Copyright

One of the jobs of the Supreme Court of the United States is to settle disputes between Circuit Court of Appeals. This occurs when two or more Federal Circuit Courts, have considered similar disputes, but reached different results. This caused the Court to take up the case of Petrella v. Metro-Goldwyn-Mayer, a dispute over ownership rights to the screenplay to the film Raging Bull. Released in 1980, Raging Bull told the story of real life boxer, Jake LaMotta. It was a modest commercial success, with a to-date gross of $23 million dollars, which placed it 27^th among the pictures released that year.[ref]Box Office Mojo - Raging Bull[/ref] However, Raging Bull proved to be a smash hit with the critics and motion picture community. It received 8 Academy Award nominations, with two wins, most notably to Robert DeNiro for Best Actor.[ref]Box Office Mojo - Academy Awards, Raging Bull[/ref] This factor insured that it would have a long life on home video and later, DVD. It is consistently featured on the lists of the "Greatest American Movies," including being inducted into the National Film Registry in 1990, thus being marked for historic preservation by the Library of Congress.[ref]Wikipedia - Raging Bull[/ref] The background of the case is significant, as it may have influenced the Court's decision. The claimant is Paula Petrella, the daughter of the original screenwriter, Frank Petrella. He, along with Jake LaMotta, created a book and two screenplays based upon LaMotta's life. In 1976, they sold the motion picture rights to these works to Chartoff-Winkler Productions, who in turn transferred them to United Artists, a subsidiary of MGM. The film was produced and released to theaters in 1980. Frank Petrella died the next year, bringing into play one of the most infrequently invoked areas of copyright law: the Abend recapture. In 1976, copyright lasted for two consecutive 28 year periods, the initial period and the "renewal" period, which required a physical filing with the Copyright Office. Standard contracts during this period required the author to sign away both the initial and renewal periods. However, the Courts ruled that the promise of the further assignment of the renewal term did not come into play until the 28^th year commenced. So if the author died before the 28^th year commenced, there was no further assignment because the author was dead, and the heirs of the author were under no legal obligation to make the previously agreed assignment. If the heirs filed the renewal notice timely, they recaptured the copyright, and the previous owner was divested of the copyright. This is what happened here, and Paula Petrella, the daughter of Frank, recaptured the copyright to the screenplay previously assigned to Chartoff-Winkler Productions. Seven years after filing, Ms. Petrella, through an attorney, advised MGM that she had reclaimed the copyright in the Raging Bull screenplay, and any further exploitation of the film would be actionable copyright infringement. Petrella's attorney and the attorneys for MGM exchanged letters for the next two years, but no suit was filed. In all, Petrella waited nine more years, and a total of 16 years after her recapture, to finally file a copyright infringement lawsuit against MGM. MGM defended on a number of grounds, including the statute of limitations and laches. The statute of limitations is understood to be a fixed period of time, from when the Plaintiff knows, or reasonably should have known, that it had a claim. Claims filed after the expiration of the statute of limitations, are barred from proceeding. Laches, on the other hand, has no set time limit, but prevents the lawsuit from going forward on the grounds that the Plaintiff has waited too long to file the suit, and the passage of time has served to harm the ability of the Defendants to defend the case. This can happen because evidence has been lost or destroyed, thinking it would not be needed. Laches can also be invoked because witnesses' memories have faded as to the precise series of events, or one or more pivotal witnesses are deceased. The Supreme Court first took up the issue of the statute of limitations. Rather than hold that the three year statute of limitations runs out three years from when the claimant is first aware of a copyright infringement claim, the Court held that as long as the infringement continues, the statute of limitations never runs out, because each act of infringement starts the statute of limitations all over again. So each copy of Raging Bull that was shown, sold or streamed, started a new three year statute of limitations. So as a critically acclaimed, Academy Award winning film, it's always in the marketplace somewhere, and so we are now faced with the strange situation of a statute of limitations that never expires. So what does it limit? Well, the Court said that the statute of limitations only reached the three years immediately prior to the date of the filing of the lawsuit, and of course all infringements occurring in the future. So the damages, if any, of the defendant would be limited to that time period. As to the defense of laches, the problem that the Court pointed out was that the statute of limitations was still running. Therefore, if the statute of limitations had not run out, the doctrine of laches (as an equitable rule, not hard and fast law), could not be applied. This has a certain inescapable logic to it. But the problems it raises are myriad. The majority opinion acknowledged that a Plaintiff could "sit and wait" until the appropriate time to file a lawsuit. With a statute of limitations that never runs out, this could make for some risky times for copyright owners and exclusive licensees. The majority reasoned that a copyright owner who was aware of the claim could strike first, by filing an action for declaratory relief, pre-empting the filing of the copyright infringement action. This, of course, supposes that the copyright owner has actual knowledge of the claim. The dissenting opinion filed by three Justices pointed to the case of Danjaq LLC v. Sony Corp.