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Before the

UNITED STATES COPYRIGHT OFFICE
Library of Congress

Notice of Inquiry
Section 512 Study: Notice and Request for
Public Comment

Docket No. 2015-7

COMMENTS OF UNIVERSAL MUSIC GROUP
Jeffrey Harleston
General Counsel and EVP, Business & Legal Affairs
Alasdair McMullan
Head of Litigation and SVP, Business and Legal Affairs
Universal Music Group
2220 Colorado Avenue
Santa Monica, California 90404
David Kokakis
Executive Vice President, Head of Business & Legal
Affairs, Business Development and Digital
Universal Music Publishing Group
2100 Colorado Avenue
Santa Monica, California 90404

Universal Music Group (“UMG”) respectfully submits these comments in response to the
Copyright Office’s Notice of Inquiry (“NOI”) respecting the safe harbors contained in Section
512 of the Copyright Act, 17 U.S.C. § 512. See Section 512 Study: Notice and Request for
Public Comment, 80 Fed. Reg. 81862 (Dec. 31, 2015).
UMG is the world’s leading music company. Among its record labels are such iconic
names as Blue Note, Capitol, Def Jam, Deutsche Grammophon, Interscope, Island, Motown,
Republic, UMG Nashville, Universal Music Latin Entertainment, and Virgin; indeed, UMG
owns the most extensive catalog of recordings in the industry, covering the last hundred years of
many of the world’s most popular artists. UMG’s businesses also include Universal Music
Publishing Group (“UMPG”), one of the industry’s premier music publishing operations.
As the owner of a vast array of copyrighted content, and as a company that is committed
to providing its artists and songwriters with rightful value for the content they create, the
interpretation, application, and impact of the Section 512 safe harbors is an issue of critical
importance to UMG. While UMG recognizes and embraces the need for a dynamic online
marketplace – including for purposes of the distribution of music – the reality is that the balance
that Congress attempted to strike in drafting Section 512 has not been realized. Instead, the
protections of Section 512, as interpreted by the courts, have overwhelmingly favored online
service providers, imposed enormous burdens on copyright owners such as UMG, and
fundamentally skewed the marketplace for music content.
UMG appreciates the efforts of the Copyright Office in studying the impact and
effectiveness of Section 512. UMG hopes that its comments will aid the Copyright Office in
understanding how the application of Section 512, as written and as interpreted by the courts, has
affected the stakeholders that are subject to its provisions.

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General Effectiveness of Safe Harbors
1. Are the section 512 safe harbors working as Congress intended?
The answer is “no.” When Congress passed the Digital Millennium Copyright Act
(“DMCA”) in 1998, it intended to strike a balance between two interests:
(1)

protecting intellectual property rights in an increasingly digital environment; and

(2)

promoting the continued growth and development of online technology and
commerce.

See, e.g., H.R. Rep. No. 105-551, pt. 2, at 23 (1998) (“A thriving electronic marketplace provides
new and powerful ways for the creators of intellectual property to make their works available to
legitimate consumers in the digital environment. And a plentiful supply of intellectual property -whether in the form of software, music, movies, literature, or other works -- drives the demand
for a more flexible and efficient electronic marketplace.”); S. Rep. No. 105-190, at 8 (1998)
(“Due to the ease with which digital works can be copied and distributed worldwide virtually
instantaneously, copyright owners will hesitate to make their works readily available on the
Internet without reasonable assurance that they will be protected against massive piracy.”).
Congress also expected that copyright owners and service providers would work together
to share the burden of identifying and preventing infringement. H.R. Rep. No. 105-551, pt. 2, at
49 (1998) (noting that the Act “preserves strong incentives for service providers and copyright
owners to cooperate to detect and deal with copyright infringements that take place in the digital
networked environment”).
However, this balance between copyright owners and service providers has not occurred.
To be sure, online technology and commerce has developed – indeed, it has developed far
beyond anything Congress likely imagined in 1998. Internet speeds have increased by a factor of
200 or more. Video files that took an hour to upload in 1998 now take mere seconds to upload.
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In 1998 there were a few hundred thousand websites on the Internet; now there are over one
billion. Cyberlockers, peer-to-peer networks, and sites populated with unlicensed, user-uploaded
videos did not yet exist. And recorded music, which in 1998 was distributed almost exclusively
in physical format, is now widely available in digital form online.
Protection for intellectual property rights, on the other hand, has not remotely kept up
with these breakneck advances in technology. Instead, online infringement has proliferated, and
the burden to police and address it has fallen almost exclusively on copyright owners. This fact
is largely due to the manner in which courts have interpreted and applied the safe harbors of
Section 512, in the face of technology companies that have welcomed, and even encouraged,
infringement. Although the legislative history of Section 512 makes clear that Congress never
intended the safe harbors to apply to sites “where sound recordings, software, movies or books
were available for unauthorized downloading, public performance or public display,” S. Rep.
No. 105-190, at 48 (1998), that is precisely what has happened.
Companies whose businesses are based entirely on the intellectual property of others –
i.e., “where sound recordings…[are] available for unauthorized downloading, public
performance or public display” – have routinely been granted the protection of Section 512’s
safe harbors. See, e.g., UMG Recordings, Inc. v. Veoh Networks Inc., 665 F. Supp. 2d 1099,
1111 (C.D. Cal. 2009) (“Veoh I”) (rejecting argument that service provider was ineligible for
safe harbor even if “its founders, employees, and investors knew that widespread infringement
was occurring on the Veoh system”), aff’d sub nom UMG Recordings, Inc. v. Shelter Capital
Partners LLC, 718 F.3d 1006 (9th Cir. 2013) (“Veoh II”); Capitol Records, LLC v. Vimeo, LLC,
972 F. Supp. 2d 500, 524 (S.D.N.Y. 2013) (notwithstanding “disconcerting” evidence that
service provider’s executives and employees were aware of widespread infringement on the

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service, service provider was generally entitled to safe harbor where evidence did not
demonstrate awareness of “specific instances of infringement” of videos-in-suit); see also
Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 33 (2d Cir. 2012) (“Viacom II”) (holding that
evidence that “YouTube employees conducted website surveys and estimated that 75-80% of all
YouTube streams contained copyrighted material” was insufficient to deprive YouTube of
Section 512’s safe harbor).
Perversely, the impact of these decisions has been to shift an insurmountable burden for
preventing and addressing online infringement from the technology companies exploiting this
infringing content for their own profit onto the shoulders of aggrieved copyright owners whose
intellectual property rights are being violated. Like many other copyright owners, UMG has
been compelled to devote extraordinary resources in an effort to address this burden. It employs
dozens of people and has incurred costs of millions of dollars – including personnel expense,
investments in computer hardware and software, third-party vendor expenses, and substantial
contributions to trade associations – specifically and solely to protect its interests, and those of its
recording artists and songwriters, against online infringement. However, notwithstanding this
investment and dedication by UMG, the extent of online infringement and the rate at which it is
continuing to grow, coupled with the imbalance of burdens between copyright owners and
service providers under the current legal system, have rendered it impossible to fully address the
massive violations of UMG’s intellectual property rights.
UMG is the home to hundreds of active recording artists (and thousands more who are no
longer recording), and hundreds of active songwriters. It owns or controls the copyright for
millions of recordings and several million more compositions, and released more than one
thousand new albums in 2015. Under the current legal regime, and the burdens it has imposed,

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UMG is simply unable to protect its entire catalog and the wealth of intellectual property that it
represents.
UMG knows this because of its experience devoting extraordinary effort and resources to
protect its artists’ content. For purposes of illustration, we describe here one recent effort to
partially protect just one album, from just one artist, for just a short period of time. UMG is the
distributor of the Taylor Swift album “1989,” which was released by her label, Big Machine
Records. Prior to the release of the album in October 2014, Ms. Swift raised concerns
respecting compensation paid to artists by advertising-supported online streaming services. In
light of Ms. Swift’s position, UMG and Big Machine Records dedicated additional resources to
addressing online infringement of the album.
Like Big Machine Records, UMG was already engaged in substantial efforts to prevent
such infringement, including sending takedown notices to cyberlockers, pirate sites, and search
engines (both directly and working through the Recording Industry Association of America
(“RIAA”) and IFPI, an international recording industry trade association); however, the
magnitude of the online infringement of “1989” was massive and required significant additional
steps. First, UMG adopted a policy of actively searching for and blocking the album and all but
one of its tracks on YouTube, rather than monetizing that content on the YouTube platform. 1
And second, UMG devoted additional efforts to taking the recordings down from two other sites
– SoundCloud and Tumblr – which paid no royalty at all at the time, and which responded
relatively quickly to takedown notices.

1

The exception was “Shake It Off,” which had been released as a single months earlier and was already widely
available on YouTube, and which UMG continued to monetize. The response to No. 15 below provides a further
description of the options available to UMG with respect to UMG content that is available on YouTube.

