by Ellen Seidler | Copyright, Film, Law, Piracy, Politics
Momentum is building for changes to the DMCA that will better protect creators
Content creators from all walks of life are coalescing around the need to update copyright law to protect their work against theft in digital age. A piece in yesterday’s NY Times, Music World Bands Together Against YouTube, Seeking Change to Law, is the latest to highlight growing calls by the creative community to update a woefully antiquated Digital Millennium Copyright Act of 1998.
In its newest effort, the music industry has asked the federal government to change the Digital Millennium Copyright Act, saying that the law, which was passed in 1998 and protects sites like YouTube that host copyrighted material posted by users, is outdated and makes removing unauthorized content too difficult.
Cary Sherman, the chief executive of the Recording Industry Association of America, says that even when songs are taken down, they can easily be uploaded again.
“This is a new form of piracy,” he said. “You don’t have to go into dark corners and sell stuff out of your car. You can do it in plain sight and rely on the D.M.C.A. to justify that what you’re doing is perfectly legal.” –NY Times
Last month the U.S. Copyright Office held public roundtables in New York and San Francisco to hear testimony as part of its study to “evaluate the impact and effectiveness of the safe harbor provisions contained in section 512 of title 17, United States Code.”
As part of the study, the Copyright Office also solicited public comments. While I shared by thoughts with researchers at Mason Law’s Arts & Entertainment Advocacy Clinic for its submission, “Middle Class Artists Want a DMCA System that Works” I also drafted my own statement. Although my comments are part of the public record, I thought I’d share my them here as well. My hope is to generate further dialogue as to how we can advocate for a meaningful update to the DMCA so that moving forward, creators’ rights (and livelihoods) will be better protected.
Here’s my submission to the U.S. Copyright Office.
Updating the DMCA – Areas of Concern
Overwhelming volume
The DMCA is currently the only tool content creators have available to safeguard their work from online theft and profiteering. Unfortunately, these days, using the DMCA to fight piracy is about effective as standing under Niagara Falls holding an umbrella.
Within a few months of our independent film’s release in 2010 we’d found more than 56,000 illegal download links and streams for pirated copies. Those are only the ones we managed to uncover. There were likely thousands more.
Multiply that figure by hundreds, if not thousands, of downloads per link and one can begin to appreciate the scope of the problem. Of course not every illegal download equals a lost sale, but even looking at a fraction of the total, the income lost by diluting legit sales can represent the difference between paying off production debts and making another film, or not.
The time and effort spent in policing piracy on the web is time and effort most independent artists cannot afford. For larger entities that can engage takedown services to manage the work for them the process remains an expensive and daunting task.
Ultimately such efforts can only slow, not stop, the incredible tide of online piracy.
Overly complex takedown procedures
While that language required to craft a legal DMCA takedown notice is straightforward, the process for actually sending it to an OSP’s takedown agent is often not so clear. While some OSPs accept email notification (as required by law), other larger entities, like Google, prefer that requests be sent via a cumbersome and time-consuming online process.
Uploading infringing content to a Google site can be done with a mere click of a mouse, unfortunately removing it is not quite so simple. Because the email address for Google’s DMCA Agent is not posted on its websites, rights holders must jump through various hoops and navigate through a series of questions in order to arrive at the correct form. Once there it takes additional time to complete the 9-part form. Before one can actually send it one must be sure to create a Google account, then login and send.
Once the takedown request is sent, no copy of the actual takedown request is generated, only a brief acknowledgement of receipt. Then it’s a waiting game to see whether the infringing content gets removed.
Sending a simple DMCA takedown notice via email is simple, fast, and makes record keeping and follow up easy. Any update to the DMCA should continue to support email as an efficient way to send takedown requests and require that OSPs process emails with the same speed as those submitted via the web form.
Repeat infringement
Even if one sends a DMCA takedown notice to Google reporting a site for dozens of illegal links, Google allows the site to remain online. It takes multiple notices, sent 48 hours apart, to trigger any sort of account disabling.
Other sites employ varying degrees of punishment for repeat infringers and some do nothing. This is certainly an area of concern for rights holders as it adds to the overall ineffectiveness and inefficiencies of the DMCA notice and takedown process.
Any update to the DMCA should specify what constitutes a repeat infringement and require that OSPs publish this information on their website. The law should also require that the OSP be responsible for preventing any re-upload of content already reported as infringing. This can be achieved by employing technological solutions described in the following section.
Technological Solutions
Technology brought us to this point. It’s time technology be utilized to help safeguard copyrighted work. YouTube’s Content ID system, though not without problems, at least provides a way for rights holders to find and manage YouTube access for their music or films. Cloud storage provider Dropbox also employs technology to scan files for identifying hash data so that reported files cannot be uploaded repeatedly.
