Will Buckley works to unite artists and fix a broken DMCA

by Ellen Seidler | Copyright, Law, Piracy, Politics

A conversation with Will Buckley about artists’ rights and efforts to update the DMCA

Will Buckley, is the founder of Fare Play a non-profit educational organization supporting the rights of individuals to control the digital distribution and sale of their copyrighted work.  He’s spent the past five years working to bring creators together and inspire them “to become evangelists for their lives and careers.”  

 Build a unified online community where filmmakers, musicians, authors, artists and photographers are empowered to collaborate and produce peer-to-peer communication with their fans about the personal impact of illegal downloading on their lives, their dreams and their careers.  — Fare Play vision statement 

Buckley’s latest effort to protect the rights of artists in the digital age is the newly launched Take Down, Stay Down petition campaign to Congress.  The petition aims to “Restore an artist’s right to determine what happens to their work on the internet,” by asking Congress to update Section 512 of the Digital Millennium Copyright Act and close the safe harbor “loophole” in the DMCA by adding a “stay down” provision.

Last week I had an opportunity to have a conversation with Will to talk about his advocacy work on behalf of artists and the Take Down, Stay Down petition.

ELLEN: What you inspired you to become an advocate for artists’ rights in the digital age?

WILL: I worked in the music business from 1972 to 1985.  I did everything; radio, retail, band management, promotion, sales.  My last project was running an indie label, Danny O’keefe was the artist.  We had an almost hit, ‘Along for the Ride’ that made it to number 18 on AC.  We took the record as far as we could, but didn’t have the $50k for payola needed to get airplay in the major markets.  I put everything I had into that record and had relocated from LA to SF with a wife and newborn son.  I felt it was time to move on and have always regretted it.  You know the experience, it happened to you with your film, ‘Along Came Lola’.  It’s painful.

That experience and my passion for music has me doing what I’m doing today.  Fighting for artists. 

ELLEN: What’s the focus of your efforts on behalf of creators?

WILL: Right now it is dealing with online piracy.  We recently released a petition asking Congress to amend Section 512 take down notification provision of the DMCA.  A law that fails to protect artists and their work while unintentionally granting a free ride to infringing sites.  It wasn’t our idea. My Space was actually talking about a ‘staydown’ provision back in 2007.  

The current law flies in the face of justice, but is indirectly supported by Google through their extensive lobbying efforts and through the EFF.  That’s why this petition goes out of its’ way to avoid any “Free Speech” or “Censorship” issues by granting control to the individual copyright holder.

The real reason we’re going after this aggressively?  There’s a window of opportunity.  We can win. The House Judiciary Committee is reviewing all the copyright laws for the first time since 1976.  Which means everything’s on the table.  I’ve heard and read a lot of encouraging things from the Congress.  I’ve met with Rep. Nadler in NYC, who’s been a positive advocate for Blake Morgan and I Respect Music.  I travelled to DC last September to have a private meeting with Joe Keeley, Chief Counsel of the Committee and Norberto Salinas, Democratic Counsel on the Committee.  I was heard. They asked the right questions.  These are bright guys wanting to do the right thing. 

Tomorrow, I fly to SF to attend two more open hearings on copyright with Rep. Goodlatte, the Chairman of the House Judiciary Committee and Rep. Conyers head on the Democratic side and a serious fan of Jazz.  i’m going to lend my support in whatever way I can.    

Meanwhile, I’ve been in talks with the Content Creators Coalition, Authors Guild, Authors United, American Society of Media Photographers trying to build a coalition of support across different groups of creators.  Because that is where the true power lies.  It’s easy for the public to minimize the problem when it’s just musicians or just filmmakers, but you get these groups together and the dynamic of the conversation changes dramatically as does public perception.

Until that happens the problem gets swept under the rug.  There’s a lot at stake here.  While some may claim that there are more people creating than ever, there is no doubt that most of the real talent is being starved by a dynamic that rewards the online distributors, not the creators.  

Then I do my non-profit work that includes speaking to performing arts students about the value of supporting creators and giving these students some tools to use when they talk to their friends about online piracy.  Trying to enlighten the next generation to the downside of piracy and why it actually hurts people.    

ELLEN: What led you to initiate the Take Down, Stay Down petition drive?

WILL: I wouldn’t be doing it if in fact Congress wasn’t meeting taking a look at copyright reform. My feeling was if we don’t at least give a run at this at this period in time, we’re really missing out on an opportunity.

