1998’s DMCA is well past its sell-by date. Time for a makeover.
The past 20 years have seen a virtual technology revolution. We have the world at our fingertips, literally. Yet, despite the massive technological transformation of our society and culture, our laws have yet to catch up. The haggard Digital Millennium Copyright Act is a shining example of this fact. Signed into law in 1998, the legislation was designed to manage copyright issues in the dawning digital age.
Unfortunately, rather than manage copyright, it’s provided a huge loophole through which a number of online pirate entrepreneurs sail blissfully through. Known as the “safe harbor” provision, this oft-abused language has served to shelter digital thieves at the expense of rights holders. “Safe Harbor” has enabled the growth of a criminal cancer and it’s a cancer–that as of now–cannot be beaten, only kept (marginally) at bay. As Wikipedia notes, “The DMCA’s principal innovation in the field of copyright is the exemption from direct and indirect liability of internet service providers and other intermediaries.” As I’ve suggested previously, any update to the law should include a requirement that in order to qualify for the limitations to liability that safe-harbor offers, certain user-generated content sites must implement reasonable technology to mitigate content theft. More on that later.
The actual “takedown” process has also drawn fire (from both sides of the debate). Copyright holders often find sending out DMCA notices to be an exercise in futility as it’s nearly impossible to keep up with the volume of pirated content found online (usually via for-profit piracy websites). Those who operate legitimate user generated content sites like YouTube argue that false DMCA notices stifle “free speech.” Never mind that the vast majority of notices sent are valid if Google’s stats are any indication. They report that more than 97% of the notices they receive are valid (data listed from 2011).
At any rate, this past week in Washington the wheels of government moved ever-so-slightly as the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on the DMCA. The witness list included Katherine Oyama, Sr. Copyright Policy Counsel for Google; Paul Sieminski General Counsel for WordPress parent Automattic; Grammy winning composer and conductor Maria Schneider; Paul Doda, Global Litigation Counsel for Elsevier; Annemarie Bridy, professor University of Idaho College of Law; and Sean M. O’Connor, a law professor from the University of Washington.
Overall the testimony was predictable. Those representing copyright holders spoke on the burden of sending repeated takedowns while those with a tech perspective argued that the DMCA actually hurt those receiving notices more than it helped artists in safeguarding their work. Tech representatives also extolled the virtues of “safe harbor” and declared that it was the reason that the internet has flourished in the nearly 20 years since the law was enacted. Of course they failed to mention that abuse of “safe harbor” is rampant and that the intent of the law’s languages has been twisted beyond repair and in desperate need of a 21st century makeover.
Google’s Katherine Oyama appears be well-liked in Washington DC, but even the RIAA found fault with her testimony and published a “fact check” of her statement. Oyama noted that Google has spent more than “60 million dollars on the development of content ID on YouTube,” but the RIAA fact check puts that figure into context:
Google created Content ID in 2008. Google’s revenues since then have surpassed $200 billion – so Google only spends less than 0.03% of its revenues on preventing copyright theft on YouTube?
Ms. Oyama’s assessment that the DMCA was working well for rights holder was also a dubious assertion.
The increasing volume of takedown notices demonstrates the continued relevance and effectiveness of the DMCA’s notice-and-takedown regime. Copyright owners are using the process ever more intensively, suggesting that they continue to find it valuable.
“Valuable” relative to what? I suppose something is better than nothing but certainly the DMCA as an effective method to remove infringing content online is somewhat like using an umbrella to keep dry in a hurricane. Though not her intent, Ms. Oyama’s testimony does offer a glimpse at what should be included in any update of safe harbor:
As copyright owners and enforcement vendors continue to deploy new technologies to identify uses of their works online, we expect the cost per notice to continue to drop, and takedown volumes to concomitantly increase.
