Inquiry on Copyright Policy, Creativity, and Innovation in the Internet Economy, 61419-61424 [2010-24863]

Agencies

• National Telecommunications and Information Administration
• Office of the Secretary
• United States Patent and Trademark Office
• DEPARTMENT OF COMMERCE

[Federal Register Volume 75, Number 192 (Tuesday, October 5, 2010)]
[Notices]
[Pages 61419-61424]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-24863]


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DEPARTMENT OF COMMERCE

Office of the Secretary

United States Patent and Trademark Office

National Telecommunications and Information Administration

[Docket No. 100910448-0448-01]
RIN 0660-XA19


Inquiry on Copyright Policy, Creativity, and Innovation in the 
Internet Economy

AGENCY: Office of the Secretary, U.S. Department of Commerce; Patent 
and Trademark Office, U.S. Department of Commerce; National 
Telecommunications and Information Administration, U.S. Department of 
Commerce.

ACTION: Notice of Inquiry.

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SUMMARY: The Department of Commerce's Internet Policy Task Force is 
conducting a comprehensive review of the relationship between the 
availability and protection of online copyrighted works and innovation 
in the Internet economy. The Department, the United States Patent and 
Trademark Office (USPTO), and the National Telecommunications and 
Information Administration (NTIA) seek public comment from all 
interested stakeholders, including rights holders, Internet service 
providers, and consumers on the challenges of protecting copyrighted 
works online and the relationship between copyright law and innovation 
in the Internet economy. After analyzing the comments submitted in 
response to this Notice, the Internet Policy Task Force intends to 
issue a report that will contribute to the Administration's domestic 
policy and international engagement in the area of online copyright 
protection and innovation.

DATES: Comments are due on or before November 19, 2010.

ADDRESSES: Interested parties are encouraged to file comments 
electronically by e-mail to copyright-noi-2010@ntia.doc.gov. 
Submissions should be in one of the following formats: HTML, ASCII, 
Word, rtf, or pdf. Paper comments can be sent to: Office of Policy 
Analysis and Development, NTIA, U.S. Department of Commerce, Room 4725, 
1401 Constitution Avenue, NW., Washington, DC 20230. Please note that 
all material sent via the U.S. Postal Service (including ``Overnight'' 
or ``Express Mail'') is subject to delivery delays of up to two weeks 
due to mail

[[Page 61420]]

security procedures. Paper submissions should also include a CD or DVD 
in Word, WordPerfect, or pdf format. CDs or DVDs should be labeled with 
the name and organizational affiliation of the filer, and the name of 
the word processing program used to create the document. Comments filed 
in response to this notice will be made available to the public on the 
Internet Policy Task Force Web page at https://www.ntia.doc.gov/internetpolicytaskforce. For this reason, comments should not include 
confidential, proprietary, or business sensitive information.

FOR FURTHER INFORMATION CONTACT: For questions about this Notice, 
contact: Dennis Amari, Office of Policy Analysis and Development, 
National Telecommunications and Information Administration, U.S. 
Department of Commerce, 1401 Constitution Avenue, NW., Room 4725, 
Washington DC 20230, telephone (202) 482-1880; or Michael Shapiro, 
Office of External Affairs, United States Patent and Trademark Office, 
U.S. Department of Commerce, Madison Building, 401 Dulany Street, 
Alexandria, VA 22314, telephone (571) 272-9300; or send an e-mail to 
copyright-noi-2010@ntia.doc.gov. Please direct media inquires to NTIA's 
Office of Public Affairs at (202) 482-7002; or USPTO's Office of Public 
Affairs at (572) 272-8400.