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These efforts came at a considerable cost to both UMG and Big Machine Records. A
staff of UMG employees devoted essentially 100% of their time between November 2014 and
February 2015 to manually search for infringements of “1989” and its tracks on YouTube and
other sites, so that these unlawful uses could be blocked or taken down. These efforts were
supplemented by approximately a dozen employees working for IFPI who devoted a significant
portion of their work days to the same task.
Since the release of the album and through March 11, 2016, UMG or its agents have had
to send over 66,000 DMCA takedown notices to online sites hosting copies of “1989” or its
tracks. This is in addition to nearly 114,000 blocks that were automatically put in place through
YouTube’s Content ID system (described in response to No. 15 below), and nearly 30,000
additional blocks or takedowns that UMG or its agents manually placed through online interfaces
that YouTube and SoundCloud make available to copyright owners. In addition, trade
associations working on UMG’s behalf, including RIAA and IFPI, identified over half a million
URLs that link to infringements of “1989” since the album was released, and requested that
search engines delist those URLs. See 17 U.S.C. § 512(d).
On the positive side, these massive efforts bore some fruit. Almost immediately, UMG
and Big Machine Records began seeing evidence that consumers looking for unlicensed online
copies of “1989” were unable to find them, and were thus being driven to purchase the album.
Tweets from the time reflect the success of UMG’s and Big Machine’s efforts:
I’m addicted to half the songs from Taylor Swifts 198[9] album. #FML I can’t
find any of her songs on youtube. Guess I’ll have to get the cd. (@ShaelynneR,
December 14, 2014)
all i want to do right now is illegally download taylor swift’s album but i can’t
find it anywhere.. life (@oklindsay, December 17, 2014)
Ok @taylorswift13 you win I had to buy ‘wildest dreams’ bc I can’t listen to it
free ANYWHERE (@ginaxgaga, December 20, 2014)
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Taylor swift has done an incredible job of preventing her album leaking like srsly
I can’t even find a download link so imma have to buy it (@50shadesofconor,
December 24, 2014)
it’s easier to get Ebola then to download Taylor Swifts new album haha
(@samvwilkinson, December 26, 2014)
Can’t illegally download 1989 anywhere…ugh. TSwift is really about to make
me buy this damn album…well played T…well played (@aREAL_GEM,
December 29, 2014)
Finally caved and bought @taylorswift13 #1989 as I can’t find it anywhere else.
Fair play Taylor, if you’re gonna do copyright do it well (@inunrelatednews,
January 9, 2015)
why the hell can’t my mp3 downloader download 1989 i’ve been dying to listen
to bad blood f! (@bmbstmntx, January 21, 2015)
you win, taylor swift. officially had to buy your album so i could actually listen
to it (@paigecwilliams, January 22, 2015)
update: i had to buy taylor swift music from itunes since i couldn’t find it
anywhere else  (@amandawiss3, February 1, 2015)
On the other hand, UMG was not able to eliminate all infringement of “1989” online –
far from it. For example, data available to UMG reflects that the “1989” album was illegally
downloaded nearly 1.4 million times from bittorrent sites. Accordingly, notwithstanding UMG’s
and Big Machine’s considerable efforts, infringement was still accomplished on a massive scale.
More fundamentally, it would be impossible for UMG or Big Machine (or any other
music company) to replicate this approach more broadly. While not every album attracts the
same attention as “1989,” the effort to locate online infringements of recordings of UMG’s many
hundreds of active artists would be several orders of magnitude above the substantial effort
reflected above, and all but impossible as a practical matter.
However, that is precisely the burden that courts interpreting Section 512 and service
providers that have taken advantage of those rulings have placed on copyright owners – namely,
to monitor the entire Internet to find infringing content, and then to affirmatively identify and

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take down that content. Whatever its original intent, Congress simply could not have
contemplated either the massive scope or the diverse methods of online infringement when it
passed Section 512 in 1998, much less the disproportionate impact such infringement would
have on copyright owners. To be sure, the availability and use of content identification
processes by some service providers, such as YouTube’s Content ID system, helps to address a
fraction of these issues. But the vast majority of service providers – including companies that
were built on making infringing content available to users – do not use such technology. It is for
these reasons that reform of Section 512 is desperately needed.
2. Have courts properly construed the entities and activities covered by the section 512
safe harbors?
The answer here is also “no.” As discussed in response to No. 1 above, courts have
construed the entities covered by the Section 512 safe harbors far too broadly, encompassing not
only neutral conduits for Internet traffic and passive repositories of content, but websites that
were specifically designed and promoted for the sharing and distribution of infringing content.
For example, in Viacom Int’l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514 (S.D.N.Y. 2010)
(“Viacom I”), aff’d in part and remanded, 676 F.3d 19 (2d Cir. 2012), the court noted that
a jury could find that the defendants not only were generally aware of, but
welcomed, copyright-infringing material being placed on their website. Such
material was attractive to users, whose increased usage enhanced defendants’
income from advertisements displayed on certain pages of the website, with no
discrimination between infringing and non-infringing content.
Id. at 518. The court nonetheless ultimately concluded – as a matter of law – that defendants
were entitled to the safe harbors of Section 512. Viacom Int’l Inc. v. YouTube, Inc., 940 F. Supp.
2d 110 (S.D.N.Y. 2013) (“Viacom III”).
The courts have also construed the activities covered by the Section 512 safe harbors
beyond what is appropriate. For example, in Veoh I and Veoh II, the courts held that a service

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provider’s safe harbor from infringement “by reason of the storage at the direction of a user of
material,” 17 U.S.C. § 512(c)(1), applied not only to the storage of content, but to all “accessfacilitating processes that automatically occur when a user” uploads, streams or downloads
infringing material. Veoh II, 718 F.3d at 1016. As a result, not only was Veoh’s storage of
infringing content insulated from liability, so too were its functionalities that made multiple
copies of each uploaded video, and then allowed users to share, stream, and download that
infringing content. Indeed, Veoh allowed any user to watch any video on its site (i.e., users
could watch a video uploaded by another user), and then to download that video for free through
use of a “download” button. See id. at 1011 (noting that “Veoh allows people to share video
content over the Internet”); see also Vimeo, 972 F. Supp. 2d at 519 (although acknowledging the
“challenges that copyright holders face in the digital age in which their works may be
downloaded with ease to users’ devices,” concluding that “storage” in Section 512(c) included
technology that permitted any user to download content saved on the service provider’s site).
Interpretations such as this are eviscerating the effectiveness of the DMCA.
3. How have section 512’s limitations on liability for online service providers impacted
the growth and development of online services?
Section 512’s limitations on liability have had at least two significant impacts on the
growth and development of online services. First, contrary to the law’s original intent, by
facilitating the provision of copyright content to consumers without consent from, or
compensation to, copyright owners, Section 512’s limitations have actually adversely impacted
the growth and development of legitimate, licensed online music services. Those services have
been forced to develop business models where users either do not pay anything for use of the
music (e.g., ad-supported services), or where users pay very low prices because the services are
competing with free, unlicensed services.

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Second, Section 512’s limitations on liability have facilitated the formation and growth
of multi-billion dollar corporations that are based almost entirely on the intellectual property of
others, and yet the compensation those companies have paid – if any – to the owners of that
intellectual property pales in comparison to the established value of the intellectual property.
Astonishingly, in 2015, sales of vinyl record albums generated more revenues for copyright
owners than the billions upon billions of free on-demand streams offered by services that rely
upon Section 512 safe harbors.
Both of these outcomes are possible only because courts have interpreted Section 512 in a
manner that effectively insulates companies whose founders, employees, and investors know that
widespread infringement is occurring on their platforms, so long as they remain ignorant of
specific instances of infringement. And in both instances, the copyright owners – including, but
not limited to, artists and songwriters – lose. As discussed further in response to No. 4 below,
copyright owners lose with respect to the service providers that are protected by Section 512,
because they are either uncompensated for their content or compensated at heavily depressed
levels, and they lose with respect to licensed music services because the market rate for music
royalties is pulled down by the availability of music through the Section 512 service providers.
This cannot be the outcome that Congress intended.
4. How have section 512’s limitations on liability for online service providers impacted
the protection and value of copyrighted works, including licensing markets for such works?
Section 512’s limitations on liability have dramatically affected the ability of copyright
owners to protect their works. As discussed throughout these comments, the imbalance between
service providers and copyright owners resulting from the interpretation and application of
Section 512, and the practical inability of copyright owners to shoulder the enormous burden that

