by Ellen Seidler | Copyright, Film, Piracy
Piracy erodes audience options-forces studios to make fewer films
The movie industry makes record profits so piracy doesn’t matter after all.…that’s the gist of many headlines following MPAA Chief Chris Dodd’s recent speech at Cinemacon’s Las Vegas convention last week where he said, “the state of our industry has never been stronger.” We’ve seen this phenomenon before. Positive news about record global box office revenue is twisted into justification for the pro-piracy mantra that piracy doesn’t hurt filmmakers.
These rosy 2015 box office figures were first announced in January. Then, as with now, piracy apologists pounced on the message as proof piracy doesn’t negatively impact the movie industry. Even those writing about it took note of the repetitive nature of their particular meme as Techdirt’s Mike Masnick noted in a January post:
We seem to end up posting stories like this every year, but it just keeps on happening. Hollywood whines and whines and whines about how piracy is killing the movie business… and then announces yet another record year at the box office.
The idea that record profits prove piracy doesn’t matter both simplistic and naive. Sure, Hollywood (and studios throughout the world) are making movies….big movies, blockbuster movies, superhero movies, sequels galore…remakes of movies that have already been made. Such fare performs well at the box office. However, if one drills deeper, beyond the totals, it’s easy to find proof that online piracy is corroding filmmaking in a way that undermines both consumers and creators.
Piracy diminishes both the number–and diversity– of films being made, both inside and outside Hollywood.
I’ve written about this issue before.
While (most) Hollywood studios did make a lot of money in 2015, the truth conveniently omitted from the post in Torrent Freak is that they did so by producing fewer films. After all, the studios are in the business of making money for their shareholders and to that end–in this age of unchecked piracy–fewer chances can be taken on movies that won’t draw huge crowds. The Hollywood films that are being made are those that are sure bets to overcome digital theft and still make money. In 2015, the top 5 films made 20% of the revenue.
Evidence of the less is more trend is everywhere. Earlier this month it was reported that Warner Brothers would produce fewer films, focusing instead on “tentpole” productions. According to a recent story in The Hollywood Reporter:
Warners long has been known for its commitment to filmmaker- and star-driven projects, but sources see signs of a change in culture, though the studio denies there is one. Several executives and agents say Warners seems to be greenlighting fewer homegrown movies as it focuses on silos that echo those that generate so many hits for Disney (Marvel, Lucasfilm, Pixar and Disney Animation). In Warners’ case, the silos are DC Comics, Lego and a planned franchise spun off from the Harry Potter series.
In March, Variety reported on a report “Another Memo to Hollywood. Prediction? Pain.” Written Creutz, an analyst for research firm Cowen and Company, Cruetz told Variety’s James Rainey that Hollywood’s future looked “increasingly dire” due to shrinking audiences.
Creutz says the industry’s woes are demonstrated by the fifth consecutive year in which domestic box office demand “has taken a step function lower.” The fight for remaining audiences has become increasingly fierce as “the market appears to be condensing into fewer, but bigger, hits,” as studios crank out more films in the $100 million-plus budget range…
…Creutz offers a welter of stats to back up his contraction argument: “Last year, over 25% of total box office came from just five films, well above the average of roughly 16% from 2001-14 and the prior peak of 19% in 2012.” He called this a “consistent phenomenon.”
Consumers should be worried that, over the last decade, the number of films Hollywood’s produced has dropped precipitously. What this means is fewer choices for audiences. Films that tell stories about characters (people) who are neither CGI super heroes nor animated characters are quickly becoming an endangered species.
David Gritten examined Hollywood’s move toward producing fewer films for a piece in The Telegraph:
BUT EVEN SUPPOSING THE STUDIOS ARE RIGHT: THAT FEWER FILMS ARE BETTER, BIGGER FILMS MAKE MORE SENSE, THAT COMMERCIALLY TESTED AND TRIED MATERIAL IS THE PRUDENT WAY TO GO, THAT TEENAGERS WILL ALWAYS BE THE MOST PLIABLE AUDIENCES – WHERE’S THE VICTORY IN THAT?