SUPPLEMENTARY INFORMATION: Recognizing the vital importance of the 
Internet to U.S. prosperity, education, and political and cultural 
life, the Department has made it a top priority to ensure that the 
Internet remains open for innovation. The Department has assembled an 
Internet Policy Task Force whose mission is to identify leading public 
policy and operational challenges in the Internet environment. The Task 
Force leverages expertise across many bureaus at the Department, 
including those responsible for domestic and international information 
and communications technology policy, international trade, 
cybersecurity standards and best practices, intellectual property, 
business advocacy, and export control. This is one in a series of 
inquiries from the Task Force. The Task Force is conducting similar 
reviews of information privacy,\1\ cybersecurity,\2\ and the global 
free flow of information goods and services. The Task Force may explore 
additional areas in the future.
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    \1\ See Notice of Inquiry, Information Privacy and Innovation in 
the Internet Economy, 75 FR 21,226 (Apr. 23, 2010). This notice and 
all documents related to the Task Force initiative are available at 
https://www.ntia.doc.gov/internetpolicytaskforce.gov.
    \2\ See Notice of Inquiry, Cybersecurity, Innovation and the 
Internet Economy, 75 FR 44,216 (July 28, 2010).
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    Background: Prior to releasing this Notice of Inquiry, the Task 
Force held listening sessions with a wide range of stakeholders to 
understand the current and most vexing questions related to online 
copyright protection as well as the broader impact of content issues on 
innovation in the Internet economy. The Task Force also convened a 
public meeting on July 1, 2010, to air these issues further.\3\
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    \3\ Notice of Public Meeting, Copyright Policy, Creativity, and 
Innovation in the Internet Economy, 75 FR 33,577 (June 14, 2010). An 
archival webcast of the public meeting can be found on the Internet 
Policy Task Force Web page at: https://www.ntia.doc.gov/internetpolicytaskforce/copyright/webcast.html.
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    Over the course of this dialogue, the Task Force has identified a 
dual public policy imperative--to combat online copyright infringement 
more effectively and to sustain innovative uses of information and 
information technology. By way of this Notice and a follow-on report, 
the Task Force seeks to identify policies that will: (1) Increase 
benefits for rights holders of creative works accessible online but not 
for those who infringe on those rights; (2) maintain robust information 
flows that facilitate innovation and growth of the Internet economy; 
and (3) at the same time, safeguard end-user interests in freedom of 
expression, due process, and privacy.\4\ The report will evaluate 
current challenges to protecting online copyrighted works and to 
sustaining robust information flows, and it will analyze various 
approaches to meet those challenges. The Task Force is hopeful that the 
dialogue launched here and the research conducted pursuant to this 
inquiry will contribute to Administration-wide policy positions and to 
a global consensus to foster creativity and innovation online. This 
review is being coordinated with the office of the Intellectual 
Property Enforcement Coordinator (IPEC) in the Office of Management and 
Budget, Executive Office of the President, and other components of the 
Executive Office of the President.
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    \4\ See e.g., Remarks of Gary Locke, Secretary of Commerce, 
Copyright Policy in the Internet Economy Symposium, July 1, 2010, 
available at https://www.commerce.gov/news/secretary-speeches/2010/07/01/remarks-copyright-policy-internet-economy-symposium; and, 
Remarks of Lawrence E. Strickling. Assistant Secretary for 
Communications and Information, Copyright Policy in the Internet 
Economy Symposium, July 1, 2010, available at https://www.ntia.doc.gov/presentations/2010/CopyrightSymposium_Remarks 
07012010.html.
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    E-Commerce and Copyrighted Works: E-commerce and investment in 
information systems continue to create new jobs in the Internet economy 
and to contribute to the nation's economic recovery.\5\ An important 
component of the growth in e-commerce is the rapid increase in the sale 
of digital content across the creative industries.\6\ For example, 
sales of digital music downloads in the United States were estimated to 
reach $3.1 billion in 2009, a 19 percent increase above 2008 sales.\7\ 
Likewise, revenues derived from the sale of online videos were 
estimated to reach $1.2 billion in 2008, and are expected to climb to 
$4.5 billion by 2012.\8\ In 2009, revenues from the sale of e-books 
were estimated at $313 million, 177 percent above sales from the 
previous year and, for the first time ever, exceeding revenues from the 
sale of audio-books.\9\ The popularity of online games is also on the 
rise, with a forecast to double 2009's $2.8 billion in online sales by 
2015.\10\ As these data suggest, the availability and consumption of a 
wide range of lawful online creative works are increasing rapidly and 
contribute an increasingly important component of our nation's e-
commerce growth.
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    \5\ Remarks of Gary Locke, Secretary of Commerce, Privacy and 
Innovation Symposium, May 7, 2010, https://www.commerce.gov/news/secretary-speeches/2010/05/07/remarks-privacy-and-innovation-symposium.
    \6\ Organization for Economic Co-Operation and Development 
(OECD), OECD Information Technology Outlook 2008, at 250 (2008). The 
fair use of copyrighted works is also believed to contribute to the 
Internet economy. See Computer and Communications Industry 
Association (CCIA), Fair Use in the U.S. Economy: Economic 
Contribution of Industries Relying on Fair Use, at 4, 8 (2010), 
https://www.ccianet.org/CCIA/files/ccLibrary Files/Filename/
000000000354/fair-use-study-final.pdf.
    \7\ Joshua P. Friedlander, Recording Indus. Association of 
America (RIAA), 2009 Year-End Shipment Statistics, available at 
https://76.74.24.142/A200B8A7-6BBF-EF15-3038-582014919F78.pdf.
    \8\ Press Release, In-Stat, Explosive Growth Forecast in Online 
Video Market, Netflix Subscription Model Wins (Aug. 13, 2008), 
https://www.instat.com/newmk.asp?ID=2373.
    \9\ Press Release, Association of American Publishers, AAP 
Reports Book Sales Estimated at $23.9 Billion in 2009 (Apr. 7, 
2010).
    \10\ Press Release, Pike & Fischer, U.S. Online Game Subscribers 
to More than Double in Five Years, Pike & Fischer Projects (Jan. 28, 
2010), https://www.marketwise.com/press-release/US-Online-Game-Subscribers-to-More-Than-Double-in-Five Years-Pike-Fischer-Projects-
1109049.htm.
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    There are many reasons for the success that some innovators have 
had

