Kim Dotcom has jumped the shark, Napster is long dead and Pirate Bay moves its domain nearly every other day, yet some things never seem to change when it comes to the world of online piracy— the dysfunctional and thorny thicket that is the DMCA and the enduring role of big brand’s in ad-sponsored piracy for profit.
Everyone who knows anything about online piracy understands that the DMCA takedown process and “safe harbor” provisions that shield pirate entrepreneurs from liability should have been tossed in the trash long ago. Signed into law in 1996, the Digital Millennium Copyright Act created a legal framework for managing (digital) copyright in an era of new technology and a burgeoning internet. Now, nearly 20 years later, the legislation is well past its sell-by date. Rather than provide clarity on digital rights and discourage copyright abuse, the DMCA seems only to have emboldened online profiteers who build businesses with piracy at their core.
Take a look at this “new” website GayFlix hosted by weebly.com, a do-it-yourself web hosting portal. The site welcomes visitors with this greeting, “ Welcome to GayFlix. The greatest source online for gay related movies and series that you can watch for free. ”
Not only does it offer up “free” LGBT movies, but it actually solicits submissions to complete its list of missing movies, asking users to send links via a convenient online form. No mention is made of requiring that links be from legit sources. No, this is not a joke…
Welcome to GayFlix. The greatest source online for gay related movies and series that you can watch for free. We only provide embed codes for links of 3rd party websites. This means that you can find videos on our site and watch them here for free, but we do not allow video hosting or video uploading of any kind. All videos are screened by our moderators, we filter through videos to remove content that is not related to the GayFlix ideal, such as porn or genres that do not include GLBTA material. We also allow filmmakers to submit links to their work for us to post on our site for others to enjoy. We allow our members to send us links to GLBTA movies and series, you can do this on the submission page. All content will be screened fully before posting so please allow us 24 – 72 hours to post approved material, all unapproved material will be discarded and an email to its submitter will be send on why we have chose not to approve the material as well as a copy of our policy to remind them what is appropriate material, if a member feels that there was a misunderstanding in the screening process they are welcome to contact an administrator for further assistance and information.
Some of the movies “shared” on the site are embedded via HULU, a legit source but many others are pirated copies including Elena Undone, Kyss Mig, Joe + Belle, Inescapable, August, A Portrait of James Dean-Joshua Tree 1951 and A Perfect Ending , among others. The pirated streams are all hosted via slimy cyber-lockers shown in the graphic below.
Note the disclaimer beneath the pirated stream that, “All videos belong to 3rd party websites. GayFlix does not allow hosting. GayFlix has no control over advertisements on videos.” Say what? So what? First of all the videos don’t “belong” to 3rd-party websites–they belong to their creators--and, while the site doesn’t “allow” video hosting. it has no problem embedding illegal copies from other sites? What kind of twisted logic, blatant lack of accountability applies here? Oh yeah, the DMCA…but wait, even the DMCA has directs that a website operator not “have the requisite level of knowledge that the material is infringing.” Sorry, but you can’t tell me that these folks who claim to “vet” their content don’t have a clue that many of movies they “share” are pirated?
Thanks to the safe harbor provisions of the DMCA, this apparently seems a perfectly respectable (and legal) thing to do? As Wikipedia notes, “The DMCA’s principal innovation in the field of copyright is the exemption from direct and indirect liability of internet service providers and other intermediaries.”
GayFlix does display a DMCA contact button at the bottom of the page but in reality the DMCA takedown process is another escape hatch for a poor, ignorant site operator who doesn’t realize (wink, wink) that he’s sharing infringing content. When a site like this does get a DMCA takedown notice and removes the infringing content, that’s it–no questions asked. It’s also worth noting that just because a site lists a DMCA contact, in many cases any takedown request that’s sent is routinely ignored.*
This website doesn’t appear to make money off ads, but it does offer up a shopping page (called the Rainbow Shop) that sells a variety of LGBT-themed t-shirts and trinkets. More traffic potentially means more sales.
If the GayFlix operators want to “share” LGBT films, too bad didn’t just become an affiliate of Wolfe on Demand, the largest (legal) distributor of LGBT films in the world. Had they done so operators could have legally embedded dozens of great LGBT movies on their site and earn commission every time a visitor rented or downloaded a film. Added bonus, the filmmakers actually get paid too!