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courts have placed almost exclusively upon them, means that most copyrighted works go
unprotected online.
This reality has also had a direct financial impact on copyright owners and artists. Before
the advent of YouTube, when legitimate online music services were in their infancy, those
services would typically pay approximately 1¢ for each play of a sound recording online. That
figure has dropped dramatically. YouTube, which is the world’s largest online music platform
(albeit built on the back of copyright owners, through the unauthorized uploading and posting of
copyrighted content), has almost single-handedly driven the per-play rate down by as much as
90%. In negotiations with copyright owners, YouTube (like other online music services) is able
to point to the vast quantity of unlicensed music that remains available for free online – and
which copyright owners have been powerless to stop given the application of the DMCA – as
justification for ever-lower compensation rates to copyright owners. And YouTube also has the
leverage that it could stop paying entirely, decline to renew a cooperative agreement with
copyright owners, and then claim that it can rely on the DMCA to insulate itself from any
liability. While UMG would vigorously dispute such a claim, the risk is manifest. As a result, as
long as Section 512 (and courts’ interpretations of it, and service providers’ misuse of it) remains
unchanged, copyright owners like UMG are faced with a Hobson’s choice in dealing with
companies that claim its protections: either agree to bottom-of-the-barrel rates, or refuse and face
the prospect of protracted litigation with Internet giants, while single-handedly patrolling billions
of hours of content for infringements and sending out millions of takedown notices to users.
Nor is the impact on rates limited to YouTube. Literally every licensed online music
service invokes YouTube’s below-market rates when negotiating with UMG, as a justification
for reducing the royalty rate the service pays. It is therefore unsurprising, if disheartening, that

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although music is more popular and accessible than ever – with consumption literally at an alltime high – music industry revenues are only half the size they were in 2000.
In addition, the misalignment of burdens toward copyright owners in the interpretation of
Section 512 has forced UMG to shift significant resources that could otherwise be used to invest
in the creation of new content (including the discovery and development of artists) toward the
protection of existing content. In this way, the effect of Section 512 is fundamentally at odds
with the incentive structure of the Copyright Clause in the Constitution: at some point, a rational
economic actor could decide to retrench and focus most or all of its efforts on protecting its
existing catalog with proven sales viability, rather than risk substantial additional capital on
unknown content that may simply be consumed without any compensation.
In short, Section 512’s limitations on liability have fundamentally skewed the
marketplace, enabling billion-dollar corporations to profit at the expense of copyright owners.
Instead, in order to foster an environment that rewards the creation of and investment in music, it
is critical that the legal structure governing that environment operate in a reasonable and
balanced manner. Only then will a rational marketplace exist in which copyright owners can
negotiate a fair return for the use of their music.
5. Do the section 512 safe harbors strike the correct balance between copyright owners
and online service providers?
As described throughout these responses, the Section 512 safe harbors, as interpreted and
applied by the courts, do not strike the correct balance between copyright owners and online
service providers. Copyright owners currently shoulder virtually the entire burden of policing
the Internet for infringements of their works, while service providers have been incentivized to
turn a blind eye to rampant infringement occurring on their sites. These issues, and possible

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solutions to at least some of them, are discussed in greater detail in the remainder of these
responses.
Notice-and-Takedown Process
6. How effective is section 512’s notice-and-takedown process for addressing online
infringement?
Section 512’s notice-and-takedown process is extraordinarily ineffective. It suffers from
multiple problems and limitations, including the following:
(a)

It is a system that cannot handle, and was not designed to handle, the sheer

volume of online activity and infringement that occurs in today’s digital environment. See the
response to Nos. 1, 9, 10, 15, 16, and 22.
(b)

It does nothing to address the so-called “whack-a-mole” problem, in which

content that is taken down in response to Section 512 takedown notice is almost immediately
reposted on the same site. See the response to No. 10.
(c)

It fails to impose clear or strict limits on how quickly a service provider must act

in response to a takedown notice, resulting in lengthy and prejudicial delays in removing
infringing content. Section 512(c)(1)(A)(iii) requires a service provider to “act[] expeditiously to
remove, or disable access to, the material” upon obtaining knowledge or awareness of
infringement. 17 U.S.C. § 512(c)(1)(A)(iii) (emphasis added). In UMG’s experience, some
online providers take twenty-four hours or longer to actually take down content upon receipt of a
notice (for example, some providers appear not to process notices over the weekend).
Given the speed at which files can be downloaded, streamed, shared, or transferred,
such delayed action in responding to takedown notices results in dramatically increased
infringement of copyrighted works. Even if UMG immediately identifies infringing content and
sends a takedown notice, a delay of minutes – let alone hours or days – before content is taken

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down can result in hundreds or thousands or millions of unauthorized streams or copies of that
content. Each of these unauthorized streams or copies represents a loss of potential revenue to
UMG – typically to the detriment of artists and songwriters – and an unjustified windfall to the
service provider, which benefits from the widespread existence of copyrighted material on its
site.
These delays present a particularly acute problem with respect to pre-releases and newlyreleased albums. Given the number of hands that touch physical product before a new CD
reaches store shelves, it is very difficult to prevent leaks. When unauthorized copies of those
recordings are uploaded to online sites before they are commercially available, or even
simultaneously with their authorized release, UMG effectively loses control of the content, and
loses the benefit of its intellectual property, at the time that it is at its most valuable.
The problems described above exist largely because Section 512 provides no guidance as
to what is meant by “expeditiously.” However, there is no reason that the time to take down
infringing content should materially exceed the time it requires to upload infringing content (i.e.,
nearly instantaneously). One reasonable approach would be to require service providers to
provide an online interface that permits a copyright owner to submit takedown notices, and that
processes those notices in an automated fashion. As long as the notice is completed through the
electronic interface, and as long as the copyright owner specifies the location of the infringing
content on the service provider’s site, the content should come down immediately. Certain
service providers, such as YouTube and SoundCloud, already make such automated systems
available, and there is no reason that such systems should not likewise be mandatory on all
service provider sites. At a minimum, however, Section 512 should be amended to provide a

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maximum time – and an extremely short time – within which content must be taken down for a
service provider to get the benefit of a safe harbor.
(d)

Section 512 also provides little or no guidance as to the proper interpretation of

many of its other terms and provisions. As a result, courts are effectively left to “legislate” in
this area, and the courts have routinely “interpreted” the language of Section 512’s notice-andtakedown procedures in a manner that advantages service providers to the detriment of copyright
owners. This includes Section 512’s provisions respecting a “representative list” of infringed
works (see the response to No. 14) and “repeat infringer” policies (see the response to Nos. 22
and 23).
(e)

There is no transparency regarding most service providers’ experience under the

DMCA; in many cases, it is only through time-consuming and costly litigation that copyright
owners (or the public) can obtain any access into the full extent of infringement on a service
provider’s site and the nature, frequency, and treatment of takedown notices that the service
provider receives. One possible remedy of this lack of transparency is to require each party
claiming the benefit of a Section 512 safe harbor to periodically (e.g., quarterly or annually)
publicly disclose the number of takedown notices it has received from copyright owners, and the
number of counternotices that it has received in response to those takedown notices. Failure to
provide such public disclosure should preclude the service provider from relying on Section 512.
(f)

To the extent that courts conclude that manual, human review of each

infringement is required prior to sending a takedown notice (e.g., to evaluate a potential fair use
defense), such a determination would be devastating to operation of a system that is already
highly dysfunctional. See the response to No. 9 below.

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7. How efficient or burdensome is section 512’s notice-and-takedown process for
addressing online infringement? Is it a workable solution over the long run?
As described throughout these responses, Section 512’s notice-and-takedown process is
not a workable solution over the long run. It places too much burden on copyright owners,
largely absolves service providers of any responsibility, and is woefully inadequate to address
the massive scale of online copyright infringement. Moreover, the problem is only likely to get
worse – Internet availability, use, content, and speed are increasing at an exponential rate. These
facts make reform of Section 512 especially critical; without meaningful reform, copyright
owners will suffer ever-increasing online infringement of their works that they are effectively
powerless to stop or contain. For further discussion, see the responses to Nos. 1, 6, 9, 10, 15, 16,
and 22.
8. In what ways does the process work differently for individuals, small-scale entities,
and/or large-scale entities that are sending and/or receiving takedown notices?
As illustrated throughout these responses, endeavoring to address the massive scale of
online infringement is critical to protect the value of music, but it is at best a Sisyphean task for
entities of all sizes.
UMG is a large-scale entity. Because it believes in the value of its content and because
its efforts are a competitive benefit that it can provide to its artists and songwriters, UMG
devotes extraordinary sums of money and employee time to attempt to protect that content. It
has approximately two dozen dedicated employees in its content protection department alone,
and will soon substantially increase that number. These employees are aided by countless others
throughout the company who perform related tasks, including review and claiming of content on
YouTube.
Although individuals and small-scale entities may have fewer copyrights to police, the
universe of potential infringements they face is no smaller than the one that confronts UMG. At
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the same time, these entities may not have the wherewithal to devote substantial resources to
content protection, including the identification and remediation of online infringement.
Modifications and recalibrations of Section 512 must therefore work equally for all
copyright owners, from the smallest to the largest. UMG’s proposals in these responses are
designed with that goal in mind.
9. Please address the role of both ‘‘human’’ and automated notice-and-takedown
processes under section 512, including their respective feasibility, benefits, and limitations.
Given the volume of infringements that copyright owners encounter on a daily basis,
automated notice-and-takedown processes are essential. No company would be able to identify
and address even a fraction of the infringements that UMG currently handles (which in turn are
only a fraction of the infringements in the marketplace) without utilizing automated processes.
Such processes also benefit the service providers by reducing the humanpower required to
address infringement claims; moreover, as described above in response to No. 6, they can also
facilitate service providers’ efforts to meet the statutory requirement that they “expeditiously”
take down infringing content.
In contrast, interpreting Section 512 to affirmatively require use of “human” involvement
– at least at the initial notice-and-takedown phase – would eviscerate these benefits. However,
one recent decision threatens to do just that. In Lenz v. Universal Music Corp., -- F.3d --, Case
No. 13-16106, 2016 WL 1056082 (9th Cir. Mar. 17, 2016) (“Lenz II”), the Ninth Circuit held
that a copyright owner must consider fair use before sending a takedown notice. Id. at *6.
Taken at face value, that statement could be interpreted (albeit wrongly) to require
individualized, human evaluation of every potential takedown. Such a burden, if it were
imposed, would be simply impossible to discharge. As discussed further in response to No. 15, it
is estimated that users upload 500 hours of video content to YouTube every minute, containing

