Sarah Deutsch on the Digital Millenium Copyright Act

INTRO [00:00:04] You're listening to POWER PLAYS, the podcast charting how important decisions about the Internet - its infrastructure and its institutions - have been made. Here's your host, Ayden Férdeline.

Ayden Férdeline [00:00:29] Welcome to POWER PLAYS, I'm Ayden Férdeline. Today on POWER PLAYS, we are joined by Sarah Deutsch. Sarah Deutsch currently serves on the board of the Internet Corporation for Assigned Names and Numbers and on the board of the Electronic Frontier Foundation. Before she retired, she was vice president and deputy general counsel of Verizon Communications for 23 years. She was responsible for Verizon's global intellectual property practice and Verizon's privacy practice. But today we're going to be speaking about the Digital Millennium Copyright Act, DMCA. It was signed into law by President Bill Clinton in 1998 and remains in effect today. Sarah Deutsch was a negotiator in the negotiations that led to the passage of the DMCA. Sarah Deutsch, thank you very much for your time today.

Ayden Férdeline [00:01:15] And just so, just so very clear that you're speaking in your personal capacity today, aren't you?

Sarah Deutsch [00:01:21] Yes. Thanks, Ayden, for clarifying that point. I'm here speaking solely on behalf of myself and not on behalf of any particular entity, current or former. So I'd like to make that very clear in this opening caveat, thanks.

Ayden Férdeline [00:01:38] I want to start out a little broad because POWER PLAYS has a more general audience of people interested in technology, and particularly technology policy, but not everyone necessarily is familiar with the history of some, how some intellectual property protections and intermediary liability protections came to be. But before we dive into that, I'd like to start with an icebreaker. It's a new feature I'm going to be asking people on POWER PLAYS moving forward. And that is what is a contrarian thought that you have about business or culture that others might disagree with you on?

Sarah Deutsch [00:02:14] OK, well, this might be something that some agree and some disagree, but I think the lessons from the Covid-19 crisis that we're all facing today show that despite all the things that were broken in the world and stopped happening, the one thing that was working for people who had access to the Internet was the Internet. This was the one thing that keeps working, that has allowed people with access to have a right to continue their education, to work, to communicate with their families and friends. It's been an absolute lifeline. And so the contrarian thought that I guess I would share is that I believe that the Internet has become more essential than ever for people's rights and lives.

Sarah Deutsch [00:03:09] And we need to reconsider the value of the Internet. And if you look at the Declaration of Human Rights, it's very interesting because it talks about fundamental human rights include the right to work, the right to an education, the right to be part of your community. And for that reason, I think we in policymaking work, we should not be talking about terminating people's Internet access. This is an extreme remedy and it has no place today in society given the essential nature of the Internet. And it will be an interesting conversation for us to have. And I think it will play out in the in the upcoming policy debates, in copyright and in other areas.

Ayden Férdeline [00:04:03] That is fascinating, the whole conversation there, because just as we don't cut off individuals access to water or in some jurisdictions access to electricity, we do cut off Internet access. So really interesting food for thought. I'm curious about your early career. What were you doing before joining Verizon? And once you joined Verizon, what kind of projects were you working on?

Sarah Deutsch [00:04:27] Yes. So I first started practicing at a large D.C. law firm in 1986, and I was always interested in intellectual property and copyright in particular. And so I was at the law firm for five years and after my daughter was born, I wanted to move part time, but there was no part time arrangement that was really available at that time. So I was actually [unintelligible] altogether. But I wound up applying for some jobs and wound up working and getting a job at Bell Atlantic, which was a small regional Bell operating company. AT&T had broken up. And so there were these there called RBOC, Regional Bell Operating Companies. And I was hired by an awesome woman with four kids. And she was very interested in having me work part time. And so I started there three days a week and I was doing the trademark and copyright work at Bell Atlantic, which involved protecting the Bell trademark and opining on different policy copyright issues. But it was a very, I guess, what we would call sitting at your desk calling balls and strikes. That was the kind of job I had. It was very corporate, very predictable.

Sarah Deutsch [00:05:55] And so that was really my early work at Bell Atlantic before kind of delving into the whole Internet and IP policy issues that arose in the late 90s.

