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Comments on Section 512 Study

Getty Images
March 31, 2016
Getty Images is a leading creator and distributor of still imagery and video content. Getty
Images represents more than 200,000 individual contributors (photographers, illustrators, and
videographers), and owns or represents more than 80,000,000 unique digitized visual works. Our
award-winning imagery can be seen at, as well as our other websites, including, and
The value of professionally produced images cannot be overstated. These images convey every
day’s news, illustrate trends and shape our society. They draw and retain users on websites more
effectively than print alone. Images are also indispensable for online marketing. The professional
production of images is a complex, sophisticated and expensive business. Besides the creative work of
skilled photographers around the world, image production and distribution requires a high degree of
coordination, organization and investment. Additionally, there is significant work and technology
investment undertaken by professional photographers and their licensing agencies in the selection,
editing, captioning and key-wording of images, as well as in developing search functionality and
improving digital distribution, in order to provide publishers with the most sought after and relevant
images in a timely and efficient manner. These creative and technical innovations benefit the general
public, but this investment and innovation are threatened if imagery can no longer generate revenue.
Getty Images appreciates the opportunity to respond to the Copyright Office’s inquiry into
Section 512. Copyright is key to our business, and we support efforts to ensure that content creators’
rights are respected.

1. Are the section 512 safe harbors working as Congress intended? No. Congress intended that
the section 512 safe harbors would strike a careful balance between copyright holders, online
service providers, and information users in order to foster continued growth of the Internet
economy. But, as we have seen in the nearly 20 years since the DMCA was passed, a lot has
changed and the balance has tipped further and further in favor of online service providers.
While online platforms are thriving – many have become million and even billion dollar
businesses – this has come at the expense of copyright holders who have seen their content
devalued by the ease with which it can be uploaded and shared, the massive scale of
infringement, and the lack of meaningful remedies, not to mention the heavy burden of
detection and enforcement just to take advantage of the limited takedown remedy available. In
short, copyright holders are running to stand still – and still falling behind.

If what Congress intended in creating the safe harbors was to provide strong incentives for
online service providers and copyright holders to “cooperate to detect and deal with copyright
infringements that take place in the digital networked environment,” that has never
materialized. There is no incentive for cooperation. The safe harbors are instead used by
service providers as a shield and an excuse for doing nothing to detect or prevent copyright
infringement. In fact, service providers risk greater liability (“red flag knowledge”) if they take
steps to detect and prevent infringements, so they are encouraged to stick their head in the
Contrary to the suggestion in the NOI that application of the safe harbors is not automatic, the
requirements are so minimal and basic (register an agent, remove content that is reported as
infringing, maintain a repeat infringer policy) that the safe harbor does far more to protect the
proliferation of unauthorized content online than it does to prevent it. While supporters of the
safe harbors will no doubt point to the many thriving online service providers, our Internet
economy need not be a zero-sum game. These same results could have been achieved with
provisions that encourage (instead of discourage) companies to respect copyright, that require
meaningful efforts from service providers before they can take advantage of safe harbors, and
that require economic gains be shared equitably with copyright holders whose works create the
value that drives the revenue in the first place.
It is doubtful that Congress could have foreseen the devastating effect of the safe harbors nearly
20 years ago, given how rapidly technology has changed and how many sites and platforms now
enable the unauthorized sharing of copyrighted works with impunity. But, in light of what has
come to pass, it is crucial that the safe harbor ship be righted. The section 512 safe harbors are
not fit for purpose.
2. Have courts properly construed the entities and activities covered by the section 512 safe
harbors? No. The term “service provider” as defined in 17 USC 512(k)(1) applies to “a provider
of online services or network access, or the operator of facilities therefor” and also includes any
entity “offering the transmission, routing, or providing of connections for digital online
communications, between or among points specified by a user, of material of the user’s
choosing, without modification to the content of the material as sent or received.” The focus on
“network access,” “facilities,” and “the transmission, routing, or providing of connections”
demonstrates that Congress intended that covered activities be focused narrowly, applying only
to providers of these technical services. Instead, courts have extended the term “online
services” to cover literally any provider of any service that is available online. In this way, the
digital divide has widened. What is still considered unlawful infringement offline is protected
online by the safe harbors. In light of courts’ overly expansive reading of “online services,”
Section 17 USC 512(k)(1)(B) should be amended to make clear that “service provider” is limited
to providers of online technical services, not platforms that aggregate and display infringing

