Sandra Aistars now Clinical Professor & Senior Scholar & Director of Copyright Research & Policy of CPIP
I’d like to take a moment to thank Sandra for all her hard work on behalf on indie artists, filmmakers, musicians and more. Without her unwavering guidance these past few years, there’s no doubt in my mind that our rights as creators would have been further undermined. Working in the trenches in Washington, and being the target of anti-copyright activists online, is not an easy job, but it’s one which Sandra handed with professionalism and grace. I’m excited to see what she has planned for her new venture with George Mason University of Law and wish her all the best.
Mr.Kupferschmid seems like an excellent person to succeed Sandra. His background working on copyright issues in with both tech and creative interests make him well suited to lead the Copyright Alliance and be an influential advocate for creator’s rights in coming years:
Keith brings over two decades of experience in copyright law and policy. At SIIA, he represented and advised software and content companies on intellectual property policy, legal, and enforcement matters. He also supervised the Anti-Piracy Division, including managing anti-piracy staff, investigators and outside counsel, and working with federal and state government officials on civil and criminal piracy cases. Prior to that, he was an attorney at Finnegan, Henderson, Farabow, Garrett & Dunner, as well as at the US Patent and Trademark Office (USPTO), the Copyright Office, and the US Trade Representative (USTR).
These are crucial times in the fight to protect creative rights across the spectrum and Mr. Kupferschmid promises to work on behalf of creators across the spectrum, large and small, as he tackles a number of challenging copyright issues:
I am thrilled to be the new CEO of the Copyright Alliance…. Sandra did a tremendous job building the Alliance into a respected and thoughtful organization that effectively represents the copyright interests of all types and sizes of creators and innovators. As SVP of Intellectual Property for SIIA the past 16 and a half years I worked with SIIA’s tech companies—both large and small—as well as other stakeholders in the copyright, tech, and academic communities to develop amicable solutions to complex copyright policy and enforcement issues. I hope to use my experiences in the copyright and tech arenas to further build on the strong foundation established by Sandra.
I wish him well on his new journey and am looking forward to his efforts to build more bridges with indie artists across all disciplines.
Kim Dotcom’s Court Hearing Continues
In other news, Kim Dotcom’s extradition hearing in Auckland District Court continue this week in New Zealand with Crown prosecutor, Christine Gordon who is representing the United States, wrapping up her presentation as to why New Zealand should extradite the pirate site (Megaupload) founder to the U.S. to face charges that include racketeering, copyright infringement and money laundering. Gordon focused rewards paid to top infringers:
Gordon told a judge this week that after Dotcom launched Megaupload in 2005, it grew to become so popular that each day 50 million people used the site, sucking up 4 percent of all Internet traffic.
“This was a big fraud but conducted in a fairly simple manner…
Behind the scenes, the respondents admitted their business broke the law. Sometimes they enjoyed the fact they were making their money by breaking the law,” she said. “Sometimes they worried about protection, and pondered what action they should take to, and I’m quoting here Mr. Dotcom’s words, ‘counter the justice system.” –New Zealand Herald
Is online ad industry becoming more accountable? Yep, but there’s still (much) more to be done.
Some good news on the ongoing fight against ad sponsored piracy. Today, Group M, a major player in global media investment announced efforts to ensure that their media partners become certified providers of, or follow anti-piracy advertising guidelines established by the Trustworthy Accountability Group’s (TAG). John Montgomery, Chairman, GroupM Connect, North America and Co-Chair of the TAG Anti-Piracy Working Group characterized the move as a big step forward in the fight against ad-sponsored online piracy:
We’re in the business of giving the world’s most valuable brands marketing advantage with smart media strategies. This inherently means we’re vigilant for clients’ brand safety. Our work with TAG in the development and now full adoption of anti-piracy guidelines is a major leap forward…Fighting pirates of copyrighted content required every ounce of our tenacity and ingenuity, but with the advent of TAG’s Brand Integrity Program Against Piracy, we have powerful new tools and safeguards.”
TAG’s announcement of its anti-piracy initiative last February was received as positive news by those leading the battle against online theft.