Moving on, more thorns can be found by examining the illegal embeds’ source. The pirated copy of “A Perfect Ending” streams from the website played.to. If one clicks the arrow at the center of the screen, advertising appears. The ads promote a number of mainstream brands including AT&T, Netflix, HULU, Mike’s Bikes, Google Shopping, Norton and so on….
By inspecting the source code for the illegal movie stream, one can easily determine that the ad providers is a company named Integral Marketing.
The company isn’t exactly transparent. WHOIS search results seem to indicate it may be based in Tel Aviv, but who really knows. When offering services in the smarmy world of advertising on pirates sites, I guess it’s best to maintain a low profile. The company’s ”about us” page describes its services this way:
Integral Marketing is a digital marketing company that uses unique advanced targeting technology and display advertising to provide optimal value to brands online. Our goal is to ensure quality traffic, service, and to help save you the time necessary to search and locate effective websites to advertise on. Our understanding in customer service, technology, sales, and account management enables us to deliver and meet the advertising results you require. [emphasis added] Over 600 million unique monthly online users with the capacity to display over 3.65 billion ad views/month. With our growing team and constant efforts to advance, continues to gain market intelligence and deliver reliable and accurate advertisements in order to meet the unique marketing needs of every client.
The site also claims to “ensure we cater to our advertisers’ campaign goals.” Hmmm, I wonder it’s the goal of AT&T, Netflix, HULU, Norton, Google and Mike’s Bikes (among others) to have their products associated with pirated movies online?
By the way there’s nothing in the DMCA that makes this sort of black-market profiting illegal. It’s A-Okay for brands to advertise their products on pirate websites and put money in the pockets of thieves. In fact, according to this ad provider, it’s just part “cost effective” part of doing business in today’s world.
Last week Jack Marshall wrote a piece, ”Why Does Tech Advertise on Piracy Sites?” The question is really a broader one, “Why do companies that care about their brand continue to advertise on pirate websites?” It’s a question I asked in 2010 when I first began writing about the link between ad revenue and online piracy on my blog at popuppirates.com. As Marshall notes in his piece,
The question is: Do those companies’ ads show up on that type of site because they can’t stop them? Or do they simply ignore the fact because they’re a great source of cheap, effective media? Either way, it’s not a great look. If they are unable to stop the ads, that doesn’t give advertisers much comfort. And if they don’t care, well, publishers are a bit less cavalier when it comes down to misappropriation of intellectual property.
Over and over major brands and their ad industry representatives have been asked this question and the response has always been to feign concern while deflecting responsibility. Last September, at the annual “Advertising Week” convention in New York City the question came up in a panel on “Digital Media Under Attack-It’s Worse Than You Thought.” Privacy-net’s Gordon Platt reported on the event:
Much of the conversation focused on the relationship between advertising and piracy, not unexpected for an Advertising Week event. “No one has asked the blunt question of whether you want your ad associated with a pirate site,” said [Rick] Cotton. He added, “Advertisers should not want their ads to be in that environment. It’s getting more risky to be in business with criminal websites.”
Bob Liodice, CEO of ANA (Association of National Advertisers) agreed and suggested the industry needs to be accountable for its role in monetizing piracy.
“It makes us all shake our heads, wondering how we can wrap our arms around this. We have theft going on here.” Liodice believes that one problem is that no one has taken “ownership” of the piracy problem. “We have to create a level of collaboration in order for the [advertising] industry to own the issue.” Liodice stressed that collaboration has to be “systematized” and that the industry has to make it “personal.”
During the Advertising Week event NBCUniversal’s Senior Counselor for IP Protection, Rick Cotton suggested, “The simple message is that we need a systematic approach to this problem. Otherwise it’s bad news for the industry.”
Despite hollow assurances that something will be done, nothing seems to change as advertising intermediaries continue to be the engine that drives piracy. At this point all we can do is continue to call them out on their hypocrisy and reveal how their coveted brands risk being tainted by the link to online piracy profiteering.
Where does this leave the content creators who livelihoods continue to be stolen? It leaves us stuck in a swamp of ill-conceived laws, industry apathy, and empty political rhetoric.
*For the record the distributor sent DMCA takedown requests to the email provided on the site for multiple titles, but 24 hours later, the infringing movies remain embedded on the site.
**Update as of 1/29 Weebly.com (the host site) removed the GayFlix content from the web.
Credits: stock image Depositphotos