The Florida legislature recently passed the “True Origin of Digital Goods Act.” The bill now sits on the desk of Governor Scott, awaiting his signature or, if tech interests have their way-the veto pen.
The proposed law would require any website operator selling digital downloads provide contact information (name and address) in order to do business.
A person who owns or operates a website or online service dealing in substantial part in the electronic dissemination of commercial recordings or audiovisual works, directly or indirectly, and who electronically disseminates such works to consumers in this state shall clearly and conspicuously disclose his or her true and correct name, physical address, and a telephone number or e-mail address on his or her website or an online service in a location readily accessible to a consumer using or visiting the website or online service.
Doesn’t sound particularly onerous does it? After all, any other (brick and mortar) business operating in Florida must do so. Why should online commerce be immune?
In predictable fashion, the usual suspects, like the (tech-funded) EFF, lined up against the bill with the usual hyperbolic warnings that it would “have disastrous consequences for anonymous online speech both inside and outside the state.” Sound familiar?
The CDT also sounded the alarm in predictable fashion, quoting a Supreme Court case: Anonymity is a shield from the tyranny of the majority.
Ok, let me get this straight. Transparency is great when sites like Chilling Effect post un-redacted DMCA notices, but when Florida asks business owners engaged in financial transactions to disclose contact information, it’s a tyrannical threat?
Ironically the CDT post arguing against the law points to the DMCA as the reason such a law is not necessary. Meanwhile, when someone uses the DMCA, his/her attempt to remove infringing content is undermined in the name of transparency? Ok…
Selling digital content is selling, not speech. To conflate this law with concerns over free speech is ludicrous. Isn’t the online ecosystem mature enough for us to differentiate between the two? Not all online activity is the same. Should a person seeking a business license in Florida not provide a name and address in the name of free speech? There is language written into this law to safeguard those using excerpts of material for commentary or other non-commercial purposes.
Commercial recording or audiovisual work” means a recording or audiovisual work whose owner, assignee, authorized agent, or licensee has disseminated or intends to disseminate such recording or audiovisual work for sale, for rental, or for performance or exhibition to the public, including under license, but does not include an excerpt consisting of less than substantially all of a recording or audiovisual work. A recording or audiovisual work may be commercial regardless of whether a person who electronically disseminates it seeks commercial advantage or private financial gain from the dissemination. The term does not include video games, depictions of video game play, or the streaming of video game activity. [emphasis added]
The internet is now the center of all things–commerce, social discourse, communication and more. Not everything that happens online is sacrosanct. The time has come for reasonable measures to ensure online businesses selling digital downloads operate in a lawful fashion. That is not an extreme notion.
Governor Scott should do the right thing and sign this bill into law. Consumers in Florida will benefit. As Latin musician Monte Rosa wrote for a piece in the Tallahassee Democrat in support of the bill:
Transparency can be a powerful tool, both to arm Florida consumers with more information to better navigate the Internet and to deter an illegal website from peddling stolen music in the first place. Wouldn’t that basic information help Florida music fans better distinguish the scam sites from the licensed music services that actually compensate artists?
The only ones who will lose are those nefarious website operators whose business operations have something to hide. Please sign the bill.
Today the Digital Citizens Alliance* released a follow-up to last year’s report that examined the connection between online piracy and advertising profits. According to results documented in today’s release, Good Money Still Going Bad, not much has changed. Tainted revenue totals from 2014 aren’t very different from 2013. The 589 websites included in the report generated 209 million dollars from advertising. This, despite the fact that many of the rogue sites included in the earlier report had been shuttered.
Google’s DoubleClick leads the way serving ads to pirate websites
With mountains of evidence that ad sponsored piracy remains a hydra with many heads, why do supposedly legit companies like Google still find themselves intimately attached to this beast? According to the report Google’s DoubleClick “ad-revenue engine” leads the pack of illicit ad service providers ( AKA-piracy enablers and profiteers). Per the report, DoubleClick was found to serve ads for 109 of the rogue sites included in the report. Adcash.com came it at number two with 63 sites.