EVEN IF CURRENT STUDIO THINKING IS PROVED RIGHT AND IN THE LONG TERM, BLOCKBUSTERS ENABLE THEM TO RAKE IN REVENUE AND LOOK WALL STREET SQUARELY IN THE EYE, CONSIDER WHAT’S BEEN LOST. HOLLYWOOD WILL BE CHURNING OUT A PREDICTABLE SERIES OF DULL, MONOTONOUS, SPECIAL-EFFECTS HEAVY, DRAMATICALLY INCOHERENT MOVIES FOR A RELATIVELY SMALL SEGMENT OF THE CINEMA-GOING AUDIENCE. THE STUDIOS MAY SURVIVE: BUT WHAT A DIMINISHED INDUSTRY THEY’LL BE PRESIDING OVER.
Online piracy’s corrosive impact on content creation not limited to theatrical releases
Of course, piracy is but one factor in a complex potpourri of influences provoking shifts in the movie business. As distribution models continue to evolve in this digital age the rise of streaming services like Netflix, Amazon, et al has certainly been felt. Yet, even as viewing choices shift away from theaters to streaming outlets, these producers are not immune from piracy’s damage effect. Streaming’s top dog Netflix has teamed with digital protection firm Vobile to safeguard its digital content (and subscriber base) from online thieves. Whether productions are destined for theatrical release or for viewing in the comfort of ones own home, content producers still need to generate revenue in order to thrive.
Piracy’s apologists who chortle that Hollywood should adopt new business practices as a response to piracy are getting their wish. Under duress Hollywood is adapting, but at what cost to us–the viewing public? Evolving to to meet the 21st century digital world is inevitable, but should it be illegal theft that dictates how such change will manifest itself?
With this type of evolution, in the end, we will be the losers. It’s difficult to appreciate how much we’re truly missing if it’s never made…
by Ellen Seidler | Ad Sponsored Piracy, Copyright, Film, Piracy
Headlines say one thing, Google’s actions say another
Despite headlines, it’s still business as usual for Google — Piracy sites full of malware and deceptive ads remain at top in Google search results
Last fall Google introduced a series of steps to strengthen its Safe Browsing initiative announcing it would include protection against, “social engineering attacks – deceptive tactics that try to trick you into doing something dangerous, like installing unwanted software or revealing your personal information (for example, passwords, phone numbers, or credit cards).
In February Google went further and announced it would add protection against what it called “deceptive embedded content, like social engineering ads” to its “Safe Browsing” strategy. According to Google, such sites would:
- Pretend to act, or look and feel, like a trusted entity — like your own device or browser, or the website itself.
- Try to trick you into doing something you’d only do for a trusted entity — like sharing a password or calling tech support.
If a user attempted to visit such a site, Google said this warning screen would appear.
Of course to benefit from “safe search” one has to set Chrome preferences to “protect you and your devices from dangerous sites.”
Is re-posting 2 month old news Google’s technique for generating positive headlines?
Today, the very same post re-posted on Google’s Official Webmaster Central Blog. Why repost an old post? Could it be Google’s way of generating positive headlines and muddying the waters as to its real business practices? Despite the fact today’s post was identical to the February announcement, a new round of headlines splashed across multiple websites making it seem like the “news” was new news….Google’s PR folks must be patting themselves on the back.
Google explains Safe Browsing this way:
Google’s Safe Browsing technology examines billions of URLs per day looking for unsafe websites…
When we detect unsafe sites, we show warnings on Google Search and in web browsers.
These unsafe sites fall into two categories, both of which threaten users’ privacy and security:
- Malware sites contain code to install malicious software onto users’ computers. Hackers can use this software to capture and transmit users’ private or sensitive information.