[ref]263 F.3d 942 (Ninth Circuit Court of Appeals 2001)[/ref] as a potential for abuse by a copyright claimant based upon theory advanced by the majority opinion. This case involved a fight over the rights to the character of James Bond, the highest grossing film series of all time.[ref]Wikipedia - List of highest-grossing films[/ref] It was not that the parties were unfamiliar with each other; they had been fighting in Court both here and abroad, for over 40 years.[ref]For those wishing for insight into this long running legal fight over the rights to the film Thunderball, a highly detailed account is found in the book The Battle for Bond, which can be found here: http://www.amazon.com/The-Battle-Bond-Robert-Sellers/dp/0955767008[/ref] It was the nature of the claim that proved to be a shock. Film director Kevin McClory, one of the co-writers of the Thunderball film script, claimed decades later that he was a co-creator of the "cinematic version" of James Bond and sued for a cut of the profits. This claim was made from 36 to 19 years after the release of the films in question. The District Court ruled, and the Ninth Circuit affirmed, that McClory had waited too long to bring this rather breathtaking claim, and was barred by laches. Key to this ruling was the fact that many of the witnesses, who might counter these claims, were all dead. These included Bond creator Ian Fleming, Bond film producers Albert R. Broccoli and Harry Saltzman and Bond screenwriter Richard Maibaum. The dissent in Petrella raises this very real possibility, contending that three "key witnesses" had died before the suit was brought. This is a very logical and foreseeable consequence of ruling that the statute of limitations never runs out on a continuing infringement. Perhaps the majority in the Raging Bull were unduly swayed by the situation of the Plaintiff in the case. She was not just making a claim of infringement, but there was absolutely no doubt that she had legally recaptured the copyrights and owned this material. However, the question of what she might be entitled to based upon these ownership rights is significant. The film Raging Bull is credited to two screenwriters, neither of whom is Frank Petrella, further writing credits are granted to two more people, neither of whom is Frank Petrella,[ref]IMDb - Raging Bull[/ref] and finally there is a further "based on the book by" credit to Jake LaMotta. Nowhere is Frank Pretella granted a writing credit. Remember that the story of Jake LaMotta is based on facts, and no one has a copyright on a fact. While the entire genre of Hollywood films which claim to be "based on a true story," yet are so riddled with fictionalized events and things that never happened, as to make this claim flatly ridiculous,[ref]For an egregious example of this, see the case of Tyne v. Time Warner 901 So.2d 802 (Supreme Court of Florida 2005) involving the film The Perfect Storm, in which the majority of the film is entirely made up. For example: "the Picture relates an admittedly fabricated depiction of Tyne berating his crew for wanting to return to port in Gloucester, Massachusetts. Warner Bros. took additional liberties with the land-based interpersonal relationships between the crewmembers and their families."[/ref] the question remains, what material did Frank Petrella create that was not based on fact? And of that material, what material that was created by Frank Petrella, actually wound up in the movie? The trial of the case will tell us. The Justices of the Supreme Court cannot be charged with knowing the ins and outs of the film business, but in an industry where millions of dollars are invested, and made, the legal requirements for getting a film off the ground can be formidable. This is particularly shown by the stringent requirements for showing "chain of title" to a work, where the producers of a film are charged with creating and registering many documents to demonstrate clear title to a motion picture, some of which are rather superfluous.[ref]These include doing a "title search" with the Copyright Office to show no similar titles even though copyright does not protect titles, and requiring that producers record certain assignments with the Copyright Office, even though such a recordation is not required as a condition of enforceable copyright protection.[/ref] This may force film companies to file unnecessary declaratory actions at significant expense, just to get the financing or distribution required to release the film. This ruling by the Supreme Court has injected another level of uncertainty and concern into a business that is already highly speculative. This is, of course, not the concern of the Supreme Court, but one we will have to learn to deal with. The era of the statute of limitations that never expires is upon us.

Earlier this year, several significant copyright milestones were reached. This first was that Congressional hearings began on reforming the copyright law. Part of the reforms was to address problems with the Digital Millennium Copyright Act's provisions that allow copyright owners to demand that websites and search engines "takedown" infringing material. [ref]Highlights of Digital Millennium Copyright Act Congressional Hearings[/ref] The second was that Google received its one hundred millionth takedown notice.[ref]Google Receives Its 100 Millionth Piracy Notice. Nothing Changes...[/ref] You read that right. Copyright owners have sent more than 100,000,000 notices to Google complaining about copyright infringement. In the week immediately preceding the start of the Congressional hearings, Google received 6,532,393 takedown notices, sent mainly by the music and adult industries.[ref]Bad Google DMCA Takedown is Hurting Us, Hosting Site Says[/ref] On its face, this fact would indicate a system that is ineffective and broken. Yet, just how it is broken depends upon which end of the debate over copyrights on the internet that you stand. In short, section 512 of the U.S. Copyright Act provides that the copyright owner has the ability to demand that a service provider, or one who provides information location tools, "takedown" material that the copyright owner claims is infringing. The elements required to be in the notice are clearly laid out by the section.