ELLEN: In asking for Take Down and Stay Down are you proposing that we amend or revise the actual DMCA or is this an additional piece of legislation? How do you see it in terms of how it’s implemented, how this effort unfolds?

WILL: We are asking Congress to simply amend legislation that has failed to protect copyright holders. I see using the existing infrastructure for enforcement. 

ELLEN: When I was reading through the petition, etc. and looking at the mechanism you were focusing on, the idea that people or a website will remove an infringing link but then repost the material using another link that was kind of the modus operandi of Megaupload, and cyber lockers in particular.

Do you see any applications for other like UGC sites like YouTube? Where do you see this having the biggest impact?

WILL: I see it having an impact everywhere.   The way the law is written now, having this takedown notification…that really allows infringing sites to continue to post pirated material–and YouTube is culpable of this also–they play this game constantly in terms of reposting content. I see it cutting across all kinds of internet service providers.

ELLEN: Well, let’s take a look at YouTube, for example, because obviously that’s a prime example of where a fair amount of piracy happens. YouTube has put into place content matching system that works, not totally 100 percent of the time, but it chugs along and does a fair job.  I won’t say it does an excellent job, but in my experience does a fair job identifying matching content that may, or may not be infringing, and that then gives the rights owner the option to remove it, monetize it, or block it.

You’re saying that you want YouTube to go beyond this? 

WILL:

The biggest mistake this Congress can make is to leave enforcement up to the tech industry.  Many of the problems that exist today could have been addressed a decade ago.  I can’t over-stress the seriousness of piracy and the significant damage it has done to both creators and the entertainment industry.  

ELLEN: So you think Take Down means Stay Down can make a dent in the problems faced by artists?

WILL: Yes, it can make a dent.  Right now without ‘staydown’ copyright holders have no effective control over who uses their content.  If you look at the Grooveshark case, it took nearly four of court proceedings to shut them down and they were brought down by a paper trail of e-mails from management instructing their own employees to upload specific songs.  Songs Grooveshark needed to drive more traffic to their site to increase advertising revenue.

We propose that Congress set a threshold of copyright infractions based on the number of outstanding, unresolved ‘takedown and staydown’ notifications.  When those thresholds are reached ISPs can be ordered to block infringing sites.  We’ve ‘known’ for over a decade that Pirate Bay is an infringing website, yet without a ‘staydown’ provision ISPs can’t be ordered to block them.  The fact that U.S. regulators can’t force Google to block Pirate Bay only proves that our country currently has no effective anti-piracy laws.    

Artists should not have to forfeit earnings as endless appeals are filed and infringing websites are allowed to operate for years as these cases languish in the court system. 

ELLEN: I think people have become complacent. People have become used to “it’s there, take it” kind of mentality. To turn the tide with regard to that is quite a difficult proposition. I think it’s interesting to note what happens though when people see their own creative work threatened.  It happened when Instagram tried to change the terms of service as to who owned the uploaded photos,  what could be done with them. People were all outraged. “It’s mine. It’s mine. I made it, I should be able to control it.” When it comes to personal work, they get it, but they don’t make the leap to understand that that’s what all creators are facing in terms of their own work.

WILL: The hypocrisy is palpable.  It points up two things.  First the incredible job the piracy generation did in creating a reality distortion field.  ‘Artists are wealthy so screw them for asking.’  ‘The record labels are the evil ones.’  ‘We’ve created this incredible opportunity for exposure and broken down the barriers to access.’  ‘Artists can benefit from alternative streams of income.’  The subterfuge is so engrained and accepted that even services like Spotify are making similar claims.

To your second point about Instagram.  I agree.  Creativity is personal and when it’s yours you’re going to be furious, even if it was your friend who took it.  How anyone can miss the correlation to professional artists is beyond me.

Taylor Swift has very little of her material pirated or downloaded illegally. I mean tiny, infinitesimal. The other thing I learned is that part of what Taylor Swift does is during her concerts, she actually talks a little bit about this to her fans and says, “Friends don’t steal from friends.”

She has been able to create this relationship with her fans so that they actually appreciate and respect it so unlike in the past she’s not taunted for that. Her fans actually get it.

ELLEN: That kind of engagement is sort of an educational teaching moment, I guess.