Ayden Férdeline [00:06:08] And what were the issues that were arising in the 90s? For those in the audience who are not as versed, perhaps with why intermediary liability protections matter, can you speak about, way before we even get to the development of the Digital Millennium Copyright Act, what kind of copyright liability, for example, some for Verizon or other telecommunication providers or Internet service providers had, or should have had, back in the early '90s?

Sarah Deutsch [00:06:37] So there really was no history of liability for telecommunications companies.

Sarah Deutsch [00:06:43] They generally had exemptions from liabilities because they they were carriers of communications. So they were intermediaries in the truest sense of the word. But at the same time, copyright law is based on a set of strict liabilities.

Sarah Deutsch [00:06:58] So it doesn't matter if you knew that something was infringing or not, if you were in the chain of violating one of the copyright exclusive rights or the right of reproduction or distribution, for example, you could be either primarily liable or you could be secondarily liable. And when the Internet started to, the new companies started to roll out, there were a series of cases, some of which were very bad, that would hold message boards, for example, liable for the content that third parties posted on the website, because that's what copyright law said. But the telecommunications industry had really nothing to worry about at the time. It wasn't really doing anything. So that was kind of the tensions that were at play. On one hand, you had industries that were just facilitating communications and then on the other hand, you had a set of very strict and rigid strict liability laws.

Ayden Férdeline [00:08:15] What did copyright infringement on the Internet look like in the 90s, wasn't this when most people had dialup Internet and few people could download large files?  

Sarah Deutsch [00:08:27] Yes, it was mostly people posting content, physical content of other parties. So, for example, when the Digital Millennium Copyright Act was first being created and we can talk about this later, we would get notices. Not Verizon. But third parties might get notices from the Church of Scientology because they saw some of their church doctrine being posted by folks up on a message board. And they could use the copyright law to try to impose liability on the intermediary in order to get that content taken down. So it was not at all the same degree of activity that occurs today, but it was very concerning to the copyright industry because for the first time the Internet made all of this copying so easy and it could be ubiquitously posted and put up online, but there was no downloading per se. It was more uploading of content on specific websites that was involved, if that makes sense.

Ayden Férdeline [00:09:42] It does. That's really fascinating, and you touched briefly then on the DMCA and we'll get to that really shortly. But from what I understand, before you were involved in WIPO and the development of various WIPO treaties relating to copyright. Am I understanding that correctly?

Sarah Deutsch [00:10:06] They actually both came into being around the same time. So. If you want to know the general history, I was just at my desk doing my day job and that would be probably in 1994 to begin with. And the Clinton administration was trying to figure out what do we do about this, this Internet thing that they called the National Information Infrastructure. And they they produced a green paper which basically looked at the whole problem of the Internet's facilitation of copyright, and it found that the Internet was akin to a giant photocopying machine. And everything that happens is a reproduction. And it concluded, there was a sentence in there, that said that the best policy is to hold the service provider liable. And I realized immediately that this was basically going to shut down the Internet. It was an ncredible blow to not only Bell Atlantic's interests at the time as a telecom company, but to all the Internet startups and at the same time, WIPO was involved in a new copyright treaty, which was updating the copyright laws for the digital age. And it created a new right of communication to the public, which gave an exclusive right of communication, whether by wire or wireless means to the rights owner. So the whole Internet works by means of communicating to the public. So again, this YPO copyright treaty, although it didn't persay impose liability, created a framework of liability. So as a result of the green paper and white paper, it motivated a bunch of us to get together. And these are people I've never met in my life that it would be competitors, anyone from the telecom companies. We were not in one place, the local Bell operating companies, we knew each other, but all of a sudden we had to work with the long distance providers. So I met Marilyn Cade at AT&T and and that little startup company called MCI. And we got together with them and formed basically an ad hoc copyright coalition, which included libraries and universities and research institutions and Internet startups like AOL and CompuServe. And we started to meet to talk about the treaties and what would become the DMCA. And we recognized there was this real threat to all of us. So the first thing I had to do, though, was to go to my General Counsel and explain that we had a real problem because, you know, IP was not something Bell Atlantic ever was very concerned about. It was kind of something you took care of, but it wasn't an inherent threat. But he immediately understood the risk that this posed to our business. And he asked me. And I told him that this copyright treaty was going to be happening in a few weeks in Geneva, and he said, well, who is the Laurence Tribe of copyright? I want you to hire that person. And I'm like, oh, well, that's David Nimar. And I had all of 10 volumes of David's treatise behind my desk. And I worshipped David from law school on. And he says, I want you to call him, ask him if he's willing to help us and go to Geneva.

