Wednesday, March 3, 2021

Keith Kupferschmid (Copyright Alliance): 'Copyright will help the economy get back on its feet'


The Copyright Alliance aims to be “the unified voice of the copyright community,” from creators to businesses that rely on copyright to exist. In the past few years, the Washington, DC-based organisation has been advocating for a strong copyright system in the USA and also educating on the value of copyright.

  Keith Kupferschmid has been the President and CEO of the Copyright Alliance since October 2015. In this role, he looks after all aspects of the operations of the advocacy organisation.

   Before joining the Alliance, Kupferschmid was the General Counsel and Senior Vice President for Intellectual Property for the Software & Information Industry Association (SIIA). His previous career included stints with law firm of Finnegan, Henderson, Farabow, Garrett & Dunner, the US Patent and Trademark Office (PTO), the United States Trade Representative; and the US Copyright Office.

  Kupferschmid has been active in all the main discussions about copyright legislation in Washington for the past five years, taking the lead on such initiatives as the small claims tribunal, which eventually came to fruition as the CASE Act, passed by Congress at the end of 2020, alongside the Trademark Modernization Act, and theProtecting Lawful Streaming Act, which makes unlicensed streaming of content for commercial purposes a f elony, all tucked into an larger Appropriation Bill.

  He was also involved in the discussion around the modernisation of US copyright law, which was initiated by Senator Thom Tillis, then Chair of the Senate Judiciary Committee's Intellectual Property Subcommittee. At the end of 2020, Tillis published a draft legislation titled the Digital Copyright Act of 2021(DCA), which aims at modernising US copyright law, in particular by looking into 1998's Digital Millennium Copyright Act and adapt it to the realities of the 21st Century.

  The Copyright Alliance represents the copyright interests of over 1.8 million individual creators and over 13,000 organisations in the United States through its membership.

  Emmanuel Legrand caught up with Kupferschmid at the start of the year to talk about the US copyright agenda.

The end of 2020 was quite busy from a legislative perspective. What's your take on what happened?
Keith Kupferschmid: 
In terms of legislative activity, we had two bills that passed at the end of last year: the Protecting Lawful Streaming Act, and the CASE Act, which creates a small-claims court [within the Copyright Office]. Each bill had a different trajectory but both got at the same place. Both of them had been priorities at the Copyright Alliance and for the copyright community for many many years. If you look back, the CASE Act was talked about as early as 2006 and, similarly, the streaming bill, which aimed at closing the streaming loopholes, had been around and talked about for a very long time. It's interesting that they got there together. The CASE Act has been pending in Congress in different forms for quite a while. It's hard to imagine any legislation getting more process, more comments and alliterations than what the CASE act went through. It passed the House in 2019 by a vote of 410 to 6 which is a pretty overwhelming vote, especially these days. It then went to the Senate, passed the Judiciary Committee and then literally got stalled in September 2019. It got stalled because Senator Wyden put a hold on the bill. There were some Senators who had concerns and we talked to them and those concerns were dissipated, so we felt pretty confident that if Wyden had not put a hold on the bill, it would have passed overwhelmingly in the Senate. He held the bill up and, for the most part in 2020, the co-sponsors of the bill were negotiating with Senator Wyden, and were giving him everything that he wanted. We were hopeful that we would reach a resolution with Senator Wyden so that ultimately he would do it. But it got stuck on the very last point. Basically what he wanted in the bill was a free pass, but not just one free pass, but three free passes. So if somebody were to infringe copyright, they could not be liable for the first time, the second time and the third time. If they were caught a fourth time you could potentially take them to the small-claim court. We obviously could not agree to that and it got stuck. I think the whole Congress saw what he was doing and was also very supportive of the bill. That's why it was a no brainer to add this bill to the larger package. Originally the Covid relief package was part of the government spending bill and eventually it was added as part of this big Covid package and government spending bill. Initially it was just the CASE Act but then the streaming bill and the trademark bill were also added to it.

