Excellent news out of the European Union, as contentious copyright reform directive (Copyright in the Digital Single Market) was recently approved by the European Council. While the agreement still has a couple more hurdles before it can become law, momentum seems to be moving in the right direction.
Agreement reached on #copyright! Europeans will finally have modern copyright rules fit for digital age with real benefits for everyone: guaranteed rights for users, fair remuneration for creators, clarity of rules for platforms. pic.twitter.com/dwQGsAlJvK— Andrus Ansip (@Ansip_EU) February 13, 2019
Familiar tropes offered by Google and other tech interests have, of course, been legion. However, since Google’s bad behavior was a catalyst for these reforms, fortunately these complaints have not prevented the directive from moving forward.
Artists rights advocates in the United States have long been calling for reform to our own Digital Millennium Copyright Act (DMCA), a law enacted more than two decades ago that is woefully out of date. The new EU proposal will address some of these same concerns regarding notice and takedown.
When unlicensed content is uploaded, platforms have to act “expeditiously” to remove it and make “best efforts” to prevent its future upload. That means YouTube will be required to implement “notice and staydown,” as opposed to the current regime of “notice and takedown” — or “Whac-A-Mole,” as some call it.
The majority of rightsholders see notice-and-staydown legislation, and the placing of primary liability on user-uploaded content (UUC) services, as a significant win for the music industry. However, some fear that that ambiguities in the final text could be undermined or loosely interpreted when the directive is transposed into law by EU member states, indirectly creating new loopholes and safe harbors for platforms to exploit.
As with the ill-fated Stop Online Piracy Act, opposition from tech astro-tuft entities has been loud. The Google-funded EFF warns that blowback to the reforms, particularly in Germany, will be fierce.
Rhetoric aside, what will this new legislation actually do? It will stop forcing content creators to be the only entity responsible for safeguarding their creations from content theft.
Simply put, the Directive on Copyright places more responsibility on websites such as YouTube, Facebook and Twitter to make sure that copyrighted material isn’t being illegally shared on their platforms. Until now, the onus has mostly been on the copyright holders – usually the companies that produce audio, video or written content – to enforce copyright protection but under the new law this responsibility will shift onto the major platforms themselves.
Such reform is long overdue. As with digital privacy issues, it seems that the United States is once again lagging. Perhaps the lobbyists in Brussels haven’t (yet) bought the same influence as they do in Washington.
According to EU Vice-President for the Digital Single Market Andrus Ansip:
“To finally have modern copyright rules for the whole of EU is a major achievement that was long overdue. The negotiations were difficult, but what counts in the end is that we have a fair and balanced result that is fit for a digital Europe: the freedoms and rights enjoyed by internet users today will be enhanced, our creators will be better remunerated for their work, and the internet economy will have clearer rules for operating and thriving.”
Two reports show that 2018 did not bring the progress many hoped to see
Hollywood is known for making sequels, but unfortunately there’s one refrain that grows increasingly stale with each passing year– the narrative that women continue to remain woefully underrepresented behind-the-scenes according to two studies just released. Both San Diego State’s Center for the Study of Women in Television and Film annual Celluloid Ceiling report and USC Annenberg’s Inclusion in the Director’s Chairprovide evidence of this discouraging tale.
Percentages of Top 250 Films with No Women in Roles Considered
92% had no women directors 73% had no women writers 42% had no women exec. producers 27% had no women producers 74% had no women editors 96% had no women cinematographers One quarter or 25% of films had no or 1 woman in the above roles
womenintvfilm.sdsu.edu
Rather than making progress, it appears that opportunities for women to contribute as directors, writers, producers, executive producers, editors, and cinematographers actually diminished in 2018.
In 2018, women comprised 20% of all directors, writers, producers, executive producers, editors, and cinematographers working on the top 250 domestic grossing films. This represents an increase of 2 percentage points from 18% in 2017. Last year, only 1% of films employed 10 or more women in the above roles. In contrast, 74% of films employed 10 or more men. Women accounted for 8% of directors, down 3 percentage points from 11% in 2017. This is 1 percentage point below the 9% achieved in 1998. By role, women comprised 16% of writers, 21% of executive producers, 26% of producers, 21% of editors, and 4% of cinematographers. The study also found that women accounted for 6% of composers, 6% of sound designers, and 10% of supervising sound editors.