Sarah Deutsch [00:14:04] So in my nervous little voice, I called David and I'm like, "hi Mr. Nimar. You don't know me, but I work at Bell Atlantic and here's the issue. And would you be willing to come with me to Geneva and work with our our coalition to try to fix some of the worst parts of this treaty?" And he explained that my invitation was like asking a child to go to Disney World. Of course, he would be delighted to go to Geneva. And David, you know, not only is the leading expert on copyright law, but he speaks multiple languages. So, you know, it was just a very interesting bunch of us, all cobbled together, going to Geneva. Marilyn and I were going up the escalator and this is a three week treaty conference. And we see the copyright owners going down the escalator. And they didn't know we were coming. And they looked shocked. Like, who are all these telecom and startup people here and what's going on?

Sarah Deutsch [00:15:05] And it was an incredible experience. But we were able to convince the delegates that this right of communication to the public should have something called an agreed upon statement. So we basically got a little carve out for ourselves that made it clear that if you just provide the facilities for communications, that you're not going to be necessarily liable for violating that right of communication. And at the same time, the Copyright Act in the US was being introduced. It was called the National Information Infrastructure Act. And so our coalition stopped that act from proceeding because we pointed out to Congress that we had a real liability issue. So what's interesting about US copyright law is that it's usually not something that is either bipartisan or it is bipartisan rather. It's not something that's imposed usually on stakeholders. What they like to do in the Senate and House Judiciary Committees is have congressionally supervised negotiations where the parties themselves iron out the details of the law. So we were drawn into a multi-year negotiation to try to figure out what were the problems with this whole Internet copyright regime and how do we fix them together? So this resulted in many years of meetings. Some occurred inside congressional supervised offices at a large table, and some occurred privately and in different offices of private stakeholders.

And it was just a really fascinating experience because we had to figure out all the different service provider functions and explain the technology and how it works and figure out when should someone be liable and what responsibility should they have with respect to the copyrighted content. [NOTE from Sarah Deutsch: I actually misspoke. The DMCA is a limitation on liability but does not actually create liability. I should have said figuring out when the limitation on liability would apply and what responsibility should they have.]

So it was an incredible process and I got selected to be one of the negotiators for the telecommunications industry. We each had seats at the table. So there would be a seat for five copyright owners from different industries and five of the service providers. And again, because we were divided up, there would be a seat for a long distance person and there was seats for a new Internet start up. And then I represented the the Bell operating companies because I was a copyright lawyer and I was also located in Washington, D.C. So kind of thrown into the deep end there, but it was an incredible experience.

Ayden Férdeline [00:18:18] And were most of the negotiations then happening in Washington?

