Technical Measures: Public Consultations

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Published

December 22, 2021

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Library of CongressCopyright Office, Library of Congress

Abstract

The U.S. Copyright Office is announcing a series of consultations on technical measures to identify or protect copyrighted works online. The Office plans to hold a plenary session to launch consultations on this issue on February 22, 2022, to be followed by smaller sectoral consultations thereafter. To aid in this effort, the Office also is seeking public input on a number of questions.

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<title>Federal Register, Volume 86 Issue 243 (Wednesday, December 22, 2021)</title>
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[Federal Register Volume 86, Number 243 (Wednesday, December 22, 2021)]
[Notices]
[Pages 72638-72640]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-27705]

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LIBRARY OF CONGRESS

[Docket No. 2021-10]

Technical Measures: Public Consultations

AGENCY: U.S. Copyright Office, Library of Congress.

ACTION: Notification of inquiry: Public consultations.

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SUMMARY: The U.S. Copyright Office is announcing a series of
consultations on technical measures to identify or protect copyrighted
works online. The Office plans to hold a plenary session to launch
consultations on this issue on February 22, 2022, to be followed by
smaller sectoral consultations thereafter. To aid in this effort, the
Office also is seeking public input on a number of questions.

DATES: Written statements of interest to participate in the
consultations, along with a response to at least one of the questions
in this notice, must be received no later than 11:59 p.m. Eastern Time
on February 8, 2022. Written comments may be made for the record
without expectation of participating in the consultations by that same
deadline. The Office is planning to hold the plenary consultation via
Zoom on February 22, 2022. The Office also plans to hold February 23,
2022 as a possible second day for plenary consultations, if needed.
Subsequent industry-sector specific consultations will be announced at
a later date via <a href="https://www.copyright.gov/policy/technical-measures/">https://www.copyright.gov/policy/technical-measures/</a>.

ADDRESSES: For reasons of governmental efficiency, the Copyright Office
is using the <a href="http://regulations.gov">regulations.gov</a> system for the submission and posting of
public submissions in this proceeding. All submissions are therefore to
be submitted electronically through <a href="http://regulations.gov">regulations.gov</a>. Specific
instructions for submitting comments and statements of interest are
available on the Copyright Office's website at <a href="https://www.copyright.gov/policy/technical-measures/">https://www.copyright.gov/policy/technical-measures/</a>. If electronic submission
of comments or statements of interest is not feasible due to lack of
access to a computer and/or the internet, please contact the Office
using the contact information below for special instructions.

FOR FURTHER INFORMATION CONTACT: Emily Lanza, Counsel for Policy and
International Affairs, by email at <a href="/cdn-cgi/l/email-protection#e6838b8a87a68589969f948f818e92c8818990"><span class="__cf_email__" data-cfemail="60050d0c0120030f101912090708144e070f16">[email&#160;protected]</span></a>, or Jen[eacute]e
Iyer, Counsel for Policy and International Affairs, by email at
<a href="/cdn-cgi/l/email-protection#7a1013031f083a19150a0308131d120e541d150c"><span class="__cf_email__" data-cfemail="a8c2c1d1cddae8cbc7d8d1dac1cfc0dc86cfc7de">[email&#160;protected]</span></a>. They can each be reached by telephone at 202-707-
8350.

SUPPLEMENTARY INFORMATION:

I. Background

The U.S. Copyright Office's 2020 Report, Section 512 of Title 17
(``Section 512 Report''), acknowledged the important role that
technologies and technical measures can play in addressing internet
piracy. While the infringement of copyrighted material online has
evolved alongside technological developments, stakeholders have engaged
in a range of voluntary collaborations and developed a number of
technical measures that supplement the legislative notice-and-takedown
framework.\1\
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\1\ See U.S. Copyright Office, Section 512 of Title 17 27-47
(2020) (``Section 512 Report''), <a href="https://www.copyright.gov/policy/section512/section-512-full-report.pdf">https://www.copyright.gov/policy/section512/section-512-full-report.pdf</a>.
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In a letter dated June 24, 2021, Senators Patrick Leahy and Thom
Tillis requested that the Copyright Office ``convene a representative
working group of relevant stakeholders to achieve the identification
and implementation of technical measures.'' \2\ The Senators emphasized
that they continue to believe, as the Senate Judiciary Committee noted
more than twenty years ago with the passage of the Digital Millennium
Copyright Act, ``that voluntary technology is likely to be the solution
to many of the issues facing copyright owners and service providers.''
\3\
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\2\ Letter from Sens. Thom Tillis & Patrick Leahy to Register
Shira Perlmutter at 2 (June 24, 2021) (``Request Letter'').
\3\ Id.
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The Office is now announcing that it will convene a series of
consultations on technical measures for identifying or protecting
copyrighted works online.