For people outside of the United States, the idea that one Senator could hold a bill that everybody agrees on in Congress is quite stupefying.
Keith Kupferschmid: 
It was an abuse of the process. A hold was intended to last days or maybe a couple of weeks, while the parties get together and talk about it. It's not supposed to be over a year. I find it ironic that you see a lot of criticism about the CASE Act, that it was not going through the regular order of the Senate and got pushed through a larger package, but we wanted it to go through the regular order, we were trying to get it through and it was Senator Wyden who was holding it. If he had not put a hold and had left it go to the floor, it would have passed almost unanimously and pretty easily. It's not for me to talk about the Senate process, but it is a little odd when you have a Senator who can hold something that the rest of the Senate wants to pass. You had hundreds of thousands of creators in America who supported it and a small minority, including the internet platforms, opposing this. 

Let's go into the details of the CASE Act. As an organisation, the Copyright Alliance said it would be beneficial to the class of copyright holders – the songwriters, painters, photographers, etc – who do not have the means to get their cases to the Federal Courts when they see their copyright infringed. Will it really serve that role or will it end up being used by copyright trolls who will carpet-bomb copyright infringers?
Keith Kupferschmid: 
It is in everybody's interests that the CASE Act is not abused. For that reason, whenever we were hearing some legitimate concerns from the other side about copyright trolls, we sat down and we talked about how we could solve this. If you look at the bill, when it was first introduced in 2016, when it passed the House in 2019, and the final text, a lot has changed and most of the changes have to do with abuse from trolls. For instance, there are provisions in this bill that do not exist in Federal law such as the court, called the CCD, can decide not to take a case for several reasons. For example if they think it is to clutter them or when too many cases are filed, they can say 'we do not take the case'. It does not exist in Federal Court. If someone files a case, you have to take it. The Copyright Office will be able to put limits by regulating on a the number of cases that anyone or any organisation can file in a year. A copyright troll will not be able to file a hundred cases, because the Copyright Office will limit it. In addition, the cap on damages will act as a deterrent to trolls. If you are a troll, you will only get $15,000, so you'd better go to Federal Court and get as much as $150,000 just for one infringement. You are much better off going to Federal Court. And if you file too many frivolous cases, you can be banned by the CCD and never use that court again. There are also financial penalties if you are found to abuse the system. So there are a bunch of different protections in there. If there are people who think they can use this court to troll, they are going to have a few surprises.

Another aspect of the bill that some are criticising is that it is a voluntary process, that if you do not want to be taken to the court, you can decline. How efficient is that?
Keith Kupferschmid: 
Ultimately, the Copyright Office will issue some regulation explaining the process. The law says that the person [who is accused of infringing] will be served, just like they do in Federal Court. For example, you will have somebody knocking on your door and say 'You've been served'. This is not a process that they can easily ignore. We expanded the time during which people can respond. In Federal Court, it is usually around 21 days, but we tripled that here, so people will have 60 days to opt out. They will also get a second notice, this time from the Copyright Office, so this is something that comes for a government agency that tells you 'remember that you've been served a few weeks ago, this is some information about it'. And if somebody needs an extension of time to respond, the CCD can give that time. We tried to create an opt-out system that was very easy to do. Our hope is that ultimately if somebody gets served and they want to opt out, they go to the Copyright Office, enter their case number and check the box 'opt-out'. It's as simply as that. The opt-out process is going to be easy and smooth.

The fact that there's no appeal to the decision of the CCD, isn't that a problem? Could it be a potential constitutional hurdle?
Keith Kupferschmid: 
Not really. The small claims court has been created because the individual creators do not have the money to go to Federal Court, and hire an attorney, so if you could go and get a decision in the small claims court, then have an appeal in Federal Court, nobody would use the small claims court. That's why not having an appeals' process is very important. Let me be clear: you cannot appeal to the Federal Court system, but you can still appeal back to the CCD and to the Register of Copyrights, and there's is a very involved process to appeal the decisions within the small claims court system. It's just that you cannot appeal in Federal Court.