If an OSP’s (online service provider) business model is predicated on monetizing user-generated content (not vetted for copyright) then the OSP should be required, by law, to implement some form of digital fingerprinting to prevent infringing material from being uploaded in the first place. This type of technology would also help address enforce a takedown – stay down approach and prevent repeated uploads of pirated content to a site.
If an OSP does not have the resources to build its own proprietary tech like YouTube’s Content ID, there are a number of third-party vendors, like Vobile, that offer digital fingerprinting. While such 3rd-party services are not free, it seems only fair that cost of implementing a digital gatekeeper be considered a cost of doing business. Creators have long borne the “costs” of OSPs monetizing their content without permission. Having OSPs tap into profits to better protect copyright seems only fair.
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.
Counter-notices and small claims process
Not only are creators burdened with having to play detective to find and remove their stolen content from various websites, but even the counter-notice system works against rights holders.
The counter-notice system allows recipients of an erroneous DMCA to prevent the removal of content and while such a system of checks and balances is important, problems occur when such counter-notices are themselves erroneous. Unless the sender of the DMCA notice files in federal court to enforce the takedown, following a 10-day waiting period, the reported content is reposted.
For most indie artists, the cost of filing in federal court to enforce a DMCA takedown is far too costly and so, in these cases, the infringing content remains online. I’ve experienced this situation multiple times and have seen full copies of a film reposted after a counter-notice (claiming fair use) was sent after a takedown on YouTube.
Perhaps, as part of any update to the DMCA, the time has finally come to create a small claims process to adjudicate copyright claims outside the federal court system. The U.S. Copyright Office has already studied the issue and has recommended creation of a voluntary system of adjudication to resolve copyright small claims. (http://copyright.gov/docs/smallclaims/usco-smallcopyrightclaims.pdf )
Content removed due to infringement should not be replaced by direct links to 3rd party site(s) that republish the same infringing links
Another issue not addressed by the DMCA is a problem that’s arisen thanks to a third-party database that records all the DMCA notices received by a number of OSPs including Google. The Lumen database https://lumendatabase.org/ (formerly Chilling Effects) offers a searchable database of these DMCA notices. While this might serve as a valuable archive, Lumen’s searchable database, in its current form, does not redact the infringing URLs from the DMCA notices and so–in effect–becomes an efficient search engine for pirated content. This afternoon I used Lumen’s search engine to look for illegal copies of the recent release “Carol.” With one click I found a link, then right-click and I ended up at an active, illegal copy online.
Lumen’s DMCA notices are also easily found thanks to Google’s direct links to them in what would seem to be blatant disregard for the DMCA’s intent–if not the law. The scenario works like this: When an infringing link is removed from Google search following a DMCA request, the search result remains, but the original infringing link is simply replaced with a fresh hyperlink to the DMCA notice stored in Lumen’s database. Essentially, removing the infringing link from Google search with a DMCA takedown requests only means a web user searching for pirated copies only has to click one additional link in order to find the pirated content he/she was looking for.
While the database itself may claim to operate under the mantel of “free speech” one has to ask how Google qualifies for “safe harbor” protection when infringing links removed from its search engine are replaced by a link to the DMCA notice on the Lumen database that contains the same, un-redacted infringing link. This type of re-linking should be explicitly banned in any update of the DMCA.
What’s at stake
Takedowns will continue to be a part of any DMCA fix, but collectively we must figure out a better way streamline the process, utilize technology, and mediate disputes in order to protect copyright and support a culture where creators can flourish– and the wealth of content they create can be enjoyed, and sustained, by consumers throughout the world.
If nothing is done to update the DMCA for the 21st century, content creators of all stripes will continue to struggle and the diversity, and variety of quality of creative content available to consumers will diminish. At first, we may not miss what isn’t made, but eventually our creative culture will be the lesser for it.
by Ellen Seidler | Copyright, Law, Piracy, Politics
DMCA is outdated and broken
U.S. Copyright Office announces study on impact and effectiveness of the DMCA safe harbor provisions
The Digital Millennium Copyright Act’s (DMCA) “safe harbor” provision has long been a source of frustration for creators. For years it’s allowed 3rd parties who enable, and often profit from piracy, to avoid legal liability for infringement. Momentum to tighten eligibility standards to qualify for safe harbor protection has been growing of late, both in courts and at the U.S. Copyright Office. In December, a federal jury’s verdict awarded BMG Rights Management 25 million in damages in its copyright infringement suit against Cox Communications. The suit went forward after the judge ruled against Cox, determining that because of an inadequate “repeat infringer” policy the company did not meet eligibility for a safe harbor defense as stipulated in section §512(i) of the DMCA.
(1)Accommodation of technology.—The limitations on liability established by this section shall apply to a service provider only if the service provider- (A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers;
Perhaps even more significant news came on the final day of 2015 when the U.S. Copyright
announced it was
“undertaking a public study to evaluate the impact and effectiveness of the safe harbor provisions contained in section 512 of title 17, United States Code.”