[[Page 61421]]

in selling online digital content. For one, the open end-to-end 
architecture of the Internet enables innovation at the ``edges'' of the 
network, making possible the introduction of such content services, the 
development of new technologies and devices, and the opportunity to 
access distant markets. Thus, while traditional content formats and 
distribution channels have been disrupted, in part, by effects of the 
Internet on their markets and by the growing availability of content 
online, an increasing number of enterprises seem to be successfully 
adapting their business models or developing new ones, and leveraging 
the Internet's architecture for the distribution of creative works.
    Second, the flow of content across the Internet is enabled by the 
carefully constructed balance of roles and responsibilities among 
stakeholders set forth in two key statutes. In 1996, Congress added 
Section 230 to the Communications Act of 1934. It grants Internet 
service providers, content hosting sites, and other so-called 
``Internet intermediaries'' broad immunity from liability for all 
content created by third parties, as well as for actions taken in good 
faith to restrict access to or availability of objectionable online 
content posted by third-parties.\11\ In the realm of copyright, 
Congress added Section 512 to the Copyright Act in 1997 via the Digital 
Millennium Copyright Act (DMCA). It fosters a balance of interests by 
enabling rights holders to enforce their rights against online 
infringers, while limiting the liability of Internet intermediaries for 
the infringing actions of their subscribers if they take certain steps 
aimed at combating infringement.\12\ Both provisions of law are seen as 
having contributed significantly to expansion of the digital economy 
and both remain essential to promoting innovation and to protecting 
intellectual property online.
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    \11\ 47 U.S.C. 230 (2006).
    \12\ 17 U.S.C. 512 (2006).
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    Despite the progress unleashed by the current policy framework, 
copyright infringement of works online remains a persistent and 
significant problem. Estimates of economic losses caused by online 
infringement to rights holders, the copyright industries, and the U.S. 
economy as a whole vary based on methodologies and assumptions used in 
such estimates, but are nonetheless substantial.\13\ In a word, thieves 
of online copyrighted works ``unfairly devalue America's contribution, 
hinder our ability to grow our economy, compromise good, high-wage jobs 
for Americans, and endanger strong and prosperous communities.''\14\
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    \13\ See OECD, The Economic Impact of Counterfeiting and Piracy 
71 (2008); U.S. Government Accountability Office, GAO-10-423, 
Intellectual Property: Observations to Quantify the Economic Effects 
of Counterfeit and Pirated Goods 15, 24-25 (2010), https://gao.gov/new.items/d10423.pdf. See also, 2010 Joint Strategic Plan on 
Intellectual Property Enforcement, Intellectual Property Enforcement 
Coordinator (Joint Strategic Plan) at 5 (June 2010), https://www.whitehouse.gov/omb/assets/intellectualproperty/intellectualproperty_strategic_plan.pdf (noting that ``[t]hese 
thieves impose substantial costs.'').
    \14\ Id.
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    The prevalence of online copyright infringement is the primary 
motivation for the Task Force to seek an updated understanding of 
stakeholders' experiences under the current policy framework and to 
learn more about voluntary, cooperative efforts to address online 
infringement. The broader goal is to gain greater insight into the 
opportunities and challenges for innovation in the creative content 
sector of the Internet economy.
    The Nexus Between Online Copyright Policy and the Department's 
Role: The Department has played an instrumental role in the development 
of policies that have helped digital commerce flourish. Included among 
these policies is explicit recognition of the legitimate rights and 
commercial expectations of those whose creation and distribution of 
digital works strengthen our economy, expand our exports, and create 
