by Ellen Seidler | Copyright
Once again, EFF pulls out the piracy as “free speech” mantra
When it comes to the EFF and piracy, it’s kind of like the movie Ground Hog Day….same thing over and over and over again. As such, it was no surprise this week when the EFF’s Mitch Stoltz—-displaying typically knee-jerk EFF form, published a blog post decrying this week’s announcement that the MPAA and top-level domain registrar Donuts had reached a voluntary partnership to “reduce online piracy.” Of course, when it comes to the EFF, there’s no middle ground, and any effort to combat piracy is always met with the same, tired talking points.
While there’s little debate that protecting “free speech” online is important, the EFF routinely makes a point of muddying the waters so as to push its own misguided agenda of absolutism. According the its political playbook–any effort made to fight online piracy–warrants conflating “theft” with “speech” in all communiqués on the subject. Of this most recent agreement, Stoltz dutifully warns:
Taking away a website’s domain name means interrupting all of the speech that takes place on that site. It creates a much greater danger of censorship than suppressing individual pages or files.
To the EFF piracy = free speech
Ah yes, he pulls out the crumpled “censorship” card…Last time I checked, websites in the business of piracy for profit don’t offer any speech worth protecting, unless of course, phrases like “free download” or “watch free” fit the bill.
As I noted in a post earlier this week, many pirate websites don’t provide DMCA contact information. Creators who find their work illegally posted there have little recourse but to turn to web hosts and/or domain registrars for relief. If a site truly offers visitors worthwhile “speech,” why hide? Why not provide a legit contact email? Because there’s nothing legit about it. They’re engaging in criminal activity and they know it.
According to EFF rules, any website that exists, save for maybe those trafficking in child porn, should be allowed to operate unimpeded by the rule of law. Essentially, as far as the EFF is concerned, piracy should be considered a protected form of speech. Shutting down pirate sites would censor the rights of criminals, don’t cha know?
The fact is these sites–often rife with malware and explicit ads–have nothing to do with speech and everything to do with making a buck off the backs of others. Doesn’t it cheapen the concept of “free speech” when it’s disingenuously used as an excuse to shield criminal sites from the consequences of illegal activities? What exactly is it about profiteering pirate websites that makes them worthy of protection under the mantle of “free speech?” The answer–absolutely nothing.
Another argument found in the EFF playbook, along with piracy = protected speech refrain, is the slippery slope excuse. Stoltz makes use of this tattered canard as well:
The danger in agreements like this is that they could become a blanket policy that Internet users cannot avoid. If what’s past is prologue, expect to see MPAA and other groups of powerful media companies touting the Donuts agreement as a new norm, and using it to push ICANN and governments towards making all domain name registries disable access to an entire website on a mere accusation of infringement.
Insert sound of ominous drumbeats here. True to form, the EFF doesn’t shy away from hyperbole and histrionics to advance its agenda.
Stoltz’s warning of dire consequences comes despite the fact there’s nothing in the agreement that could be construed as allowing the disabling of access to an “entire website” based solely on a mere “accusation of infringement.” Stoltz attempts to massage his argument by pulling a truncated quote from Torrent Freak:
According to the website TorrentFreak, this will make MPAA “the definitive authority on what is considered a large-scale piracy website.” This raises the risk of a website losing its domain name, or having it co-opted, without a court judgment or other legal process. [emphasis added]
Well, not quite…though it makes for a good talking point, in reality the process is a tad more complex than he would have us believe. Torrent Freak’s analysis by Andy is actually quite balanced, and the paragraph Stoltz pulls a quote from should really be read in its entirety to appreciate its true context:
Under the agreement the MPAA will be granted “Trusted Notifier” status, i.e. it will become the definitive authority on what is considered a large-scale piracy website. Sites that are subsequently found to be breaching Donuts’ terms and conditions will either have their domains suspended or put on hold.
“This is a groundbreaking partnership and one we’re proud to undertake,” says Donuts Co-Founder and Executive Vice President Jon Nevett.
How convenient to omit the second sentence as well as additional details as to what “subsequently found to be breaching” actually means.
Remember, this is a “partnership” that both the MPAA and Donuts agreed to. If the MPAA has been given “Trusted Notifier” status it’s because Donuts has given the OK. This status also comes with a myriad of strings attached.