Variety noted that Dr. Martha Lauzen, author of The Celluloid Ceiling asserts that real change will not happen unless all industry stakeholders make it a priority:
The study provides no evidence that the mainstream film industry has experienced the profound positive shift predicted by so many industry observers over the last year. This radical underrepresentation is unlikely to be remedied by the voluntary efforts of a few individuals or a single studio…Without a large-scale effort mounted by the major players – the studios, talent agencies, guilds, and associations – we are unlikely to see meaningful change. The distance from 8% to some semblance of parity is simply too vast. What is needed is a will to change, ownership of the issue – meaning the effort originates with the major players, transparency, and the setting of concrete goals. Will, ownership, transparency, and goals are the keys to moving forward.
Despite the disappointing numbers for women overall, there were some positives, particularly for black directors. However, of that group, only one was a woman, Ava DuVernay who helmed A Wrinkle in Time.
The breakdown in ages is also interesting. It seems young women and older women need not apply for directing gigs and while indie films offer opportunities, success there doesn’t seem to carry over into the realm of big budget Hollywood fare.
The disregard of female filmmakers is also reflected in upcoming awards offerings. Neither the Golden Globes nor the Producers Guild nominated films directed by women.
There were certainly female directors to choose from this year. Can You Ever Forgive Me?, which earned Richard E. Grant a Best Supporting Actor nomination, was directed by Marielle Heller. Nicole Kidman earned a nomination for Destroyer (as Best Actress), but director Karyn Kusama did not. Mary Queen of Scots, which stars Saoirse Ronan and Margot Robbie as warring 16th-century English royals, was directed by Josie Rourke with a “keenly feminist sensibility” …but was shut out of the nominations. Debra Granik, who helped launch Jennifer Lawrence into fame with her 2010 film Winter’s Bone, returned this year with Leave No Trace, but did not earn a nomination. Chloé Zhao’s The Rider recently won Best Feature at this year’s Gotham Awards, but was not nominated for any Globes.
It’s discouraging to see women directors did better in 1998 than in 2018.
Looking northward, perhaps the U.S. film industry could learn a thing or two from our Canadian neighbors. Telefilm Canada has made it a priority to achieve gender parity in its offerings by 2020.
source: Telefilm Canada
While Telefilm Canada still has work to do, particularly with bigger budget productions, its obvious success demonstrates that progress is possible.
A year after setting a goal for gender parity in Canadian film by 2020, Telefilm is closer to the finish line than expected. Among the film projects the federal funding agency has in the pipeline for this fiscal year, 44 per cent have a female director attached, 46 per cent feature a female screenwriter and 51 per cent have a female producer. The figure is a heartening leap from the 2013-2014 fiscal year when only 17 per cent of Canadian film projects had women directors. That number plummeted to four per cent for films budgeted over $1 million.
The DMCA (Digital Millennium Copyright Act) was signed into law nearly 20 years ago….yet here we are today, same old tired law but with an online ecosystem vastly different from what existed 2 decades ago. Despite this, no one in Congress seems in any great hurry to update law and as they drag their feet, creative artists continue to pay the price.
For creators trying to safeguard their work from online theft this leaves them with only one option, the DMCA takedown notice. This antiquated process works ok in very limited instances, but for most filmmakers (and musicians) dealing with a large volume of infringements, it’s like using an umbrella to stay dry beneath Niagara Falls. Not only is it inadequate, but the truth is– it’s a joke. Why? Because the DMCA’s safe harbor provision provides loopholes allowing many of tech’s piracy enablers–U.S. based companies play a significant role in allowing pirates entrepreneurs to pimp their stolen content across the globe–to sidestep any legal liability and happily accept the tainted profits filling their cash drawers.
It’s not news that pirate websites are hosted offshore, hidden behind multiple layers of purposeful obfuscation. Most don’t offer a way to remove content via the DMCA and offer this disclaimer: “This site does not store any files on its server. All contents are provided by non-affiliated third parties.” Of course these sites make it nearly impossible to uncover the actual identity of these “third parties” while offering up streams (and earning ad revenue) off hundreds of pirated movies.
In fact, to find out the exact domain or IP where pirate servers are located requires some detective work, parsing through source code using something like Firebug or developer tools on Chrome. Even if one figures out the source, removing the pirated content is quite another matter since these shadowy sites also ignore the DMCA. Located offshore, behind privacy curtains, they stay outside the reach of U.S. law.
They may be outside the reach of U.S. law, but they seem to have no problem depending on U.S. companies for parts of their infrastructure. Peel back more layers of the onion and you’ll find that in fact, there are U.S. based companies that provide a crucial services to efficiently deliver the pirated movies to viewers around the world. One of the major players in this ecosystem is Cloudflare, a CDN (content delivery network) that currently handles about 10% of internet requests.