jobs in America. Our ongoing challenge and commitment is to align the 
flexibility needed for innovation in the Internet economy with 
effective means of protecting copyrighted works that are accessible 
online.
    USPTO serves as the advisor to the President on national and 
international intellectual property policy issues.\15\ USPTO's 
attention to the protection of online copyrighted works began in 1993 
when it chaired the Working Group on Intellectual Property Rights, one 
of the three working groups established by the White House Information 
Infrastructure Task Force. The Working Group examined and made 
recommendations to address copyright protection and other intellectual 
property rights in the context of digital interactive services.\16\ 
Subsequently, USPTO participated in negotiations on the two World 
Intellectual Property Organization (WIPO) treaties known as the ``WIPO 
Internet Treaties''--the WIPO Copyright Treaty and the WIPO 
Performances and Phonograms Treaty--that established new standards for 
international protection of copyright and related rights in the digital 
age.\17\ USPTO played a key role in the enactment of the DMCA in the 
United States which included a new Section 512 of the Copyright Act and 
provisions implementing the WIPO Internet Treaties in the United 
States.\18\
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    \15\ American Inventors Protection Act of 1999, Public Law 106-
113, app. I, Sec.  4001, 113 Stat. 1501, 1501A-552 (1999) (amended 
2002 and codified in scattered sections of title 35 of the U.S. 
Code).
    \16\ Information Infrastructure Task Force, Intellectual 
Property and the National Information Infrastructure: The Report of 
the Working Group on Intellectual Property Rights (1995), https://www.uspto.gov/web/offices/com/doc/ipnii.
    \17\ U.S. Government Accountability Office, GAO-04-912, 
Intellectual Property: U.S. Efforts have Contributed to Strengthened 
Laws Overseas, but Challenges Remain 17 (2004), https://www.gao.gov/new.items/d04912.pdf.
    \18\ Digital Millennium Copyright Act, Public Law 105-304, Sec.  
103, 112 Stat. 2860, 2863 (1998) (codified at 17 U.S.C. 1201-1205 
(2006)).
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    NTIA serves as the President's principal advisor on 
telecommunications and information policy matters and pursues the 
adoption of policies that facilitate and contribute to the full 
development of competition, efficiency, and the free flow of commerce 
in domestic and international telecommunications markets.\19\ In this 
role, NTIA has been a lead contributor to the development of Internet 
policy in the Executive branch and played a key role in devising the 
first comprehensive Internet policy strategy, the Framework for Global 
Electronic Commerce, published by the White House Information 
Infrastructure Task Force in 1997. The Framework set forth five 
principles to guide government support for the evolution of Internet 
commerce and made a set of recommendations for international discussion 
to foster increased business and consumer confidence in the use of 
electronic networks for commerce.\20\ Among its recommendations, the 
Framework acknowledged the imperative of protecting intellectual 
property rights in electronic commerce and identified adoption of the 
WIPO Internet Treaties as one of the Administration's top intellectual 
property policy objectives.\21\
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    \19\ Telecommunications Authorization Act of 1992, Public Law 
102-538, 106 Stat. 3533 (codified in scattered section of titles 47, 
28, and 15 of the U.S. Code).
    \20\ See President William J. Clinton and Vice President Albert 
Gore Jr., Framework for Global Electronic Commerce (1997), https://clinton4.nara.gov/WH/New/Commerce/(pagination not available).
    \21\ Id.
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    Among the other Commerce Department bureaus engaged on intellectual 
property rights issues, the International Trade Administration (ITA) 
administers the Trade Agreements Program to monitor foreign country 
implementation of multilateral and bilateral trade agreements. This 
program also serves to identify access and other