A number of safeguards have been established to prevent the very alarmist scenario Stoltz warns of. Like other online service providers, Donuts has a “terms of service” and as such, has the right to assess whether a site has broken those terms, no court judgment required. It’s also worth noting that Donuts will also investigate the allegations before taking any final action against a site: According to terms of the agreement:
…If Donuts is satisfied that the domain clearly is devoted to clear and pervasive copyright infringement, Donuts may, in its discretion and as permitted under its Acceptable Use and Anti-Abuse Policy, suspend, terminate, or place the domain on registry lock, hold, or similar status as it determines necessary to mitigate the infringement…
Reading the various checks and balances outline via Torrent Freak, the multi-step process seems thoughtful and fair to both sides. Of course, it’s not a process that requires litigation, but certainly appears to be within the bounds of what’s allowed by law. There’s also nothing preventing site operators from taking the issue to court, though it’s doubtful that any–known for scattering like a cockroach when a light is shone on their activities–will avail themselves of that option. Indeed, though the agreement may not be to the EFF’s liking, one assumes its been carefully vetted by attorneys for both Donuts and the MPAA.
The MPAA will also have to do its research before initiating any move against a site. As Torrent Freak noted in its analysis:
the MPAA is required to fulfill several criteria, including that any complaint filed with Donuts is authorized by its members. The movie industry group is then expected to provide evidence of “clear and pervasive copyright infringement” on the domain in question while indicating which laws have been violated.
…before contacting Donuts the MPAA will have to do additional preparatory work, including alerting both the site’s registrar and hosting provider to the alleged problems. While providing Donuts with the details of the discussions, the MPAA will be required to indicate why these failed to stop the alleged infringement.
Of course, examining the agreement’s actual (rather than imaginary) language provides an inconvenient truth not in line with EFF talking points. The organization’s public posture has always been rigid, and its analysis myopic–if not fabricated outright–when it comes to assessing any reasonable efforts to reduce online piracy.
In furthering his criticism of the voluntary agreement between the MPAA and Donuts, Stoltz sees ulterior motives, this despite the numerous safeguards in place to prevent abuse, including human review of forwarded complaints. According to Stoltz:
…Donuts may have business reasons for bowing to MPAA’s demands, such as encouraging the major studios that make up MPAA to buy lucrative domains in the .movie space.
It’s yet another predictable red herring. It’s a no-brainer that, deal or no-deal, movie studios are likely to purchase .movie domains if it’s thought to be in their best (business) interests to do so. On the other hand it makes total sense that Donuts, as seller of the .movie domain, may well want to ensure that its products–assorted top-level domains–don’t become cesspools of criminal activity. Isn’t that just a good business practice?
For the EFF, “compromise” is a dirty word
Speaking of business, this agreement provides yet another example of voluntary efforts among the business and tech industries to find a path forward that respects the interests of both. We’ve seen similar efforts among advertisers working with the creative industry to stop the flow of ad money to pirate sites. Another example of this trend were the recent House Judiciary Committee copyright “listening tour” roundtables where the perspectives of “a wide range of creators, innovators, technology professionals, and users of copyrighted” were heard.
Despite ongoing efforts by many to bridge the gaps and find consensus on ways to find workable solutions to issues like online piracy, the EFF seems committed to the position that finding “compromise” is an untenable approach. The organization routinely targets any–and all– attempts to tame bad behavior in the Wild West corners of today’s internet. No matter whether legislative initiatives or stakeholders developing voluntary best practices, the EFF response is always a resounding, “NO!”
The EFF’s response to any progress made to safeguard online commerce resembles ‘Chicken Little’s’ Henny Penny. It’s an act that’s growing old. Perhaps it’s time the EFF to take a page from The Day No One Played Together instead.
There is common ground to be found, if only we are willing to look. The agreement between the MPAA and Donuts may well provide a good blueprint for where we can begin.
by Ellen Seidler | Copyright, Google, Piracy, Tech
Google’s global reach has global implications when it comes to the law
In a case that could have broad implications moving forward, a Canadian appeals court handed Google a rare legal setback when it upheld a worldwide injunction ordering the search giant to remove results linked to counterfeit hardware. The ruling was an affirmation of a lower court ruling that mandated Google remove certain search results (linking to illegal products) on a worldwide basis.