As an advocate for legislative changes I’m operating as a private citizen.  My work in the non-profit sector has to do with education, going into performing arts schools and talking to students with an established interest in the arts about online piracy and the importance of contribution to those who create.  When I ask students if they will pursue a career in the arts, most say no.  When I ask why, they talk about economic uncertainty and how in today’s world it is a bad career choice.

ELLEN: So back to copyright reform and Washington, what’s happening?

WILL: My sense is that artists have support from many of the members of Judiciary Committee, but they are up against powerful, well financed companies and trade organizations investing tens of millions in lobbyists who are well connected and fighting hard to maintain the status quo. 

Artists groups: authors, filmmakers, musicians, photographers and other creators will really need to step up their game in terms of individual participation to prevail.  And while there are far more creators speaking out than ever before, in the scheme of things, it is far fewer than one percent.  If that doesn’t change the creative community may come away empty handed from the proceedings.

ELLEN: Well, one of my favorite ways to defining is you won’t miss what isn’t made. People say, “Oh, well there’s plenty of stuff. There’s plenty of things out there.” You don’t know how many musicians aren’t creating music anymore or filmmakers aren’t creating films. Yeah, there’s always going to be stuff out there but not necessarily at the quality that we have come to expect. Yeah, we’re all citizen creators now with our iPhones and Instagram accounts, etc. but we still just because, I tell my students, “Just because you can type on a computer and use Word to write a document or write a story, doesn’t mean it’s a story that’s particularly good.”

It takes time and effort to craft something that’s worth while. Time equals money and people have to put food on the table and there’s this disconnect between, “Oh, if I can do it with my iPhone it must be easy so why should I bother to pay for it?” Or “Why should I pay for it if I don’t like it?” It’s like well, do you go into a restaurant and not pay for your meal? Even if it’s not the best one you’ve ever had?

I think if we continue to try and frame it in the right way, we might make some progress. The US, it’s part of a world economy and these companies have to do business elsewhere–and fortunately– in places like Europe they’re a little more protective of their arts and creators than perhaps the US is. Maybe that will help a bit..

WILL: Well, you know back to what you said. One of the first things that I saw that taught me so much about the problem was your video “Popup Pirates” and when I watched that I was astounded at how virulent this disease was and how many high-profile advertisers and players were involved in this. There’s something fundamentally broken about that that really disturbs me.

As a country we should be supporting each other and pulling together. The fact that we have the kinds of advertisers continually popping up supporting these pirate sites, which are for-profit as we both know. They either sell advertising upgrades, things of that sort. It’s not Santa Claus giving stuff away, it’s a for-profit business.

ELLEN: Yeah, it’s not altruism.

WILL: It’s not altruism. I think it comes down to we need to have the laws in place. We shouldn’t have anarchy where people make a decision whether they want to download or not. First of all, I don’t think it’s fair to somebody that age that they’re offered all of this stuff without any kind of constraints and continue to thumb their noses at the establishment because half the time we go to court with these entities, we lose. Oftentimes we lose and the sites pop back up again.

I believe that creates a feeling with a lot of these people that if something was really wrong with it, they’d shut it down kind of thing.

ELLEN:  Right, right… Well, it’s like anything that’s online is sacrosanct. It’s not treated the same way brick and mortar situation would be treated, when essentially, it’s the same thing going on…even with the behavior of advertisers, everybody’s out to make a buck no matter what it takes. As long as no one’s slapping them down, they’re going to continue to do it because they’re not it’s not necessarily … their activities aren’t necessarily concerned with what’s moral. They’re concerned with what’s profitable. As long as they can get away with it, they’ll continue to do so.

That’s why you have this whole ecosystem that’s evolved that’s based on take first and maybe ask for permission later if you absolutely have to.

Back to your petition, what  happens when someone signs? 

WILL: Everyone who signs the petition will be sending a letter, signed by them electronically, to every member of the House Judiciary Committee instructing Congress to amend Section 512 Takedown Notifications to include a ‘stay down’ provision. 

We’re going to need a major turn out of support from the artistic community if we’re going to even get copyright reform to the floor for a vote, much less score some positive gains. If we fail to get bills passed that protect artists and provide equitable compensation this time around it will  further limit the number of creators who can earn a living from their work. The issue of Take Down and Stay Down impacts every creator whose work can be digitized and distributed over the internet.  It presents our best opportunity to bring everyone together on one initiative.