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Tel.: (202) 466-2787 TF: (888) 749-2787

Reply To:

James Lorin Silverberg, Esq .
Adm itted Bars : DC NY MD
J.Silverberg@ I

April 1, 2016
Submitted By Online Submission Procedure
Maria A. Pallante
Register of Copyrights
U.S. Copyright Office
, 101 Independence Avenue SE
Washington, DC 20559-6000
Re: Initial Response to Notice of Inquiry 78 F.R. 13094 (Docket No 2015-7) Section 512
Study: Notice and Request For Public Comment
Prepared by James Lorin Silverberg, Esq.
The Intellectual Property Group, PC
On behalf of American Photographic Artists, Inc. (AP A)
The American Photographic Artists ( is a leading national
organization run by and for professional photographers. With its culture that promotes a
spirit of mutual cooperation, sharing and support, the AP A offers outstanding benefits,
educational programs and essential business resources to help its members achieve their
professional and artistic goals. Recognized for its broad industry reach, the APA continues
to expand benefits for its members and works to champion the rights of photographers and
image-makers worldwide.
American Photographic Artists thanks the Register of Copyrights, Marie A. Pallante, for the
opportunity to submit comments on the Section 512 study. As stated in the Notice ofinquiry
the Office wishes to consider, among the issues, the costs and burdens of the notice-andtakedown process on large- and small-scale copyright owners, online service providers, and
the general public. The Office also wishes to review how successfully Section 512 addresses
online infringement and protects against improper no~ices .


A. Background

Section 512 creates initial copyright infringement immunity for OSPs who have no statutory
damage or actual damage liability to copyright owners unless an OSP fails to qualify for, or
fails to properly comply with, take down procedures, or unless the OSP is itself a participant
in an infringement.
The purpose of this immunity is to shield the OSPs from claims that essentially surface from
posts by third parties for whom the OSPs have no direct responsibility, and to foster the
growth of the OSP industry. OSPs are essentially required to takedown infringing content
once properly notified by the rights owner, and if an OSP does this compliant with
procedures, they have no liability. In this way, the system is designed to operate under a
standard of neutral impact, in which the OSPs' functionality is to remain uncompromised by
legitimate copyright interests when they are asserted. The immunity on the OSP's side is
counter balanced with a takedown procedure designed to protect the rights owner, but only
from ongoing infringing use of their work.
The standards for qualification and for compliance by the OSPs are clearly set forth in the
legislation; as are the requirements for takedown notices. For OSPs there are moderately
complex procedures that result in heightened administrative costs for complying with
takedown notices. There is also extensive time, administration, and cost involved in
accommodating the dealings between the OSPs and rights owners. Rights owners are also
required to engage in complex, time consuming, and expensive procedures, to obtain a
takedown. Other submitters for this Section 512 study are speaking to the details of the OSP
procedures, and APA has joined in other submissions to the Copyright Office that document
the burden on rights owners. Much of the Copyright Office inquiry embraces concerns over
who should bear more or less of these burdens and costs, and how the procedures affecting
each might be adjusted.
B. Recommendations

Under the current Section 512 paradigm, OSPs and rights owners, both of whom may seek
copyright compliance, are pitted against each other and are rendered responsible for dealing
with infringing uses utilizing their own time, at their own expense; all without consequence
to infringers posting the content. This is much like holding the department of transportation,
and the manufacturer of an automobile, responsible for fixing the problem of drivers who
are going through red lights.
APA therefore recommends that any adjustments made to the existing Section 512 equation,
should be directed to increasing the responsibility of the infringers; as they are the ones who
are violating the law. Currently the infringers bear no practical cost for the administrative
toil and expense they cause OSPs. Nor do they, as a practical matter, bear consequence to
the rights owner. Unlike the OSPs who have qualifying regulations, and administrative
burdens for dealing with the take-down procedures, and unlike rights owners who must
submit time-consuming and frequently ineffective takedown notices, the infringers may post
content with no pre-requisite adrninlstrative cost, and without taking any pre-posting
compliance measures.


The legislative assumption for why the existing Section 512 system might work may be that
a burden has already been placed on the party posting infringing content due to existing
provisions and remedies of the copyright law. However, the immense, exponential, growth
of Internet infringement itself amply demonstrates that existing copyright law and current
damage provisions encourage infringers; these are not an effective deterrent to infringement.
This is especially the case where statutory damages are unavailable due to infringement of
an unregistered work, and where the actual damages or license fees for an infringing post
will be nominal based on the market rates for use that might be recovered under the law and
where an infringement may have occurred.
However, apart from the question of the adequacy of damages for copyright violations on
the Internet, it might be considered that section 512 itself not only fosters an opportunity for
this infringement to occur, it tends to encourage it. This is because, as infringers are well
aware, if an infringer posts infringing content anonymously, their identity may not be
revealed unless the OSP responds to, and the rights owner files for and obtains, a United
States District Court subpoena. APA members consistently report that on-line infringement
of their work continues to grow, take down procedures are not an adequate deterrent to
infringement, and that infringers actually flaunt Section 512 as an obstacle to an effective
infringement remedy.
In addition, AP A members consistently report that the costs and burdens of the process
usually outweigh the remedies to which they may be entitled. The costs of obtaining a
subpoena elevate the break-even point at which copyright litigation may be pursued. To
obtain a district court subpoena in a miscellaneous case (where that may be possible) the
costs are no less than $750 in legal fees . It takes approximately 1 hour - 3 hours oflegal time
to prepare, process, serve, and return a subpoena, with accompanying paper work, and
filings. And this must generally be filed through a CM/ECF filing account (which can only
be obtained after training and registration if done pro se). There are associated costs of $75$100 with service of process and return of the subpoena. And the filing may itself be an
invitation to ongoing litigation, e.g., a motion to quash the subpoena, or other proceedings.
Beyond this, and in some instances, it may be necessary to file a civil case. This may
involve drafting fees of several thousand dollars, and district court filing fees in the $400
range, in addition to service costs. And, in the face of the cost and burden, there is no
assurance that, if a subpoena is issued, the OSP will have accurate, useful, or up-to-date
information identifying the infringer that would enable further contact or proceedings. This
is a significant burden when pursuing a remedy for the infringing online post of a
photograph, where the remedy may be a license fee, even if the license fee were as high as
$5,000, and certainly if it were $100 or less.
As any infringer can readily surmise, the net effect of Section 512 is to create a de facto
immunity for anonymous infringers seeking to evade copyright liability. Absent the filing of
a case in the United States District Court to obtain a subpoena, and absent a resulting court
order, obtaining their identity may not be possible. And, even if such proceedings were to
occur, and typically they do not, liability for infringement will be nominal. As a result,
infringers are empowered to infringe. In addition to being a safe harbor for the OSPs,
Section 512 also becomes a de facto safe harbor for the infringer.


