by Ellen Seidler | Copyright, Law, Piracy, Politics
DMCA is outdated and broken
U.S. Copyright Office announces study on impact and effectiveness of the DMCA safe harbor provisions
The Digital Millennium Copyright Act’s (DMCA) “safe harbor” provision has long been a source of frustration for creators. For years it’s allowed 3rd parties who enable, and often profit from piracy, to avoid legal liability for infringement. Momentum to tighten eligibility standards to qualify for safe harbor protection has been growing of late, both in courts and at the U.S. Copyright Office. In December, a federal jury’s verdict awarded BMG Rights Management 25 million in damages in its copyright infringement suit against Cox Communications. The suit went forward after the judge ruled against Cox, determining that because of an inadequate “repeat infringer” policy the company did not meet eligibility for a safe harbor defense as stipulated in section §512(i) of the DMCA.
(1)Accommodation of technology.—The limitations on liability established by this section shall apply to a service provider only if the service provider- (A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers;
Perhaps even more significant news came on the final day of 2015 when the U.S. Copyright
announced it was
“undertaking a public study to evaluate the impact and effectiveness of the safe harbor provisions contained in section 512 of title 17, United States Code.”
While Congress understood that it would be essential to address online infringement as the internet continued to grow, it may have been difficult to anticipate the online world as we now know it, where each day users upload hundreds of millions of photos, videos and other items, and service providers receive over a million notices of alleged infringement. The growth of the internet has highlighted issues concerning section 512 that appear ripe for study….Among other issues, the Office will consider the costs and burdens of the notice-and-takedown process on large- and small-scale copyright owners, online service providers, and the general public.
Though somewhat buried by the holidays, this announcement is welcome news for artists who been lobbying members of Congress tackle the outdated DMCA. Most notable is the fact attention is finally being paid to smaller
copyright owners who don’t have the resources to fight back effectively against online thieves:
Many smaller copyright owners, for example, lack access to third-party services and sophisticated tools to monitor for infringing uses, which can be costly, and must instead rely on manual search and notification processes —an effort that has been likened to ‘‘trying to empty the ocean with a teaspoon.’’ In addition to the burden of policing infringement across the internet, copyright owners complain that material they succeed in having taken down is often promptly reposted on the same site—the so-called ‘‘whacka-mole’’ problem. Under section 512 as it has been interpreted, providers are not required to filter out or prevent the reposting of copyrighted content.
Others, like Fare Play’s Will Buckley have been tireless advocates on this issue in Washington. Buckley launched the
Take Down, Stay Down petition campaign to
“Restore an artist’s right to determine what happens to their work on the internet,” that asks 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.
Buckley is thrilled that Washington seems to be getting serious about looking at the law’s deficiencies.
“I think it’s great that they’re seriously interested in taking a deeper look into safe harbor.” When asked what impact the
take down,stay down petition drive may have had in pushing the issue to the fore, Buckley observed,
“the petition has helped drive more conversation about the serious problems we have with an artists inability to control who monetizes their work and how they’re compensated.”With this study, let’s hope conversations continue so that real solutions can be found for the issues vexing artists trying to earn a fair living in this digital age. If you’d like to have your voice heard, according to the Copyright Office there will be an opportunity for you to
comment:
Written comments must be received no later than 11:59 p.m. Eastern Time on March 21, 2016. Specific instructions for submitting comments will be posted on the Copyright Office website on or before February 1, 2016. The Office will also be announcing one or more public meetings, to take place after the initial written comments are received, by separate notice in the future.
I’ll be sure to alert you when I hear more regarding this important issue.
by Ellen Seidler | Copyright, Piracy, Politics, Tech
The Illusion of More’s David Newhoff takes Pirate Bay founder Peter Sunde to task
If you haven’t had the opportunity to read David Newhoff’s thoughts regarding Pirate Bay founder Peter Sunde’s recent interview published on Motherboard please take the time to do so. It’s truly a must read. Sunde spent a brief time in prison in 2014 for his role in operating the notorious torrent site whose popularity spawned clones around the globe and gave rise to the well-entrenched meme that piracy was somehow morally and politically justifiable.