“We are glad to see brands taking the initiative to deploy validated tools and technologies to keep their ads off of infringing sites…While this is an important first step, ultimate success will require widespread adoption by advertisers, ad agencies, and ad placement entities. Consumers and creators should continue to monitor this issue and encourage brands and ad tech companies to do the right thing.” -Sandra Aistars, Chief Executive Officer of the Copyright Alliance,
It’s also worth noting that TAG’s certification process–included as part of GroupM’s new standards–will require actual proof of compliance to standards in order to be validated.
Through the program, providers of anti-piracy tools and services will be validated as Digital Advertising Assurance Providers (DAAPs) by independent third-parties including Stroz Friedberg and Ernst & Young, working with TAG. To be validated, DAAP companies must show how they identify risky sites, prevent ad placement, disrupt site transactions, monitor and assess the safety of ad placements, and/or prevent payment to sites that are deemed likely to offer pirated content or counterfeit goods. The first validated DAAPs are expected to be named in Q3 2015, and GroupM will require that all of its partners receive such validation by Q1 2016.
When it comes to the fight against online piracy any news is good news, but unfortunately there’s still much work to be done. As I’ve argued for more than five years, cutting of the blood supply that incentivizes and sustains online pirates is crucial if we are going to turn the tide against out of control online theft for profit.
What about the other online advertising elephant in the room?
Stopping advertisers from putting cash into the pockets of notorious pirate websites around the globe is one thing, but what is TAG doing about ad placement on supposedly legit sites like YouTube? Is YouTube considered a “risky site” and if not, why not?
This past month I’ve questioned why major advertisers are so lackadaisical about ad placements on questionable YouTube content that includes pirated movies, clips of live-TV murders, (RATS) spyware, or terrorist recruiting videos.
It is critical that online advertisers be able to protect themselves from potential brand damage from piracy, fraud, and malware and safeguard their marketing investments. This initiative will help marketers identify sites that present an unacceptable risk of misappropriating copyrighted content and selling counterfeit goods, and it will help them remove those sites from their advertising distribution chain.
In that same press release, GroupM’s Montgomery noted:
“An advertiser’s brand is its most precious possession, and this program will help us ensure that our clients’ brands are not put at risk through unintentional placement on sites that promote pirated content, counterfeit goods, or other illegal activities. We look forward to working with TAG on this and other programs to help strengthen the advertising ecosystem by addressing systemic problems like piracy, malware, fraud, and lack of transparency.”
If protecting an “advertiser’s brand” as its “most precious possession” is truly a priority perhaps TAG-certified providers should also expand its focus to include sites like YouTube, a virtual cornucopia of monetized garbage that makes major brands look bad. Not only is placement of ads next to questionable content routine, but both the uploaders of questionable content AND YouTube are making money off it.
In June of 2014 I wrote a post, “Enough Playing Nice with the Advertising Industry over Ad Sponsored Piracy” in which I made this observation in response Creative Future’s letter to ad industry executives praising their efforts against ad sponsored piracy:
Of course some action against ad-sponsored piracy is better than none, but news flash, ad-sponsored piracy is not news. Every few months it seems some new initiative is announced, yet in reality, in the land of the online pirates and their quest for profits, nothing much has changed.
Perhaps I’m too impatient, too demanding….Certainly today’s announcement by Group M isn’t bad news, but talk only takes us so far. I’m waiting for more progress–for days when I don’t visit YouTube and see this:
#1 Our pirate pal Kim Dotcom is back in the news as a hearing for his extradition to the United States to face charges of copyright infringement, racketeering, and money laundering was held Monday in New Zealand:
Big car, big chair, big black outfit means a grand entrance at court for America’s target. –NZ Herald
#2 Copyright Reform Takes Center Stage in Nashville. It’s a chance for those who work in the music industry to make sure their voices are heard as members of the House Judiciary Committee come to town to talk copyright and two pieces of legislation close to the heart of those in Nashville, Two pieces of legislation championed in Nashville — the Songwriter Equity Act and the Fair Play Fair Pay Act.