The key here is new technologies. As I alluded to above, my suggestion to “fix” safe harbor would be to mandate that websites offering affiliate rewards (the business model used by the now defunct Megaupload) be required to institute some form of content ID system in order to vet content uploaded by these affiliates. Note that I said sites offering affiliate (cash) rewards. The cyberlocker business model, which has become the central means of disseminating and monetizing stolen content online, would no longer be viable. Sites like drop-box that allow users to store and share files but don’t incentivize piracy would remain untouched.
Paul Sieminski who testified on behalf of Automattic, the parent company of the popular online blogging platform WordPress made perhaps the most ironic statement of the afternoon.
Another deterrent is that the counter notice form itself` – many users need to consult a lawyer before completing and submitting the form, and most don’t have the time or resources to do that.
Mr. Sieminski should try replacing the term “counter notice” with the term “DMCA notice.” Just imagine what it’s like for indie filmmakers, musicians, photographers, etc. who find their work appropriated (usually for profit) online. As Ms. Schneider pointed out in her testimony, the system is actually weighted against the content creator:
The takedown procedure should be more balanced. I am certain that most of my fans who upload my music have no intention of harming me – and probably no
knowledge that they are doing so. But to upload my music on most sites, one simply has to click a box saying they acknowledge the rules. On the other end of the transaction, I, the harmed party, must jump through a series of hoops, preparing a notice for each site, certifying documents under penalty of perjury, and spending hours learning the sites’ unique rules for serving the notice. Owners should have a more streamlined and consistent process to take content down.
Need more proof? Well, if you haven’t done so already, take a look at the video I posted at the top of this piece documenting the more than 56,000 download links and streams we sent out to remove pirated copies over several months in 2010 after our film’s release. Our DMCA story is not atypical. Every day musicians, filmmakers and other creators around the world are spending time they could be using more productively, sending out DMCA takedown requests. What about the “time and resources” of the content creators whose work is stolen and monetized by thieves? Takedowns will be a part of any fix, but we must figure out a better way to create a balanced approach that doesn’t necessitate the need for an sending a seemingly endless cycle of notices to cyberlockers and search engines.
The time has come to fix the broken DMCA and create a system where creators can flourish– and the wealth of content they create can be enjoyed, and sustained, by consumers throughout the world.
Marvin Ammori pens a (laughingly) disingenuous anti-copyright screed
This week Google-backed attorney (and fellow at the New America Foundation) Marvin Ammori wrote a piece for Slate, “Hollywood’s Copyright Lobbyists Are Like Exes Who Won’t Give Up” bashing efforts by the rights holders and their representatives to build voluntary consensus to fight online piracy. Ammori argues that such efforts are actually a veiled effort to reintroduce SOPA, the anti-piracy legislation that went down in flames two years ago.
Apparently Mr. Ammori believes (or those paying him do) that we shouldn’t address this issue at all. Legislation is bad and voluntary agreements are bad too. It seems that even talking about the subject is bad.
In his Slate piece Ammori condemned “copyright lobbyists” for discussing such agreements “in hearings and little information-gathering events—the equivalent of an ex just trying to catch up over drinks.” His lame “ex” analogy aside, I must say it’s beyond ironic to see a known confederate of the #1 lobbyist in DC actually condemn lobbying. Just pull back the curtain and you’ll see that Google’s former CEO Eric Schmidt is actually the Chairman of the Board for the New America Foundation. The foundation also lists Google as one of its funders.
According to the website Open Secrets, Google spent 15 million dollars lobbying in 2013. 14.6 million of that was for lobbying on issues related to “computers and the internet.” It’s likely that some of those expenditures included sending representatives to “hearings and little information-gathering events” in DC don’t cha think?
Initially Slate failed to disclose Mr. Ammori’s ties to Google, but was forced to “update” the piece with this disclaimer:
Update, March 11, 2014: Disclosure: The author represented Google and other companies fighting SOPA/PIPA in 2011 and 2012. He currently represents Google and other companies on several issues, including copyright reform. These views are his own.