[[Page 72639]]

Over the past decade or so, rightsholders across industries have
developed and employed various technical measures to assist with the
protection of their works. For example, the implementation of digital
fingerprinting allows rightsholders to negotiate with service providers
specific responses once an exact match to a fingerprint has been
identified.\4\ Similarly, rightsholders have utilized digital
watermarks, standard identifiers, and other tools to facilitate the use
of their works, including downstream uses, while maintaining
attribution and other copyright management information.\5\
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\4\ See Intellectual Property Owners Association, Comments
Submitted in Response to U.S. Copyright Office's Dec. 31, 2015,
Notice of Inquiry at 7 (Apr. 1, 2016).
\5\ See generally U.S. Copyright Office, Authors, Attribution,
and Integrity: Examining Moral Rights in the United States 87-88
(2019), <a href="https://copyright.gov/policy/moralrights/full-report.pdf">https://copyright.gov/policy/moralrights/full-report.pdf</a>
(discussing digital attribution in the context of section 1202
protections).
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Some technical measures to identify and protect copyrighted works
online have been developed and deployed by or for online service
providers and other stakeholders. \6\ Proprietary systems used
internally by platforms to identify and filter potentially infringing
uploaded material include Scribd's BookID,\7\ Dropbox's unique
identifier system,\8\ and YouTube's ContentID. YouTube's ContentID
program, for example, scans videos that are uploaded to YouTube against
a database of files that have been submitted by copyright owners
participating in the program. When a match is made, the owner is
notified and has the option to block the video from being viewed,
monetize it by running advertisements, or track its viewership
statistics.\9\ Examples of broadly-available technical measures include
filtering technologies like Audible Magic, universal data formats, and
registries like the Picture Licensing Universal System (PLUS).\10\
Audible Magic's filtering technology, which uses Automatic Content
Recognition to match uploaded audio and video files against files
registered with its database, operates similarly to ContentID but is
broadly available for licensing by online platforms.\11\
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\6\ Stakeholders have also collaborated in developing voluntary
measures and best practices to address online infringement.
Advertising networks and payment processors, for example, have
implemented best practices to cut off payments and advertising
revenues for web services offering infringing material. See, e.g.,
Anti-Piracy Policy, Mastercard, <a href="https://www.mastercard.us/en-us/vision/who-we-are/terms-of-use/anti-piracy-policy.html">https://www.mastercard.us/en-us/vision/who-we-are/terms-of-use/anti-piracy-policy.html</a> (last visited
Dec. 10, 2021). More formal agreements across industry sectors, like
the RogueBlock program and domain name registry ``Trusted Notifier''
programs, have facilitated collaborative programs to address online
piracy. See Section 512 Study at 39-41; IACC RogueBlock, IACC,
<a href="http://www.iacc.org/online-initiatives/rogueblock">http://www.iacc.org/online-initiatives/rogueblock</a>; Press Release,
Motion Picture Association of America, Inc., Donuts and the MPAA
Establish New Partnership to Reduce Online Piracy (Feb. 9, 2016),
<a href="https://www.mpaa.org/wp-content/uploads/2016/02/Donuts-and-MPAA-Establish-New-Partnership-2.9.16.pdf">https://www.mpaa.org/wp-content/uploads/2016/02/Donuts-and-MPAA-Establish-New-Partnership-2.9.16.pdf</a>. Similar voluntary initiatives