ILLEGAL PIRACY SITES DO THEIR BEST TO HIDE WHILE CLOUDFLARE HELPS KEEP THEM IN BUSINESS
What does Cloudflare do exactly? According to its website: “Here at Cloudflare, we make the Internet work the way it should.” Well, maybe….but just as it assists legit sites (like voxindie.org) in operating smoothly, it also aids and abets (and profits) from criminal sites that market in stolen goods, like pirated films.
Just in the last couple weeks, I’ve run across many pirate sites and streaming servers that depend on Cloudflare to deliver their pirated movies to visitors. For the purposes of this piece, I’ll focus on a couple examples…but it’s basically the same scenario with site after site I researched.
Let’s take a pirate site called Go Movies (I’ll refrain from providing the exact domain for obvious reasons). It features hundreds of pirated movies and TV shows including titles still in theaters like Blade Runner
and Mother. Though the site has a DMCA button that links to verbiage, it’s a sham. Nowhere does it actually give you a way to contact them to send a takedown notice. A WHOIS search reveals the domain owners hide behind privacy protection service based in Moscow. It also lists Cloudflare as providing its name servers.
The scenario is the same when it comes to the actual source of the streaming file. Using web developer tools, I determined the pirated movie I was investigating was hosted on lemonstream.me. Lemonstream.me doesn’t really have a website. If you try to go to there you’ll just get a 403 Forbidden error message, but that’s where the files originated. There’s a myriad of encrypted code sent from the pirate website (Go Movies) to call up the specific file (in pieces), but a WHOIS search for the domain, it reveals site owners hiding behind another Moscow-based privacy service. What do these sites have in common? The fact that U.S. based Cloudflare provides its name servers for both.
Cloudfare profits off piracy websites
Since these offshore pirate websites ignore the DMCA, will sending a DMCA notice to Cloudflare get you anywhere in a quest to remove the pirated movies? Well you can try, but in reality it’s an utter waste of time.
In a case involving another pirate site, vidzi.tv I tried getting 40 links removed. Vidzi.tv repeatedly ignored my DMCA email requests so I tried sending one to Cloudflare (its namerserver provider). When nothing came of the email, I tried using Cloudflare’s clunky web form (that limits you to 10 URLs at a time). I only received an acknowledgement that my request was received. It’s a worthless pursuit. Nothing changes. The pirated movie remains online…all 40 links, and Cloudshare still profits from the business of thieves.
CLOUDFLARE MADE HEADLINES BY TERMINATING NAZI WEBSITE’S SERVICES
Cloudflare recently made headlines after the company reluctantly terminated the account for the neo-Nazi website The Daily Stormer. The company explained their decision this way:
Earlier today, Cloudflare terminated the account of the Daily Stormer. We’ve stopped proxying their traffic and stopped answering DNS requests for their sites. We’ve taken measures to ensure that they cannot sign up for Cloudflare’s services ever again.
Our terms of service reserve the right for us to terminate users of our network at our sole discretion. The tipping point for us making this decision was that the team behind Daily Stormer made the claim that we were secretly supporters of their ideology.
Of course for Cloudflare, customers that offer up infringing content illegally are not subject to the same scrutiny. Included in its statement as to why it removed The Daily Stormer account was this nugget absolving the company of responsibility when its customers break laws:
…we’ve always said that our policy is to follow the guidance of the law in the jurisdictions in which we operate. Law enforcement, legislators, and courts have the political legitimacy and predictability to make decisions on what content should be restricted. Companies should not.
As tech comes under overdue scrutiny, perhaps its time to again ask the question as to why it’s OK for companies like Cloudflare to openly do business with sites engaging in illegal activity. I’m not the first one to raise this issue. The company was on the losing end of a recent court decision when a district court ruled that the companymust honor a permanent injunction awarded the RIAA against notorious pirate site MP3Skull and its CEO will also be deposed in another piracy related case so there’s hope that the company may be more responsive to DMCA requests.
REVISE THE DMCA TO CLARIFY THE ROLE AND LIABILITY OF INTERMEDIARIES THAT DO BUSINESS WITH PIRACY SITES THAT WON’T COMPLY WITH THE DMCA
Going forward, why leave it up to interpretation? Why not clarify the responsibility of intermediary companies in the DMCA notice and takedown process.
Why not update the DMCA to require that companies like Cloudflare that provide intermediary services be required to either comply with takedown notices (by cutting off services) or only do business with websites that do? After all, Cloudflare is a U.S. based business. Why shouldn’t companies that use its internet services be required to comply with the DMCA? Here are some Cloudflare’s customers, pirate sites that don’t comply with DMCA requests.