The passing of the streaming bill as part of the Appropriation bill, that was unexpected, wasn't it? We knew Senator Tillis wanted to do something, but that quickly? 
Keith Kupferschmid: 
At the beginning of 2020, Senator Tillis started a process of negotiations between the copyright community and others that were typically opposed to copyright legislation. We started those talks in late January, early February, and we would meet every two weeks, with the exception of March, due to the pandemic. We kicked things up in April and in July we agreed to a language which is the exact language that you see in the bill. The language was actually proposed by the other side, not by us. We both proposed language and we ended up taking their language, tweaked it a little bit and that's what you see in the bill. There was a group of four on both sides: on the copyright owner side, there was the Motion Pictures Association, the Copyright Alliance, the recorded music (RIAA) and the sports community. On the other side, you had the CCIA, representing the tech companies, the telcos/ISPs were represented by Verizon, the broadcasters by the NAB, and the users by Public Knowledge. During the negotiation process, although there were four people on our side and four people on their side, in between the two meetings, each side would go back to its groups and share with them the talks that we had, and during the process, any group that wanted to could participate by listening in. The rules were simply that you could not go to the press. But any stakeholders could listen in. After six months of doing this, we were able to come to a resolution in terms of what the bill would say. Because of that and even if there hasn't been a hearing on the streaming  bill, there have been discussions in the House and in the Senate on streaming. So there was a feeling that there was an agreement from both sides and that's why the bill was added this way.

The key point in the law is that it puts the onus on the services that provide illegal streaming content, not on the users who access content. Is that a major step forward?
Keith Kupferschmid: 
That was the main concern of the other side. They did not want users to inadvertently be brought into the process, so we made clear that it only applies to digital transmission services. It does not apply to individuals who might be streaming. It also applies to commercial activities and does not apply to non-commercial activities. Ultimately, the purpose of this bill is for the Department of Justice to be able to go after large scale criminals who have streaming as a commercial activity, not individual users. That's what the bill does.

What also come out at the end of the year is the Digital Copyright Act of 2021 (DCA), a draft legislation proposed by Senator Thom Tillis. You testified on the Hill, and what you said, and what was also said by Mitch Glazier from the RIAA, is that it takes two to tango. You had the feeling that sometimes, you were just on your own and the other side was not interested in interacting with copyright holders on issues such as liability and safe harbours.
Keith Kupferschmid: 
We would very much prefer to reach voluntary agreements with the other side, not least because they are more flexible than legislation. We have now tried for years to say, 'let's sit down and find some solutions'. But they were not interested. So the reason why Senator Tillis came with this discussion draft was because there was really no alternatives than a legislative solution.

Anecdotally, I doubt that the CEO of Twitter made a lot of friends on Capitol Hill by not showing up.
Keith Kupferschmid: 
Well, that's what I said at the hearing. If you are invited to testify by the Chair of the Committee and you ignore it, what chances do we have – the Copyright Alliance, the RIAA, songwriters – to get responses from these people?

One of the provisions in the draft is about the Copyright Office and whether or not it should be an independent branch of the government and no longer sit within the Library of Congress. On multiple occasions you have made a case for the Copyright Office to be autonomous. What do you think of this proposal?
Keith Kupferschmid: 
We are still formulating our opinions. Obviously we are very supportive of the Copyright Office. Tech companies would like to see the Copyright Office under the Department of Commerce, so that they could have more control over it. The intent of the legislation is to be a little bit of everything to someone. We are not supportive of the Copyright Office within the Department of Commerce.

We had three Register of Copyrights in 2020 – Karyn Temple, Maria Strong, on an interim basis, and now Shira Perlmutter. It seems that due to the powers vested in it by the MMA, the Copyright Office is getting more involved in regulation. Is that a welcome development? What are your expectations about the Copyright Office?
Keith Kupferschmid: 
The Copyright Office is taking more responsibilities in issues such as the implementation of the MMA and the launch of the MLC. The CASE Act will be another good example of that shift. At the same time, the Copyright Office is going through that office-wide modernisation process, and I think that the team there is really doing a fabulous job, especially during the pandemic. I would expect more of the same from the Copyright Office. I think Shira Perlmutter is a great selection. I've known her for quite a while myself and she is really devoted to copyright. She is a very thoughtful and knowledgeable person who will take everyone's interests into consideration as they move forward. I have high hopes for the Copyright Office.