- Phishing sites pretend to be legitimate while trying to trick users into typing in their username and password or sharing other private information. Common examples are web pages that impersonate legitimate bank websites or online stores.
Google’s “safe search” warnings are nowhere to be found on piracy websites I checked as part of a little test I conducted today using Google Chrome.
Using Google search I looked for the recently released film ‘Carol’ using the search terms, “watch carol online.”
What I found was the same old, same old. In typical Google fashion, three out of the top four results lead to pirate websites that offer up free, full pirated copies of the movie. In addition–contrary to Google’s new “safe browsing” policy–all two of the pirate sites featured embedded and pop-up featuring the very type of deceptive content Google claimed it would slap with warnings. Despite this, nary a Google “warning” to be found on any of these sites.
3 out of 4 top results are for piracy sites that feature malware or Google advertising
Google warns against visiting scam sites, but continues to send consumers there via its search engine?
What’s even more puzzling is that I Google’s “safe search” initiative is also more talk than action when sites (flagged warnings about “deceptive content”) that are found via its own search engine.
Below is an example from a SolarMovie site which offers up links to pirated movies galore. Amid the pirated movies were sporadic warnings from Google. If Google is serious about protecting users from malware and phishing scams, why not simply remove these flagged sites from Google search?
Of course Google hypocrisy is nothing new. Google flacks can generate all the fresh headlines they want by reposting old news, but in the end, the story remains the same. The team from Mountain View talk a good game, but in reality, nothing changes. Google search continues to point the way to pirated content, malware or scams be damned…maybe the safest way to browse is to avoid Google entirely?
by Ellen Seidler | Copyright, Google, Piracy
Google-funded report generates desired headlines and conveniently downplays the role of DMCA counter-notices–ignoring fact the system is weighted against rights holders
A new report on the DMCA notice and takedown system, Notice and Takedown in Everyday Practice, was released yesterday. Co-authored by researchers at Berkeley Law and Columbia University (collaborators for The Takedown Project), the release is clearly timed to generate buzz to coincide with the April 1st deadline for comments to the U.S. Copyright Office on the state of the 512 statute.
The study is said to offer, “a rare, in-depth, empirical look at ways online copyright disputes are handled between Internet companies, such as Google and YouTube, and content creators, such as movie, music, and publishing companies.” Hmmm, color me a tad suspicious of any piracy-related report funded by Google*.
You can read the full 160 page document here, and despite the fact Google is a main funder, I was hopeful that the report would provide an honest look at the current sad state of the DMCA notice and takedown system. What initially encouraged me was this paragraph in the Berkeley Law announcement:
The co-authors reveal how online copyright issues have led to problematic practices that threaten free expression, but they also highlight methods that effectively protect both content creators and providers.
However, my hopes for a fair examination of the issues were (mostly) dashed by this tidbit:
Although there are “counter notice” procedures for users, it is unclear if they work well.
Of course, I really shouldn’t be surprised by this intentional oversight, particularly when the research is conducted through the generosity of Google. How can one purport to do an, “in-depth, empirical look at ways online copyright disputes are handled between Internet companies, such as Google and YouTube, and content creators, such as movie, music, and publishing companies” without finding clarity on a major piece of the current notice & takedown process?
Drilling down into the actual report I found summary regarding counter-notices on page 128:
Study 1 OSPs described hesitating to encourage targeted users to send counter notices, even when it seemed appropriate, for fear of creating liability risk for targets and themselves. Unbalanced liability standards—fear of suit by copyright holders but not users—creates incentives for OSPs to take down material. Moreover, some of the main targets of large-scale requests— search services—have no service relationship with targets or any duty to inform them that links are being removed, making it highly unlikely that the target would know to send a counter notice. Further, as we discuss in recommendations, section 512 currently leaves unclear whether search engines are protected for putback like hosting entities, exacerbating the challenge. Overall, the counter-notice process’s procedural features make it difficult for OSPs to use it as intended. The counter notice process contains other flaws. In Study 1, OSPs described it as intimidating and confusing for targets.