While predictable piracy apologists spout tired talking points about slippery slopes, the truth is that this isn’t about censorship or abuse…it’s about creators trying to use the DMCA to legally remove pirated copies of their work from pirate sites. Why should U.S. companies do business with piracy websites that flout U.S. law? The only folks being abused here are the creators whose work ripped off so that others can profit.
When people talk about effective ways to mitigate the impact of online piracy, YouTube’s Content ID is often used as an example of what works. Unfortunately, despite its role as poster boy for anti-piracy tech, in reality it falls flat as a gatekeeper against online piracy.
Aside from a labyrinth-like user interface that seems likely to have been designed–not to help– but to discourage rights holders from using Content ID, the actual fingerprinting technology behind it can be easily fooled.
YouTube introduced the Content ID system in 2007. At the time, the company was facing pressure from a Viacom lawsuit, among others. According to YouTube, it’s pretty straightforward:
Videos uploaded to YouTube are scanned against a database of files that have been submitted to us by content owners. Copyright owners get to decide what happens when content in a video on YouTube matches a work they own. When this happens, the video gets a Content ID claim.
Looking to make money off work they don’t own, clever YouTube users have discovered ways to fool the technology so their illegal uploads of copyrighted movies and music don’t get flagged, blocked or removed.
I began noticing this phenomenon more lately as I’ve begun to find full, infringing copies of films uploaded that matched content owned by a film distributor I work for. This seems to be happening more often and I was curious as to how these pirated copies had avoided detected by Content ID. When I looked closely I saw that subtle manipulations in brightness had taken place along with slight adjustments to frame size and sometimes the crop of the frame.
When I started poking around YouTube to find other examples of these uploads they were easy to find. It only took me a few minutes to find dozens of copies of a variety of full copyrighted movies, old and new. One title I came across was the movie, Everest. Below are screen captures from two different full uploads of the movie I found streaming on YouTube.
Two full copies of the movie Everest uploaded to YouTube.
In this case the uploader had used several techniques to avoid detection including reversing the frame (note the backwards title), darkening the lower part of the frame and cropping it. Of course, having recently viewed the film on HBO, watching a lousy copy like this on YouTube wouldn’t be my choice, but apparently others didn’t mind. Uploaded only a month ago, the movie had already racked up more than 16,000 views.
Pirate uploads make money for uploader and for YouTube
Why go to all this trouble to manipulate a movie for upload to YouTube? Well, it’s the age-old pirate motivator–money. This uploader, who goes by the name Kenneth Lamb, has claimed ownership of this content and monetized it with ads. He makes money. YouTube makes money. The movie’s actual production companies make nothing.
This YouTube user claims to own rights to Everest movie worldwide and makes money off ads
In an ironic twist, several of the ads that appeared when I was examining (and reloading) this pirated copy of the film were for films including DreamWork’s upcoming movie Trolls and Warner Brother’s Jason Bourne.It’s more than a tad ironic that Hollywood studios are (inadvertently) putting cash in YouTube’s hands via advertising on a pirated copy for one of its own productions.
Ultimate irony that ads for upcoming movie releases are featured on pirated copies of Hollywood films
I don’t deal with music or audio files on YouTube but there are similar manipulations happening there as well where uploaders resample, add noise, etc. to fool the Content ID system into ignoring the file.
What can YouTube do to fix this growing problem? Per usual, the list is long and varied, but begins with asking Google engineers to design better fingerprinting tech. There are other companies that offer digital fingerprinting technology seem to do a better job catching these circumventions. If I can easily uncover an upload is a copy of the movie Everest, why can’t Content ID? You can’t tell me that with all its financial (and technological) resources YouTube doesn’t means to upgrade its system?
Technological solutions exist. It’s just a matter of priorities. Stopping piracy isn’t a priority for YouTube.
Aside from updating its fingerprinting capabilities, YouTube could also improve the Content ID system through providing a better interface, more transparency, better compensation for artists, etc. Of course again that would mean lower profits for Google/YouTube so such straightforward fixes are unlikely. Meanwhile, YouTube makes great hay out of its concerns for poor, maligned users who may have received an erroneous DMCA notice. The company is willing to spend money to defend a few select uploaders but won’t spend resources to fix its broken Content ID system?
Operating only a marginal (not great) Content ID system is in YouTube’s best interests
Of course the powers that be at YouTube probably prefer to keep Content ID just the way it is–creaking along, occupying a neutral zone positioned between accolades and scorn. It’s a safe position, one that gives YouTube officials cover when they use disingenuous excuses about their anti-piracy practices to critics, while avoiding any real (legal or financial) consequences.