[ref](3) Elements of notification.— (A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following: (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. (iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted. (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.[/ref] This notice is served on a designated agent whose job it is to receive takedown notices. If the notice meets the requirements of the statute, the service provider must "respond expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity."[ref]17 USC (C) (1) (c)[/ref] In return, the service provider is granted immunity for copyright infringement, most often referred to as "safe harbor." If the person whose material is removed thinks the takedown notice was filed in bad faith, or incorrect, it has the ability to file a "counter-notice."[ref]Contents of counter notification.—To be effective under this subsection, a counter notification must be a written communication provided to the service providers designated agent that includes substantially the following: (A) A physical or electronic signature of the subscriber. (B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled. (C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled. (D) The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.[/ref] If the counter-notice is compliant, the material must be reposted within 10-14 business days, unless the service provider is notified that the copyright owner has filed suit.[ref]17 USC 512 (g)[/ref] Sounds simple. Yet as always, the devil's in the details. The initial problem is the sheer volume of infringing material on the internet. Over 6.5 million alleged infringing files in one week is a truly staggering number. The result of the overwhelming numbers of infringing files leads copyright owners to rely on technology, particularly "web-bots" that scan the internet for infringing activity. While taking the human element out of the takedown notice makes it more efficient for the copyright holders, it also increases the possibility of incorrect and otherwise faulty takedown notices. The sheer volume of takedown requests can also have an effect on the timely processing of takedown requests. Google claims that "as of December 2012, our average processing time across all removal requests submitted via our web form for Search is approximately 6 hours."[ref]Google Transparency Report FAQ - Does Google receive inaccurate or intentionally abusive copyright removal requests?[/ref] To which the copyright owners say "baloney." In particular, independent filmmaker Ellen Seidler posted online a running counter on how long it was taking Google to process a takedown request on her film And Then Came Lola. To quote Ms. Seidler, "[t]he clock below began started clicking on April 24th when 2 links were reported for copyright infringement.  As of today, June 17th, nearly 2 months later, both pirated movies remain online as does the pirate Blogger-hosted website."[ref]Google and the Art of the DMCA Dawdle[/ref] The Google hosted blog was finally taken down July 10^th.[ref]One small victory against Google Blogspot movie piracy, yet many more battles remain[/ref] Seventy-seven days is hardly a glowing example of the requirement that the service provider "responds expeditiously to remove or disable access" to infringing material that is envisioned by the statute. Adding to the already staggering amount of online infringement is the fact that many times infringing material gets taken down, only to reappear on the same site, sometimes only a matter of hours after it is removed. This problem has been compared to the carnival game of "whack-a-mole" by copyright holders.[ref]Id. at endnote 1 above.[/ref] As reported by the blog of the Foley Hoag law firm, Professor of Law Sean O'Conner  testified before Congress about the "relentless reposting of blatantly infringing material after a takedown notice has already been sent, which has significantly increased the overall volume of takedown notices and the concomitant administrative burdens."[ref]Id.[/ref] Similarly, Paul F. Doda, as counsel for textbook publisher Reed Elsevier, noted that the publisher issued over 20,000 takedown notices per month in 2013.[ref]Id.[/ref] In one case, the same textbook was uploaded to the same website 571 times.[ref]Id.[/ref] Then it was Google's turn. Katherine Oyama, the Senior Copyright Policy Counsel at Google, painted a rosy picture of Google's efforts to combat piracy and repeated the claim that Google takes down material in an average of six hours.[ref]Id.[/ref] I viewed a replay of the testimony, and watched as Representative Judy Chu whipped out her iPad and did a Google search. She pointed out that all she did was search "watch 12," which Google auto-completed to "watch 12 Years a Slave free," and the second result was a pirate site. Then she searched for "watch Frozen," and the number one and number two results were "watch Frozen for free" and directed the searcher to pirate sites. Ms. Oyama spent the next three minutes not answering the question of why Google auto-completes to pirate sites. You can watch the exchange here.[ref]Section 512 of Title 17 Hearing; The exchange runs from 1:43:00 to 1:46:14[/ref] Later she testified that "you can't block the word ‘free' from a search. [ref]Id. at 2:07:18[/ref] This, of course, is not the question. The word "free" was not included in the search. The question is why Google auto-completes to "free" and the top results are pirate sites. Her glib solution was that the "best way to fight piracy is to find alternatives to takedowns that will allow copyright owners to monetize content rather than have it repeatedly taken down."[ref]Id.[/ref] In other words, Google's not going to do anything unless Google gets a slice of the profit. When asked, shouldn't search engines have an affirmative duty to prevent the reposting of materials, she responded that it would be "impractical to enforce and it would chill online speech."