I am not an attorney, but in my anti-piracy work I’ve repeatedly found the counter-notice system to be weighted against the rights-holder. I ran the above statement by a couple of copyright law experts and they agreed the concerns regarding OSP’s (online service providers) increased liability seems suspect. The only thing required by a counter-notice is that the sender provides real contact information (a good thing). The Takedown Project touts the need for “greater transparency” in the notice & takedown system so it would seem that identification of the parties involved in a copyright dispute is only fair.
Once YouTube receives counter-notice, pirated movie goes back online unless rights holder goes to federal court to enforce takedown.
I’ve written about my experience with sending a takedown notice on YouTube (for the removal of a full-length feature film that uploaded) and having the sender respond with a counter-notice. BTW, in contrast to the report’s characterization of the process, YouTube makes it very easy. Once the counter-notice (claiming “fair use”) was sent, I was powerless because the law requires the sender of the DMCA takedown to go to court to enforce a request. Since the filmmaker I represented didn’t have the financial resources to do that, YouTube reposted the ENTIRE FILM 10 days later. You tell me, who is the loser in this scenario? It’s one that’s happened to me multiple times on YouTube. Why does the report downplay the frequent abuse of the counter-notice system?
I’m also curious as to why researchers had such difficulty finding examples of counter-notices? Obviously the vast majority of takedown notices are valid and would be unlikely to generate a counter-notice but if takedown abuse is as rampant as researchers claim, there must be enough to cull meaningful data from. Yet, according to the researchers, “…all available evidence suggests that counter notices are simply not used. It is indicative of the problem that the most memorable uses of counter notices for our rightsholder respondents were a few bad-faith, bogus counter notices from overseas pirates.”
It’s worth noting that the Lumen database (previously Chilling Effects) that provided researchers with the takedown notices used in the study offers a tool for generating a counter-notice. Why doesn’t Lumen offer a database for counter-notices too? Did researchers simply give this issue short shrift because data was more difficult to come by, or because it would be an inconvenient truth, or both?
I brought up my concerns about counter-notice abuse with Berkeley researchers in 2014
In fact, in October of 2014 I participated in the USPTO’s ongoing series of public multi-stakeholder forums on improving efficiency the DMCA Notice & Takedown system. At the time Brianna Schofield, a teaching fellow at the clinic who assisted with the report’s research, gave a presentation about the study. As part of the Q & A follow-up I raised the issue of invalid/inaccurate counter-notices with her, hoping to bring attention to the issue. I’m disappointed to see that this issue didn’t garner a more rigorous look.
Although I haven’t had time to give the report a thorough reading, even with a cursory review I found more cause for skepticism.
The report makes for good (false) headlines, but the data is suspect
Berkeley Law’s story announcing the report’s findings claims that a study “found nearly a third (28.4%) raised at least one question about their validity.” Of course this characterization is intended to raise eyebrows, details of which can be found on page 2 of the research summary:
Study 2’s quantitative analysis revealed deficiencies in notice and takedown procedures, especially automated requests, as all takedown requests in the sample appeared to be automated. Nearly 30% of takedown requests were of questionable validity. In one in twenty-five cases, targeted content did not match the identified infringed work, suggesting that 4.5 million requests in the entire six-month data set were fundamentally flawed. Another 15% of the requests raised questions about whether they had sufficiently identified the allegedly infringed work of the allegedly infringing material. The analysis further identified significant questions related to the availability of potential fair use defense, complaints grounded on improper (non-copyright) claims, and requests sent to defunct web sites.
Note amid this gobbledygook that phrases like one in 25 actually equals only 4.2% but meanwhile that means 4.5 million over six months…sounds like a lot until you remember that Google handles 2 million requests per day. Adding to the confusion over results is that this “report” actually consolidates 3 separate studies making it difficult to figure out which end is up and what percentage means what…purposeful chaos. In study number 3 one bad actor was responsible for 53% of problematic takedowns tallied. Throw out a bunch of percentages hoping they stick somewhere, somehow…
Strikingly, nearly 53% of the Google Image Search takedown requests were from one individual sender, Ella Miller.17 All of these requests appeared to be improper subject matter for DMCA takedown—none were copyright complaints.
