like, they don't want it to get to that phase. So it's just huge, especially again, music rights holders tend to be a lot more aggressive. And so that's the one we're fighting now. So there's a another question came in about, you know, we talk about sort of potential abuse and trolling. One of the sort of controversial copyright bills that is currently floating out in the ether is this bill called the case act, which can create a small copyright small claims court. Corinne, can you talk about like, what, what would a world where the case act existed and was available to Addison Cain, like what would that have looked like, do you think? Yeah, that's not a better world. Let's be super clear. EFF is is adamantly opposed to the case act. So what the case act does is it creates a small claims court for, for copyright disputes. And the motivation behind it isn't crazy. There is a situation where particularly you have small rights holders, and they don't have armies of lawyers, they're not universal music group, they're, you know, they're Addison Cain to be honest with you, right. And, and they need a way to defend their copyrights that doesn't maybe involve a big, huge federal dispute, at least, you know, that's how they feel because it's too expensive and it's too hard. It's understandable that people have concerns like there are people who have very legitimate concerns to the visual artists and photographers. So this isn't, you know, I have great sympathy for the desire to have to have a process, but the case act is not a good process. So what the case act would have done is it would mean that there'd be a sort of mini court set up inside the copyright office for someone like Addison Cain to make a complaint. But how that would work is that she would then submit a complaint. And then in theory, Lindsey might get a notice that would allow her to opt out of participating in that court, which she would probably want to do because the copyright office historically has been very, very pro rights holder and not very, very pro fair use. And so that's maybe those aren't the officers you want adjudicating your copyright claim. Maybe what you want is an actual judge making this adjudicating your case. But the situation is so you submit a complaint. And then the target has a chance to opt out. But a lot of times, first of all, they won't realize what's happening. They won't, someone educated like Lindsey maybe would, but lots of other people's wouldn't, some other people wouldn't. And so they won't know that they should opt out. And then all of a sudden they're involved in this small claims process in DC, where of course they have no relationship with, you know, to DC probably. And they're at risk of damages of up to $30,000. Again, without an ability to meaningfully participate in defending themselves. So there's a real risk of abuse with respect to the case act by copyright trolls and by people who are just deeply confused about copyright, like Addison Cain. And it means we're trusting to a lot of people who are not judges to make decisions about what the law is. And I think that's pretty scary. It's pretty scary for people who care about fair use. And Addison Cain for the record is a huge supporter of the case act, like publicly so. And only after this whole hullabaloo. So I'm sure that's a huge coincidence. Just total, it's not, it's not the work of a reverse fan fiction deep state or anything. So another question that came up, we actually got a couple of different iterations of this, which is that, you know, right now, traditionally, the sort of professional writers orgs and various content lobbies in DC tend to be very, very aggressive copyright maximalists. And there's been kind of this sense, you know, we're in a different era now where everybody can have a Twitter account, and you can actually kind of hear the voices of authors independent of professional organizations, same with musicians. And so there's a little bit more sort of dissonance on what the stances some of these orgs should take on these big copyright questions. Case act is a good example where, you know, a lot of the major stakeholders have all lined up behind it said great. And then there's been some concerns coming out of membership directly saying like, actually, maybe not. Do you and I know Lindsay, you're, you know, either eligible to be or, you know, or are already a member of some of these bigger organizations by virtue of your work as an author. In case you may be as well, I'm not sure. But sort of, how do you think about, you know, these kinds of orgs? How do you think there's, is there a way for authors and creators who are ostensibly recognized and represented by these groups to start changing the terms of the debate and moving it away from this, you know, as a colleague of mine, what's called it sort of the Vietnam of public policy where it's just incredibly vicious and very sort of binary. And is there a way for everyday artists and creators and authors to start steering the conversation towards something more productive? I don't know. It's kind of a, like you said, it is kind of a minefield because right now, like, you know, if you want to talk about like orgs, I'm involved with the big to do lately has with CIFWA, which is the Science Fiction and Fantasy Writers of America, is there's an author named Alan Dean Foster, who's famous for doing a lot of licensed work. And he, some of his books got bought by, you know, rather the company that originally held the rights got bought by Disney. And Disney decided like, we don't need to pay him royalties anymore because that wasn't what we bought. We bought the books. We didn't buy the obligation to pay him royalties under his previous contract. And, you know, it's kind of one of those things were in isolation. That's not a huge deal. But like the implications for that, like every time a company is bought by a company, there's no obligation to pay royalties anymore, is a huge deal. And so like for mid-list authors, which is the vast majority of authors, it's like we're kind of caught in this weird like middle ground where it's like most of what orgs are kind of like fighting against is major companies like Disney. But sort of like the result of that is, you know, abusers are going to like feel empowered because in protecting mid-list authors and smaller authors, that kind of can inadvertently give, you know, power to, you know, like DA users like Addison. So it is kind of a complicated thing. And right now, I feel like it like that particular one was kind of a clear cut, like, you know, in the wrong. And Disney did immediately back down, but like they backed down because