[ref]Id.[/ref] This answer begs the question: since when is the repeated posting of "blatantly infringing" material online protected speech? To quote the Supreme Court of the United States, the First Amendment "securely protects the freedom to make—or decline to make—one's own speech; it bears less heavily when speakers assert the right to make other people's speeches."[ref]Eldred v. Ashcroft 537 U.S. 136 Supreme Court of the United States 2003[/ref] According to the RIAA, they have sent more than two million takedown requests to Google about the website mp3skull. Despite this, mp3skull continues to top Google's search results for "artist+songname+download."[ref]Testimony of Katherine Oyama, Sr. Copyright Policy Counsel, Google Inc. House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet Hearing on "Section 512 of Title 17" March 13, 2014[/ref] Whose speech is being chilled here? This is where we are told that up is actually down and black is really white is disguise. Paul Siemenski, the general counsel of Automattic, Inc. (the maker of WordPress,) testified that the real problem with the DMCA is the "abuse of the DMCA takedown process," including the "lack of any recognition of fair use in the DMCA."[ref]Highlights of Digital Millennium Copyright Act Congressional Hearings[/ref] Well, how many abusive notices are there? Mr. Siemenski listed three examples of abusive takedowns in his prepared remarks. Google in their transparency report lists 7 "abusive" takedowns as examples.[ref]Google Transparency Report FAQ - Does Google receive inaccurate or intentionally abusive copyright removal requests?[/ref] The Electronic Frontier Foundation lists 31 examples in their takedown "hall of shame."[ref]Takedown Hall of Shame[/ref] Assuming these examples are not duplicative, this totals 40 "abusive" takedown notices. In addition, Google attempts to bolster their position by pointing to a "chilling effects" study. This study is notable only in that its information is nearly 10 years out of date. For example, the study notes that it had reviewed "all notices submitted to Google Inc., since March 2002, a total of 734 notices as of August 2005."[ref]Efficient Process of "Chilling Effects"? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act[/ref] Remember that Google received 6.5 million notices in one week earlier this year. Yet Google, in their own transparency report, states that 97% of the millions of takedown notices that they received between July and December of 2011 were removed as legitimate.[ref]Google Transparency Report FAQ - Does Google receive inaccurate or intentionally abusive copyright removal requests?[/ref] It does not say why the remaining 3% were denied. There are lots of reasons why a denial might occur. Failure to follow the requirements of the notification rules of 512 is a likely starting point. So if 97% of the takedown requests that Google receives are legitimate, this means that in one week Google received 6.3 million legitimate takedown requests. Yet we are told both by Mr. Siemenski and the Electronic Frontier Foundation that the real problem is abusive takedown requests. Let's go back to Ellen Seidler. She is not a Hollywood studio. She is a small independent filmmaker who made the movie And Then Came Lola in 2010. Hardly a household name. According to an interview posted at the Music-Technology-Policy website, the movie cost around $250,000 to make. [ref]The MTP Interview: Indie Film Maker Ellen Seidler on how US companies profit from piracy on rogue websites[/ref] This money was "self-financed through typical indie film means, i.e. credit cards, personal loans, etc."[ref]Id.[/ref] These small indie films do not get extensive theatrical releases, if they can get a theatrical release at all. They depend mightily on the sales of DVD's and pay per view to earn their money back. Within 24 hours of the release of And Then Came Lola on DVD, pirated copies appeared online. At the end of one month, more than 25,000 different sites offered her film up for free. In all, she sent out more than 56,000 takedown notices in a futile attempt to sweep away the tide of internet piracy.[ref]Everyone hates the DMCA[/ref] There is also the example of the low budget horror film Girls Gone Dead.[ref]IMDb Girls Gone Dead[/ref] With a budget of a mere $500,000, this film was made locally in South Florida using local crew and actors, some of whom I know personally. Incredible as it may seem, the movie wound up being pirated so many times that it made a list of the top 10 most pirated films by the website Torrent Freak.[ref]Top 10 Most Pirated Movies on BitTorrent[/ref] I asked co-director Aaron Wells about whether they sent out DMCA notices. His response was that they did, but the pirates are in his words "very persistent" and that their lost revenue was difficult to estimate.[ref]Personal message exchange with the author.[/ref] So perhaps we can put to rest the notion that the pirates are somehow modern day Robin Hoods, who only steal from the rich Hollywood studios. They steal from everybody, including low budget indie filmmakers that need every penny they can muster to stay in business. Then there was this rather depressing account from an independent record label posted at The Trichordist.[ref]The DMCA is Broken...