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approximately 100,000 individual uses of UMG’s copyrighted content every day. And that is the
volume on just one service provider. Any proposition that UMG (or any other copyright owner)
must manually review every one of those uses prior to initiating a Section 512 takedown process
would render the takedown process illusory – no copyright owner could comply with such a
requirement. 2
A prior version of the opinion offered a glimmer of hope. The court’s original opinion
noted that the court was “mindful of the pressing crush of voluminous infringing content that
copyright holders face in a digital age,” and that “the implementation of computer algorithms
appears to be a valid and good faith middle ground for processing a plethora of content while
still meeting the DMCA’s requirement to somehow consider fair use.” Lenz v. Universal Music
Corp., 801 F.3d 1126, 1135 (9th Cir. 2015) (“Lenz I”).
Admittedly, this glimmer of hope was a faint one at best. The court suggested that an
algorithm could properly
automatically identify for takedown notifications content where: (1) the video
track matches the video track of a copyrighted work submitted by a content
owner; (2) the audio track matches the audio track of that same copyrighted work;
and (3) nearly the entirety is comprised of a single copyrighted work.
Id. (internal quotations, ellipses, and citation omitted). But this statement assumes that the
copyright owner always has a video that is infringed, as opposed to simply an audio track.
Because that is frequently not the case for record companies such as UMG (and appears to ignore

2

As is also discussed in response to No. 15, YouTube offers a voluntary alternative to a formal Section 512
takedown notice; that alternative relies heavily on an automated process that was developed and implemented by
YouTube to allow copyright owners to identify and make claims based on use of their works on YouTube. UMG
does not understand the Lenz II decision to apply to that process, as it is not subject to the requirements of Section
512. However, most other service providers – which account for millions of additional uploads every day – do not
offer such alternative approaches, leaving a Section 512 takedown notice the only remedy. And YouTube’s
provision of its voluntary alternative is just that – voluntary. It has taken the position that it is not required to make
this alternative available and can instead simply rely upon the provisions of Section 512. See, e.g., Viacom III, 940
F. Supp. 2d at 120.

19

completely music publishers such as UMPG, whose interest is in the composition, not just a
particular recording of the composition), this example provided little comfort. More
problematically, the court then assumed that such a computer algorithm would “cull” all but
“minimal remaining content.” Id. The number of videos on YouTube alone that (1) infringe an
audio track owned by UMG where UMG has not released an accompanying video; (2) infringe
an audio track owned by UMG where the uploader does not actually show a video (e.g., where
the uploader simply displays something like a picture of the track’s artist while the audio track
plays); (3) prominently feature an audio track owned by UMG over a different video than the
official UMG video; (4) incorporate multiple copyrighted works (e.g., an artist’s entire album);
or (5) infringe compositions owned by UMPG (e.g., “cover” versions of songs) is literally
uncountable. The notion that an algorithm applying the criteria quoted above would “cull” most
content and leave only “minimal…content” for human review is naïve, to say the least.
However, in Lenz II, the panel struck, without explanation, the entirety of the above
discussion. Compare Lenz II, 2016 WL 1056082, at *7, with Lenz I, 801 F.3d at 1135-36. This
is presumably because the panel recognized that the statements in the earlier version of its
opinion were dicta, and chose to leave for another day the question of the extent to which such
automated processes can be used to determine fair use. Regardless of this change, the court’s
decision respecting fair use has had a chilling effect on UMG’s ability to protect its copyrights.
The better solution is to treat the fair use determination as an affirmative defense, and
relegate its consideration to where it belongs – in connection with a counternotice. Although the
Ninth Circuit reached its conclusion respecting pre-notice consideration of fair use based on its
reading of the Copyright Act, for present purposes it does not matter whether that interpretation
of the existing statute is right or wrong. Section 512 should be amended to specify that, for

20

purposes of the notice-and-takedown procedures, as long as the copyright owner’s work is being
used, then the question of whether that use is “fair” need not be considered except to the extent
raised in good faith in a valid counternotice. Such an approach would save literally thousands of
human hours unnecessarily reviewing masses of content, and shift the timing and focus of the
fair use analysis to a smaller, and more suitable, population of online content.
10. Does the notice-and-takedown process sufficiently address the reappearance of
infringing material previously removed by a service provider in response to a notice? If not,
what should be done to address this concern?
The answer is clearly “no.” UMG’s experience with Taylor Swift’s “1989” album is
again illustrative. As noted above, UMG and its agents have sent in excess of 66,000 Section
512 takedown notices in connection with infringements of “1989” since the album was released.
But these were not all sent in a single day, or single week, or single month, or even single year.
Instead, this is the total number of notices sent over a sixteen-plus month period. If the noticeand-takedown process were sufficient to address the reappearance of infringing material that was
previously removed by the service provider, then this volume would not be necessary. But UMG
was still sending hundreds of takedown notices every week as recently as March 2016, and all to
sites that had previously received notices to take down the same infringing material. The
following list reflects the number of takedown notices for “1989” that UMG or its agents have
sent, from the album’s release through March 11, 2016, to just a few of the many sites that
hosted infringing content:
Site

Number of Takedown Notices

4shared.com

4396

tumblr.com

4260

uploaded.net

2308

vibeclouds.net

1467

21

itemvn.com

1426

searchmusic.me

1324

Such a system is nonsensical – a site should not have to be told thousands of times that it must
take down infringing works utilizing the same tracks from the same album. 3 And yet that is how
the current system operates, based upon the manner in which courts have interpreted Section
512.
One answer to “what should be done” is that, upon receipt of a notice-and-takedown
notice with respect to a given work, a service provider should at least be required to implement
reasonable content identification processes to prevent the uploading of that work again in the
future. As discussed further in response to No. 11 below, a requirement that a service provider
adopt and use effective content identification technologies – before the service provider is
granted a safe harbor from liability for infringement – is a minimum and reasonable step that
would aid in establishing an appropriate balance between service providers and copyright
owners.
11. Are there technologies or processes that would improve the efficiency and/or
effectiveness of the notice-and-takedown process?
Yes, absolutely. There are various technologies and processes that would improve both
the efficiency and the effectiveness of the notice-and-takedown process.
First, as described in response to No. 6, some service providers have adopted an online
interface that permits a copyright owner to submit takedown notices electronically, and that
processes those notices in an automated fashion. Such automated processes should be de rigueur
– there is no reason that service providers who have developed and built sophisticated online

3

Nor is UMG’s experience in this instance unique. Data collected by IFPI reflects that 94.4% of the takedown
notices it sent on behalf of UMG and others were for previously-identified content on the same site.

22

portals for the storage and distribution of massive quantities of data cannot likewise develop and
implement a simple interface for the receipt and processing of takedown notices.
Second, and significantly, are content identification technologies, or “filters,” that can
identify and block copyrighted content before it is even uploaded to a service provider’s servers;
they can also be used to identify infringing content that is already located on a service provider’s
website. Many such technologies are already in existence. Some are proprietary to service
providers, such as Content ID, a system developed and implemented by YouTube. See How
Content ID Works, YouTube Help (available at
https://support.google.com/youtube/answer/2797370?hl=en). Others technologies are
commercially available for license from third-party vendors such as Audible Magic
(www.audiblemagic.com) and Gracenote (www.gracenote.com), among several others. For
example, Audible Magic licenses its content recognition technology to numerous service
providers, including SoundCloud, Dailymotion, and Tunecore. See Customers & Partners,
Audible Magic (available at https://www.audiblemagic.com/customers/). But regardless of the
source, active use of dynamic filters can materially diminish the unauthorized reproduction,
distribution, and performance of copyrighted works. 4
Unfortunately, many service providers have refused to incorporate the use of filters,
apparently concerned that use of a filter would provide them with actual or “red flag” knowledge
of infringing material, thus requiring the service provider to expeditiously remove or disable
access to such material. See 17 U.S.C. § 512(c)(1)(A). But that is precisely what should occur.
4

Another type of viable filtering technology involves key word searching, which can be utilized as a supplemental
means for a service provider to identify likely infringing content. Use of an artist’s name in conjunction with a full
song title in the description or file name of a user-uploaded video or audio file is a strong indication that the file
includes the song; similarly, when a description or title includes an artist and/or album name with the key words
“full album,” then UMG’s experience is that the upload consists of a full album recording. Key word searching is a
particularly important and valuable mechanism for live recordings, cover recordings, and new releases for which an
audio fingerprint (used by content identification technologies such as Content ID) may not be readily available.