3. How have section 512’s limitations on liability for online service providers impacted the
growth and development of online services? Clearly, the Internet economy has grown
substantially since 1998. Plenty of companies, including Facebook, Pinterest, Google, Tumblr,
Twitter and others have thrived by allowing users to post content to their platforms. And, the
safe harbors have allowed them to operate without concern for liability and without bearing any
of the costs of the content, even professionally-created content that draws users (and
advertisers) to their platforms. The better question to ask is whether these companies – and
others – could succeed without the harmful effects the safe harbors have had on copyright
holders, for instance, by truly balancing the interests of copyright holders and online service
providers so the burdens are more equally shared and the benefits more equally distributed.
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? Based
on information in Google’s Transparency Report, Google handled over 80 million copyright
removal requests in the past month. That’s one company for one month. At that rate, Google
will receive close to 1 billion copyright removal notices in the course of the coming year. Each of
those reports represents an instance where copyright holders were not compensated for use of
their works. And the numbers are increasing every year.
These numbers demonstrate not only the burden on copyright holders to identify infringements
and prepare and send notices, and the fact that the takedown system is irretrievably broken,
but also the lack of respect for copyright which has been fueled in large part by the safe harbors.
Copyright holders will spend more and more time trying to remove infringing online uses of
their works, and in the meantime their works will be less and less valued.
The safe harbors have devastated the licensing market for photography. Copyright holders have
no cost-effective recourse against the millions of individuals copying, pasting, framing,
embedding and sharing unlicensed images, so there is little deterrent for users to stop their
infringing behavior. And, the safe harbors limit the liability of companies and platforms that
benefit financially and would be in the best position to prevent or discourage such activity, but
for the fact that there is no requirement or incentive for them to do so. Even worse, because
copyrighted works are so readily available on platforms protected by the safe harbors, there is
no incentive for other companies and platforms to license those works. In fact, websites trying
to do the right thing to support creativity and the development of high-quality content are at a
competitive disadvantage of bearing costs when the sites and platforms hiding behind the safe
harbors do not. This cycle is vicious, and must be stopped.
5. Do the section 512 safe harbors strike the correct balance between copyright owners and
online service providers? No. At this point, the balance is tilted entirely towards online service
providers who have taken advantage of the safe harbors to build multi-million and even billion
dollar businesses while simultaneously depriving copyright holders of revenue related to use of
their works online. Section 512 offers almost nothing but work to copyright owners.

6. How effective is section 512’s notice-and-takedown process for addressing online
infringement? While sending a takedown request for a specific infringement is likely to result in
removal of the content from that particular website location, nothing in section 512 prevents
that content from being posted in a different location on the same website or by a different user
or even by the same user under a different account. With these loopholes, the effectiveness of
the notice-and-takedown process is marginal at best, and a frustrating game of whack-a-mole at
worst. On a large scale, the notice-and-takedown process is nearly useless at stopping
infringement, as evident by the exponential increase in infringement reports each year.
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? The takedown process is
extremely burdensome for copyright holders and, as noted above, not efficient or effective
enough to justify the resources that must be committed to meet that burden. There is no one
standard process and each platform creates its own unique submission form with its own
unique submission requirements. See for an
explanation of how difficult Google makes it to submit takedown notices by email, requiring
additional hurdles not required by the DMCA.
Courts have recognized that the burden of policing copyright infringement falls “squarely on the
owners of the copyright.” This is not workable now or in the long run. For the DMCA to truly
strike the balance Congress intended, the burden must be more equitably shared by service
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? The process itself is
generally the same regardless of the nature of the copyright holder. What differs is the means
and methods used to carry out the necessary tasks. For instance, larger entities are more likely
to have the means to employ technology or third parties to detect infringements and to prepare
and send takedown notices. Individuals and small entities are more likely to conduct these tasks
themselves on a manual basis, where different platforms’ different submission requirements
can be even more confusing and burdensome. Without software to identify infringement,
individuals and small entities are less likely to be able to address the full scope of infringement,
likely focusing instead on unauthorized uses that are brought to their attention (i.e., reactive
instead of proactive). For all copyright holders, but especially for individuals, time spent
addressing infringement is time that is not spent creating new works or promoting “the progress
of science and the useful arts.”
9. Please address the role of both “human” and automated notice-and-takedown processes
under section 512, including their respective feasibility, benefits, and limitations. Locating
infringing uses of content across the Internet requires assistance of technology and software.
The scale – of both the Internet and infringements – is simply too massive to handle on a nonautomated basis. Getty Images regularly uses image recognition software to identify