[/ref] "Just about a year after hiring two part time people, to do nothing else but issue DMCA takedown notices we've crossed the 50,000 notice milestone. The division of labor requires one person just to monitor YouTube, and another handles all DMCA compliant sites such as CyberLockers, Torrent Search Engines, etc….Most of the take downs are for the same title, at the same site, the same day. Day after day during the initial release period of the album (generally the first 60-90 days) it is a constant game of whack-a-mole….each time we issue a notice it takes 24 to 48 hours to remove. But, once it's removed it is generally back on the site within a few hours." It is readily apparent that the cost, in terms of time and labor, to defend one's copyright on the internet is significant. The time and expense spent sending endless series of takedown notices is time not spent creating new music or new movies, and reduces the amount of money that might otherwise be available to fund the creation of new music and new movies. In well documented cases, Google partners with the pirate sites by setting up AdSense accounts on the sites. So, by sending people to the pirate sites, and obtaining a share of the ad revenue, Google has a vested interest in seeing that pirated content remain freely available. Again to quote Ellen Seidler, "Even when they are informed (by me and I assume others) of the fact that a particular domain exists merely to offer pirated content, Google does nothing to disable the AdSense account. Google's seems to prefer to look the other way and hide behind the curtain of "free speech."[ref]The MTP Interview: Indie Film Maker Ellen Seidler on how US companies profit from piracy on rogue websites[/ref] To add insult to injury, Google's response to the takedown notice includes the warning that one's takedown notice is being forwarded on to ChiilingEffects.org,[ref]Id.[/ref] an EFF funded site devoted to documenting the "Chilling Effect" that the DMCA has on free speech.[ref]Chilling Effects: Weather Reports[/ref] Since when does the activity of a copyright owner trying desperately to protect their work from illegal copying become an evil to be publicly shamed? The only thing being chilled here is the ability of small independent companies to make a profit, while seeing their resources drained and squandered in pursuit of the Sisyfusian task of sending out endless takedown notices aimed at the same websites. Even the Chilling Effects website admits that the problem of fraudulent or abusive takedown notices is "anecdotal."[ref]Id.[/ref] I have seen no statistics that in the face of the millions upon millions of takedown notices that Google receives in one week, that the number of fraudulent or abusive takedown notices is statistically significant. When pressed on the issue, Mr. Siemenski had to admit the total number of "abusive" takedown requests that WordPress has received amounted to "a handful."[ref]Section 512 of Title 17 Hearing at 2:25:26[/ref] What's more, the remedy for a fraudulent or abusive takedown notice is already present in the copyright act. Recall at the top of the article that if one feels that a takedown notice was filed in bad faith, one simply files a counter-notice. If the counter-notice meets the requirements of the statute, the service provider must re-enable the material, unless the copyright holder files an infringement lawsuit within 14 days. This is the process that the General Counsel of Automattic criticized for being "complicated" and "intimidating."[ref]Highlights of Digital Millennium Copyright Act Congressional Hearings[/ref] The hypocrisy of this position is readily visible. The elements of the counter-notice are no more complicated than that required by the initial takedown notice, and as far as being "intimidating," what is more intimidating than the prospect of having to send out 50,000 takedown notices? As far as the criticism that the takedown provisions do not take into account "fair use," this position falls flat under even the most rudimentary analysis. First off, fair use is an extremely murky area of the copyright act. We are constantly reminded by the Federal Courts that fair use is examined on a case by case basis with no bright line rules.[ref]Campbell v. Acuff-Rose Music, Inc., 510 US 569 at page 577, (Supreme Court of The United States 1994)[/ref] So, now we are to add to the takedown provisions a requirement that the person processing it engage in a "fair use" analysis? Is Google, not the court system, now going to become the arbiter of what is and is not fair use? Given Google's already documented shady self-interest with the pirate sites, this is a recipe for disaster. The whole purpose of notice and counter –notice is to take guesswork out of the system, so that the service provider does not have to make judgment calls on whether something is infringing or not. That is why the service provider receives "safe harbor." If the service provider starts making judgment calls on fair use, then it should lose its safe harbor protection. Further fair use is an affirmative defense to copyright infringement; in other words it's a "yes, but." It works like this: "Yes, I copied your material, but I did so for a good reason that really did not harm you." This is a legal analysis that rightly comes after a counter-notice has been issued, not before the initial takedown notice has been acted upon. The remedy for all of this is that "takedown" needs to be converted to "take down and stay down." Once a DMCA notice is filed, all files with that ID need to be taken down, not just one on one website. New postings that match that ID need to be blocked. It will make the DMCA notice provisions effective and easier to deal with for all. Firstly, take down and stay down will eliminate the problem of "whack-a-mole" that requires endless repeated notice for the same files on the same website. The reason why "whack-a-mole" exists is that the counter-notice requires you to provide your real name and address and a consent to being sued in Federal District Court. A pirate web site has no desire to do this, so after the content is removed, they simply re-post it. Take down and stay down makes this no longer an option. With take down and stay down, the massive amounts of DMCA notices filed will go down. That means Google will expend fewer resources processing them, and would enhance their bottom line. On the flip side, small independent companies will not have to expend valuable time and resources to sending out notice after notice for the same content on the same website. But is this technologically feasible? Yes. The file locker service Dropbox already does this, as noted on the website Plagiarism Today.