23

That is, use of content identification technologies should give a service provider knowledge of
infringing activity, which knowledge should then require the service provider to take action.
Because these technologies are automated, the burden on the service provider is minimal, and far
outweighed by the benefits of increased protection of copyrighted works.
Service providers have also relied on the language of Section 512(m) in defending their
refusal to utilize filtering technology. That section provides in relevant part that the availability
of Section 512’s safe harbors is not conditioned on “a service provider monitoring its service or
affirmatively seeking facts indicating infringing activity.” 17 U.S.C. § 512(m)(1). Reliance on
Section 512(m) has permitted service providers to remain willfully blind to rampant infringement
on their websites, and has led courts to incorrectly conclude that such willful blindness is
effectively insulated from liability under the DMCA. See, e.g., Vimeo, 972 F. Supp. 2d at 525
(relying on Section 512(m) in excusing service provider’s refusal to use its own technology to
identify and block infringing music content, even in the face of service provider’s awareness of
extensive infringement on its site).
UMG respectfully submits that a service provider wishing to take advantage of the
Section 512 safe harbors must, at a minimum, implement effective content identification
technologies – applied before any user content can be uploaded to the service provider’s servers,
as well as to existing content available on or through the service provider’s website – to identify
and block (or, at the option of the copyright owner, monetize) infringing content. Adopting such
a requirement would dramatically improve the efficacy of the notice-and-takedown process,

24

because it would substantially reduce the number of infringements that occur in the first
instance. 5
12. Does the notice-and-takedown process sufficiently protect against fraudulent,
abusive or unfounded notices? If not, what should be done to address this concern?
The provisions of Section 512 that are intended to “protect” against fraudulent, abusive,
or unfounded notices are likewise in need of reform, as they go too far in attempting to protect
uploaders. Section 512(f) provides that a person who “knowingly materially misrepresents…that
material or activity is infringing…shall be liable for any damages, including costs and attorneys’
fees, incurred by the alleged infringer…who is injured by such misrepresentation.” 17 U.S.C. §
512(f). In the Lenz case referenced in response to No. 9 above, the court held that nominal
damages are sufficient to state a claim under Section 512(f), i.e., that a plaintiff may maintain a
claim even in the absence of any monetary loss or other tangible harm. Lenz II, 2016 WL
1056082, at *8. Notably, in the Lenz case, the plaintiff suffered no such loss or harm: following
UMG’s takedown notice, a video of plaintiff’s children dancing was taken down from YouTube
for a period of less than two months; it was then reinstated after she sent a counternotice and
UMG did not file suit. Id. at *1-*2.
The result in Lenz is nonsensical. There is simply no reason to burden the courts with a
lawsuit to redress an issue that has already been fully redressed (i.e., through the reposting of the

5

Having said that, filtering technologies are not a panacea for all that ails the notice-and-takedown process of
Section 512. For starters, they are not perfect. UMPG estimates that Content ID fails to identify upwards of 40% of
the use of UMPG’s compositions on YouTube. Third party solutions are likewise fallible. See, e.g., UMG
Recordings, Inc. v. Veoh Networks Inc., 665 F. Supp. 2d 1099, 1104 (C.D. Cal. 2009) (noting that “the Audible
Magic filter had failed to identify as infringing hundreds of…allegedly infringing videos”). Moreover, they can be
susceptible to user manipulation of the content that is often designed to circumvent the technology (e.g., speeding up
or slowing down the track, thereby affecting the pitch, or cutting out discrete portions of the track that are needed to
identify it). Accordingly, such technologies cannot exist in a vacuum. Supplemental processes (e.g., also searching
for song titles plus artists’ names) are necessary to identify additional unauthorized uses, and the burden of
developing, implementing, and maintaining those processes can and should be shared by online service providers.

25

content). Reform of this aspect of Section 512 is therefore needed as well; one possible solution
is set forth in response to No. 17 below.
13. Has section 512(d), which addresses ‘‘information location tools,’’ been a useful
mechanism to address infringement that occurs as a result of a service provider’s referring or
linking to infringing content? If not, what should be done to address this concern?
Search engines play a critical role in linking users to infringing copies of music online.
Unfortunately, Section 512(d) has been largely ineffective in addressing the resulting
infringement, for at least two reasons. First, search engines receiving notices under Section
512(d) generally take down only the specifically-referenced URL. Given the ease with which
new URLs pointing to the same infringing content are created, taking down only a single URL
that directs a user to infringing content is effectively meaningless. Given this approach,
copyright owners have been forced to serve countless “delist” notices relating to search results
for the same content (for example, over half a million delist notices have been sent on UMG’s
behalf with respect to the “1989” album). Given the technological capability – and the very
purpose – of search engines, it is not unreasonable to expect and demand that they should do
more to aid in the proactive removal of search engine results that link to infringing content.
Second, after receiving some non-trivial number of delist notices with respect to any
given website, search engines should be required to de-index the website, or at least “demote”
the website so it appears significantly lower in search results. There is no legitimate reason for
the promotion of sites that engage in the widespread infringement of intellectual property; that
concept should be integrated into the safe harbor provided by Section 512(d).
For further information and analysis respecting these issues, UMG refers to the
comments to the NOI provided by the Music Community.

26

14. Have courts properly interpreted the meaning of ‘‘representative list’’ under
section 512(c)(3)(A)(ii)? If not, what should be done to address this concern?
The answer to the first question is no. On the contrary, courts have effectively
“interpreted” the term “representative list” out of Section 512. For example, in Veoh, UMG’s
agent sent DMCA notices to Veoh that identified several links to infringing content on Veoh’s
site, and additionally stated as follows:
We believe your service is hosting the above-referenced files on its network.
These files are offering video recordings…by the artists known as AFI, Rihanna,
Black Eyed Peas [and others listed by name]…. [W]e request that you remove
the infringing files from the system or that you disable access to the infringing
files.
Veoh I, 665 F. Supp. 2d at 1109-10. This notification was consistent with Section 512(c), which
provides that if “multiple copyrighted works at a single online site are covered by a single
notification,” a copyright owner’s takedown notice may provide “a representative list of such
works at that site.” 17 U.S.C. § 512(c)(3)(A)(ii). The court in Veoh nonetheless found the above
notices inadequate as to any infringing content other than the videos located at the specific links
identified in the notice. Veoh I, 665 F. Supp. 2d at 1110. It reasoned that the “names of
artists…[and] a representative list of works – are not quite the same.” Id. (emphasis in original).
But that is beside the point: UMG’s agent did not provide a representative list of artists, it
provided a representative list of works by those artists, and then asked that Veoh take down all
works by those same artists. It is not clear what else the language of Section 512(c)(3)(A)(ii)
could have intended.
The court also relied on the language of Section 512(c)(3)(A)(iii), which requires that the
notice include “information reasonably sufficient to permit the service provider to locate the
[infringing] material.” 17 U.S.C. § 512(c)(3)(A)(iii). Based on this language, the court
effectively concluded a notice must specifically identify each instance of infringement before a

27

service provider is under any obligation to take down content, and the obligation then extends
only to the specifically-identified instance of infringement. Veoh I, 665 F. Supp. 2d at 1110
(“An artist’s name is not ‘information reasonably sufficient to permit the service provider to
locate [such] material.’”); see also Capitol Records, Inc. v. mp3tunes, LLC, 821 F. Supp. 2d 627,
643 (S.D.N.Y. 2011) (“Even assuming the representative lists properly identified EMI’s
copyrighted works, EMI had to provide sufficient information – namely, additional web
addresses – for MP3tunes to locate other infringing material.”). But limiting the takedown
obligation to only specifically-identified infringements renders the “representative list” provision
of the preceding statutory section a dead letter; if a copyright owner can provide a
“representative” (e.g., non-exhaustive) list of works, but the service provider is required only to
take down specifically-identified works at specifically-identified locations on the website, then
the “representative list” provision is meaningless.
At a minimum, Section 512 should be amended to provide further guidance as to the
meaning and proper application of the “representative list” language. For example, if a copyright
owner specifically identifies ten (or fifty, or one hundred) infringements of a given recording by
a particular artist on a given site, then it is not unreasonable to shift the burden to the service
provider to affirmatively search for, identify, and take down other infringements of that same
recording on the site. There is no reason to believe that the copyright owner could do so any
more readily than the service provider, and that should be the standard: provide sufficient
information to permit the service provider to locate and identify infringing files as readily as the
copyright owner could. Cf. Fed. R. Civ. P. 33(d) (where a response to interrogatories can be
determined by examining business records, permitting a responding party to identify the relevant
records “in sufficient detail to enable the interrogating party to locate and identify them as