Not only does Google continue to be a prime player in ad-sponsored piracy, but the study finds that major American brands remain hopelessly entangled as well.
There were 132 premium brands observed by MediaLink researchers on the sites, up from 89 the previous year.
Promises, promises…
YouTube also profits off ads on pirated content
Over and over again we’ve heard promises from ad industry reps that advertisers were finally going to take serious action against ad-sponsored piracy. During the summer of 2013 the White House trumpeted that the IAB (Interactive Advertising Bureau) and various companies (including Google) had “committed to a set of best practices to address online infringement by reducing the flow of ad revenue to operators of sites engaged in significant piracy and counterfeiting.”
Last summer Creative Future wrote a letter to ad industry representatives praising efforts to thwart ad-sponsored piracy and in February the same IAB made announced formation of TAG (Trustworthy Accountability Group). On its website the group cites 4 areas of work which include:
Prevent advertising revenue from flowing to criminals who steal copyrighted material and place it on “pirate” sites
Budget car rental ad on streaming copy of pirate movie
Catchy acronyms and new “initiatives” are nice y’all, but when do we actually get to see results?
Yet for all the praise and press release, has any progress really been made? I’ve been writing about ad-sponsored piracy for five years and, despite much lip-service to the contrary, the online advertising industry still seems to be in pretty much the same place.
Until advertisers, and ad service providers, transform words into action, online thieves will continue make money at the expense of creators. Remember, ad money is the fuel that feeds online pirates and thieves:
Ad revenue is the oxygen that allows content theft to breathe. We know from new research by the online rights protection firm Incopro that 88% of the most popular content theft sites in Europe rely on advertising for some, if not all, revenues. Incopro called advertising the “predominant revenue source” for the top 250 unauthorized sites.
It took me only a couple seconds today to find a major brand, Budget car rental, advertising on a pirate site streaming our film. It’s worth noting that the DCA report also finds video streaming sites are a increasing threat in this illicit ecosystem:
Video Streaming a Growing Model: As consumer appetites have shifted from downloading to streaming, content theft sites have followed suit. The number of video streaming sites in 2014 was up 40% from the original report, and revenue grew significantly due to video CPMs (cost-per-impressions) that are far higher than those for display ads. Video Streaming was the only segment to generate more revenue than the year before, even with half as many large sites. Aggregate annual revenue was up more than 50 percent. It made up 12 percent of all advertising revenue in last year’s sample. This year, it made up 21 percent.
For now it seems the mantra remains-More money for the pirate, more customers for Budget and less money for the filmmaker.
*Full disclosure, I’m a member of the Digital Citizens Alliance advisory board.
Last week I sent a DMCA notice to Chilling Effects to request that the site remove a copy of a DMCA notice (sent to Google search) containing a direct link to infringing (pirated) online streams of our film. I explained my actions in an earlier blog post. This morning I published a blog post noting that I’d not received any response from Chilling Effects’ DMCA agent ([email protected]) but that the content had been removed….
Chilling Effects has the deep pockets so they’ll win this round and keeping links to pirate copies of our film (and thousands of others) online
Turns out, mere minutesafter I posted by blog post, Tracy Walden,Harvard’s DMCA agent, forwarded me a counter-notice from Chilling Effects’ Adam Holland. Now, if I hope to enforce the takedown I must file suit in district court. Apparently my DMCA notice falls into the category of “mistaken removal.”
While the safe harbor provisions provide a way for individuals to object to the removal of their materials once taken down, they do not require service providers to notify those individuals before their allegedly infringing materials are removed. If the material on your site does not infringe the intellectual property rights of a copyright owner and it has been improperly removed from the Web, you can file a counter-notice with the service provider, who must transmit it to the person who made the complaint. If the copyright owner does not notify the service provider within 14 business days that it has filed a claim against you in court, your materials can be restored to the Internet.