[ref]The Dropbox DMCA Controversy Explained[/ref] When a file is placed on DropBox, it is processed and assigned a "hashtag," a unique identifying series of number and letters. If a DMCA notice is filed on that hashtag, any further public sharing of the file is disabled by DropBox.[ref]Id.[/ref] Google also already does this on YouTube, via its Content ID system.[ref]How Content ID Works[/ref] Now note that Google's implementation of content ID is not completely altruistic. What they really want you to do is agree to monetize the file, for which Google will take a share of the profits. Members of Congress, Judy Chu and Tom Marino, make these excellent points: "[A]recent study by the Digital Citizens Alliance estimates that the top 596 pirate sites raked in $227 million in advertising revenues last year. These sites had a profit margin of between 80 and 94 percent. Content thieves rely on stealing the rights-protected work of others and distributing on low-cost sites. It's a low-risk, high-reward business."[ref]Victims of IP theft need better protection[/ref] Compare that with the plight faced by independent filmmakers and music companies. If they can raise the capital, they put it all at risk on a venture that may not prove popular enough with the public to turn a profit. Faced with this problem, they now find that they have to divert valuable resources into sending 50,000 takedown notices. At the same Congressional hearing, Grammy award winning composer, Maria Schneider, testified that due to piracy, her last album release was $100,000 in the red, long after under normal circumstances it would have turned a profit.[ref]Section 512 of Title 17 Hearing at 1:39:25[/ref] It is these voices which are being silenced by the internet pirates. The stated purpose of copyright is to promote the progress of the arts. Those people who create this art are going to stop doing so and have their voices effectively silenced if they cannot earn a sufficient income to sustain the business of making art. When asked if she would fund the making of another movie after her experience with And Then Came Lola, Ellen Seidler said, "Well, there's no way financially I could do it, nor would I want to."[ref]The MTP Interview: Indie Film Maker Ellen Seidler on how US companies profit from piracy on rogue websites[/ref] Artists need to devote their time to making art. They should not have to devote their time to sending out repetitive takedown notices. The time for take down and stay down has come.  

It's useful to read editorials and opinion pieces written by people with whom you disagree. It's important to know what they are thinking, and what facts they have at their disposal. While visiting the TorrentFreak website, this article popped up as one of the "most commented" posts. It is "How to Crack the Facade in Any Copyright Monopoly Discussion," and is authored by Rick Flakvinge, the founder of the Swedish "Pirate Party."[ref]How to Crack the Facade in Any Copyright Monopoly Discussion[/ref] It posits the following: "So why does the monopoly last 70 years after the author's death? I don't know of a single author who keeps writing books after they're dead and buried. The copyright monopoly term is at least 70 years – a whole lifetime – too long. And if it is that obviously 70 years too long, then it's absurd in the first place." The easy course would be to dismiss this statement as a mere tautology,[ref]Tautology "a series of statements that form an argument, whereby the statements are constructed in such a way that the truth of the proposition is guaranteed" Source: http://en.wikipedia.org/wiki/Tautology_(rhetoric)[/ref] uttered by someone who is the founder of the "Pirate Party," and hardly a disinterested commentator. But let's examine this statement more closely. The underlying proposition here is not that copyrights are too long, but that the whole idea of copyright is "absurd in the first place," and should not exist at all.[ref]Why Is The Copyright Monopoly Necessary, Anyway?[/ref] To say this is an extreme minority view is putting it mildly. There are 170 nations which are a signatory to the Berne Treaty, which guarantees the international protection of copyrighted works.[ref]List of Parties to International Copyright Treaties[/ref] The number of nations which are not a party to any of the five major copyright or intellectual property treaties[ref]They are: The Berne Treaty (1886), Universal Copyright Convention (Geneva 1952), Universal Copyright Convention (Paris 1971), Agreement on Trade Related Aspects of Intellectual Property Rights a/k/a TRIPS (1994) and the World Intellectual Property Organization Copyright Treaty (1996).[/ref] is 14, the most notable of which are Afghanistan, Iran, Iraq and Ethiopia.[ref]See Endnote 4 above.[/ref] But is there a point to be made here? Are copyrights too long? At the outset, these arguments are based on a half-truth. The copyright term for an individual is indeed the life of the author plus 70 years after death.[ref]17 U.S.C. 302 (a)[/ref] Yet, the target of these arguments is uniformly the so called "big copyright" players, namely the Hollywood motion picture and television studios and the music recording industry. These copyrights, being founded on the doctrine of "work made for hire" last for a much more modest 95 years.[ref]17 USC 302(c)[/ref] Still too much? So let's agree with the Pirate Party. Copyrights are too long. Let's bust the term of copyright back to what it was under the 1909 act. This would be a term of 28 years, renewable for another 28 years, or 56 years total. Now with this greatly reduced term of copyright in place, will you stop pirating "Game of Thrones?"[ref]Game of Thrones Sets New Torrent Swarm Record[/ref] Will you stop pirating "Dallas Buyer's Club?"[ref]'Dallas Buyer's Club': Lawsuit Filed Against Internet Pirates[/ref] Of course not. A non-partisan study found that out of 1021 available BitTorrent files, less than 1% contained non- infringing material.