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barriers to trade, including those related to intellectual property 
rights. Within ITA's Market Access and Compliance unit, the Office of 
Intellectual Property Rights investigates allegations of trade 
agreement violations and encourages policies by foreign governments to 
enhance and protect intellectual property rights for U.S. firms and 
artists. This office also develops trade programs and tools with other 
Federal agencies to help U.S. businesses and citizens enforce and 
protect their intellectual property rights in foreign markets.
    Across the Federal government, the Department works closely with 
the Office of the U.S. Trade Representative (USTR) and other agencies 
to establish, on a bilateral and multilateral basis, workable treaty 
commitments and trade agreements that address intellectual property 
rights. For example, the Department collaborates with USTR in 
negotiations to establish the Anti-Counterfeiting Trade Agreement 
(ACTA), in the ``Special 301'' annual reviews of intellectual property 
protection and market access practices in foreign countries, and in 
negotiation and implementation of the intellectual property chapters of 
free trade agreements--all of which address online copyright issues in 
foreign jurisdictions. The Department also works with the Department of 
Justice to develop proportionate, deterrent penalties for commercial 
scale counterfeiting and piracy around the world. Additionally, the 
Department works with the National Intellectual Property Rights 
Coordination Center, led by U.S. Immigration and Customs Enforcement, 
to leverage resources, skills and authorities to provide a 
comprehensive U.S. Government enforcement response to intellectual 
property rights infringement. Through these and other work streams, the 
Department is committed to effective systems that protect intellectual 
property rights at home and abroad.

Request for Comment

    The questions below are intended to assist in identifying issues 
relevant to the Department's Task Force and should not be construed as 
a limitation on the scope of comments parties may submit. Intellectual 
property law and policy affects almost every aspect of Internet content 
and technology. And, because the digital economy is intrinsically 
international in scope, most policy questions need to be understood 
within both a domestic and an international context. Therefore, in 
addressing these questions, commenters should identify what they 
consider lessons learned from other jurisdictions.
    Comments that contain references, studies, research, and other 
empirical data that are not widely published should include copies of 
the referenced material with the submitted comments. Comments filed in 
response to this notice will be made available to the public on the 
Internet Policy Task Force Web page at https://www.ntia.doc.gov/internetpolicytaskforce. For this reason, comments should not include 
confidential, proprietary, or business sensitive information.

1. Rights Holders: Protection and Detection Strategies for Online 
Infringement

    During the listening sessions, the Task Force heard that online 
copyright infringement is depriving U.S. copyright owners of their 
rights and compensation, and causing substantial economic harm to the 
copyright industries, their employees, independent authors and artists, 
and the U.S. economy as a whole. The Task Force also heard that the use 
of peer-to-peer (P2P) file-sharing technology to engage in unauthorized 
distribution of copyrighted works is still a significant problem, but 
that other technologies, such as cyber lockers and streaming, are 
becoming increasingly prevalent as means for illegal online copying and 
distribution.\22\ Stakeholders indicated that in some cases, 
unauthorized distribution of copyrighted works over the Internet 
originates in other countries and that Web sites facilitating online 
infringement have become more sophisticated in order to mislead 
consumers into believing they are legitimate.
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    \22\ See Cisco, Visual Networking Index: Forecast and 
Methodology, 2009-2014, at 1-2 (2010), https://www.cisco.com/en/US/solutions/collatetal/ns341/ns525/nr537/ns705/ns827/white_paper_c11-481360.pdf (forecasting a higher amount of Internet video 
traffic than P2P traffic by the end of 2010, the first time that P2P 
will not be the largest type of Internet traffic since 2000; but 
also forecasting continued growth in the overall volume of P2P 
traffic).
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    To address the problem of online piracy, stakeholders rely on a 
number of technologies to detect infringing content on the 
Internet.\23\ Stakeholders have also developed an array of online 
content services using various business models to offer consumers 
legitimate access to music, films and television programming, games, 
books, and other creative works. Partnerships among copyright owners 
and online service providers to distribute content are increasingly 
common. Still, rights holders continue to face challenges in detecting 
online infringement, in curbing infringement, and in attracting users 
to legitimate sources of copyrighted content.
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    \23\ Technologies known to be in use for purposes of identifying 
online copyright infringement include watermarks, fingerprinting, 
and content filtering. See In the Matter of a National Broadband 
Plan for Our Future, Comments of the Motion Picture Association of 
America, Inc., in Response to the FCC Workshop on the Role of 
Content in the Broadband Ecosystem, GN Docket No. 09-51, at 21 (Oct. 
2009).
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    What are stakeholders' experiences and what data collection has 
occurred related to trends in the technologies used to engage in online 
copyright piracy, and what is the prevalence of such piracy? What new 
studies have been conducted or are in-process to estimate the economic 
effects of this piracy? What assumptions are made in such studies on 
the substitution rates among the different forms of content? What 
technologies are currently used to detect or prevent online 
infringement and how effective are these technologies? What 
observations, if any, have been made as to patterns of online 
infringement as broadband Internet access has become more available? Is 
litigation an effective option for preventing Internet piracy? 
Consistent with free speech, due process, antitrust, and privacy 
concerns, what incentives could encourage use of detection technologies 
by online services providers, as well as assistance from payment 
service providers, to curb online copyright infringement?
    What challenges have the creative industries experienced in 
developing new business models to offer content online and, in the 
process, to counteract infringing Internet downloads and streaming? Can 
commenters make any generalizations about the online business models 
that are most likely to succeed in the 21st century, as well as the 
technological and policy decisions that might help creators earn a 
return for their efforts? (Again, keeping in mind free speech, due 
process and privacy concerns.) How can government policy or 
intellectual property laws promote successful, legitimate business 
models and discourage infringement-driven models? And, how can these 
policies advance these goals while respecting the myriad legitimate 
ways to exchange non-copyrighted information (or the fair use of 
copyrighted works) on the Internet?