I don’t have the deep pockets required to go to court so it’s likely that after a couple weeks the pirate links will go back online. As I’m not an attorney it’s not entirely clear to me why Chilling Effects–a site that in its current form operates as a de facto search engine for pirate links–is allowed to operate above the law. I’m sure, however, there will be plenty of folks who will fill me in.
Just to be clear, here’s a video documenting how the page in question at Chilling Effects links directly to an infringing stream of our film. I guess my eyes deceive me eh?
For the record, I’m not opposed to Chilling Effects operating a database to document DMCA takedowns. Transparency is a good thing. However, I do believe the site could, and should, redact a portion of the infringing links posted on its public, searchable database. That would be the responsible (and ethical) thing to do.
Chilling Effects reposts infringing links removed from Google. Why no consequences?
Earlier this week I sent Chilling Effects a DMCA takedown notice*, requesting that the site remove links that lead directly to a pirated stream of our film, And Then Came Lola. How did the pirate link make its way to Chilling Effects? Well, it’s not a new tale. In fact, I’ve repeatedly written about the fact that pirate links reported (and removed) by Google search are routinely reposted on Chilling Effects. Google even goes so far as to provide a direct link to the notice (and the infringing links) so as not to inconvenience its users.
In the short video clip below I document just how quickly–and easily–it was to navigate from Google to Chilling Effects to the illegal, embedded stream of our film. It took me a mere 10 seconds to complete the journey from Google-to Chilling Effects-to the illegal stream of our film.
I sent the original DMCA notice to Google on April 23, 2015 and two weeks later, the pirate links were reborn via a posted copy of DMCA notice sent to Google, courtesy of Chilling Effects. How Chilling Effects can get away with this behavior is beyond me, but I imagine the legal staff at the Berkman Center at Harvard, my alma mater, are careful to operate within the confines—if not the intent–of the DMCA’s “safe harbor”provision.
These safe harbor provisions could provide valuable protection to you as a web site operator. In order to take advantage of them, however, you must comply with three administrative requirements:
You must designate an agent, usually yourself though it may be someone else who agrees to do so, to receive notices of claimed copyright infringement. Your agent must provide up-to-date contact information so that copyright owners who believe their work is being infringed on your site can send complaints or take-down notices to him or her. To designate an agent, a procedural requirement for protection under the DMCA safe harbor provisions, you must file an interim designation with the U.S. Copyright Office and submit a $105 filing fee.
You must publish on your site your policy for addressing repeated infringing activity, specifically a statement that you terminate users or account holders who are repeat infringers. If you have no subscribers or account holders, your policy may state, “If we become aware that one of our users is a repeat copyright infringer, it is our policy to take reasonable steps within our power to terminate that user.” Including the policy statement in the web site’s terms of service or privacy agreements makes logical sense, though it may be published elsewhere on the site.
You must properly comply with a notice of claimed infringement when received, including
the expeditious removal of the material that is claimed to be infringing;
notification to the user or subscriber that the material has been removed;
notification to the copyright holder if proper counter-notice is provided by the user or subscriber; and
restoration of the removed material if proper counter-notice is provided, and the copyright holder does not file suit within 10 days.
Why doesn’t Chilling Effects make it easy to find email address to send takedown notices to?
Prior to sending my DMCA notice to the good people at Chilling Effects, I attempted to search the site for an email address to send the notice to. When I couldn’t find one even after searching Google using the terms–chilling effects “DMCA agent”— I resorted to sending my notice to the only email listed on the site’s about page, [email protected].*
Update 5-8-15:Today, after receiving no response to my original notice, I forwarded a copy to the Berkman Center For Internet & Society. Shortly thereafter I received an email with a link to Chilling Effects legal policies page (https://www.chillingeffects.org/pages/legal). Of course, that was not the end of my journey. In order to get the actual email for CE’s acting DMCA agent I had to click another link (http://www.harvard.edu/reporting-copyright-infringements) and visit yet another website–this one a copyright infringement page hosted by Harvard University at Harvard.edu. Note that the Harvard page includes this verbiage:
In accordance with the Digital Millennium Copyright Act (“DMCA”), Pub. L. 105-304, Harvard has designated an agent to receive notification of alleged copyright infringement occurring in the harvard.edu domain. If you believe that your copyrighted work is being infringed, notify our designated agent specified below.