Sarah Deutsch [00:18:22] Yes, so once we got that carve out and stopped the copyright treaty from imposing just wholesale liability, then the negotiations on the US DMCA and section 512 in particular began. And I'd say the first thing we talked about were the different service provider functions. And what's really interesting is that these functions still exist today and are equally applicable today as when this law was negotiated in the late '90s. So, for example, when you host content. This means that the content physically resides on your system or network. One of the content owners said, well, there should be something like an E-911 system so we can call you on the phone and tell you there's an infringement going on and you'll take it down. And we're like, well, you know, it's not actually appropriate to prioritize your content over someone else's. But what that led to is the whole concept of notice and takedown and that concept only really is supposed to apply when the material actually physically sits on your system or network. So we talked about, well, how do we find it? How valid should the notice be? What kind of elements would the notice contain? So we were very cognizant that we didn't want to take down too much content or chill free speech. And as a result, we also negotiated the counter notices that there shouldn't, you just don't have some right to take it down. There needs to be a right to put it back up. And then eventually that process could play out between the rights owner and the infringer. But the service provider shouldn't be replacing the role of a judge or jury. So we tried to make notice and take down as fair as possible. The other important service provider function was mere conduit. And at the time, Bell Atlantic was not a mere conduit. We, you know, only people who work like AT&T or MCI or other GTE people who are the backbone providers were providing mere conduit service. But this was fought over tooth and nail because, again, this is as close as you can get to being just a pure carrier of communications. And there were arguments at the time, well, we'd like you mere conduits to be taking down content. But we explained to the copyright owners that the conduit can't even see what the infringing material is. And we analogized it to being on an airplane and being asked to pluck out the passenger in seat 23A. we can't see who that is. We don't know who that is. And that's still true today. So the mere conduit protections are absolutely critical and these have allowed the Internet to grow and to flourish and new business models to develop. So having a very clear carve out for mere conduits has been essential. And then we fought over caching, which sounds so mundane now. But it was a huge issue back then that every time you moved content closer to the source or made it more efficient to access content, it gets cached. So caching means a little copy. A reproduction gets made somewhere on a network for a temporary period of time. So we spent months and months ironing out all the technical conditions for when something could be cached. And if it was going to be removed you could send a takedown notice to a caching provider. But we wrote into the DMCA that the content would have to also be removed at the source, because if you just remove it at the cache, the content is going to be recached over and over again. And then finally, we worked out a negotiation over something called information location tools. The content owners would have liked to create liability, but this is liability for hyperlinks. And again, we had to explain that the Internet, the reason it's so much access to information could be shared was through these hyperlinks. So, again, you can take down the link, but you also should take down the original content along with it. So we preserved a way for hyperlinking to continue to exist and now it's just ubiquitous. But at that time, you couldn't take for granted that any of these functions would have developed the way they have today.

Ayden Férdeline [00:23:17] That is just so fascinating. All of the different considerations that you had there. I'm particularly interested in what responsibilities you felt, as a service provider, you had to uphold human rights. You spoke then about being concerned about the chilling effect that could arise from abuses in notice and takedowns and wanting to have an ability for content that is taken down to also be putting back up, which I'm really curious about. And also I am curious about who are the different parties that participated in this, in the development process of the DMCA? Could you give us a sense of who the government and non-government participants were because I'm guessing there this is sort of pre-YouTube, we probably didn't have individual creators present, so did service providers feel like they were providing a voice for, I guess, the general public or were there civil liberty advocates also present in these negotiations?

Sarah Deutsch [00:24:21] That's a great question. There was no role for any civil liberties groups or user groups in this negotiation. So our service provider side of the table had to do its best to represent those interests? I mean, we did have the libraries, for example, so they came pretty close to representing user groups, American Research Libraries and the American Library Association were at the table. We also had university groups that were involved in the DMCA. Educause, for example. And there is a guy there named Mike Roberts whose name you might remember. So the universities were very helpful in explaining what some of these provisions would mean in terms of their entire student population and users that way. And as at least my view on it as a service provider, is that where we were there not just representing our interests, but our users, because these are the folks that would be affected and they did not have a seat at the table. I would also mention that some of the congressional staff that were there were also thinking about the end-users. But the groups that we think of today weren't -- they didn't exist or they just weren't as active. And this was kind of a private negotiation where people were invited to the table and the whole role of civil society and groups like EFF and Public Knowledge and Recreate and other groups that had developed throughout Europe and become active in SOPA, PIPA and other debates that we now just see the user groups leading, they had very little voice at this table originally.

Ayden Férdeline [00:26:25] I'm curious, you spoke before about how the Internet service providers liken themselves to the common carriers in the telecom industry who enjoyed various immunities from the actions of their customers because, as you said, they served as a mere conduit or utility. I'm curious whether you think today the comparison between ISPs and telecom providers is still appropriate, especially given a lot of the consolidation in the market and the convergence of different industry players.  