So what's going to happen to this proposed DCA? Any chance to see it get to the floor this year?
Keith Kupferschmid: 
I don't think it will get to the floor this year. As Senator Tillis said, this is just the starting point of the discussion. You have to see that it usually gets about six to seven years to get a piece of legislation to fruition, from start to finish, like it did for the MMA. It really takes that long, and that's just the beginning of that process. But there's also a new factor: as you know, the Senate flipped, and Senator Tillis is no longer chair of the Intellectual Property Subcommittee, so how will this affect the dynamic? We don't know.

Interestingly, all the discussion about the Music Modernisation Act were driven from the House Judiciary Committee, in particular by its Chair Bob Goodlatte and Ranking Member Jerry Nadler. And last year, it was the Senate that was driving the copyright process. Is there a reason for that? Is it a question of people, opportunities, agenda?
Keith Kupferschmid: 
I think the House was quite busy on other issues. The Judiciary Committee had to deal with the impeachment process. But throughout the summer, they held a series of meetings during which they would bring different stakeholders. They did that throughout the month of August and then they had a hearing on the Copyright Office in September. If you look at the timeline, the House was really busy but I think you will see them quite busy on DMCA issues, especially now that both houses are controlled by the Democrats. I see them working together on DMCA issues going forward.

Can the fact that Democrats control both the House and the Senate affect the way they look at copyright issues?
Keith Kupferschmid:
It is still going to be bipartisan. Copyright issues are usually bipartisan. I don't think that the flip at the Senate really changes very much at all other than the Chair, but on issues themselves, this is very much bipartisan.

Some issues such as section 512 of the Copyright Act on the liability – or lack of – of digital platforms could become quite toxic with digital platforms, don't you think? Is there a possibility for another SOPA or PIPA that would fail miserably?
Keith Kupferschmid:
I don't think so. Although with the discussions we had so far you would have thought that this could happen, but it hasn't. I think section 230 – in which I don't get involved – is much higher on their priorities. It's not to say that the DMCA is not important for them, but I think that the reason it will not go in the same way as SOPA or PIPA is that they have bigger concerns with section 230.
[Section 230 of the Communications Decency Act of 1996 provides immunity to online platform operators from third-party content. Several voices in Congress and in the previous administration have called for Section 230 to be amended or simply abolished.]

There's a new administration in town, and there was that feeling among the creative community that it was not really well served by the Obama administration, which felt very much pro tech. Do you think the same could happen with a Biden-Harris administration?
Keith Kupferschmid:
During the Obama administration, there were a lot of senior people who had close ties to the tech sector. Hopefully, with the Biden administration, this will be less of an issue. You have to remember that unlike Obama, Biden has a long history in the Senate and he has a lot of already established connections. He also has a long history of being supportive of copyright and the copyright community. I would imagine that this is going to continue. There is a concern that the tech community will walk its way through the administration, but I think it will be more balanced than during the Obama administration.

Any other items in the copyright agenda that you would like to see discussed on the Hill?
Keith Kupferschmid: 
The modernisation of the DMCA is going to be the significant one. The Google-Oracle case [before the Supreme Court] could also have implications. In the past we have also been involved in the resale royalty for visual artists and I would imagine that this item will pick up again this year. But that's predominantly what we will spend our time on.

What's the state of the Copyright Alliance?
Keith Kupferschmid:
We have been very busy over the past year, and with all that has been happening, we've been in a good place, with continuous support from our members. I think people are starting to realise, even more so than before, how important copyright is to the economy. If you think about it, what will people want to do when this pandemic is over: they will want to go to concerts, to see movies, to get out and mostly go see things that are attached to copyright. I think copyright is going to be one of the leaders when it comes to getting the economy back on its feet, not only in the United States but everywhere. 

The Copyright Alliance membership comprises such trade organisations as A2IM, the Association of American Publishers (AAP), the Association of Independent Music Publishers (AIMP), the Entertainment Software Association (ESA), the National Music Publishers' Association (NMPA), the Motion Pictures Association (MPA), the Recorded Industry Association of America (RIAA), rights societies ARSASCAPBMIGlobal Music RightsSESAC and SoundExchange, creators' trade bodies the Authors' GuildProfessional Photographers of America, the Nashville Songwriter Association International (NSAI), the Directors' Guild of America, as well as companies such as Disney, Netflix, NBCUniversal, News Corp., Nike, Sony Pictures, ViacomCBS, Universal Music Group and WarnerMedia.

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