Reading the court’s decision, the plaintiff’s arguments–and Google’s responses–are familiar to anyone who’s gone toe to toe with tech behemoth and its shills like the EFF. What’s new is that the appeals court not only upheld the lower court’s worldwide injunction, but it also shot down the tired, oft-used “free speech” canard employed by tech apologists to attack rights holders:
[105] The plaintiffs made considerable efforts attempting to track down the defendants, and find ways to eliminate their websites. The judge’s finding that the granting of the injunction was the only practical way to impede the defendants from flouting the court’s orders amounts to a finding that the involvement of Google in this matter was necessary.
[106] With respect to extraterritorial effects, Google has, in this Court, suggested that a more limited order ought to have been made, affecting only searches that take place on the google.ca site. I accept that an order with international scope should not be made lightly, and that where an order with only domestic consequences will accomplish all that is necessary, a more expansive order should not be made…
[107] The plaintiffs have established, in my view, that an order limited to the google.ca search site would not be effective. I am satisfied that there was a basis, here, for giving the injunction worldwide effect. [emphasis added] I have already noted that applications can be made to vary the order should unexpected issues arise concerning comity.
[108] Finally, I note concerns expressed by Google and by the intervenors Canadian Civil Liberties Association and Electronic Frontier Foundation concerning the openness of the World Wide Web, and the need to avoid unnecessary impediments to free speech.
[109] The order made in this case is an ancillary order designed to give force to earlier orders prohibiting the defendants from marketing their product. Those orders were made after thorough consideration of the strength of the plaintiffs’ and defendants’ cases. Google does not suggest that the orders made against the defendants were inappropriate, nor do the intervenors suggest that those orders constituted an inappropriate intrusion on freedom of speech.
[110] There has, in the course of argument, been some reference to the possibility that the defendants (or others) might wish to use their websites for legitimate free speech, rather than for unlawfully marketing the GW1000. That possibility, it seems to me, is entirely speculative. There is no evidence that the websites in question have ever been used for lawful purposes, nor is there any reason to believe that the domain names are in any way uniquely suitable for any sort of expression other than the marketing of the illegal product. [emphasis added] Of course, if the character of the websites changes, it is always open to the defendants or others to seek a variation of the injunction.
It’s refreshing to see a court of a law look past EFF hyperbole and distinguish between legit websites and those engaged in criminal activity. Score one for common sense (and the law). It should be noted that in predictable fashion, the EFF characterized the decision as “dangerous precedent” and that allows an intermediate to “edit the internet” and warned that the ruling “lays the groundwork for nations with authoritarian restrictions on speech to also impose their own rules on the global Internet.”
I suppose we should consider it progress that instead of “breaking the internet” we are now only accused of wanting to “edit it?”
Over the years, Google has run roughshod over any effort to impede its take-no-prisoners business practices, but lately its veneer of invincibility seems to have cracked. As this latest ruling demonstrates, courts and regulators (outside the U.S.) are finally beginning to treat Google as the global beast that it is.
In May of 2014 the Court of Justice of the European Union found that EU citizens had the “right to be forgotten” and that search engines like Google must remove search results upon request. Last November, Article 29 Data Protection Working Party, the group charged with overseeing the ruling, issued guidelines on implementation that .com domains worldwide, not just those in the European Union should be included in requests for data removal.
7. Territorial effect of a de-listing decision In order to give full effect to the data subject’s rights as defined in the Court’s ruling, delisting decisions must be implemented in such a way that they guarantee the effective and complete protection of data subjects’ rights and that EU law cannot be circumvented. In that sense, limiting de-listing to EU domains on the grounds that users tend to access search engines via their national domains cannot be considered a sufficient mean to satisfactorily guarantee the rights of data subjects according to the ruling. In practice, this means that in any case de-listing should also be effective on all relevant domains, including .com. [emphasis added]
In April, the EU’s scrutiny of Google’s business practices became even bolder when it charged the company with anti-trust violations. From the Wall Street Journal:
The European Commission took direct aim at Google Inc. Wednesday, charging the Internet-search giant with skewing results to favor its comparison-shopping service. But the formal complaint may only be the opening salvo in a broader assault that prompts big changes at Google.