Sarah Deutsch [00:26:59] Yeah, I think for sure there has been a convergence. It's hard to find. You know the way we fell into pure camps of content owners and service providers, now you see people that have interests across the board, they're a service provider and they're a content owner. And in some sense, the issues get muddled, but if you look at the function the service provider is providing, it still makes sense. If you're hosting the content, then I think notice and takedown still makes sense that you can remove the content at the source if you're, again, a mere conduit, and especially in light of the need for broadband communications and facilitating access to information, keeping protections for mere conduits makes more sense than ever today than ever before. And caching has evolved into sophisticated content distribution networks and cloud services and multi-access edge computing. All of this moves communications efficiently and quickly and well. You know, you may not need something so quick to read an email. You would if you're doing gaming. The whole industry has evolved together. And it's not just the communications sector who's grown up because of the DMCA and eCommerce Directive protections. The content industry has evolved as well. They may not have originally wanted to evolve, but think about all the access to information and to copyrighted content that is now available through streaming and online distribution. Their business model was 100 percent against that when we were negotiating the DMCA.

Ayden Férdeline [00:29:08] I'd like to expand upon that a bit, actually. So the DMCA and specifically section 512, the safe harbor provisions, they were drafted in a way that would allow very small Internet platforms to innovate and grow without the constant fear of liability for third party content uploaded to their website, platform, servers, whatever. Twenty years later, though, these platforms are really wealthy and powerful and they've built business models based sometimes on the ability to monetize the content of others, sometimes while turning a blind eye to copyright infringement. Given the change of circumstances, do you think that today these large platforms should be playing a more proactive role in combating infringement? Should they be assuming more accountability for abuses that take place on their services, or do you think that section 512 is  still really important and should be protected?

Sarah Deutsch [00:30:20] I think to a large extent, it is still working and still important to preserve it. That said, I don't think that anyone should be turning a blind eye to infringement. That's kind of the general statement. That's easy to say. But when you drill down into it, if for example, there is a company like YouTube that gets many notices a year, but at the same time it seems to have innovated to offer the ability for content owners to opt-in and to monetize their content or not. That's a very interesting and innovative way to evolve together. At the same time, if you're saying that mere conduits are turning a blind eye to infringement, I don't think that's the case because they have no eyes on the infringement to begin with. So. And unfortunately, along with the new business models have come, the models of copyright trolls, these are bad actors who have built an entire industry around sending invalid false notices to intermediaries in order to extract settlements and threaten Internet users.

Sarah Deutsch [00:31:44] And their business model is just to make millions of dollars and exploit the DMCA in the worst possible way. So while we shouldn't be turning a blind eye to infringement, we need to focus on what is the role of that platform with respect to that content. And I guess I'd also point out in the past where there have been bad actors in the copyright space. The copyright law provides ample tools for content owners to enforce those rights, and they haven't hesitated to do that and to get the judgments they need. And there's very strong and high damages available to stop people who fall outside of the rubric of 512.  

Ayden Férdeline [00:32:28] The copyright trolls that you mention, I imagine that was one of the unforeseen consequences of the DMCA. I'm wondering if there were any other practical challenges that the digital age poses that were not foreseen when the DMCA was originally being developed?

Sarah Deutsch [00:32:52] Yeah, that's a great question. I think, when the DMCA was being developed, I mean, just to go back to that example about the E-911 system and we'll send you notice on a cocktail napkin, we naively thought we'd be getting these notices one by one. And we set up a special designated representative to receive them and thought they could be handled in due course one by one. And what happened was automation. So there are entire business models that have evolved, including agents of copyright owners, some of whom get paid by the notice, these people, you know, their business model works by means of volume. So they just churn out millions of notices and they have the tools to find infringement, some of which are valid and some are not valid. And they will flood service providers with notices and even service providers who are not hosting the content. And this has created a huge problem because, again, the party that's in the best position to know whether something is infringing is the content owner. The service provider will never know, is this subject to license? Is that a fair use? That's why the counter notices were at least created. But there there have been some challenges with the model because of automation and the fact that now there is a tech backlash and there's more pressure than ever on service providers just to, by default, remove the content. And I would argue that today, more than ever, we need that balance. And this can't be something that just results in an automated process where copyright trolls or other actors kind of use blunt force instruments to get content taken down if if the content and the notices are not valid.