2. Internet Intermediaries: Safe Harbors and Responsibilities

    As described earlier, Section 230 of the Communications Act and 
Section 512 of the Copyright Act limit the liability of Internet 
intermediaries for content made available on their services. Section 
512 provides online service providers of transitory

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communications, caching, storage, and data location services a 
qualified safe harbor in cases of online infringement. The safe harbor 
is predicated on a ``notice and takedown'' regime in which the provider 
must act expeditiously to remove or disable access to allegedly 
infringing content upon notice by the copyright owner. Stakeholders in 
listening sessions also described collaborative efforts to reduce 
online infringement. For example, a large number of stakeholders are 
collaborating to develop a common digital standard to facilitate the 
authorized and efficient distribution of content to any device.\24\ In 
addition, the Task Force heard from stakeholders about a collaborative 
effort to establish comprehensive guidelines for user-generated content 
designed to protect copyrighted works and to bring more content to 
consumers through legitimate channels.\25\ Cooperative efforts by the 
private sector such as these are explicitly encouraged in the Joint 
Strategic Plan (Plan) on Intellectual Property Enforcement, released by 
the office of the U.S. Intellectual Property Enforcement Coordinator in 
June 2010.\26\
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    \24\ The ``Digital Entertainment Content Ecosystem'' (DECE) is a 
consortium of entertainment, software, hardware, retail, 
infrastructure and delivery companies. DECE has developed a common 
file format with copy protection and remote file storage to be used 
by participating content providers, services, and devices enabling 
consumers to download legal content. DECE announced that 
``UltraViolet'' will be the brand name for associated offerings. 
Press Release, Digital Entertainment Content Ecosystem, Digital 
Entertainment Content Ecosystem Unveils UltraViolet Brand (July 20, 
2010), https://www.uvvu.com/press/UltraViolet_Brand_Launch_Release_07_20_2010_FINAL.PDF.
    \25\ Principles for User Generated Content Services, https://www.ugcprinciples.com (last visited May 27, 2010).
    \26\ The Plan calls upon content owners, Internet service 
providers, advertising brokers, payment processors and search 
engines to ``work collaboratively, consistent with antitrust laws, 
to address activity that has a negative economic impact and 
undermines U.S. businesses, and to seek practical and efficient 
solutions to address infringement.'' Joint Strategic Plan, supra 
note 13, at 17.
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    What are stakeholders' experiences with the volume and accuracy of 
takedown notices issued for allegedly infringing content across the 
different types of online services (i.e., storage, caching, and search) 
and technologies (e.g., P2P, cyber lockers, streaming, etc.)? What 
processes are employed by rights holders to identify infringers for 
purposes of sending takedown notices? What processes do Internet 
intermediaries employ in response to takedown notices? Are Internet 
intermediaries' responses to takedown notices sufficiently timely to 
limit the damage caused by infringement? What are the challenges of 
managing this system of notices? What are stakeholders' experiences 
with online copyright infringement by users who change URLs, ISPs, 
locations, and/or equipment to avoid detection? What challenges exist 
to the identification of such systematic infringers? What are 
stakeholders' experiences with Section 512(i) on the establishment of 
policies by online service providers to inform subscribers of service 
termination for repeat infringement? What are stakeholders' experiences 
with the framework in Section 512(j) for injunctive relief to prevent 
or restrain online infringement? Would stakeholders recommend 
improvements to existing legal remedies or even new and additional 
legal remedies to deal with infringing content on a more timely basis?
    What are stakeholders' experiences with developing collaborative 
approaches to address online copyright infringement? What range of 
stakeholders participated in the development of such collaborative 
approaches? Have collaborative approaches resulted in the formulation 
of best practices, the adoption of private graduated response systems, 
or other measures to deter online infringement that can be replicated? 
What other collaborative approaches should stakeholders consider? How 
can government best encourage collaborative approaches within the 
private sector?
    The Internet was developed by, and continues to evolve through, 
collaborative multi-stakeholder efforts. These efforts often have 
proven successful at addressing difficult challenges flowing from the 
growth of Internet communications and digital commerce. In confronting 
the challenges of online content and copyright infringement, to what 
extent have all relevant stakeholder groups, such as independent 
creators and Internet users, participated in or had a window on 
collaborative approaches to curb online infringement? Recognizing the 
inherent challenges in engaging a wide variety of stakeholders--large 
and small, non-commercial, multinational (among others)--in such 
collaborative approaches, what strategies, if any, have been used to 
collect third-party input and feedback or communicate the outcomes to 
users and other non-participating stakeholders? For those engaged in 
collaborative efforts to protect copyrighted works, what are the 
practical challenges, if any, in promoting transparency, inclusiveness, 
clarity in expected behavior, and fair process for end users? Are there 
examples of voluntary arrangements that effectively meet these 
challenges?