The fact that Mr. Ammori neglected to initially mention his many ties to Google undermines the very gist of his arguments. Sons of Anarchy writer Kurt Sutter wrote a great rebuttal in Slate to Ammori’s piece which begins:
Let’s consider the March 11 anti-copyright rant in Slate by Marvin Ammori, a lawyer working for Google (which somehow he forgot to mention in the article). He compares Hollywood to that insidious “ex who won’t give up” pursuing you and making your life miserable. As a guy with more than a few exes, I have to tell you, Marv, the most insidious ex is the one who hides the truth, steals your money, and lies to all your friends. That’s what Ammori and Google are doing.
I recommend reading Sutter’s entire piece in which he lays bare the true motivations behind Ammori’s post (and Google’s lobbying efforts).
…when Hollywood tries to impede that thievery, it’s presented to the masses as a desperate attempt to hold on to antiquated copyright laws that will kill your digital buzz. It’s so absurd that Google is still presenting itself as the lovable geek who’s the friend of the young everyman. Don’t kid yourself, kids: Google is the establishment. It is a multibillion-dollar information portal that makes dough off of every click on its page and every data byte it streams. Do you really think Google gives a shit about free speech or your inalienable right to access unfettered content? Nope.
To blame Hollywood copyright lobbyists for trying to influence law when google does the exact same thing is either ignorant or hypocritical. And to ignore the fact it isn’t just “Hollywood Copyright Lobbyists” but entire countries that are reacting to what they see is Big Tech run rampant, suggests once again the narrative is being controlled in Big Tech’s favor.
Ammori whines about SOPA and he whines about new efforts to create “voluntary” agreements as a possible path forward in the ongoing battle against content theft. Apparently we are essentially damned if we do and damned if we don’t? What are content creators supposed to do? Are we supposed to sit on our hands and watch as tech behemoths like Google continue to enable (and profit from) an illicit online economy that is bleeding creators dry?
Ammori points to the fact that payment processors like PayPal have pulled their services from various websites and warns,
…copyright holders can starve websites of their funding, strip them of their domain names, and remove them from search. The sites at risk include those that enable users to store and share content—if even a fraction of those users might violate copyright. So these agreements can threaten free expression and innovation online for all of us, just to target a few infringers.
Oh please…he really doesn’t have a freakin’ clue does he? Has he ever actually researched online piracy and examined these websites and to see how they operate? Does he really that only a “fraction” of Megaupload or Filesonic’s users were violating copyright? At this point the poor guy is clearly trying to gin up the same tired, hyperbolic, deceitful anti-SOPA rhetoric the tech-industry employed to work web users into a lather. Problem is, it ain’t gonna work any more. As Sutter’s rebuttal makes clear, creators from all walks of life are fed up with piracy profiteers being propped up by companies like Google–tired of the b.s. We’re mad as hell and not going to take it any more.
We’re sick of companies like Google spending millions to defend their business model, acting like a wolf in sheep’s clothing. We’re tired of Google pretending this is about “free speech” when, in fact, it’s about their bottom line. We’re tired of the hypocrisy of a company that spends millions to undermine artist’s rights while being the first in line at the courthouse when it comes to protecting its own IP. We’re tired of watching our livelihoods whittled away while others steal our work to make millions. We’re tired of folks like Mr. Ammori pretending to defend the web’s users when they’re really defending the web’s oligarchy.
The Copyright Alliance is seeking videos from artists and supporters on why the arts matter. The videos submitted will used to create a grassroots video message to Congress from artists and their supporters. It’s important to let your voices be heard. You can upload your “selfies” here.
Today’s Variety features an article by Todd Spangler with the headline, “House of Cards’ Searches on Google Turn Up Pirate Links as Top Results.” Color me not surprised in the least. Perhaps folks are noticing because House of Cards is a popular Netflix original series that just launched its second season but the fact that pirate top the list in Google search results is nothing new–just ask musicians and filmmakers. According to Spangler:
In a Google search for “Watch House of Cards” on Wednesday, the top two results were links to apparent pirate sites, couchtuner.eu and stream-tv.me; Netflix showed up third. WebProNews reported on the Google search results for “HoC” earlier, and found similar results for searches on other Netflix content including “Orange Is the New Black,” “Arrested Development,” “Lilyhammer” and “Derek.”