European antitrust chief Margrethe Vestager said she continues to examine other domains, such as travel and local services, where Google is accused of favoring its own services over those of others. She also opened a second front, intensifying a separate probe of Google’s conduct with its Android mobile-operating system.
Given Google’s growing influence as a Washington lobbying force, don’t expect to see U.S. lawmakers following in the EU’s footsteps any time soon. However, any crack in Google’s armor is progress. While U.S. authorities won’t hold Google accountable, it seems like the rest of the world just might.
by Ellen Seidler | Law, Music, Tech
Google Trying to Force Indie Record Labels into Submission
(Updated June 17, 2014)
This post was originally published in late May, but with news breaking that Google is pushing ahead on its plan to block indie labels from its new music service I’m reposting. Here’s the latest from The Guardian:
Adele, Arctic Monkeys and Jack White could disappear from YouTube “in a matter of days” after the Google video service confirmed it was dropping content from independent labels that have not signed up for its upcoming subscription music service…
…The company’s head of content and business operations, Robert Kyncl,told the Financial Times that the service – previously rumoured to be called YouTube Music Pass – will launch more widely later in the year.
His confirmation that YouTube will block videos from labels that do not sign licensing deals for the new premium tier will be hugely controversial among indie labels, with trade body WIN already filing a complaint to the European Commission about its negotiating strategy.
Here’s my original post from May 24th, 2014:
Excuse me while I choke back the bile rising in my gut. Our pal Google, the worldwide protector of free speech on the web, is showing its true colors as it reportedly goes toe to toe with indie record labels in negotiations over its new streaming music service. According to the New York Times, representatives from Google/YouTube are trying to strong arm the labels into crying “uncle” by blackmailing them into submission over contract terms:
Negotiations between independents and YouTube, which is owned by Google, have dragged on for months. But according to several people with direct knowledge of the talks, the indies’ decision to speak out was driven by a recent warning that if labels failed to agree to YouTube’s licensing terms, music on the indies’ official YouTube channels would be blocked. In addition, those labels would be unable to collect advertising revenue from user-uploaded videos that included their music.
The Worldwide Independent Network published a statement on their website taking Google to task:
YouTube is expected to launch a new music streaming service. The service has apparently negotiated separate agreements with the three major labels – Sony, Warner and Universal – but according to WIN’s trade association colleagues has yet to reach any substantive agreement with their members.
At a time when independent music companies are increasing their global market share WIN has raised major concerns about YouTube’s recent policy of approaching independent labels directly with a template contract and an explicit threat that their content will be blocked on the platform if it is not signed.
According to WIN members, the contracts currently on offer to independent labels from YouTube are on highly unfavourable, and non-negotiable terms, and undervalue existing rates in the marketplace from existing music streaming partners such as Spotify, Rdio, Deezerand others.
WIN has held extensive talks with YouTube at their instigation over the last 24 hours to try and resolve this issue but no progress has been made. WIN’s request for YouTube to rescind the termination letters sent to its members has not as yet been agreed to.
Google representatives have repeatedly pulled out the “free speech” card as rationale for allowing Google to run rough shod over artist’s rights (human rights) online and its lobbyists often employ the “protect free speech” argument as a sacred sword to move politicians and the public to its side during policy debates regarding its online business practices. That dearly held corporate concept seems to have gone out the window during these discussions demonstrating that ultimately, it’s not a matter of principle for Google, but profits.
Every time an artist sends a DMCA takedown request for any Google-hosted content (YouTube, Blogger, Search, Drive, etc) they are warned that a copy of the notice will be sent to the “Chilling Effects” website which, according to its “about” page, exists in order to, “support lawful online activity against the chill of unwarranted legal threats.”
Please note that a copy of each legal notice we receive is sent to a third-party which may publish and annotate it (with your personal information removed). As such, the content submitted in this form will be forwarded to Chilling Effects (http://www.chillingeffects.org) for publication. You can see an example of such a publication athttp://www.chillingeffects.org/dmca512/notice.cgi?NoticeID=861. For products like Google Web Search, a link to your published notice will be displayed in Google’s search results in place of the removed content.
I wonder if the folks at Chilling Effects would consider whether YouTube’s negotiating tactics are having a “chilling effects” on indie musicians?