Ayden Férdeline [00:34:53] That's a really interesting observation. Earlier this week, I was going through Google's transparency report, and at least earlier this week, in December 2020, Google disclosed, having received 4.8 billion DMCA takedown notices, there was no time period listed. But I presume this is the total number the Google has received since its inception. And that's really a lot of takedown notices, even for a company as well resourced as Google when we want to ensure that these are being carefully reviewed, and that, as you point out, automation is not playing too big a role in determining whether content remains online or offline. I'm wondering what you think of that number? Does that suggest to you a system that is efficient and effective, or does it suggest something else?

Sarah Deutsch [00:35:47] Yeah, I really can't opine about the Google numbers, so I think I give them a lot of credit for publishing a transparency report. I think that that shows you what's happening. That said, there are there are a lot of notices being sent. There's a lot of content that's being placed and Google is taking a very proactive role in resolving it. But I know there have been civil liberties groups and academics who have studied the inefficiencies and problems with notice and takedown.  Including EFF, for example, and many others and in a lot of detail. And I think it's worth reviewing their findings and their suggestions on how to improve notice and takedown. It would be an interesting exercise to try to do that as as long as the DMCA would become better for all actors and not just kind of take a turn into a more draconian version of itself.

Ayden Férdeline [00:36:51] Perhaps now we could turn to the future and some legislative developments that are underway at present. From what I understand at the time that the DMCA was enacted, even Congress recognized that the only thing that remains constant is change and that the relationship between copyright law in the States and technological change was something that was going to need to be reevaluated periodically. 22 years later, what changes do you think are necessary to deal with the circumstances of today, given how different the Internet is from two decades ago?

Sarah Deutsch [00:37:33] Well, again, I generally think that the DMCA structure and framework are working well. So while there could be improvements made on the edges, on balance, I personally do not believe it's worth reopening the DMCA because the tech backlash and the general push has been to make it less balanced than it is. And in 1998, actually, when Congress was proposing the DMCA, they said there were two purposes. One was to encourage the growth of the Internet, which I think at that time the service providers were a little over three percent of the GDP in the US. Imagine the number they are today in terms of the GDP. To invest in online infrastructure by service providers, by protecting them from secondary liability of actions taken by Internet users. And the second was to encourage the creation of new content. And I would say that the DMCA has succeeded because we have encouraged growth of the Internet infrastructure. And as we can see by the pandemic, broadband needs to be grown out. It's only available in the US still to certain parts of the country and not to others, even in big cities or people on the edges who have no access to the Internet or have poor access. And in other countries, in developing countries, there's even more work to be done to encourage broadband access. But it's also created the creation of new content and new content distribution models. Those have grown as well. And if we were back in the day of just the movie theater and the DVD or the VCR, the content industry would have been decimated by this pandemic.

Sarah Deutsch [00:39:20] So I think, you know, again, the Internet kind of saved everyone. The boats have all risen together. There will be both in Europe. There's the Digital Services Act that's being considered to amend the eCommerce Directive. And by the way, when that was being negotiated, I went to Europe to explain the DMCA to policymakers and Members of Parliament. And that's where I met Erika Mann who understood immediately that what this threat was and helped craft the eCommerce Directive. So that's being negotiated as we speak. And by the way, a report out of Parliament suggests keeping the structure of the eCommerce directive, keeping protections for for mere conduits and for hosts and for caching, et cetera. And at the same time, I think we're going to expect to see in 2021 a new legislative draft, maybe actually as soon as the end of this month that talks about amending section 512, and it could result in a new negotiation over all these provisions we've been discussing today. And I imagine all these same arguments playing out. What is the proper role and responsibility for online service providers? Where should we draw the line on liability? Should we change this so that we have a concept called notice and stay down where people not only need to take down the content, you're going to have to figure out how to keep it down, which results probably in monitoring and DMCA has a no monitoring provision, as does the eCommerce directive that this was put in to protect user privacy. So are we going to be descending into the role of monitoring and how is that going to work out? And, you know, there's issues about terminating Internet access that are on the table and many other controversial notions that I think will be kind of relitigated in the public forum on both sides of the Atlantic.

Ayden Férdeline [00:41:30] Absolutely. There's such interesting times ahead. Well, Sarah Deutsch, thank you so much for sharing your knowledge today and also for everything that you have done on this issue.

Sarah Deutsch [00:41:43] Thank you so much Ayden, I really appreciate it.

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