Not to beat a dead horse, but surprise, surprise….I did a Google search this morning to see how easy it would be to find download links for “Kyss Mig,” a recently released Swedish indie film. I used Google to search for “download kyss mig” from this past month, and….oops, so much for Google’s new search algorithm that’s supposed to penalize (reported) pirate sites. Why am I not surprised that The Pirate Bay result tops the list?
Here’s a screen shot of my results. It’s not surprising that the Netflix series is suffering the same fate that other content creators have long endured.
I went on to point out the interconnections between these illicit search results and the money trail. After all, as the Digital Citizens Alliance’s newly released report on piracy profit proves, it’s all about the money.
Not only did I find the full film streaming (for free) online (I checked and actually viewed the first ten minutes) but right beside was a Netflix advertisement. When I checked the source of the ad I found it led me back to “doubleclick.net” a Google-owned company. Perhaps this is how Google expects users to find legit copies of the film? After all, Kyss Mig does stream on Netflix….kind of a roundabout way to find the film when I can watch it right here, right now for free! Of course Google makes money from the ad either way (as does the pirate website) so what do they care? Hmmm, perhaps the Google ad placement has something to do with why this pirate site is comes up first in search results? Not to don my tin foil hat but….
A full (free) stream of the indie film “Kyss Mig” was easy to find thanks to Google search results–result that generated ad revenue for Google and website operators. BTW, movie is now offline since I reported it to the distributor. I guess I’m going to have to be a good girl and use the search terms “buy Kiss Mig.” Only then am I given results that lead me to legit options.
BTW, I notified the distributor that the film was available via this pirate site so as of Monday, December 10th, this illegal stream is history. Too bad I can’t say the same for the website itself.
So, while today’s story about “House of Cards” search results leading to pirate websites may be a surprise to some, unfortunately for most of us, it’s old news. After all, if you’re looking for a sign post to find pirated content online, Google makes it easy.
1. The websites researched make a projected $227 million in annual ad revenue. The 30 largest sites that profit exclusively from advertising averaged $4.4 million annually, with the most heavily trafficked BitTorrent and P2P portal sites topped $6 million annually.
2. Even small sites studied could make more than $100,000 a year in advertising revenue.
3. Because they rely entirely on the works of others for their “product,” their profit margins range from 80% to 94%, underscoring that crime can pay when you steal other people’s content.
4. Nearly 30% of large sites carried premium brand ads.
5. Nearly 40% of large sites carried legitimate secondary ads.
Tom Galvin, Executive Director of the Digital Citizens Alliance, explained the significance of the study results this way:
This report confirms that content theft isn’t a cottage industry—it’s big business. Plain and simple, ad-supported rip-off sites are exploiting the Internet and advertising community to get rich. The result is a damage to brand value for advertisers and serious harm to people who work in the creative industries. We hope this report pushes the online advertising community to take additional steps to protect brand value and stop ads from appearing on content theft sites that are undermining the vibrancy and safety of the digital marketplace.
The issue of ad supported piracy is a topic I’ve been researching and writing about about since the spring of 2010 when my indie film was released (and pirated). When I began searching for, and removing, pirated copies of our film online I quickly discovered that piracy was big business and driven by profits and created a blog (www.popuppirates.com) to document how piracy’s business model worked and the significant role advertising revenue played in incentivizing online piracy and sustaining it. Given today’s news I thought I’d take a look back and include an excerpt from a post I wrote four years ago that unfortunately–as the DCA study results show–could just as easily have been written today.
I created this video, “Follow the Money: Who Profits from Piracy?” to provide an overview on piracy’s link to advertising profits.