infringements. Image recognition software is remarkably accurate (98%+) at matching images
from a database to those in use on websites across the Internet. Critics will point to the
occasional mis-match, but the software is far more reliable than human efforts.
In order for image recognition software to work, the web crawlers need to have access to
platforms. Some platforms block crawlers, hindering an otherwise effective means of
identifying infringements in an automated fashion. Platforms that wish to invoke safe harbors
should not be allowed to prevent the automated detection of infringements.
10. Does the notice-and-takedown process sufficiently address the reappearance of infringing
materials previously removed by a service provider in response to a notice? If not, what
should be done to address this concern? No. Service providers should be required to use
commercially available technologies (such as image recognition software in the case of digital
photographs) to identify and prevent the same content from reappearing.
11. Are there technologies or processes that would improve the efficiency and/or effectiveness of
the notice-and-takedown process? One of the challenges of sending takedown notices is the
specialized forms and online submission processes required by most major online service
providers, particularly those that allow only one infringement to be reported at a time. If
takedown notices could be automated - submitted in bulk via an API or spreadsheet, or if there
was a standardized template accepted by platforms, there would be less administrative burden
placed on copyright holders.
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? This issue is an
absolute red herring. Google’s own transparency report cites over 80 million infringement
notices received in the last month. Of those, a handful are deemed fraudulent, abusive or
unfounded. Trying to equate the two problems is making a mountain out of a molehill. The
miniscule scale of problematic notices suggests no changes are needed. Placing any additional
burdens on copyright holders would unfairly and unnecessarily impact all for the sake of a very
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? No. Section 512(d)
should be amended to make clear that “framing” of copyrighted works is not permitted. Section
512(d) says that it is not infringement for a service provider to refer or link users to an online
location containing infringing material or infringing activity, by using information location tools,
including a directory, index, reference, pointer, or hypertext link. “Framing” incorporates an
image into a website so that a website visitor perceives the image as appearing on that website,
even though the image is technically hosted on a third party website. Behind the scenes,
“framing” works via hypertext transfer protocol instructions. So, while one could argue that

“framing” is merely a kind of hypertext link and therefore ought to be covered by Section
512(d), in fact it is quite a different animal. Section 512(d) is meant to protect the ability of
search engines to direct users to information located elsewhere on the Internet. Instead of
directing users elsewhere as is the case with a directory, index, reference, pointer or standard
hypertext link, “framing” obviates the need for the user to go elsewhere because the
copyrighted work is presented in full on the search engine’s platform. We do not object to
search engines functioning as search engines, directing users to information located elsewhere
on the Internet. But, when search engines step into the content display and distribution
business – as is the case when they “frame” copyrighted works – they should not be entitled to
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? Here again, the burden
is too high on copyright holders to wade through entire sites dedicated to infringing materials in
order to identify each and every instance of infringement and provide a corresponding URL. If
there are more than 10 infringing works cited, the burden should shift to online service provider
to verify what is not infringing.
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. In general, voluntary measures are of limited
effectiveness because most online service providers prefer the status quo. The efforts to
improve Section 512’s notice-and-takedown process have not resulted in material improvement.
The one “voluntary” measure that is worth noting is YouTube’s Content ID system, which allows
copyright holders to identify their content and manage and monitor its use – including by
choosing to share in advertising revenue. It is worth noting that Content ID came about as a
result of the Viacom lawsuit, so arguably not as voluntary as it might appear. It is also worth
noting that despite repeated requests by the photography community and the availability of
image-recognition technology, Google has refused to make Content ID available for photographs
and still images.
16. How effective is the counter-notification process for addressing false and mistaken assertions
of infringement? Getty Images has no experience with the counter-notification process and
thus has no view.
17. How efficient or burdensome is the counter-notification process for users and service
providers? Is it a workable solution in the long run? Getty Images has no experience with the
counter-notification process and thus has no view.