Sifua made a big stink about it. And so like right now, it is kind of this weird thing, like same with fan fiction is kind of what's being kept in check is optics, you know, is like companies don't want to look bad to fans of things. And like that's a very like kind of unsustainable ecosystem in my opinion. Okay, we've got about four minutes left. So I'm going to throw that to you guys. You know, kind of what would you obviously copyright the DMCA is a huge hot topic right now. We are engaging in the every couple of decades. People start rethinking it seriously. We'll see, you know, what if anything comes of it? You know, what would you like policy folks and lawmakers and the general public to like keep at top of mind when we have these discussions? So let's just say, you know, I think one thing, you know, the copyright office has been looking at the DMCA. And they did this big report. And like, they're talking about the stakeholders, the DMCA, which are, you know, YouTube and UMG, like those, you know, without much consideration for smaller content creators and particularly non infringing users. And so I think it's important to keep that in mind. It's an, you know, even though they might not have much power, that this is an important group to be considering. And this is one of the reasons why I think it's so important that organizations like OTW and EFF are actually being a voice and doing some lobbying and speaking out against the case acts and doing, you know, DMCA 1201 exemptions and this kind of thing, because otherwise this wouldn't be happening at all. Like there would be no way for that group to have a collective voice until they just think that it's really important that they're listened to. Someone in the YouTube chat mentioned like, what about like all these proposals or like that sort of like half serious proposal that a congressman made like in the last couple of weeks about like turning copyright infringement into a felony. And so I think that's sort of like this weird paradox about what we're like these discussions we're having about like, you know, creating a like a better understanding of fair use and like companies actually like honoring it as they're kind of legally bound to versus what's going on in Congress, which is like a push for like more power for rights holders and like more punishment for alleged infringers and sort of this assumption in Congress that if you were alleged infringer, you are an infringer and you should be treated as such. And like it's almost kind of like we're in two different worlds and like it's it's yeah, you know, it's just like how can people like, you know, lobby, like how can we compete like find, you know, financially like with the resources of like companies like YouTube and Universal and Viacom and Disney who are obviously going to like push for harder and hard like more draconian copyright law and stricter punishments for alleged infringers. And, you know, I think that's what kind of like worries me is like, how do organizations like CIFWA and OTW compete with that? Like, we can't. And it's just, you know, I think there's that it really is just like the lobbying power of money. Like a good example is this California proposition where it was like giving Uber and Lyft drivers benefits and we and here in California like Uber and Lyft just like flooded people's like notifications like vote no on this or vote yes on this proposition. So it's like, how do unions compete with that? We can't. So that's just something that like worries me and I don't I don't even begin to have an answer to that. So I would think that I think there's two things. One is I think for all things copyright, a thing that our policymakers need to understand deeply is that in the 21st century, that when you're thinking about copyright owners when you're thinking about creators, it is not just Disney. It is not just Don Henley. It is not just these, you know, names that maybe you already know these, you know, and big corporations. Everyone is creating all the time. There are all kinds of creators big and small creators who are actually also trying to make a living on these platforms. And so you need to make policy for a much broader swath of people than maybe you realize. And those people need to be consulted. Those people need to be at the table. Anytime you're going to be making any kind of policy, you have to find a way to do that. You cannot let just a few trade associations tell you what copyright looks like in the 21st century because they will be wrong and they will mislead you. There's millions, literally millions of creators online right now and we need copyright policy that understands them. And in particular, we need copyright policy that supports and defends and protects fair use because those are really fair use creators in many, many respects. And then the second thing you need to do if you're going to touch the DMCA at all, which people do talk about, you should, if you do nothing else, you should improve section 512 app so that people have a reason to actually learn about fair use before they send DMCA takedown notices. Last thing I do think we need to acknowledge, the DMCA safe harbors have been profoundly important for free expression online. If we didn't have those safe harbors at all, we would not have all of the platforms for expression that we have right now because everyone would have had to go to Hollywood first to get permission to host any kind of user content and we can imagine where that would have gone. So the safe harbors are very, very important despite their flaws, but they do have flaws and we can make them better. I need to issue a correction. Someone in the chat mentioned that like Disney back down, I didn't hear anything about that. I think a different science fiction author told me that they did, but I was mistaken. The L&D and foster thing is still ongoing. That has not been resolved. My bad. And on that intensely hopeful note, thank you guys so much for making the time to come talk about this topic. This is certainly live and especially now that it's the year of our Lord 2020 and we're all indoors quite a bit spending probably a lot more hours on YouTube than we should. It's extra timely. So thank you everybody for, thank you to Lindsay and Corinne and Casey for your time and your expertise on this, and thank you to everybody who attended. For those of you who maybe want to send this along to friends, I believe our video will be archived on the public knowledge YouTube channel afterwards for folks who had a scheduling conflict, where we're watching the DMCA hearing that happens to be going on concurrently with this panel. So