BTW, she’s described as a “European individual who is embroiled in an online dispute about modeling photographs taken of her.” Along with eye-popping percentages, the report includes a myriad of pretty charts to display this colorful, yet dubious data. Why bother to include this particular red herring’s notices in the study when the report notes they weren’t copyright complaints?
More striking is the question, why did researchers include this outlier’s data in their results?
It’s also ironic so much weight is given to notices sent by Ms. Miller given researchers’ glib dismissal of false counter-notices with the observation that “the most memorable uses of counter notices for our rightsholder respondents were a few bad-faith, bogus counter notices from overseas pirates.” Meanwhile, the majority of problematic takedowns highlighted in the report were bad faith, bogus takedown notices from one overseas model.
If Ms. Miller is such a problem, take her to court. After all, a legal counter-notice requires a sender to be truthful and to swear, under penalty of perjury, that the document is correct. Talk about blowing something out of proportion. One confused, overzealous 
individual with a grudge is not representative of the millions who send legit DMCA takedown notices.
Of course, for folks in the Googlesphere these bogus numbers generated by the study had the desired effect…prompted, as if on cue, screaming headlines in Variety that read, Policing the Pirates: 30% of Takedown Requests Are Questionable (Study). Google lobbyists in Washington are no doubt quite pleased as they circulate this particular press clipping around town.
Personal blogs and social media sites are often used (knowingly) to promote piracy
Bogus headlines aside, the report also predictably raises the oft-used canard of free speech, that the DMCA is used as a nefarious cudgel against those poor bloggers et al (never mind that it was apparently the notorious “less sophisticated” Ms. Miller who was doing most of the targeting).
The third study, which focused on notices from less sophisticated senders, raised still greater concerns. These notices often targeted social media, blogs, and personal websites, raising questions about their effect on freedom of expression—and more than seven out of ten (72%) presented questions about their validity. Strikingly, more than half (all problematic) were from one individual sender. Of the rest, 36.8% were still questionable.
This Google-hosted pirate site offered dozens of free
streams to indie films
Again, my experience fighting piracy has repeatedly led to personal blogs and social media accounts with Google’s Blogger platform and Facebook leading the way. In fact, blogs hosted by Google (Blogspot sites) seem to offer pirates an easy and affordable way to set up shop to distribute their stolen movies and music. I can state without hesitation that all the DMCA notices I sent to remove pirated movies off Blogger’s Blogspot.com sites (and there have been hundreds) were accurate.
Everyone agrees that the DMCA is in dire need of an overhaul for the 21st century, but to conveniently ignore the fact that it currently puts content creators at a distinct disadvantage is disingenuous. It’s also worth reminding this report’s readers to remember who’s behind it, where the money comes from, and what types of entity finds support via its legal advocacy. Let’s just say that indie artists whose works are routinely stolen and monetized (aided by companies like Google) aren’t included.
There are some positives in this report, particularly the suggestion to improve access to takedown technology for indie artists. From page 149 of the report:
In Congressional testimony, 359 representatives of independent artists and other smaller senders also criticized a lack of meaningful access to the more sophisticated enforcement methods (including automation, REO contracts, and monetization strategies) available to larger copyright holders. Although we did not speak with small senders directly, we note that the competition issues that arise with content filtering and monetization issues (see Section III.E.) also affect independent artists, smaller labels, and other individual creators. Further information-sharing and research efforts would also be beneficial:
- Exploring ways to make monetization models more available to independent artists, smaller labels, other individual creators, and follow-on users.360
- Exploring how to make automated tools to search for potential infringements more available to independent artists, smaller labels, and other individual creators.361 Crucially, these tools must follow the best practices outlined above in order to avoid exacerbating the issues we observed with mistake and abuse. In general, any expansion of automated systems should occur in combination with the liability-balancing measures suggested in Section V.D.1 in order to ensure that mistaken or abusive notices are minimized.