[ref]Census of Files Available via BitTorrent[/ref] All of the 476 BitTorrent movie files surveyed were found to contain infringing material, and were heavily weighted towards recent movies, of which 60% were in the English language.[ref]Id.[/ref] We do not find large amounts of file shares for Andy Hardy movies or the Marx Brothers. It's the recent Hollywood blockbusters that get ripped. This merely confirms what was stated above: any copyright is too long for the pirates. Now do we want creative people to keep on creating, even when they reach an advanced age? You would think that we do. Stephen King is 66 years old. Would we like him to continue to write creepy stories? Of course we would. Neil Diamond is 71 years old. Would we like him to keep writing songs? You bet. Would they continue to do so if they knew their copyright would soon die with them? Probably not. The 1909 act provided for a strict term years, so all copyright lasted for the same amount of time. Would that solve the problem? Well, Irving Berlin lived to be 101.[ref]Irving Berlin Biography[/ref] Under the term of copyright provided by the 1909 act, he would have outlived most, if not all of his copyrights. This is why the length of copyright extends beyond the author's death. It is not a stretch to compare the ownership of a successful copyright to ownership of shares in a successful company. Should the heirs of Steve Jobs be totally divested, without compensation, of their stock in Apple 70 years after his death? No one has suggested this. Should the heirs of Walt Disney be totally divested of their shares 22 years from now? Family fortunes are often passed down from generation to generation, and there seems to be no groundswell of public opinion saying this should not be so. Just because the copyright act likewise provides for some measure of "inheritance," does this now make copyrights illegal, immoral, and as some say, unconstitutional? Well, the answer is no. And the person giving the answer is the Supreme Court of the United States. The Sonny Bono Copyright Term Extension Act, passed in 1998, extended all existing copyrights for an additional period of 20 years.[ref]S.505[/ref] While the act was widely derided as the "Mickey Mouse Protection Act," the most immediate beneficiary was Winnie the Pooh, first published in 1926, who was scheduled to frolic into the public domain a short three years away in 2001.[ref]1926 - A.A. Milne Publishes Winnie-the-Pooh[/ref] The law was immediately challenged in court as unconstitutional. It was argued that extending existing copyrights for 20 years did nothing to advance the "progress of science and the useful arts" as the copyrights were already in existence and incentivized.[ref]Eldred v. Ashcroft 537 U.S. 136 Supreme Court of the United States 2003[/ref] They also argued that the extension violated the First Amendment's guarantee of free speech.[ref]Id.[/ref] The challenge was rejected by every Court that considered the question.[ref]74 F.Supp.2d 1 District Court for the District of Columbia 1999; The Court of Appeals for the District of Columbia Circuit affirmed at 239 F.3d 372 (2001). The Supreme Court of the United States affirmed at 537 U.S. 136 Supreme Court of the United States 2003.[/ref] The Supreme Court ruled that even though life plus 70 years is a long time, it is still a limited time, and the First Amendment"securely protects the freedom to make—or decline to make—one's own speech; it bears less heavily when speakers assert the right to make other people's speeches. When, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary."[ref]Eldred v. Ashcroft.[/ref] The Supreme Court affirmed the decisions by the courts below in a 7-2 vote. Not close by Supreme Court standards. One can disagree with the decisions of the Supreme Court. I certainly do from time to time. Yet the failure to prevail on the arguments at any level of the Federal Court system indicates that rationale of the challengers is highly flawed and untenable. Ignored in most of this debate was this important point. A key factor in the SBCTEA's passage was a 1993 European Union (EU) directive instructing EU members to establish a baseline copyright term of life plus 70 years and to deny this longer term to the works of any non-EU country whose laws did not secure the same extended term. By extending the baseline United States copyright term, Congress sought to ensure that American authors would receive the same copyright protection in Europe as their European counterparts.[ref]Id.[/ref] While it may satisfy the cynical nature of anti-copyright activists to paint long copyright terms as a sell out to Hollywood,[ref]Opposing Copyright Extension, Help Protect Your Rights to the Great Works in the Public Domain![/ref] the real driving force for longer copyright terms comes from Europe, not Hollywood, and the need for the United States to protect its copyrights abroad requires the adherence to treaties that mandate long copyright terms. Let's take jazz for example. Jazz is one of the great American art forms. Yet, in its home country, jazz is regarded as fringe genre. I can tell you from 26 years of experience working with jazz artists that jazz music is revered in Europe and particularly so in Japan. I would also say that without the protection of U.S. copyrights abroad, a jazz musician would find it difficult, if not impossible, to make a living. It is the presence of these treaties that make the continued viability of jazz as an art form possible. On the flip side, copyrights are big business, and an important part of the U.S. economy. The United States creates some of the most valuable copyrights in the world. In the year 2007, businesses and government spent $278 billion dollars on computer software, or close to 2 percent of the Gross Domestic Product of the United States.[ref]Copyright in the Digital Era: Building Evidence for Policy The National Academies Press, at page 20. The full document can be read here: http://www.nap.edu/openbook.php?record_id=14686[/ref] In that same year, U.S. artists produced $71 billion dollars' worth of long-lived entertainment originals and $96 billion dollars of short-lived artistic products such as television, radio and internet programming.