Sunde laments that “The internet is shit today. It’s broken. It was probably always broken, but it’s worse than ever.” But, as David so eloquently points out in his blog post, “…the thing you clearly don’t get, Peter, is that this is the Internet you helped create.”
As founder/operator of The Pirate Bay, you became a rapacious capitalist, exploiting human labor and rejecting certain legal boundaries designed to protect the rights of that labor. Marx warned against this kind of exploitation, and he was right. But in your persistent belief that technology alone—like Marx’s abolition of private property—will naturally create “equal access to everything for everybody,” you are as naive as Marx in that you forget to do the rest of the math. You fail to ask the question, “Who is going to produce the everything to which everyone is entitled equal access?” – The Illusion of More
You can read David’s thoughtful piece here.
by Ellen Seidler | Copyright, Film, Law, Piracy, Politics, Tech
Lots of news in the copyright, piracy and privacy world of late. Here’s some worth a look:
First up, this thoughtful piece by Nelson Granados on Forbes.com “How Piracy Is Still Hurting The Filmmakers And Artists You Admire.” Granados takes direct aim at the fallacy that piracy doesn’t cause damage to Hollywood studios.
Many think naively that studios cannot be hurt too much, because after all, you hear mostly about the movies that make hundreds of millions of dollars. But the reality for many filmmakers is that they often live on the edge, seeking financing to produce quality content, and enduring high uncertainty about whether they will be able to pay off debt and have any profit left. Given the high fixed cost of producing a quality movie, losses from piracy can be the difference between making a profit or not.
He notes that a number of “peer-reviewed” studies quantify this damage. Bottom line, like any industry, Hollywood depends on making a return on its investment to flourish. No matter what piracy apologists allege, that’s a basic economic fact. Granados also touches on the particular vulnerability faced by independent filmmakers.
Most artists struggle to make ends meet as they pursue their creative work with passion and dedication. Piracy may be tipping the next Quentin Tarantino over the financial edge into bankruptcy, and we will all lose.
As I’ve often said, audiences won’t know what we’re missing if it isn’t made. Piracy’s damage is insidious–and for the public–somewhat invisible. Ultimately it diminishes the quantity (and quality) of film offerings consumers have to choose from.
Here’s a link to Granados’ full article on Forbes.
Popcorn Time growing stale, but remains alive
In other piracy-related news, the pox that is Popcorn Time rears its ugly head yet again. According to Torrent Freak, a group of “developers” have launched their own community edition of the piracy platform. Not surprisingly developers responsible for the new rendition of Popcorn Time rely on well-worn justifications for their thievery:
“Popcorn Time will probably never go away, despite the efforts made by organizations such as BREIN, the MPAA and others. Instead of fighting this great software they should embrace it,” PTCE tells TF.
It appears efforts are being made to quash this new effort, but as of today the site seems to be operational. Perhaps it would be better if those who love to watch films “embrace” the notion of compensating creators for their work. Fans of Adele seem to be doing so in record fashion.
Facebook faces further European scrutiny
Not really a copyright issue, but it’s always worth paying attention to what’s going on in Europe with regard to the digital economy. With that in mind…
Max Schrems, an Austrian lawyer and privacy advocate’s battle against Facebook over data privacy concerns gained momentum in October when the European Court of Justice invalidated the safe harbor agreement between the U.S. and Europe that had allowed transfer of personal data between business entities in the U.S. and EU. With the ruling in hand, Schrems has stepped up his attack against Facebook, filing complaints with data protection authorities (DPAs) in Ireland, Belgium and Germany. He outlined his actions in a statement posted on his website:
All complaints suggest a reasonable implementation period, to allow the relevant companies to take all necessary technical and organizational steps to comply with the CJEU judgement. These options may range from moving data to Europe, encrypting data that is stored in the United States or reviewing the corporate structure. Schrems: “Users really don’t have to worry that their screens go dark, but I hope we will see serious restructuring in the background – just like Microsoft has now started to offer more secure data centers in Germany, that are supposedly not subject to US jurisdiction.”