18. In what ways does the process work differently for individuals, small-scale entities, and/or
large-scale entities that are sending and/or receiving counter notifications? Getty Images has
no experience with the counter-notification process and thus has no view.
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? Courts have
imposed too strict of an interpretation on the “actual” and “red flag” knowledge standards in
light of a fundamental misunderstanding of Section 512(m)(1). Section 512(m)(1) is under the
heading of “Protection of Privacy,” demonstrating that Congress intended only to protect the
privacy of users, not to protect online service providers from the burden of monitoring infringing
content. In fact, Section 512(m)(1) specifically contemplates that online service providers would
be engaged in monitoring using standard technical measures. That sets the baseline for what
service providers are expected to do – monitor, not do nothing.
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? Judicial interpretations of these two sections have effectively
gutted whatever protection the safe harbors might have afforded copyright owners. The direct
financial benefit has been so narrowly construed that platforms that generate revenue through
advertising placed on or adjacent to infringing content are not deemed to have directly
benefited, even when the infringing content is clearly what drew the users to the site and what
allowed the platform to generate substantial revenue. With such a high bar, this leaves no room
to challenge platforms that, even without advertising revenue, generate multi-million and billion
dollar valuations from the users attracted to infringing content on their sites. This is clearly
wrong and needs to be fixed. Likewise, there are few if any cases where a court has found that
an online service provider had the “right and ability to control” the infringing activity – even
when there is no doubt that the providers could do something to stop the infringement if they
wanted to. In both cases, overly narrow interpretations of the plain language have worked to
enable and even encourage infringement to the detriment of copyright holders.
21. Describe any other judicial interpretations of section 512 that impact its effectiveness, and
22. Describe and address the effectiveness of repeat infringer policies as referenced in section
512(i)(A). The challenge with repeat infringers is often not that an online service provider
doesn’t have a repeat infringer policy – it’s that the infringer is not prevented from creating a
new account under a new name and thus escaping the repercussions of whatever the policy
would be.

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?
The term “appropriate circumstances” should be defined so that it is clear that a service
provider must terminate a user’s account on the third instance of infringing conduct.
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? The definition of
“standard technical measures” is too narrow to be of any use. Section 512(i)(2) requires that
standard technical measures must “have been developed pursuant to a broad consensus of
copyright owners and service providers in an open, fair, voluntary, multi-industry standards
process.” Image recognition software is widely available on a cost-effective basis, and yet it
doesn’t meet the definition because it wasn’t developed pursuant to open standards. Section
512(i)(2) should be amended to promote the use of available technologies – not to proscribe the
manner in which those technologies are created. As is, we are not aware of any technology that
meets the statutory definition of “standard technical measures” and thus online service
providers are not required to employ any technology in order to benefit from the safe harbors.
This is a key reason why the balance that Congress intended has not been achieved.
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? Yes, online service providers should be
required to use image-recognition software to prevent unauthorized use of copyrighted images.
This simple measure would allow photographers and other visual artists to control the use of
their works and restore the viability of the licensing market for the photography industry.
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? No, it is not reasonable and effective to turn every copyright dispute into a federal
lawsuit. With the high cost of federal lawsuits – and no small claims court available – it is simply
not reasonable to expect photographers to face the disproportionate costs necessary to protect
their work.
27. Is the limited injunctive relief available under section 512(j) a sufficient and effective remedy
to address the posting of infringing material? Absolutely not. Without the possibility of
recovering damages, there is no meaningful deterrent to allowing infringing content to be
posted, and thus a vicious cycle is created where more and more infringing content is posted.
28. Are the remedies for misrepresentation set forth in section 512(f) sufficient to deter and
address fraudulent or abusive notices and counter notifications? Yes.

29. Please provide any statistical or economic reports or studies that demonstrate the
effectiveness, ineffectiveness, and/or impact of section 512’s safe harbors. One need only
consider that Google receives over 80 million infringement notices each month. The fact that
infringement has risen to record levels and is still on the rise is proof that Section 512 is not
effective. In fact, Section 512 is failing utterly to meet Congress’s stated intent of protecting
copyright holders.
30. Please identify and describe any pertinent issues not referenced above that the Copyright
Office should consider in conducting its study. The photography industry is one of the biggest
casualties of the DMCA’s safe harbors. Individuals and businesses alike no longer have the same
incentives to respect property online as they do offline. As a result of cases such as Viacom v.
YouTube, platforms that host infringing content uploaded by their users are encouraged to do as
little as possible (lest they learn too much, acquire actual knowledge of infringing material, and
trigger liability) to exclude copyrighted content. Instead of being incentivized to do the right
thing and work cooperatively with rights holders, there is actually a disincentive, typically
coupled with a financial interest in having high-quality professional content on the site. In the
meantime, these same platforms build significant value, advertising revenue, etc. off of hosting,
displaying, and in some cases, distributing such content. The current imbalance could be
corrected by requiring platforms to bear some of the burden of identifying and excluding
copyrighted content (through readily available technology) and/or to share some of the
generated value with those who create the content. If ContentID exists for music and video,
why not for still images and other visual works, particularly where image recognition tools
already exist?
At the very least, the DMCA should be amended so that instead of shielding platforms from
liability even when they are chock full of copyrighted content and generating revenue, immunity
is only available when the platform has taken reasonable measures to exclude copyrighted
The issues described within our comments are vital to the future of photographers and the
photo industry. Getty Images appreciates the Copyright Office’s study on Section 512’s safe
harbors and looks forward to providing additional comment on any other issues raised.