Court’s language on “fair use” won’t change fight against online piracy
Indie filmmakers and musicians who find their work uploaded to YouTube without permission are probably pretty familiar with sending DMCA notices to Google. I know I am. I also know that the 9th Circuit U.S. Court of Appeal’s decision in the EFF’s infamous “Dancing Baby” lawsuit will have ZERO impact on how I approach sending those notices moving forward.
In the wake of Monday’s decision, much has been made (and written) about the potential impact it will have on content creators who must use the DMCA to remove infringing/pirated copies of their work online. Debate centers around the court’s interpretation of “fair use” and whether a rights holder must consider whether fair use applies before sending a takedown notice. Fact is, I already do that each and every time I send a notice.
When I find a full copy of our film on YouTube, I send a takedown notice. When I find our film uploaded in parts on YouTube (part 1, part 2, part 3, etc) I send a takedown notice. When I find sections of our film more than 3 or 4 minutes long uploaded on YouTube, I typically send a takedown notice. When I find someone has edited and uploaded a mashup using short clips from our film I generally just monetize the video (usually the music is owned by someone else) and leave the clip alone. As much as I believe that the DMCA is broken--and weighted against creators–it’s the only tool we have to protect our work from online theft so I use it…often.
In terms of judging whether something is “fair use” I consider how much of our film is used and the way it’s used. While I’m pretty well aware of what “fair use” means, I’m sorry to say that those who upload content to YouTube are not. In a number of instances YouTube users have uploaded copies of our film in its entirety. When I find these copies I immediately issue a takedown. No brainer right?
Many YouTube users don’t understand “fair use”
Well, apparently many YouTube users don’t have a clue as to what fair use means since some protest my takedowns saying they have the right to upload my film because doing so is “fair use.” When this happens I reinstate my claim and send them a polite note explaining that they are wrong and that it would be a good idea to review YouTube’s own explanations as to what fair use actually means:
The four factors of fair use
In the United States, fair use is determined by a judge, who analyzes how each of the four factors of fair use applies to a specific case.
1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
Courts typically focus on whether the use is “transformative.” That is, whether it adds new expression or meaning to the original, or whether it merely copies from the original. Commercial uses are less likely to be considered fair, though it’s possible to monetize a video and still take advantage of the fair use defense.
2. The nature of the copyrighted work
Using material from primarily factual works is more likely to be fair than using purely fictional works.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
Borrowing small bits of material from an original work is more likely to be considered fair use than borrowing large portions. However, even a small taking may weigh against fair use in some situations if it constitutes the “heart” of the work.
4. The effect of the use upon the potential market for, or value of, the copyrighted work
Uses that harm the copyright owner’s ability to profit from his or her original work are less likely to be fair uses. Courts have sometimes made an exception under this factor in cases involving parodies.
I must say, however, that as a filmmaker I’ve not really taken advantage of fair use. When I co-directed and produced the documentary Fighting for Our Lives-Facing AIDS in San Francisco we used short video and music clips from various secondary sources. Sometimes the video clips we used were only a few seconds long, but we always asked for permission (in writing) from the creator(s). Sure, we probably could have used most of this material without asking, but as a filmmakers we respected the work of other creators.
Just last week I received a request from from a national network for permission to use some of our clips from Fighting for Our Lives for a new documentary on the AIDS epidemic that’s being produced. As with past requests for footage, I will say “yes” because I do believe that there’s value in sharing the precious pieces of history we recorded during the height of the AIDS epidemic in the 1980s. However, if someone grabbed bits and pieces of our documentary without bothering to ask, I would not be pleased.
Over the years respect for the work of creators has been undermined by an online ecosystem where anything digital is assumed to be ripe for the picking. Those who routinely rail against creators and copyright are saying the Lenz case decision didn’t go far enough, but I would flip it around and propose that the court should have asked whether YouTube users “unambiguously contemplate” whether a clip would infringe someone’s copyright before uploading content to the site?