Content ID does the job just well enough….but that doesn’t mean it does a good job. It could serve as a true model for technological safeguards against piracy, but as now, it’s merely a slight bump in the road for those determined to steal and monetize the works of others. Meanwhile, YouTube continues to pocket advertising cash, make its stockholders happy while leaving filmmakers and musicians on the outside, looking in.
GOOGLE LOOKS THE OTHER WAY AS PIRACY REPEAT OFFENDERS CONTINUE TO FLOURISH ON GOOGLE DRIVE
I wrote a piece recently about Google’s failure to punish “repeat offenders” on its Google Drive platform so I thought I’d give you another update. Despite having sent DMCA notices for 64 pirated titles (and having them all approved for takedown) the Google Drive account remains active and online, illegally sharing hundreds of pirated films. Note that I sent the DMCA takedown requests over several weeks to repeatedly report the same account holder.
Respect copyright laws. Do not share copyrighted content without authorization or provide links to sites where your readers can obtain unauthorized downloads of copyrighted content. It is our policy to respond to clear notices of alleged copyright infringement. Repeated infringement of intellectual property rights, including copyright, will result in account termination. [emphasis added] If you see a violation of Google’s copyright policies, report copyright infringement.
Yet in reality, the company does nothing. And, to make matters worse, while Google refuses to enforce its own policy, the account holder basically says F-you and replaces 57 of those pirated movies that were removed with new links to download via Google Drive and offline sites (mostly Openload.co).
The Google Drive account holder even created a convenient, separate folder (under zipped movies) where visitors can easily download the previously removed pirated films.
If Google had closed this Google Drive account it would have also closed the door on access to hundreds more pirated films. Given that the Google folks clearly have knowledge of this ongoing infringement–after all, its “team” reviewed the files for days before taking them down– why does it continue to get a free pass from liability via “safe harbor?” According to a Fenwick & West publication, “Your Safe Harbor Questions and Answers,” an entity must not only have a policy, but “reasonably implement” it:
What is a “repeat infringer,” and what must I do about repeat infringers? What should my “repeat infringer policy” look like? The DMCA is reasonably clear about the service provider’s obligation concerning users who repeatedly infringe copyrights: to be eligible for the safe harbor, the service provider must “adopt[] and reasonably implement[], and inform[] subscribers and account holders of, … [its] policy that provides for the termination in appropriate circumstances of subscribers and account holders … who are repeat infringers.” (§ 512(i)(1)(A), emphasis added.)
Breaking that down into smaller bites, you must: Adopt a written repeat infringer policy; Notify users of that policy (posting it on your website, as part of your terms of service or “Copyright Policy,” is appropriate); and Reasonably implement the policy. The policy can be complicated, but it can be as simple as this: “It is [OSP’s] policy, in appropriate circumstances, to terminate the accounts of members [or users] who are repeat infringers or are repeatedly charged with infringement.” This is all that is usually required.
Of course I’m not an attorney, but anyone with common sense has to ask how does Google continue to get away with this? The answer appears to be because Google does what Google wants and there’s no entity to stop them. As the current administration has shown, sometimes there seem to be few repercussions in ignoring the law.
WHAT ARE CREATORS SUPPOSED TO DO IN THE FACE OF THIS BAD BEHAVIOR BY GOOGLE?
Lately tech’s shield of omnipotence in the U.S. has (finally) begun to crack, particularly in light of Facebook’s role in last fall’s election sham and the rampant dissemination of fake news across its pages. Meanwhile Google is under fire and financial pressure in Europe over its ongoing unabashed monopolistic practices . However, given the web behemoth is busy spinning its own false narratives and lavishing millions on our representatives in Washington, chances the company will be forced to change its monopolistic behavior in the U.S.–any time soon–remain dim. As Jonathan Taplin noted his recent piece in the The Guardian:
The largest monopoly in America, Google controls five of the top six billion-user, universal web platforms – search, video, mobile, maps and browser – and leads in 13 of the top 14 commercial web functions, according to Scott Cleland at Precursor Consulting.
As the controversial Trump-supporting PayPal billionaire Peter Thiel points out, companies like Google don’t like to advertise this fact. They “lie to protect themselves”, Thiel says. “They know that bragging about their great monopoly invites being audited, scrutinized and attacked. Since they very much want their monopoly profits to continue unmolested, they tend to do whatever they can to conceal their monopoly – usually by exaggerating the power of their (nonexistent) competition.”
All we can do is to continue to shine a light on Google’s bad practices and call out its mendacity at every opportunity….again and again and again.
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