to address online piracy have been adopted in the United Kingdom and
European Union; for example, in June 2018, content industries,
service providers, advertising bodies, and other stakeholder groups
signed the European Commission's Memorandum of Understanding on
Online Advertising and IPR to limit advertising on websites that
infringe copyrights or disseminate counterfeit goods. See Eur.
Commission, Memorandum of Understanding on online advertising and
IPR (2018), reposted at <a href="https://ec.europa.eu/docsroom/documents/30226">https://ec.europa.eu/docsroom/documents/30226</a>.
\7\ Scribd, a service that provides access to literary works and
allows users to self-publish, has established BookID to filter
uploaded works. BookID, Scribd, <a href="https://www.scribd.com/copyright/bookid">https://www.scribd.com/copyright/bookid</a>.
\8\ Dropbox utilizes a different approach. Upon receiving a
takedown notice and disabling access to the file, Dropbox adds the
file's unique identifier, or hash, to a blacklist. If a user
attempts to share a file with the same hash, it is blocked. See Greg
Kumparak, How Dropbox Knows When You're Sharing Copyrighted Stuff
(Without Actually Looking at Your Stuff), TechCrunch (Mar. 30, 2014,
4:38 p.m.), <a href="https://techcrunch.com/2014/03/30/how-dropbox-knows-when-youre-sharing-copyrighted-stuff-without-actually-looking-at-your-stuff/">https://techcrunch.com/2014/03/30/how-dropbox-knows-when-youre-sharing-copyrighted-stuff-without-actually-looking-at-your-stuff/</a>.
\9\ See How Content ID Works, YouTube Help, <a href="https://support.google.com/youtube/answer/2797370">https://support.google.com/youtube/answer/2797370</a>.
\10\ The System: What is PLUS?, PLUS, <a href="https://www.useplus.com/aboutplus/system.asp">https://www.useplus.com/aboutplus/system.asp</a>.
\11\ If there is a match, the database relays to the platform
owner information and rules specifying how the rightsholder wants
the file to be used. See Technology, AudibleMagic, <a href="https://www.audiblemagic.com/technology/">https://www.audiblemagic.com/technology/</a>.
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While these collaborations and technical measures may constitute
reasonable, effective, and flexible approaches to curbing online
infringement, as the Office noted in its Section 512 Report, their
strictly voluntary nature presents inherent limitations.\12\ The
absence of comprehensive coverage and the exclusion of certain
stakeholder interests during the development stages could hinder a
measure's sustainable success. One commenter to the Section 512 Study
noted that ``voluntary initiatives can create potential for . . .
disadvantaging those who are not involved in the relevant discussions
or parties to the ultimate agreement, including the public, creators
and providers of innovative new services.'' \13\ The Office therefore
recommended in the Section 512 Report that a ``key feature of any
future voluntary measure should . . . involve cooperation among
rightsholder organizations, all sizes of OSPs, individual creators, and
users.'' \14\ In addition to inclusivity, the Office also emphasized
the importance of flexibility, accountability, and comprehensive
reporting.\15\
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\12\ See Section 512 Report at 173-74.
\13\ Independent Film & Television Alliance, Comments Submitted
in Response to the U.S. Copyright Office's Dec. 31, 2015, Notice of
Inquiry at 11 (Apr. 1, 2016).
\14\ Section 512 Report at 174-75.
\15\ See id. at 175.
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II. Consultations