Meanwhile, as Schrems moves forward, the EU and US are busy trying to reach an agreement on a new safe harbor pact that will offer new guidelines on data transfer between companies on both sides of the Atlantic. It’s important to note that this “safe harbor” should not be confused with the “safe harbor” found in the DMCA so often mentioned in the context of online piracy.
by Ellen Seidler | Copyright, Film, Google, Law
YouTube will pay copyright court costs for a few users–not because it’s right–but to protect Google’s bottom line
According to a story in the NY Times, the folks at YouTube are ready to pony up cash to support some of its users “fair use” claims in court.
YouTube said on Thursday that it would pick up the legal costs of a handful of video creators that the company thinks are the targets of unfair takedown demands. It said the creators it chose legally use third-party content under “fair use” provisions carved out for commentary, criticism, news and parody.
You’ve probably read a lot about “fair use” lately. It’s the Google-funded (EFF) Electronic Frontier Foundation’s mantra and if the folks there had their way, pretty much everything and anything would be considered “fair use.” Fair use an important legal doctrine and when applied properly (criticism, comment, news reporting, teaching, scholarship, or research) is not an infringement of copyright. However, these days, too often it’s used as a disingenuous defense for copyright theft.
The tech-funded campaign to turn villains into victims
When a court recently ruled that a snippet of a Prince song playing in the background of a YouTube video in the notorious Dancing Baby case was indeed “fair use,”it gave a boost to efforts to use fair use as a cudgel against rights holders who legitimately assert their rights using the DMCA takedown process.
Note that the actual video at the center of this case was reposted after the uploader sent a counter-notice. The only reason the case ended up in court was because the uploader, Stephanie Lenz, filed suit and the only reason she did so was because she was bankrolled by the EFF. The EFF saw it as an opportunity to advance its Google-funded agenda. As Terry Hart noted in 2010 on his Copyhype blog:
Luckily, our society has survived the brief time when Lenz’s video was not available to the world. But does this episode only highlight the DMCA’s sword of Damocles hanging over free speech and creativity? Or is it just another example of the cries of internet freedom fighters that the sky is falling as content industries adapt to technological changes? I think it’s the latter: despite the elevation of this dancing baby video to a cause célèbre, our freedom to speak is not threatened, and any “burden” the DMCA places on users uploading content is almost illusory.
With this YouTube gambit–which Jonathan Bailey breaks down in a blog post on Plagiarism Today–one can imagine that EFF is chomping at the bit to find yet another test case to take to court in an effort to expand the definition of fair use beyond those prescribed by current copyright law.
At last weeks House Judiciary committee copyright roundtable in Santa Clara the term “fair use” was bandied about repeatedly. At some point a panelist complained that bogus DMCAs made up more than half the takedowns sent. NOT TRUE!
Legit DMCA takedowns on Google outnumber false ones by a huge margin–97% to 3%.
The EFF and their compatriots routinely like to assert that every day, everywhere, poor innocent uploaders are being damaged by DMCA takedowns on YouTube and elsewhere. Give me a break. The fact is that creators victimized by piracy, forced into the time-consuming process of sending DMCA notices to protect their work, FAR outnumber users victimized by erroneous DMCA takedowns. According to the most recent numbers I could find (via Google’s transparency report) the company “removed 97% of search results specified in requests that we received between July and December 2011.”
I have to give the EFF and its well-paid attorneys credit though. They have successfully made the victims into villains through an ongoing campaign of carefully crafted rhetoric. Never mind the actual truth–that for every “bogus” and “absurd” takedown sent there are thousands that are legit. Sadly it’s a fact that gets lost on most of the public and very likely some of the politicians considering copyright reform that were sitting in that room.
Hey YouTube! What about covering legal costs of creators who receive bogus counter-notices?