Online piracy isn’t about altruism, it’s about income. Today’s technology allows web pirates to steal content and monetize that content with a click of a mouse. Meanwhile, “legit” companies encourage and facilitate this theft while also profiting from it (ad service providers, advertisers and payment processors). The time has come for reasonable measures to be taken to discourage this theft. Content creators and consumers will benefit. Only the pirates and those who profit from their theft will lose.
In the process of scouring the web for the thousands of illegal download links and online streams of our film (more than 55,000 documented to date) I quickly discovered that various, theoretically legit companies, seemed to be (indirectly) generating income through the placement advertising on websites featuring streams and download links to pirated films. In addition, and most troubling, is that fact these ads generate income for operators of these pirate websites and add to generous profit totals for ad providers($2.80 billion for 4th quarter 2011 for Google’s AdSense – all sources). More on Google’s financials can be found here.
The nature of the advertising varies, but I was dismayed to discover that the ads were not limited to cheesy online gaming sites, etc. Rather, they include a number of legit companies like Sony, Radio Shack, Pixar, Porsche, ATT, Chase, Network Solutions, Auto-Zone and even Netflix(particularly ironic since they carry our film). The list of advertisers goes on and on. It’s the same situation, if not worse for other films. Ads are ubiquitous on pirated content throughout the web…
…This dubious connection to piracy is not limited to the companies whose ads appear on various pirate sites. Even more problematic are those companies, like Google (via AdSense), that generate their own robust revenue stream by providing the interface for the pirate-site pop-up ads themselves. In this equation everyone, except the actual content creators, make money from this theft.
One could argue that the companies that provide the ads, as well as the companies being advertised, have no control over where the ads appear and thus bear no responsibility–hear no evil, see no evil? Is claiming ignorance any way to run an ad campaign or a business? It seems that the answer is “yes”–as long as there’s profit involved.
From my perspective, their implicit involvement, intentional or not, should be revealed. Every time one of these illegal files is added to a website where these ads appear, Google and et al earn money at the expense of the content creators. This just isn’t right.
In the scheme of things, our successful (highly-pirated) little indie film is a mere drop in the piracy bucket–we are one among thousands. However, collectively, this tainted revenue is significant, as is the harm done to those whose work is being stolen with the mere click of a mouse.
Certainly companies with the technological capacity (and robust balance sheets) of Google can afford to turn some attention to this issue. If these companies can offer ad placement based on cached cookies and metadata, why can’t they vet the websites where their ads appear? It ain’t rocket science folks. I daresay that if these websites were offering porn and not pirated films, these ads would NOT be popping-up, at least not for long.
Now, four years later, has anything really changed when it comes to ad sponsored piracy? As today’s study results make clear, the answer seems to be “not really.”
The Digital Citizens Alliance report also makes this important point:
The research does not represent the losses incurred by the victims of content theft – writers, producers, musicians, actors, and the thousands of others who work in creative industries. Content thieves are responsible for illicitly distributing millions of copies of valuable works, costing their owners billions of dollars in rightful revenues. The fact that the value of the content they illegally distribute is far greater than the advertising profits they reap is of no concern to the thieves, because they pay nothing for the content that drives their business.
Perhaps this study will serve as the tipping point that will motivate advertisers (and ad networks) assert more control over where their ads appear and into whose pockets their money goes. At least one can hope, but given the industry’s tendency to provide lip-service rather than real action to sever ties with online pirate sites, I remain skeptical. After all, if the fact that ads for popular brands are prominently displayed alongside piracy site sex ads won’t move them into action, I’m not sure what will.
Dove’s “self-esteem” ad
Kraft
Aveeno
Duracell
Best Foods ad
Natural Choice
Windows
Bounty
Vicks
Luvs Diapers
Duracell Batteries
Crest Pro Health
Swiffer
Best Buy
Febreze
Greenies
Lowe’s
Moen
Tylenol
Alaska Airlines
L.L. Bean
Nokia
Motorola (a Google Company)
General Electric
Microsoft Windows Phone
Castro Motor Oil
Target
Hot Pockets
* Full disclosure, I am a member of the Digital Citizens Alliance Advisory Board .
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