In my view this should be a key part of any effort to update the DMCA. There’s no reason OSPs cannot implement technology designed to offer a more efficient and effective takedown process. Making such tools available to creators of all stripes could help mitigate the negative impact of online piracy and copyright infringement.
One of the report’s authors, Joe Karaganis, vice president of The American Assembly at Columbia University, pulls out another favorite anti-copyright meme when he offers this summation that suggests a “rebalancing” is in order.
Ideally, I hope that our work convinces policymakers that some rebalancing of responsibilities is required so that the senders of notices are a bit more on the hook for bad takedown requests.
Sorry Joe, but there’s already a “hook” in place to deter “bad” takedown requests….the counter-notice. Of course, as I explained earlier in this post, that discussion was conveniently side-stepped by these studies.
And so it goes…overblown data, fancy charts, Google talking points, suspect timing….
Clearly there are ways to update the DMCA that will benefit consumers and creators alike, but making false claims about how the law does or doesn’t work won’t accomplish much beyond reinforcing well-worn tech talking points in advance of efforts to remake the DMCA.
In the meantime I can suggest one very simple way to lower these questionable takedown numbers…companies like Google should do more to prevent online piracy and copyright infringement.
*Here’s what the report says about its funder in its acknowledgements on page 5:
We are grateful for funding support from Google Inc. as a gift to The American Assembly and from the Sloan Foundation for its support through the Berkeley Law Digital Library Copyright Project. Neither funder directed our approach in any way, and neither funder reviewed any methods, data, results, or reporting before public release.
by Ellen Seidler | Copyright, Google, Piracy
The Google team doesn’t seem to appreciate email as a form of communication
I’ve written about Google’s laborious and time-consuming DMCA takedown maze, a process that forces creators to find, then fill out cumbersome online forms. I’ve also written about the fact that Google makes it difficult, if not impossible, to find the email address for its DMCA Agent–in apparent violation of the law’s requirements.
Even when you do find the correct email address for Google’s DMCA agent (via the U.S. Copyright Office), the Google team’s correspondence makes it clear that you will be penalized for taking this legal, more efficient approach. Sending a DMCA takedown request via email is far less burdensome for a couple significant reasons:
- Sending a DMCA via email is fast and easy in contrast to Google’s online form
- You have a copy of the DMCA notice you send, making record-keeping and follow-up much easier
Of course, if you do send a DMCA takedown notice to Google via email it seems to really annoy the Google “team.” Take a look at the email responses to a DMCA notice I recently sent via email. Note that the DMCA template I used was crafted by my attorney.
In response to this perfectly legal and accurate DMCA notice, I received this email asking me to be sure that my original notice complied with the law. I was forced to send a second email confirming that yes, I do know what the heck I am doing when I send a DMCA takedown notice.
Google makes you send a second email
Ok, after all this, Google still isn’t happy. Yes, they eventually end up complying with the law and sending me confirmation that they are acting on my takedown request…but, but….next time, you’d better do it the Google-way using their online takedown maze.
No thank you. I prefer to send my DMCA notices in a way that benefits ME, not Google. It’s not my fault that Google’s business model is such that attracts a tsunami of takedowns every day.
The fact is that Google has the technology to process DMCA notices via email just as easily those sent via its web form(s). While submitting DMCA requests via an online form may be helpful for those individuals who aren’t familiar with the process–or creators who send them infrequently–Google’s convoluted online takedown process serves simply as a time- sucking deterrent.
Maybe if I sent the DMCA via a GMAIL account they’d be more receptive? 😉
Berkeley Law’s dubious study on copyright notice and takedown faces more scrutiny