More irony can be found on Google’s own policy blog the company touts how it “promotes free speech on the internet.”
Google’s commitment to freedom of expression is at the core of everything we do — whether it’s independent media organizations using YouTube to express themselves in Venezuela, or citizen journalists using Blogger to chronicle Myanmar’s crackdown last year on Buddhist monk protests. Unfortunately, many governments around the world impose limits on their citizens’ freedom of speech, and that often leads them to block or limit access to our tools and services.
Hypocrisy seems too gentle a term in characterizing Google’s current stance with indie labels on YouTube. Agree to our terms or we’ll block your work? Seems their “commitment to freedom of expression” doesn’t count if you refuse to add profits to their piggy bank.
by Ellen Seidler | Copyright, Film, Piracy, Politics
The goals of protecting free speech and stopping online piracy are not mutually exclusive
The concept of protecting “free speech” is fundamental to sustaining healthy political discourse in any society. Yet in debates over copyright and content theft, those who oppose bringing any sort of regulation to the internet twist the concept of protecting “free speech” into a disingenuous cudgel to obfuscate the issue and generate opposition to anti-piracy efforts.
With this in mind, perhaps it’s worth looking at a recent example which demonstrates that the issue of squelching “free speech” is not inextricably linked to other forms of online expression, ie. piracy.
Russian social media site (and Facebook wannabe) Vkontakte (vk.com) provides a good example. Pavel Durov, the site’s founder, was recently pushed aside in favor of ownership interests tied to Russian President Vladimir Putin. Per news reports yesterday, he’s apparently left the Russia saying “Unfortunately, the country is incompatible with Internet business at the moment.” A piece published in January on TheVerge.com explained the power play in a piece, “How Putin’s cronies seized control of Russia’s Facebook,”
Durov, 29, sold his remaining stake in VK this week, officially ending his tenure at the helm of Russia’s most popular social network and turning the page on more than two years of turmoil and political strife.
Durov’s departure effectively transfers majority control of VK to business magnate Alisher Usmanov — Russia’s richest man, with an estimated worth of $20.2 billion, and a close ally of President Vladimir Putin. Durov sold his 12 percent stake to Ivan Tavrin, chief executive of telecom provider MegaFon, which Usmanov controls. (The exact sum of the sale was not disclosed, though it is believed to be between $300 and $400 million.) That means that Usmanov and his Kremlin-friendly allies now control 52 percent of the company, raising concerns over the future of VK and the freedom of its users.
It’s a stratagem that appears tied to disputes over political expression and Vladimir Putin’s crackdown on dissent that has become increasingly aggressive of late.
Even though much of the Russian media is known to be under state control, the Internet has remained relatively free, with blogs and social media sites providing an important and creative platform for political discussion. But on March 4, the Kremlin once again took the media battle it has been waging against pro-Western protests online. Russia’s Internet monitoring agency Roskomnadzor blocked 13 profiles associated with the Ukrainian protest movement on the popular Russian Facebook equivalent VKontakte because they “contained calls to commit terrorist acts and take part in unsanctioned mass action.”
Vk.com has been in the Kremlin’s sites since 2011 when Durov refused the government’s request to close down pages that promoted demonstrations against its policies after the results of parliamentary elections were disputed. According to a report in RIA Novosti:
“We received a request from the FSB to stop the activity of Vkontakte groups calling for riots and a revolution,” Vladislav Tsyplukhin, spokesman for social network VKontakte, wrote on his corporate web page.
“We explained in response that we have been following those groups and cannot block them as a whole just because some individual users have called for violence,” Tsyplukhin wrote.
The accounts of specific users who have explicitly called for public disorder however are being blocked by the company, he said, adding that there had not been any excessive “pressure, threats or rudeness” from the Federal Security Service (FSB) in its requests.
While expressions of political dissent are being squelched, online piracy remains alive and well on the site vk.com. Earlier this month it was announced that Sony, Universal and Warner were filing suit in Russian courts, charging the site with violating copyright. Since 2011 the site has also been on the Office of the United States Trade Representative’s list of Notorious Markets that “identifies markets around the world that harm American businesses and undermine our workers, through the infringement of intellectual property rights (IPRs).”
vKontakte.com (also operating as vK.com): The Russian site vKontakte.com, in the List since 2011, is styled primarily as a social networking site, and it is extremely popular in Russia and surrounding countries. While as a general matter, social networking sites can serve many salutary purposes, this site’s business model appears to include enabling the unauthorized reproduction and distribution, including streaming, of music and other content through the site and associated software applications.