Section 512 has now spawned a new genre of publication. Just as the novel and short story
emerged as literary genres of their day, there have now emerged websites created almost
entirely out of anonymous user generated content ("UGC"). AP A members commonly
complain that these sites are structured as online magazines, or as multi media entertainment
venues, specifically designed to accommodate un-cleared material. They confront sites that
sell commercial advertising space for OSPs. But the sites are populated with, and rely upon,
UGC posted posthumously or anonymously. Structured to qualify as immune OSPs, these
sites enjoy immunity for infringing posts and are able to monetize the content. APA
members, many of whom use search tools or services to identify infringing material, report
that thousands of their images are being used to populate these sites.
And not all of these have a surreptitious motive and a specific intent to shield infringers.
AP A members routinely confront sites that are legitimate on-line publications that simply
rely upon the provisions of Section 512 as a liability management tool. These sites are
structured as OSPs to rely upon "independent" writers to post material as third parties. And
numerous are the reports that the infringing material is actually posted by the OSPs own
staff members, posing as independent third party contributors. In either case, the publishers
are using an OSP immunity model, simply as a liability management tool. Authorship of the
non-infringing and infringing content is denominated, for example, as "by Mary." Many of
these publications are further enabled by "windowing" other sites with copyrightable
content. Thus, entire online magazines are now built upon a Section 512 model, and the use
of anonymous or posthumous third party postings and windowed content, none of which has
been cleared.
This new publishing model now supplants the licensing model for content in which material
to be posted or published was cleared and paid for. AP A members report that their entire on
line marketplace for visual content is now being reduced to a single-sale first-post-of-thework market. After that, anyone can access their photographic material, legally or not, by
windowing it from other sites and through anonymous postings, without consequence.
Because their sale or license of material to a single authorized publisher can now be enjoyed
by thousands of other publishers, the residual market for their work is gone.
While the problems inhering in this paradigm are not all owing to Section 512, APA
endorses modifications to Section 512 where these changes will help restore what is now a
complete and total failure of the marketplace for the licensing of their work. More
specifically AP A endorses modifications of Section 512 that will alleviate the financial and
administrative burdens on innocent OSPs and rights owners with valid copyright claims, and
that shifts the burden to infringers that are engaged in illegal activity.
Consequently APA recommends that consideration be given to the following questions:
Should infringers, or at least repeat infringers, be required to bear some of the burden of
Section 512?
Should infringers be required to reimburse OSPs and rights owners for the administrative
costs, and time they cause by illegally posting content?


Should infringers who assert counter-takedown notices, and who increase administrative
burdens and costs for OSPs and rights owners be required to compensate for the time and
costs associated with the counter-takedown notices?
Should there be a forfeiture fee associated with, and should identification be required for,
filing an unsuccessful counter-takedown notice?
Should OSPs be legally sheltered for divulging identifying information for infringers?
Should the law require infringers to identify themselves to rights owners as parties in
responding to, or for failing to respond to, a takedown notice, and should a process for
identification be implemented that does not require a subpoena, provided the rights owner is
able to state a prima facie case for infringement?
To encourage the day-lighting and responsibility of third parties posting content, should
there be consequences, or negative inferences, for unattributed, anonymous, or
posthumously posted content that infringes an author's copyright?
What measures are appropriate, and should be adopted for, OSPs who facilitate, induce, or
help conceal infringement, when they have a fmancial interest in the online service that is
posting infringing content?
What measures are appropriate for OSPs who adopt policies of willful blindness, and should
they be exposed to vicarious or contributory liability, greater remedies, and penalties, than
those OSPs who have no interest in the sites they host?
Should standard technological measures be expressly defined to include copyright
management information, in the context of OSPs hosting sites on which they advertise or
have a commercial interest?
C. Conclusion

AP A wishes to thank the Office and the Register for this opportunity to submit comments as
part of the Section 512 study. The construction of an Internet marketplace for copyrightable
content ultimately does not rely upon a tailoring of the administrative burdens and expenses
of OSPs and rights owners under Section 512. These burdens and expenses are symptoms of
the underlying infringement problem. If infringement is left unaddressed, the costs and
burdens will continue to grow as infringing activity continues to expand. Thus, AP A hopes
that the burdens of Section 512 can be lifted from the shoulders of the OSPs and rights


owners, and that they can be fairly shifted to the infringers who are their source. Unless
greater accountability materializes for the infringers, AP A believes that the marketplace for
their member's copyrightable content will continue to erode and that copyright infringement
will simply increase.

Lorin Silverberg

Attorney for
American Photographic Artists, Inc.