28

readily as the responding party could”). This is particularly true where, as is often the case, the
sites themselves already index the music that is available on the site by artist name and/or track
title.
Similarly, if a copyright owner specifically identifies infringements of two (or five, or
ten) different recordings by a particular artist or from a particular album on a given site, and
represents that it owns or controls the rights to all recordings by that artist or on that album, then
it is not unreasonable to shift the burden to the service provider to affirmatively search for,
identify, and take down other infringements of that same artist’s recordings, or infringements of
all other recordings from that same album.
Such a requirement is particularly apt where the content is simply the entire track of an
album – or worse, an entire album – divorced from any other content. Although many useruploaded videos incorporate UMG’s music as “background” to home videos or other usergenerated content (and UMG can and properly should expect to be compensated for such uses),
the more pernicious uses that permeate YouTube and other online services are wholesale copies
of UMG’s recordings, played against nothing more than an image of the artist (if even that), or
wholesale copies of UMG’s music videos. There is no argument that these substitutional uses
(i.e., uses that displace demand for authorized, licensed content) could qualify as “fair,” and no
reason that service providers who are given notice that such uses are prevalent on their services
should be excused from assisting in the process of taking them down. Only through measures
such as this can a reasonable balance of the burden between service providers and copyright
owners be restored.

29

15. Please describe, and assess the effectiveness or ineffectiveness of, voluntary
measures and best practices — including financial measures, content ‘‘filtering’’ and
takedown procedures — that have been undertaken by interested parties to supplement or
improve the efficacy of section 512’s notice-and-takedown process.
Certain service providers have adopted voluntary measures that supplement Section 512’s
notice-and-takedown process. To some extent, these measures improve the efficacy of that
process, in that they reduce the number of infringements that would otherwise be subject to the
process. However, UMG’s experience with these voluntary measures also demonstrates the
breadth of the problem that copyright owners face and the corresponding inadequacy of the
Section 512 notice-and-takedown process where these measures are not available (i.e., where a
service provider has not or will not adopt such approaches).
The most substantial example of a service provider that has supplemented the Section
512 notice-and-takedown process with a voluntary process that sits outside the DMCA is
YouTube. This is perhaps unsurprising: YouTube is the largest music streaming service in the
world, and unlike other music streaming platforms such as Spotify and Pandora, it is populated
with user-uploaded content that is more likely to expose YouTube to liability for copyright
infringement. See YouTube – Not Spotify, Pandora or Apple Music – Is the Number One Music
Streaming Service Worldwide: Here’s Why, Tech Times (Jul. 8, 2015) (available at
http://www.techtimes.com/articles/66603/20150708/youtube-not-spotify-pandora-or-applemusic-is-the-number-one-music-streaming-service-worldwide-here-s-why.htm). While
YouTube apparently contends that it could rely exclusively on the Section 512 notice-andtakedown process, it has developed an alternative mechanism, apart from the DMCA process,
called “Content ID,” which YouTube describes as an “automated, scalable system that enables
copyright owners to identify YouTube videos that include content they own.” See Using Content

30

ID, YouTube Help (available at
https://support.google.com/youtube/answer/3244015?hl=en&ref_topic=4515467).
Using Content ID, a copyright owner is able to provide its content to YouTube, and
Content ID matches that content against new uploads before they are published on YouTube.
Id. 6 The copyright owner can then set a policy of how YouTube is to handle uploads that match
the copyright owner’s content: mute the audio, block the entire video, monetize the video by
running ads with it, or track a video’s viewership statistics. See How Content ID Works,
YouTube Help (available at https://support.google.com/youtube/answer/2797370?hl=en). The
user who uploads the video is notified of the claim, and of the policy that the copyright owner
has set with respect to its content. In addition to the automated process, YouTube permits
copyright owners to manually claim content that is used in YouTube videos, in a manner
consistent with the Content ID scheme.
YouTube has also adopted a dispute process in connection with Content ID claims. See
What Is A Content ID Claim?, YouTube Help (available at
https://support.google.com/youtube/answer/6013276). A user can choose to dispute a Content
ID claim by filling out a simple online form, at which point the copyright owner has thirty days
to take action on the claim (during which time the video is not muted, blocked, monetized, or
otherwise affected by the copyright owner’s claim). The copyright owner can opt to release the
claim or uphold the claim (which the user can appeal); the copyright owner can also issue a
DMCA takedown notice at that point, thereby activating the processes of Section 512. See
Dispute A Content ID Claim, YouTube Help (available at

6

Content ID can also perform a “legacy scan” of YouTube videos that are already on the site at the time a copyright
owner’s content is loaded, although such a scan can take as long as six months. Id.

31

https://support.google.com/youtube/answer/2797454). 7 If the copyright owner upholds the claim
and the user appeals, the copyright owner again has a thirty-day window in which to act. The
copyright owner may release the claim or let it expire; alternatively, the copyright owner must
issue a DMCA takedown notice, although it can elect to delay that notice for seven days to
permit the user to voluntarily withdraw the appeal. Id. 8
UMG tracked its dispute and appeals experience for its recorded music business over an
eight-day period in March 2016, for purposes of illustrating the strengths and the limitations of
the Content ID process, as well as the broader challenges that UMG (and any copyright owner)
faces in attempting to curb the massive infringement that is occurring online. While this is a
non-scientific sample, it is nonetheless reasonably reflective of UMG’s typical experience in the
Content ID claims process.
Between March 5 and March 12, 2016, inclusive, the data currently available to UMG
reflects that YouTube users disputed a total of 7,068 of UMG’s claims, ranging from a low of
840 claims on March 8 to a high of 1,112 on March 6. As of March 5, 2016, UMG already had
13,741 disputes in its queue, resulting in a total of 21,349 active disputes during this eight-day
period.
UMG’s recorded music business employs approximately a half-dozen persons in the
United States and the U.K. solely to address YouTube disputes; they are assisted by employees
from UMG’s data protection division and additional personnel from other departments as
7

If no action is taken within thirty days, the claim expires and the copyright owner is precluded from asserting a
claim as to that video in the future.

8

YouTube makes this seven-day-delay alternative available so that its users can avoid getting a “copyright strike.”
Users whose content is claimed through the Content ID system are not treated as infringers for purposes of the
“repeat infringers” provision of Section 512(i)(1)(A). In contrast, users whose content is subject to a DMCA
takedown notice receive a “copyright strike” from YouTube; according to YouTube’s policy, the accounts of users
who receive three copyright strikes are terminated. See Copyright Strike Basics, YouTube Help (available at
https://support.google.com/youtube/answer/2814000).

32

needed. This team was able to process 10,335, or a little less than half, of the existing claims
during the same eight-day period. This effort required manual review of the dispute notice and
the video for each disputed claim, and resulted in the claim being upheld in 10,168 instances, or
approximately 98% of the time. Many of the dispute notices clearly established the absence of
any legitimate claim of noninfringement; actual examples of user explanations from this period
include the following:
how do i use allow music in my vids
I gave credit in the description of the video by stating…“Audio from Elton John”.
I’m Purchase from iTunes.
I gave credit to the song owners
I am not selling this video or making any money from it at all. I am not claiming
this music as my own. I simply enjoyed the music and would like to use it in my
video.
I Bought it online!
Music is used for entertainment only we do not claim the song to be ours and have
given credit in the about section.
I am not monetizing my video I got the song from public domain, and I just want
to introduce the song to my Indonesian friends
The songs are credited in the infobar located in the information section of the
video
I have bought the music and had the videoed myself.
I give credit to the song and artist in the video description
i bought the song LEGAL on iTunes. i bought it with my own money, i didn’t
steal it. i used the song that i bought.
Many others include a claim of “fair use” and a rote statement to the following effect, with no
further elaboration: “This video uses copyright material in a manner that does not require
approval of the copyright holder. It is fair use under copyright law.”

