Let Your Creativity Be Heard

Mock Testimony of Benjamin Boroughf

Before the
Subcommittee on Courts, Intellectual Property, and the Internet
Committee on the Judiciary
United States House of Representatives
H.R. 516

Chairman Coble, Ranking Member Nadler, and members of the Subcommittee, thank you
for the opportunity to testify on behalf of online content creators, copyright holders, and
organizations affected by automatic copyright detection programs.
I am a child of the Internet. I grew up with a 56-k modem and when YouTube arrived, I
spent hours watching people create new forms of expression. We are living in a plugged-in
world today. The Internet has become an integral part of peoples lives. Countries like Brazil
and the Philippines have recognized the Internet as a powerful medium for expression, one that is
a vital tool in today's world for sharing original works, discussing existing works, and
participating in cultural and political movements. As Americans, we have also recognized the
power of the Internet and the power of online video hosting and streaming sites like YouTube.
In March 2014, 85.9 percent of the US Internet audience viewed online video, 187.8 million
Americans watched 46.6 billion online content videos, and saw 28.7 billion video ads.
1

YouTube has been a place of empowerment where millions of wannabe Spielbergs can
show off their creativity and see what others are creating. It has provided political officials like
President Obama new ways to communicate with their constituents. It has even housed the muse
that inspired a group of people to Free Bieber in their fight against SOPA. YouTube is even now

1
March 2014 U.S. Online Video Rankings, COMSCORE (April 18, 2014),
http://www.comscore.com/Insights/Press_Releases/2014/4/comScore_Releases_March_2014_US_Online_Video_R
ankings
home to many individuals trying to make a living off their creative hard work. This is the
beginning of a great time to be connected to the Internet.
But, the use of automatic online copyright detection tools is threatening our ability to
share information, to share our creativity, and to earn a living from our creativity.
The problems of these automatic copyright detection tools are evident in YouTubes Content ID
system. As of just a few years ago, Content ID has scanned over 100 million videos but at a
price. For each video scanned, Content ID cannot determine which video is fair use, which
video contains a public domain work, or which video contains content approved or tolerated by
the copyright holder. Instead, once Content ID finds even the tiniest bit of use of copyright
holders reference file, it will automatically block or monetize the entire video, even if the use is
clearly fair use.
As both the EFF and YouTube have recognized, automatic copyright filters cannot
account for fair use. As such, these automatic copyright detection programs have prevented
thousands from witnessing NASAs missions to Mars. These programs blocked Michelle
Obamas 2012 Democratic National Convention speech and a live stream in which people were
singing the happy birthday song. They have even blocked Justin Bieber from uploading one of
his videos, who, outraged, Tweeted, yo youtubehow u gonna block my own song?!?!?!
Currently, these programs fall outside the protections of the DMCA; the DMCA does not
require them and their use does not trigger any safe harbor protections or limitations. Many
copyright holders like Blizzard, Valve, Nintendo, and many creators do recognize the power of
YouTube and other video hosting sites. They want people to use their copyrighted content to
create new forms of expression, they want people to share their passion of creativity with the rest
of the world, and they allow these creators to earn money off their new creations. But, a
copyright holders ability to tolerate uses and a creators ability to share their creativity and to
earn money are hindered by automatic programs that have removed the human element that
exists in the DMCA.
With Representative Goodlatte and Maria Pallante requesting Congress to re-examine the
Copyright Act and to increase the responsibilities of online service providers, its time to bring
online copyright detection programs within the protections of the DMCA. The key to increasing
fair use protection online and to protecting new forms of expression that have been approved by
and encouraged by copyright holders will only come when all partiescopyright holders,
creators like YouTubers, and online service providerswork together to re-humanize
infringement detection, to reduce our reliance on automatic programs that fail to consider fair use,
and to communicate to determine how a copyrighted work can be used, so that creators and
copyright holders can play fairly and earn fairly for their hard work and cooperation.
At the heart of this Lets Play for Fair Pay Initiative lies the arduous task of promoting
fair use, creativity, and compensation while allowing copyright holders to protect their works
and while incentivizing online service providers to use better copyright detection tools without
quickly losing their safe harbor protections. Thus, we must concentrate on letting online service
providers to decide how best to promote the values of fair use and creativity while protecting
copyrights.
H.R. 516 is specifically designed to address these issues. It recognizes that online service
providers need the safe harbor protections so they can continue providing new forms of
expression for us. It recognizes that copyright holders have the best knowledge of whether a use
is infringing. It recognizes that users of copyrighted content have the best knowledge of why
they have used the content. But it also recognizes that hard work, innovation, and creativity
must be rewarded. Thus, the approach H.R. 516 takes is to not completely dismantle the
automatic copyright detection tools; after all YouTube alone has spent millions of dollars
creating Content ID. Instead, the approach of this bill is to nudge online service providers into
creating better more robust copyright detection programs that will reduce the chances of
blocking fair use works, tolerated uses of works, or uses of public domain works and that will
provide for copyright holders and content creators to both share in revenue from these new forms
of expression.
Its time that we address these new forms of expression online and the programs designed
to further insulate online service providers from liability. Its time that we make these online
service providers responsible for their programs, because so far asking them to change and to
consider fair use, fair creativity, and fair compensation has not produced effective results. In
2010, the programs failed, in 2013 the programs failed, and even now, the automatic systems are
preventing creators from earning their much needed and deserved share.
I implore the committee to take up the call to action to re-examine the DMCA, to closely
examine these online copyright detection programs, and to finally bring these programs under the
protections and limitations of the DMCA safe harbor provisions.
So come on, Lets Play for Fair Pay.
Thank you for your time and attention.