When I teach my film students about copyright I start by asking them if any of them have ever downloaded music or movies from the internet. Not surprisingly, most sheepishly raise their hands. However, as the semester progresses and they learn that it will be their workthat’s at stake, perspectives gradually shift. My students realize their work has value and the effort that went into creating should be honored.
Perhaps if we stop justifying our lack of respect for creators by demonizing the business of creation ( i.e. the record companies and Hollywood studios) and start appreciating (and rewarding) the work done by creators–both individually and collectively–we won’t have to depend on courts to determine what’s fair.
The DMCA is a dated and dusty law and puts an undue burden on creators, but until Congress takes action, it’s the only tool creators have to protect themselves.The silly dancing baby clip in question was actually allowed to remain on YouTube after a counter-notice was submitted because the creaky system had actually worked as intended….much ado about nothing–save for the fact folks at the EFF saw an opportunity to further their anti-copyright agenda.
Has this decision made it even harder for artists to compete in the digital age? Perhaps–but for me, and probably most everyone else, it’s merely business as usual. I’ll continue to consider fair use before I send that takedown notice on YouTube (or elsewhere) and in doing so, give more thought to the process than those (who routinely flout copyright law) do at the other end.
According to a story in the Financial Times published last week, until now, advertisers have pretty much been kept in the dark as to how many viewers actually see the ads. I would venture to guess this also means advertisers continue to also be oblivious as to where ads are placed.
YouTube is preparing to allow companies to independently verify what proportion of the adverts they place on the video platform can be seen by viewers.
The move is a response to complaints by advertisers such as Unilever and Kellogg’s, which have become increasingly concerned that they are wasting money on ads that are not visible. – Financial Times:
“Wasting money” on ads that aren’t visible???? How ’bout wasting money on ads that appear next to terrorist recruiting videos or live TV murders? It’s actually quite remarkable to think that YouTube has gotten away with raking in billions in ad revenue without verifying a damn thing. Of course when it comes to raking in the bucks, when it comes to Google’s YouTube, and web advertising in general, it’s pretty much an anything goes mentality…copyright and standards be damned. YouTube has never provided transparency as to its business practices, both in terms of creators or advertisers.
As Music Tech Policy’s Chris Castle noted in a post last week:
Anyone who has reviewed a YouTube royalty statement knows that there’s some pretty strange things going on with advertising on the Google video monopoly. If it’s any comfort, we’re not the only ones. Advertisers have finally managed to crack the YouTube code according to Reuters. Of course, if it’s like most things having to do with accountability for YouTube or Google, it’s probably ice in winter–that is, a sham. But let’s see what happens. However–if advertisers can now find out where their ad is appearing, why can’t artists also know which ads are appearing on pages with their videos?
In what other media realm is their such a lack of accountability? When it comes to television, advertisers are hyper-aware of what programming their ads appear on. The same goes for print. Crazy as it sounds YouTube has apparently managed–for years–to pull the wool over advertisers eyes while raking in billions in revenue. According to the Financial Times, YouTube’s ad business continues to grow:
The number of advertisers on YouTube has soared more than 40 per cent in the past year as big brands seek to reach millennial consumers on Google’s video site.
On the eve of VidCon, an online video event in Los Angeles, YouTube said advertisers from the top 100 brands, based on a ranking by consultants Interbrand, were spending 60 per cent more than last year.
As for the current state of affairs, I checked YouTube while writing this post to see whether WDBH clips still feature ads and had no difficulty finding more examples. This time you can add Chile’s to and the Las Vegas Arias Resort to the list of advertisers underwriting these murder clips on YouTube.
Ads for Chile’s Restaurant and Aria Resort appear on clip of WDBJ murder.
While advertisers are demanding more transparency on how many eyeballs actually see their ads, how about demanding transparency as to what content their advertising underwrites? Are they that desperate to attract eyeballs that it doesn’t matter what those eyeballs end up seeing next to their ads? Does Chile’s Texas Lemonade or Aria’s French toast really go well with a live-TV murder? What will it take to get advertisers to demand better?
As an indie film and broadcast journalism veteran, I'll share my perspectives on issues of interest to the creative community and beyond--Ellen Seidler