33

In all events, in each instance, UMG carefully reviewed the dispute and the video and
upheld its claim where appropriate. However, that effort required a substantial investment of
time and money, and it is a never-ending battle. Although the work during this period brought
the number of pending disputes down to about 11,000, the queue is continually repopulating. As
a result, the number of pending disputes never gets down to zero, and historically has been as
high as 20,000 or more.
The experience described above illustrates both a virtue of the YouTube Content ID
system and a weakness in the current legal scheme. On the positive side, of the 10,168 disputes
that UMG upheld during this period, only 69 resulted in appealed claims, and nineteen of those
were withdrawn after UMG indicated its intention to send a formal DMCA takedown notice.
Accordingly, this relatively streamlined process dramatically reduced the number of DMCA
takedown notices that would otherwise be required (which in turn likely reduced the number of
counternotices and potential lawsuits that would follow under the Section 512 structure).
On the other hand, it also illustrates the massive problem that UMG and other copyright
owners face, with just one service provider (albeit the largest one). UMG’s investment in human
capital to contend with just infringement of its content on YouTube is substantial, and as
YouTube continues to add content, is only likely to increase. Notably, in December 2014,
YouTube claimed that its users uploaded 300 hours of content every minute; just seven months
later, in July 2015, that number had increased to 400 hours of content every minute. See
YouTube Now Gets Over 400 Hours of Content Uploaded Every Minute, tubefilter.com (July 26,
2015) (available at http://www.tubefilter.com/2015/07/26/youtube-400-hours-content-everyminute/). At that rate, YouTube is likely now receiving over 500 hours of new content every
minute. See 500 Hours of Video Uploaded to YouTube Every Minute [Forecast], reelseo.com

34

(Nov. 13, 2015) (available at http://www.reelseo.com/hours-minute-uploaded-youtube/). That
new content in turn is typically generating an average of approximately 100,000 new claims
(both automated and manual) by UMG’s recorded music business, and nearly 1000 new disputes
from YouTube users, every day of the year.
UMG has also hired a third-party vendor that charges UMG a percentage of the revenue
generated from videos on YouTube that use UMG recordings but which were not identified by
Content ID. UMG pays the vendor hundreds of thousands of dollars per year just to find and
claim UMG’s own content that has been used without authorization on YouTube. YouTube
bears none of this expense, but benefits from the advertising revenue generated in connection
with its use and display of UMG’s copyrighted content.
UMPG is similarly burdened. It owns or controls millions of copyrights. UMPG has
about a half-dozen full-time employees focused solely on manually claiming UMPG content on
YouTube and addressing claim disputes and appeals filed by YouTube users. Given the volume
of content on YouTube, this task is massive, and UMPG is forced to focus on target lists of
compositions, including compositions on the Billboard charts and other frequently-used content.
At any given time, this target list is limited to approximately 500 compositions (out of the
millions owned by UMPG), and even with that relatively small number of compositions, UMPG
employees identify and review between fifty and sixty thousand potentially infringing YouTube
videos every month.
Indeed, the volume of content on YouTube alone is so substantial that UMPG has limited
capacity, at best, to identify and pursue infringements on other sites. Other factors also
influenced this YouTube-focused strategy: the “whack-a-mole” problem that plagues the current
system (see, e.g., response to No. 10 above) makes it virtually impossible to meaningfully move

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the needle on infringement elsewhere; and the potential liability for improper takedowns on sites
where the only alternative is a Section 512 notice, particularly in light of Lenz, simply presents
too great a risk, given the volume of infringing material at issue.
Counter Notifications
16. How effective is the counternotification process for addressing false and mistaken
assertions of infringement?
The counternotification process is flawed. Under Section 512(g)(2), the only option
available to a copyright owner that receives a counternotice from a user, and who nonetheless
believes the user’s content is infringing, is to file a federal court action within ten days “seeking
a court order to restrain the subscriber from engaging in infringing activity relating to the
material on the service provider’s system or network.” 17 U.S.C. § 512(g)(2)(C). If such an
action is not filed, and barring some other resolution between the copyright owner and the
service provider and/or subscriber, the offending content is reposted. Id.
Like the YouTube claim disputes that UMG receives, the counternotices that users send
to UMG are frequently baseless. For example, over a seventeen-month period between
September 2014 and February 2016, UMG’s recorded music business reviewed 710
counternotices from YouTube subscribers. Although UMG either released or allowed its claim
as to 126 counternotices to expire, and resolved the dispute directly with the subscriber in
connection with another three, UMG concluded in 581 cases – or nearly 82% of the time – that
the counternotice was without merit. 9 And not infrequently, the counternotices taunt UMG, as in
this example: “You wile-e-coyotes are wasting your time and money with dwarf roadrunners
like me. I dare you to sue someone like me.”
9

Even with respect to those that UMG released or allowed to expire, the counternotice was not necessarily
meritorious; instead, UMG simply made the determination that even if there was a credible claim of infringement,
the circumstances did not warrant further action on UMG’s part.

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A contractual arrangement between UMG and YouTube allows UMG to request that
these videos remain down, without the necessity of a lawsuit, based on UMG’s good faith review
and determination of the meritless nature of the counternotice. However, such an agreement is
the exception, rather than the norm, and barring such an agreement, the only option available to
UMG and other copyright owners is to file a lawsuit to prevent the continued infringement. This
drastic alternative – federal litigation over every baseless counternotice – reflects a fundamental
problem with the current statutory scheme: forgo enforcement of valuable intellectual property
or file 581 new lawsuits. And UMG, though a significant copyright owner, is merely one among
thousands (or millions) whose rights are routinely being violated on a massive scale.
The potentially significant cost of federal court litigation over any given single posting is
a powerful (but unjust) deterrent to enforcement of UMG’s intellectual property rights. But the
alternative is likewise unattractive: burdening the federal court system with thousands of
additional lawsuits. Neither outcome appears to be what Congress intended in enacting Section
512. Congress clearly indicated its commitment to protecting intellectual property rights, S.
Rep. No. 105-190, at 8 (1998), and there is no indication that Congress anticipated that the
DMCA would impose a massive additional burden on an already overburdened court system.
The counternotice system, with litigation as the only statutory remedy for baseless or fraudulent
counternotices, is simply unworkable in its present form.
17. How efficient or burdensome is the counter-notification process for users and
service providers? Is it a workable solution over the long run?
For the reasons described above in response to No. 16, the counter-notification process is
neither efficient nor workable. There are alternative schemes, including the example set forth
below, that can meaningfully address the burden that the current statutory scheme imposes on
copyright owners and the absence of any meaningful remedy to an aggrieved copyright owner

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under the current system. But whatever alternative approach is adopted, the goal should be a
more balanced system, where online users are not unduly restricted in using the Internet as a
place for free expression of ideas, but where the interests of copyright owners are meaningfully
protected.
First, as noted in response to No. 9 above, Section 512 should be amended to make clear
that the appropriate stage for a copyright owner’s consideration of affirmative defenses, such as
fair use, is in connection with a valid counternotice raising such defenses.
Second, to permit the copyright owner sufficient time to thoughtfully evaluate the
counternotice, and to give the parties sufficient time to attempt resolve the dispute between them,
the time for taking action should be extended from ten days to sixty days before the content is
reposted, subject to the provisions below.
Third, in the event the copyright owner determines to reject the counternotice, the
obligation to file a federal lawsuit should be eliminated. For the benefit of all parties, and for the
court system, a highly streamlined dispute resolution proceeding should be established so that
such disputes can be resolved quickly and inexpensively, during which process the content
remains down. One possible approach is a simplified and shortened version of a proceeding
comparable to those conducted under the Uniform Domain-Name Dispute Resolution Policy.
See Uniform Domain Name Dispute Resolution Policy (available at
https://www.icann.org/resources/pages/policy-2012-02-25-en). But whatever approach is
adopted, it must be (a) inexpensive so that it can be utilized by users and copyright owners of all
sizes and means, and (b) rapid so that neither party’s rights is unduly burdened.
Fourth, if the copyright owner does not initiate such a proceeding within the sixty-day
period set forth above, then the content is automatically reposted. Alternatively, the user may

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initiate the proceeding at any time starting ten days after serving the counternotice, in order to
obtain a more expeditious resolution of the dispute and potential re-posting of the user’s content.
And finally, the sole relief available to the user in such a streamlined proceeding, whether
initiated by the user or the copyright owner, should be the reposting of the challenged content. 10
The foregoing represents one possible solution to the problems plaguing the existing
counternotice system. It would also remedy the problem addressed in response to No. 12 above,
namely, the potential for abuse and misapplication of the provisions of Section 512(f), which can
expose copyright owners to the prospect of costly and time-consuming litigation in the event of
an erroneous Section 512 notice, even where the user suffered no harm. There are doubtless
other reasonable approaches as well, but whatever the solution, it is clear that reform of the
existing structure is necessary to provide a functional solution to users, service providers, and
copyright owners.
18. In what ways does the process work differently for individuals, smallscale entities,
and/or large-scale entities that are sending and/or receiving counter notifications?
As noted in response to No. 8, UMG has devoted substantial resources to addressing the
entirety of the Section 512 process, including the receipt and consideration of counternotices. It
has done so in an effort to be responsive to and respectful of online users and service providers,
and to provide a needed and valuable service to its recording artists and songwriters. UMG
anticipates that the burden of the Section 512 process weighs at least as heavily on individual and
small-scale entities, which likely have fewer resources to redress the overwhelming volume of
infringement online.

10

Alternatively, if the tribunal determines that the copyright owner did not act in good faith in rejecting the
counternotice, it may have the power to award the user some modest, statutory monetary award against the copyright
owner.