Hmmm, so I guess, technically, ChillingEffects.org is actually a Harvard.edu domain? Color me confused. Not exactly an efficient– nor transparent–way for Chilling Effects to inform people about its own DMCA takedown process.
Chilling Effects obfuscation of its own DMCA agent information is ironic given its mission is to make the takedown process transparent. Why, when it comes to its own site, do they hinder user’s ability to lawfully protect their copyrighted work from online pirates?
Chilling Effects is an independent 3rd party research project studying cease and desist letters concerning online content. We collect and analyze complaints about online activity, especially requests to remove content from online. Our goals are to educate the public, to facilitate research about the different kinds of complaints and requests for removal–both legitimate and questionable–that are being sent to Internet publishers and service providers, and to provide as much transparency as possible about the “ecology” of such notices, in terms of who is sending them and why, and to what effect.
Perhaps those who work at Chilling Effects (and the lawyers who advise them) believe that the database’s work falls outside that of the “service providers” as defined by the DMCA.
Until someone with deep pockets can take them to task, Chilling Effects is apparently quite willing to create its own ecology, above the law, where pirate links are reborn and disseminated. The Chilling Effects database may be used for legitimate research, but in its current form, it also gives users one of the most efficient piracy search engines around.
*Update: Today, Friday, May 8th I forwarded my DMCA notice to [email protected] which apparently serves as the DMCA agent for Chilling Effects.
“Balanced” copyright is really just code for killing it
The “ReCreate Coalition” is a jazzy, and kinda warm and fuzzy sounding name isn’t it? Yep, our favorite anti-artist groups are at it again, morphing into yet another anti-copyright potpourri whose mission is to demolish copyright in the name of protecting innovation or, as their press release glibly trumpets: “diverse coalition launchestopromote balanced copyright law, creativity and free speech.”
The internet has empowered everyone online to be a creator, opening up new audiences and markets for innovative people and businesses. We must work proactively to ensure that copyright laws keep up with our amazing technological advances, allow for creativity to flow to all corners of the world, and still respect the rights of content creators.
Let’s translate shall we? What’s she’s really saying is:
In order for big tech to continue to reap millions off creative content it doesn’t own it’s imperative that copyright law be neutered so that nothing will impede big tech’s ability to grow profits…
Notice the carefully crafted use of “innovative” as an adjective to describe both the people and the businesses she deigns to protect. Certainly copyright laws should “keep up with” technological advances, but not in the way I assume O’Conner means. She and her ilk hope to disembowel current copyright law in order to benefit tech’s bottom line, but if we are serious about transforming copyright law so that it remains relevant in the 21st century lawmakers should really begin by revisiting the woefully out-of-date 1998 Digital Millennium Copyright Act to better protect the rights of content creators.
True copyright reform should begin with questioning why it’s OK that creators have been on the short end of the stick for nearly two decades? Why not revise “safe harbor” so that it protects the innovative musicians, filmmakers, authors and other creators who routinely have their work ripped off and monetized online by others? If organizers of this shiny new coalition genuinely believed in “respecting the rights of creators” they would work to improve copyright law so that creators are afforded more protection, rather than less.
O’Conner asserts that everyone online is now a creator, but let’s face it–not every creation is equivalent. Just because I can upload a mashup video to YouTube doesn’t mean that the content I created is worthy of protection that trumps the rights of the creator whose creation made my mashup possible.
Sure, there should be an allowance for fair use when appropriate–but do members of the ReCreate Coalition really envision a world where someone who works 3 minutes on something should always have the same (copy)rights as those who spent 3 years creating the original work? Just because people can upload content online doesn’t mean their rights are equal to, or exceed the rights of those who originally created it. Innovation, in whatever form that takes, cannot be a license to steal.