Yes Virginia, not every counter-notice in response to a DMCA takedown sent is legitimate. It’s a fact that creators who send a legitimate DMCA notice, to remove full copies of a film from YouTube for example (no debate about fair use here) have received a counter-notice from the uploader.
I wrote about this specific scenario in a blog post “How DMCA Abuse Hurts Creators” in 2013. In this case the uploader had zero right to upload the film, but because she sent a counter-notice, YouTube put the full copy of the film back online.
This film was reposted (in its entirety) to YouTube after the uploader sent a counter-notice. The filmmakers’ only recourse is to go to court. Will YouTube cover those costs?
What now? The only recourse the user has is to go to court. Is YouTube willing to cover those court costs? Will YouTube step up to protect rights holders whose work is ripped off on their site? The answer is a simple, NO.
YouTube’s move is not about doing what’s right, or protecting legal rights. It’s about protecting Google’s bottom line. YouTube depends on fresh content to drive traffic to its site. From a business perspective, it makes total sense to streamline that path from any speed bumps along the way, including those pesky copyright claims.
DMCA does not work well for creators trying to protect their work from online theft
The DMCA is broken, but not in the way the EFF would have you think. It’s broken because it does a lousy job protecting the work of filmmakers, musicians, photographers, and authors.
Over these past few years I’ve written plenty on the subject so if you’re so inclined, you can a sampling of some of my other posts that explore why the DMCA needs fixing:
Dancing around DMCA Takedowns on YouTube
Using DMCA to fight Ashley Madison hackers is poor use of copyright law
Google lives on tech’s cutting edge–but in DMCA takedown Luddite-land
Why does Google play a DMCA piracy shell game?
Does Chilling Effects make a mockery of the DMCA?
Etsy uses DMCA “safe harbor” to protect photography pirates
Google and the Art of the DMCA Dawdle
Google’s Blogger DMCA takedown procedures a hot mess
Everyone hates the DMCA
Is this really what Congress had in mind when it created the DMCA?
How DMCA Abuse Hurts Content Creators
Hollywood and Silicon Valley talk distribution, DMCA, and more during panel on piracy
The RIAA Explains Why DMCA doesn’t work
Nickel and Dimed to Death? Pirates Profit off DMCA Requests
Anti-copyright Astroturf gangs, fertilized with tech cash, suddenly sprout
Google’s downranking of pirate sites is a big, fat, LIE
Google’s 100 Million Takedowns-A Mess of its Own Making
Chilling Effects (still) makes searching for pirate links easy
Pirate Bay shut down-Is it a sign of progress against piracy’s “free for me” mantra?
Piracy for profit-YouTube’s dirty secret
Electronic Frontier Foundation (EFF) uses copyright law as censorship canard again
Google’s demotion of pirate search results earns a FAIL so far
Should we trust Google’s piracy report? Probably not….
Google gets called out (again) for its laissez faire attitude on piracy
Google’s “We fight piracy” Gobbledygook
Raise your hand if you’re tired of EFF tech-funded talking points
Google’s piracy profit machine continues unchecked
Busting Piracy on Google’s Blogger Barnacle Sites
Free Speech According to Google? Blackmailing Indie Music Labels Over YouTube Streaming?
Piracy’s Potpourri of Profit and Prevarication
Record Share Price Aside, Google Still has a Piracy Problem
Search Engines = G.P.S. for Online Piracy
How Google (Doesn’t) Fight Piracy
LGBT Cinema, Diverse Voices Quieted by Piracy’s Punch?
Google and friends spin search piracy study
YouTube’s Paid Channels are Here and a Counterfeit Cleanup is Past Due
by Ellen Seidler | Copyright, Film, Google, Law, Piracy, Politics
Google continues to dodge responsibility for its role in promoting online piracy
This past week members of the House Judiciary Committee traveled to California to hold a pair of roundtable discussions on the future of copyright. On Monday committee members were in Santa Clara, the heart of Silicon Valley, and on Tuesday traveled to Los Angeles to hear from a variety of stakeholders discussing everything from overhauling an out-dated U.S. Copyright Office to DMCA circumvention for tractor repairs.