In searching the site this week I easily found multiple users who utilized the site as a file host for thousands of websites offering streams of pirated movies.
According to a Russian blogger atkatyatrubilova.wordpress.com, Vk.com has an advantage over Facebook in attracting users due the fact piracy remains a perk not found on Facebook.
Nevertheless, Vkontakte offers a special feature which attracts more new members daily and makes them spend a lot of time online. Members are able to view thousands of pirated copies of domestic and foreign movies dubbed into Russian. In addition, it’s possible to upload and download video and audio files via the VK Tracker application.
Those who value free speech should be alarmed that Vk.com has fallen under the grip of Putin and his allies. The battle against piracy remains a separate issue here, and elsewhere. It’s time to disengage the two concepts. Fighting for one does not preclude fighting against the other.
by Ellen Seidler | Copyright, Piracy, Tech
Facebook is removing ads from offensive and illegal pages. Why not remove the illegal pages too?
Facebook gave in to pressure from advocacy groups and advertisers and announced it will no longer allow ads on sites that include controversial content. Although they’ve not said anything publicly, I’ve also noticed this change in policy also seems to be impacting Facebook pages promoting movie piracy. More on below, but first, from Facebook’s official statement released on June 28th:
Facebook is a place for people to connect and share. It’s also a place where businesses can connect and share content with the people who love their brands. Our goal is to both preserve the freedoms of sharing on Facebook but also protect people and brands from certain types of content.
We know that marketers work hard to promote their brands, and we take their objectives seriously. While we already have rigorous review and removal policies for content against our terms, we recognize we need to do more to prevent situations where ads are displayed alongside controversial Pages and Groups. So we are taking action…
…For example, we will now seek to restrict ads from appearing next to Pages and Groups that contain any violent, graphic or sexual content (content that does not violate our community standards).
Facebook was forced to take this action after women’s groups like WAM (Women, Action & the Media) protested the “representation of rape and domestic violence” on Facebook. Their campaign to publicize the issue included highlighting advertisers whose ads could be found on the controversial pages and group sites. From their campaign:
To this end, we are calling on Facebook users to contact advertisers whose ads on Facebook appear next to content that targets women for violence, to ask these companies to withdraw from advertising on Facebook until you take the above actions to ban gender-based hate speech on your site. (We will be raising awareness and contacting advertisers on Twitter using the hashtag #FBrape.)
Facebook’s decision to change its policies is clearly a step in the right direction, but as I alluded to earlier, it doesn’t seem to be the only ad-related move the social media giant has made. As I pointed out in blog posts earlier this spring “Facebook-A Link in the Piracy Food Chain” and “A ‘Fast and Furious’ Example of Online Piracy at Work” there are numerous Facebook pages, linking to pirated movies, that are deserving of scrutiny. While certainly not as disturbing as pages promoting violence against women, these pirate pages on Facebook openly engage in illegal behavior nonetheless.
After my blog posts, and possibly in conjunction with the negative publicity surrounding ads on misogynistic pages, it appears that Facebook has quietly removed advertising from the illegal movie pages I documented.
This page boasts more than 231k “likes.” When I wrote about last May the page featured ads, now there are none to be found.
It’s an excellent first step, but why not go a step further? Claiming these pages should be protected because they represent “free speech” is a tired false equivalency. Pirating movies isn’t about “free speech” it’s theft and is illegal. How can Facebook defend pirate pages that are in the business of profiting from theft? They can’t.
So, if Facebook screeners are set to review pages for suitability for advertising, why not review pages that are engaged in illegal activities like online piracy? If above pages promoted illegal prescription drugs instead of illegal movies it’s unlikely they’d be allowed to remain on Facebook.
Facebook needs to stop taking the disingenuous position that protecting free speech includes protecting criminal behavior. Now that Facebook has apparently seen fit to get rid of the ads on these pages, isn’t it time to get rid of the pages too?