3. Internet Users: Consumers of Online Works and User-Generated Content

    The 1997 Framework for Global Electronic Commerce was prescient in 
describing the future of e-commerce in stating, ``Consumers will be 
able to shop in their homes for a wide variety of products [and] view 
these products on their computers or televisions, access information 
about the products * * * and order and pay for their choice, all from 
their living rooms.'' \27\ Indeed, as consumers and providers adapt to 
change, the ease and efficiency of downloading and streaming digital 
content over the Internet will increasingly favor this medium over more 
traditional methods of acquiring or delivering creative works. With 
increasing frequency, consumers are also turning to online services to 
generate and post content of their own creation (``user-generated 
content'') and to access such creative works, a phenomenon that has 
exploded in recent years. To provide a measure of balance on behalf of 
Internet users who access and/or create online content, Section 512 
includes a counter-notification mechanism that enables Internet users 
to respond to takedown notices that allege online copyright 
infringement.\28\
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    \27\ Framework for Global Electronic Commerce, supra note 20.
    \28\ Through the issuance of a counter-notice to the online 
service provider, an Internet user can assert a good faith belief 
that the removal or disabling of content by an online service 
provider upon receipt of a takedown notice was done by mistake or 
misrepresentation. 17 U.S.C. 512 (g)(3)(C).
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    What initiatives have been undertaken to improve the general 
awareness of Internet users about online copyright infringement and the 
availability of legitimate sources to access online copyrighted works? 
What are stakeholders' experiences with the awareness and appropriate 
use by Internet users of the counter-notification mechanism? What are 
stakeholders' experiences regarding inappropriate use by Internet users 
of the counter-notification mechanism, if any? What are stakeholders' 
experiences with the volume of counter-notices filed? Do current 
methods of detecting infringement affect consumers' ability to legally 
obtain copies of copyrighted works and/or share legal user-generated 
content? What are the experiences of universities in raising general 
awareness with their communities about the harms of digital piracy? 
What are stakeholders' experiences in foreign countries and on

[[Page 61424]]

university campuses in reducing online copyright infringement?
    In turn, are independent creators and Internet users able to fully 
exploit the Internet platform for the distribution of their works and, 
if not, what barriers have been encountered? What mechanisms are there, 
or should there be, for creators of user-generated content to seek 
compensation for their work?

    Dated: September 29, 2010.
Gary Locke,
Secretary of Commerce.
David J. Kappos,
Under Secretary of Commerce for Intellectual Property and Director of 
the United States Patent and Trademark Office.
Lawrence E. Strickling,
Assistant Secretary of Commerce for Communications and Information.
[FR Doc. 2010-24863 Filed 10-4-10; 8:45 am]
BILLING CODE 3510-60-P