As a participant in the Santa Clara event I offered up my observations on updating the copyright office and the need for a copyright small claims process.
Though I wasn’t at the LA event, I read with great interest a report in Variety by Ted Johnson that documented an exchange between Google’s legal director for copyright, Fred von Lohmann and Richard Gladstein, founder of Film Colony:
“Why couldn’t we find a way, in all of your wonderful genius, to prevent being directed to illegal activity,” Gladstein said…
“We are not in a position to decide what is legal and what is illegal online,” Von Lohmann responded.
Then Gladstein asked, “Is it legal or illegal to download a movie that you don’t own?”
Von Lohmann answered, “I agree. Downloading a movie, in order to watch it without paying for it, is infringing. That is not the problem. The problem is when you have over a trillion websites, you have hundreds of thousands of film titles, millions of song titles, not just in English but every language around the world … as a search engine there is no magic way for us to know in advance what is legal and what is illegal online. We rely on copyright owners to inform us.”
[Von Lohmann] noted that Google has been demoting sites based on the number of takedown notices they receive from copyright owners. He also said that such sites don’t pop up when users simply put in the name of the film title without the word “watch” before it. [emphasis added] —Variety
Von Lohmann’s posturing on Google’s piracy problem is nothing new, but it is worth pointing out how his statements are carefully crafted to dovetail with Google’s own (vague) propagandistic promises.
In 2014 Google announced that it had updated its “How Google Fights Piracy” report (first published in 2012). In it, Google once again gave lip service to its down ranking (not removal) of pirate sites in its search results:
Google also factors in the number of valid copyright removal notices we receive for any given site as one signal among the hundreds that we take into account when ranking search results. Consequently, sites with high numbers of removal notices may appear lower in search results. This ranking change helps users find legitimate, quality sources of content more easily.
Note that in its glossy report Google didn’t mention exactly what types of search terminology would trigger a down ranking of results. Apparently, if we are to believe Mr. von Lohmann, we should only expect pirate link demotions to take place when searching using the movie’s title only, not when using terms like “watch” and “download” in the hunt for pirated copies?
I did my own quick research today using a recently released indie film The Overnight. When I searched using the title only, Google does offer up a page full of legit links.
However, when I add the term “watch” to the mix and search for “watch the overnight” take a gander at what results lead the pack….The top result led directly to a notorious pirate site and 6 out of 10 gave me links to pirated versions of the film.
I checked Google’s transparency report to see how many times this particular domain had been reported for infringement. Note, the Solar Movie’s domain suffix has changed multiple times over the years. It’s latest incarnation, solarmovie.ac, seems to have come online only last month. Already its been reported for copyright infringement more than 600 times.
Why won’t Google down rank sites found in actual searches for pirated content?
I’d like to ask Mr. von Lohmann why Google can’t seem to manage down ranking pirate sites for ALL its search results–not just results found when using the film’s title. After all, folks looking for pirated movies aren’t idiots….adding the term “watch” or “free download” to a search is standard operating procedure if one is seeking pirated copies. It makes no sense for Google to ignore these search terms if it’s truly serious about how it “fights” piracy.
Sure, total searches for legit links may far outweigh overall searches for pirated ones, but in the end what we’re talking about when we are discussing “fighting piracy” are search terms like “watch” and “download free.” Look what shows up at the bottom of the results for “watch The Overnight”search… Google continues to offer handy suggestions for other search terms users could use to find more (pirate) links.
Google pretends to be working on its piracy problem, but when you drill down it’s clear that the tech giant is doing everything it can to avoid taking action or responsibility. I hope those House members who sat and listened to Mr. von Lohmann will not take him at his word, but instead, examine actual facts.
Google still has a very long way to go when it comes to fighting piracy.
I’ve written numerous blog posts about the burdens faced by independent creators and the fact that the DMCA is a badly outdated law so it’s beyond gratifying to see progress in this area.