The consultations will address current and forthcoming technologies
for identifying or protecting works online, including the technologies'
availability, their use-cases, and their limitations. These
consultations on the voluntary identification and implementation of
technical measures are separate from the Office's forthcoming notice of
inquiry on Standard Technical Measures (``STMs''), which will focus
specifically on the interpretation of section 512(i) of the DMCA, 17
U.S.C. 512(i), and the definition and identification of STMs within the
scope of the statute.
The consultations will consist of one plenary session and a series
of smaller, industry-sector specific sessions. The plenary session will
occur on February 22, 2022. If a sufficient number of participants
appear, the Office will divide the plenary session into multiple
breakout rooms. The plenary session, whether it proceeds in one room or
several, will be viewable to the public.
Based on the responses received to this notice and the outcome of
the plenary session, the Office will identify specific industry-sector
based groups that will form the basis for the smaller sessions to
follow. Schedules may be adjusted as needed by the Copyright Office,
with advance notice given to the participants. At the current time, we
anticipate this process continuing through late Spring 2022.
Members of the public who seek to participate in the consultations
should submit, via <a href="http://regulations.gov">regulations.gov</a>, a written statement of interest
answering at least one of the questions listed in section III below.
The Copyright Office strongly encourages participation by individuals
with experience currently using or developing relevant technologies.
Both the plenary and industry-sector based sessions will be held
virtually over Zoom.
The Office will notify participants of their assigned industry-
sector based session not later than one week after the plenary session
is held. The Office appreciates the flexibility of potential
participants.
The Office will be inviting other government agencies, including
but not

[[Page 72640]]

limited to the National Telecommunications and Information Agency
(NTIA), the National Institute of Standards and Technology (NIST), and
the U.S. Patent and Trademark Office (USPTO), to participate in the
consultations and provide technical and operational input, as requested
by Senators Leahy and Tillis.\16\
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\16\ Request Letter at 2.
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III. Statement of Interest Questions

Below are questions to consider ahead of the plenary session, as
these topics will underlie the discussions. To aid in the discussion,
several of the questions focus on particular categories of actors. The
Office recognizes that individuals and entities at any given time might
be acting as rightsholders, intermediaries, or users. Please provide an
answer to at least one of these questions in your written statement of
interest to participate in the consultations in order to assist in
effectively organizing these consultations. For those who do not wish
to participate in the consultations, the Office will also accept, by
the date above, written comments for the record responding to at least
one of the questions below.
1. Rightsholders: Please identify any technical measures currently
used or in development by you, your organization, company, industry, or
sector to identify or protect copyrighted works online. How do these
technical measures affect your ability to protect your copyrighted
works online?
2. Online service providers: Please identify any technical measures
currently used or in development by your organization, company,
industry, or sector to identify or protect copyrighted works online.
How do these technical measures affect your ability to provide services
to your users?
3. Users: How are you, or your organization, company, industry, or
sector affected by technologies implemented by rightsholders and
service providers to identify or protect copyrighted works online?
4. To what extent are any of these technical measures being adopted
or discussed as part of any within-industry or cross-industry
endeavors, initiatives, or agreement(s)?
5. Are there any other processes that are ongoing for identifying
voluntary solutions or to identify and implement technical measures?
Are there alternative processes, other than those that may currently be
in place, that would better identify and implement technical measures?
Please be specific, as different technical measures may have different
solutions in different industry sectors.
6. To what extent would the adoption and broad implementation of
existing or future technical measures by stakeholders, including online
service providers and rightsholders, be likely to assist in addressing
the problem of online copyright piracy? What are the obstacles to
adopting and broadly implementing such existing or future technical
measures? Would the adoption and broad implementation of such existing
or future technical measures have negative effects? If so, what would
be the effects, and who would be affected?
7. Is there a role for government to play in identifying,
developing, cataloging, or communicating about existing or future
technical measures for identifying or protecting copyrighted works
online? Can the government facilitate the adoption or implementation of
technical measures, and if so, how? Are there technical measures or
other standards used to protect copyrighted works online of which the
government should be aware when implementing statutory or regulatory
provisions, such as requirements for procurement, grants, or required
data inventories?
8. Please identify any other pertinent issues not referenced above
that the Copyright Office should consider in these consultations.
For both comments and statements of interest, please indicate which
question(s) above you are answering in your submission. For those who
wish to participate in the consultations, please also indicate your
organization's request to participate in the consultations in the
written statement of interest and identify the individual (name, title,
contact information) who will be participating in the plenary and
industry-sector based sessions.

Dated: December 16, 2021.
Shira Perlmutter,
Register of Copyrights and Director of the U.S. Copyright Office.
[FR Doc. 2021-27705 Filed 12-21-21; 8:45 am]
BILLING CODE 1410-30-P

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