[ref]Id.[/ref] The accumulated capital stocks of these assets in 2007 are estimated to have been $468 billion for software and $536 billion for entertainment originals.[ref]Id.[/ref] These figures have far reaching economic effects. The Walt Disney Company is more than just a film studio. It operates 11 theme parks and 44 resorts in North America, Europe and Asia, and operates four cruise ships.[ref]Company Overview - The Walt Disney Company[/ref] Walt Disney World in Florida employs more than 66,000 people, spending more than $1.2 billion on payroll and $474 million on benefits each year. Walt Disney World is the largest single-site employer in the United States.[ref]Walt Disney World[/ref] Anyone can see from this single example alone, that the creation and protection of intellectual property is responsible for the employment of an awful lot of people. Certainly Congress understands this, and thus protecting those assets abroad becomes a very desirable goal. These require that the United States enter in to treaties with foreign countries to insure the protection of U.S. copyrights. Here is where the real push for long copyright terms comes from. The Berne Convention copyright treaty is the foremost copyright treaty in the world. At last count, 170 nations have agreed to its terms.[ref]List of Parties to International Copyright Treaties[/ref] The treaty was first signed in 1886,[ref]Id.[/ref] so its ideals are not new. The United States did not become a signatory to the Berne Treaty until 1989,[ref]Id.[/ref] more than one hundred years after it was created, so the U.S. had virtually no role in the creation of the treaty, or its fundamental principles. The primary advantage of the Berne Treaty is that a work created by a citizen of a Berne signatory, is protected in all other Berne nations automatically, without the necessity of individual, country by country, registration.[ref]Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971) Article 5[/ref] The desire of the United States to join the Berne treaty required a vast rewrite of the existing U.S. copyright laws. Firstly, the Berne treaty provides that there be "no formalities" required of an author to obtain copyright protection.[ref]Id.[/ref] Therefore, the U.S. system which required registration as a prerequisite for protection, and a renewal filing for continued protection, had to be abandoned. Next, as amended in 1971, Berne nations were required to have as a minimum term a period equal to the life of the author, plus 50 years after death.[ref]Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971) Article 7[/ref] So the previous system of 28 years, plus 28 years conditioned upon a physical filing, had to be scrapped as well. So any proposal that the United States revise its length of copyright duration to anything less than the life of the author plus 50 years is a non-starter, unless there is going to be a wholesale repudiation by Congress of the Berne Treaty and the benefits of near universal protection of U.S. copyrights around the globe. Similarly, the suggestion of some that continued copyright protection be conditioned upon a physical filing and the payment of a substantial fee, would also violate our obligation under Berne to insure that copyright protection exist with "no formalities." As the Supreme Court only hears cases involving "live" controversies, they are not going to revisit the constitutionality of the current copyright term anytime soon. That would require that Congress again lengthen copyright terms in the next four years, an event that I do not see as happening. Reading between the lines of the Supreme Court's opinion in Eldred v. Ashcroft, I think the clear message is that, while constitutional, the length of copyright protection had reached its logical outer limit. Indeed, at the hearing held by the House Subcommittee on Courts, Intellectual Property and the Internet, on July 15, 2014, not one witness, nor any member of Congress, came forward in support of a longer copyright term. Several panelists offered up the observation, that in view of rampant piracy, the existing copyright duration is almost meaningless. In his testimony, Thomas D. Sydnor, II noted: "Today, too many creators and investors find that the practical term of their US copyright protection is best measured in hours or days, not years or decades. Consequently, even the most principled analysis of how long copyrights should last, (if they could actually be enforced, in practice, and even by individual creators and small-and-medium sized creative companies), can become depressingly academic and even misleading, if enforcing copyrights becomes prohibitively expensive, time-consuming, and disfavored."[ref]Copyright Term and Moral Rights: Forging the Future by Understanding the Present[/ref] As for the pirates, their arguments are falling on deaf ears. In the U.S., several high profile cases involving unauthorized file sharing have resulted in massive judgments.[ref]Paramount Pictures Corp. v Davis 2006 WL 2092581 (Eastern District of Pennsylvania 2006); Capitol Records v. Thomas-Rasset, 692 F.3d 889 (8th Circuit Court of Appeal 2012); Sony BMG Music Entertainment v. Tenenbaum, 719 F.3d 67 (First Circuit Court of Appeal 2012); Malibu Media v. Doe, 950 F.Supp 2d 799 (Eastern Distrcit of Pennsylvania 2013) The damages assessed were: $ 675,000.00 against Tenenbaum, $222, 000.00 against Thomas-Rasset, $112,500.00 against White, $50,000.00 against Davis.[/ref] In Sweden, the founders of the Pirate Bay website were sent to prison.[ref]Supreme Court Rejects Application of Pirate Bay's Peter Sunde[/ref] Despite fielding nearly a dozen candidates in the most recent European Union Parliament elections, they won only one seat, and lost the two existing seats they had.[ref]Pirate Party Runs Aground in European Parliamentary Elections[/ref] Perhaps contempt for the rights of copyright holders is not as universal as the internet would have you believe.