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Legal Standards
19. Assess courts’ interpretations of the ‘‘actual’’ and ‘‘red flag’’ knowledge standards
under the section 512 safe harbors, including the role of ‘‘willful blindness’’ and section
512(m)(1) (limiting the duty of a service provider to monitor for infringing activity) in such
analyses. How are judicial interpretations impacting the effectiveness of section 512?
As discussed throughout these responses, judicial interpretations of these provisions have
substantially undermined the effectiveness of Section 512. These decisions have incentivized
service providers to strenuously avoid learning about or acknowledging infringement, much less
taking action to address it. Particularly where service providers have the means – whether
already in place, or readily available from a third-party vendor – to identify and filter out large
volumes of infringing content, there is no rational basis for this approach to the law.
For further information and analysis respecting these issues, UMG refers to the
comments to the NOI provided by the Music Community.
20. Assess courts’ interpretations of the ‘‘financial benefit’’ and ‘‘right and ability to
control’’ standards under the section 512 safe harbors. How are judicial interpretations
impacting the effectiveness of section 512?
Court decisions regarding these provisions have dramatically narrowed the circumstances
in which they apply. The result has been to allow services that were founded and built on the
widespread availability of unauthorized copyrighted content, and which can readily control
access to any and all of that content, to nonetheless take advantage of Section 512’s safe harbors.
In short, these interpretations have likewise undermined the effectiveness of Section 512 and
contributed to the imbalance between service providers and copyright owners.
For further information and analysis respecting these issues, UMG refers to the
comments to the NOI provided by the Music Community.

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Repeat Infringers
22. Describe and address the effectiveness of repeat infringer policies as referenced in
section 512(i)(1)(A).
There are multiple problems with the effectiveness of “repeat infringer” policies as
referenced in Section 512(i)(1)(A). First, the statute provides no guidance as to what constitutes
a “repeat infringer.” This vacuum has led service providers to adopt policies that make a
mockery of the phrase. In BMG Rights Mgmt. (US) LLC v. Cox Comm’ns, Inc., Case No. 1:14cv-1611, 2015 WL 7756130 (E.D. Va. Dec. 1, 2015), for example, Cox’s “policy” allowed a
subscriber to be the subject of fourteen takedown notices in every six month period before Cox
would even consider terminating him or her as a “repeat infringer.” Id. at *2-*3. The
proposition that infringing copyrights on fourteen occasions in six months renders a person a
“repeat infringer,” but not infringing thirteen, or twelve, or even two, in the same period, is so
ungrounded and arbitrary as to be ludicrous. Section 512 should be amended to clarify what is
meant by an “infringer” (e.g., a user whose content is subject to an uncontested takedown notice,
or whose counternotice is rejected as meritless), and what is meant by a “repeat infringer” (e.g.,
three infringements in a twelve-month period).
Second, and relatedly, service providers have been able to get away with “policies” like
the one described above because Section 512 does not contain a clear requirement that service
providers disclose their actual policies. Although Section 512 requires service providers to
“inform[] subscribers and account holders of…a policy that provides for the termination in
appropriate circumstances of…repeat infringers,” 17 U.S.C. § 512(i)(1)(A), courts have not
interpreted this requirement to mean that the terms of the policy be publicly disclosed. Instead,
courts appear to find it sufficient that the service provider merely inform subscribers and account
holders that it has a policy, without regard to what the policy actually is. See, e.g., Cox, 2015

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WL 7756130, at *2 (noting without criticism that Cox’s fourteen-step “graduated response
procedure” for addressing infringement was “not publicize[d] to customers,” who were instead
informed of Cox’s “Acceptable Use Policy,” which merely provided that violations of that policy
“may result in the immediate suspension or termination of either…access to the Service and/or
[the] Cox account”); Capitol Records, LLC v. Escape Media Group, Inc., Case No. 12-CV-6646
(AJN)(SN), 2015 WL 1402049, at *48 (S.D.N.Y. Mar. 25, 2015) (observing that “Escape does
not implement the repeat infringer policy stated in its Terms of Service” disclosed to account
holders, and instead evaluating whether the defendant reasonably implemented the undisclosed
repeat infringer that it actually maintained). It is only through time-consuming and costly
litigation that the actual policies adopted by these service providers has been uncovered. Section
512 should be revised to require that a service provider must (a) disclose the specific terms of the
“repeat infringer” policy that it actually applies; and (b) routinely disclose data respecting the
application of the policy (e.g., routine disclosure of the number of users terminated); moreover, a
service provider’s failure to follow the policy that it discloses should preclude the service
provider from relying on the Section 512 safe harbors.
Third, some service providers have imposed arbitrary limitations on the receipt of Section
512 takedown notices. These include refusing to accept more than a certain number of takedown
notices per day from any given complainant, or refusing to accept takedown notices that include
additional language beyond the statutory requirements, such as settlement offers. See, e.g., Cox,
2015 WL 7756130, at *2. Section 512 should be revised to preclude service providers from
limiting the number of takedown notices that it will accept, and to clarify that as long as a
takedown notice includes the statutorily-required elements, see 17 U.S.C. § 512(c)(3), it may not
be rejected simply because it also includes other information.

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And finally, the case law is replete with examples of service providers that pay lip service
to the repeat infringer policy requirement, only to disregard any such policy in application.
While some courts – including those in the Cox and Escape Media cases – have seen through the
charade and refused DMCA protection for the service providers, other courts appear to have bent
over backwards to find compliance (or at least to let a service provider survive summary
judgment). See, e.g., Perfect 10, Inc. v. Giganews, Inc., 993 F. Supp. 2d 1192, 1197 (C.D. Cal.
2014) (denying the copyright owner’s motion for summary judgment respecting the service
provider’s failure to reasonably implement a “repeat infringer” policy, even though the service
provider had terminated only 46 repeat infringers despite receiving DMCA notices covering
more than 531 million messages sent by its users). At a minimum, clarification and then
vigorous application and enforcement of the requirements of Section 512(i)(1)(A) is required.
23. Is there sufficient clarity in the law as to what constitutes a repeat infringer policy
for purposes of section 512’s safe harbors? If not, what should be done to address this
concern?
As described in response to No. 22 above, there is not sufficient clarity on this issue. The
response to No. 22 also identifies a number of possible measures to address the concern.
Standard Technical Measures
24. Does section 512(i) concerning service providers’ accommodation of ‘‘standard
technical measures’’ (including the definition of such measures set forth in section 512(i)(2))
encourage or discourage the use of technologies to address online infringement?
Section 512(i)’s provision respecting the accommodation of “standard technical
measures” appears to have discouraged the use of technology to address online infringement.
For information and analysis respecting this issues, UMG refers to the comments to the NOI
provided by the Music Community.

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25. Are there any existing or emerging ‘‘standard technical measures’’ that could or
should apply to obtain the benefits of section 512’s safe harbors?
As described in response to No. 11 above, a service provider should be required to adopt
effective content identification technologies in order to obtain the benefit of Section 512’s safe
harbors. While such technologies are not a complete answer to the many problems that exist
under Section 512, their mandatory adoption would be a meaningful step toward a much-needed
rebalancing of the burdens under that statute.
Remedies
26. Is section 512(g)(2)(C), which requires a copyright owner to bring a federal lawsuit
within ten business days to keep allegedly infringing content offline—and a counter-notifying
party to defend any such lawsuit—a reasonable and effective provision? If not, how might it
be improved?
As discussed in response to Nos. 16 and 17 above, the provisions of Section 512(g)(2)(C)
are neither reasonable nor effective. One proposal for addressing the flaws in that section is set
forth in response to No. 17.
27. Is the limited injunctive relief available under section 512(j) a sufficient and
effective remedy to address the posting of infringing material?
The limited injunctive relief under Section 512(j) is rarely invoked and unlikely to be
useful in any event. Injunctive relief is often rendered moot through the voluntary take-down of
infringing content or termination of an offending user, and given the “whack-a-mole” problem
among others, is not a sufficient remedy to address the more fundamental problems afflicting
Section 512. For further information and analysis respecting this issue, UMG refers to the
comments to the NOI provided by the Music Community.

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28. Are the remedies for misrepresentation set forth in section 512(f) sufficient to deter
and address fraudulent or abusive notices and counter notifications?
As discussed in response to Nos. 12 and 17, UMG believes that the provisions of Section
512(f) are fundamentally flawed, at least as interpreted and applied in the recent Lenz opinion.
The response to No. 17 sets forth an alternative proposed scheme for addressing the issue.
Other Issues
29. Please provide any statistical or economic reports or studies that demonstrate the
effectiveness, ineffectiveness, and/or impact of section 512’s safe harbors.
UMG refers to the comments to the NOI provided by the Music Community, including
without limitation Exhibit D to those comments.

April 1, 2016

Respectfully submitted,
Jeffrey Harleston
General Counsel and EVP, Business & Legal Affairs
Alasdair McMullan
Head of Litigation and SVP, Business and Legal Affairs
Universal Music Group
2220 Colorado Avenue
Santa Monica, California 90404
David Kokakis
Executive Vice President, Head of Business & Legal
Affairs, Business Development and Digital
Universal Music Publishing Group
2100 Colorado Avenue
Santa Monica, California 90404

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