Take a look at the list of groups that united to form this new, anti-copyright effort:
American Library Association, Association of Research Libraries, Center for Democracy & Technology, Computer and Communications Industry Association, Consumer Electronics Association, Electronic Frontier Foundation, Media Democracy Fund, New America’s Open Technology Institute, Public Knowledge, and R Street Institute.
If you really want to understand what the goals of this nascent coalition are,simply follow the money. The same cast of characters–led by Google–seems to appear repeatedly. Whether it be through slimy, backdoor means or endeavors like the ALA’s Google’s Policy Fellowship, there’s no denying the ever-present funding (and influence) bought by big brother tech. Could their coalition be any more incestuous, or disingenuous?
While lobbyists for a number of these groups are actively working to dismantle copyright protections–and in the process undermine the livelihoods of filmmakers, musicians, authors and more–it’s worth noting many of these anti-copyright organizations seem to pay their employees pretty well–much better than non-profits where my friends work.
Take a look the Center for Democracy & Technology’s 990 tax filing for 2013 and note all ten of their ten salaried executives made over $100,000 per year, with the CEO at the time, the position now held by O’Connor, earned a pretty nice salary of $286,731 (plus $17,204 in other compensation). It’s worth noting that CDT appears to get the much of its funding from tech interests.
According to the 990 filed by the (Google/Facebook backed) EFF, for the tax fiscal year 2013, everyone but the accountant earned compensation in excess of $100,000 + (and its ED more than 200K). Those on salary at Public Knowledge in 2012 were also part of the 100K plus club with its president/co-founder earning compensation of $207,150 plus an additional 17,544 listed as “other.”
While I don’t begrudge these folks earning a good living, I do find it troubling that much of their work is so ardently focused on denying others that same right. I also find it troubling these organizations are not the grass roots organizations they purport to be. While some of their work, particularly that of the ALA, is laudable, for the most part the groups that make up this “coalition” spend a much of their time lobbying in support of initiatives promoted by tech-based corporations–and against content creators who depend on robust copyright law to protect their livelihoods. This latest phony alliance appears to be just another effort to push big tech’s profit-driven agenda to weaken copyright in order to grow profits.
It’s also worth that at the same time the ReCreate Coalition announces its stepping into the ring, another astroturf entity, The Mic Coalition sprouted up alongside. In lock-step with the ReCreate mission, this Music Innovation Consumers coalition pretends to have the interests of creators in mind, but of course it’s simply more disingenuous posturing.
Note how they deftly employ the magic tech abracadabra word “innovation” in their moniker. After all, who can argue with magic that is innovation right? To appreciate the true extent of the baloney proffered by the MIC coalition, excellent posts on the subject can be found on The Trichordist blog. Here’s just a sampling:
Gee this wasn’t coordinated at all. Two new Astroturf (squared) organizations in two days (with possibly the same web designer?) The day after the announcement of the the new ReCreate Coalition, an AstroTurf organization composed almost exclusively of Google connected Astroturf organizations, some of the same companies plus The National Association of Broadcasters, I Heart Media (Clear Channel) Pandora and NPR have announced the creation of the MIC-Coalition in order to lobby AGAINST fair digital royalties to artists; AGAINST terrestrial royalty for performers, and to keep songwriters under the oppressive and unconstitutional DOJ consent decrees. Read the website it’s unbelievable.
The real joke is on anyone, in Washington D.C. or elsewhere, who takes these groups seriously. I mean, if you’re a fan of Fringe you know that shape-shifters never had good intentions. My guess is the same could be said for these shiny new anti-copyright coalitions too. Apparently there’s a plentiful supply of b.s. to fertilize an endless supply of Astroturf in Washington D.C.
*Note, the above embedded video from the Fox series “Fringe” has been uploaded to YouTube and monetized by WBTV.
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
The Florida legislature recently passed the “True Origin of Digital Goods Act.” The bill now sits on the desk of Governor Scott, awaiting his signature or, if tech interests have their way-the veto pen.