While Congress understood that it would be essential to address online infringement as the internet continued to grow, it may have been difficult to anticipate the online world as we now know it, where each day users upload hundreds of millions of photos, videos and other items, and service providers receive over a million notices of alleged infringement. The growth of the internet has highlighted issues concerning section 512 that appear ripe for study….Among other issues, the Office will consider the costs and burdens of the notice-and-takedown process on large- and small-scale copyright owners, online service providers, and the general public.
Though somewhat buried by the holidays, this announcement is welcome news for artists who been lobbying members of Congress tackle the outdated DMCA. Most notable is the fact attention is finally being paid to smaller
copyright owners who don’t have the resources to fight back effectively against online thieves:
Many smaller copyright owners, for example, lack access to third-party services and sophisticated tools to monitor for infringing uses, which can be costly, and must instead rely on manual search and notification processes —an effort that has been likened to ‘‘trying to empty the ocean with a teaspoon.’’ In addition to the burden of policing infringement across the internet, copyright owners complain that material they succeed in having taken down is often promptly reposted on the same site—the so-called ‘‘whacka-mole’’ problem. Under section 512 as it has been interpreted, providers are not required to filter out or prevent the reposting of copyrighted content.
Others, like Fare Play’s Will Buckley have been tireless advocates on this issue in Washington. Buckley launched the
Take Down, Stay Down petition campaign to
“Restore an artist’s right to determine what happens to their work on the internet,” that asks Congress to update
Section 512 of the Digital Millennium Copyright Act and close the safe harbor “loophole” in the DMCA by adding a “stay down” provision.
Buckley is thrilled that Washington seems to be getting serious about looking at the law’s deficiencies.
“I think it’s great that they’re seriously interested in taking a deeper look into safe harbor.” When asked what impact the
take down,stay down petition drive may have had in pushing the issue to the fore, Buckley observed,
“the petition has helped drive more conversation about the serious problems we have with an artists inability to control who monetizes their work and how they’re compensated.”With this study, let’s hope conversations continue so that real solutions can be found for the issues vexing artists trying to earn a fair living in this digital age. If you’d like to have your voice heard, according to the Copyright Office there will be an opportunity for you to
comment:
Written comments must be received no later than 11:59 p.m. Eastern Time on March 21, 2016. Specific instructions for submitting comments will be posted on the Copyright Office website on or before February 1, 2016. The Office will also be announcing one or more public meetings, to take place after the initial written comments are received, by separate notice in the future.
I’ll be sure to alert you when I hear more regarding this important issue.
by Ellen Seidler | Copyright, Film, Law, Piracy, Politics, Tech
Lots of news in the copyright, piracy and privacy world of late. Here’s some worth a look:
First up, this thoughtful piece by Nelson Granados on Forbes.com “How Piracy Is Still Hurting The Filmmakers And Artists You Admire.” Granados takes direct aim at the fallacy that piracy doesn’t cause damage to Hollywood studios.
Many think naively that studios cannot be hurt too much, because after all, you hear mostly about the movies that make hundreds of millions of dollars. But the reality for many filmmakers is that they often live on the edge, seeking financing to produce quality content, and enduring high uncertainty about whether they will be able to pay off debt and have any profit left. Given the high fixed cost of producing a quality movie, losses from piracy can be the difference between making a profit or not.
He notes that a number of “peer-reviewed” studies quantify this damage. Bottom line, like any industry, Hollywood depends on making a return on its investment to flourish. No matter what piracy apologists allege, that’s a basic economic fact. Granados also touches on the particular vulnerability faced by independent filmmakers.
Most artists struggle to make ends meet as they pursue their creative work with passion and dedication. Piracy may be tipping the next Quentin Tarantino over the financial edge into bankruptcy, and we will all lose.
As I’ve often said, audiences won’t know what we’re missing if it isn’t made. Piracy’s damage is insidious–and for the public–somewhat invisible. Ultimately it diminishes the quantity (and quality) of film offerings consumers have to choose from.
Here’s a link to Granados’ full article on Forbes.
Popcorn Time growing stale, but remains alive
In other piracy-related news, the pox that is Popcorn Time rears its ugly head yet again. According to Torrent Freak, a group of “developers” have launched their own community edition of the piracy platform. Not surprisingly developers responsible for the new rendition of Popcorn Time rely on well-worn justifications for their thievery:
“Popcorn Time will probably never go away, despite the efforts made by organizations such as BREIN, the MPAA and others. Instead of fighting this great software they should embrace it,” PTCE tells TF.
It appears efforts are being made to quash this new effort, but as of today the site seems to be operational. Perhaps it would be better if those who love to watch films “embrace” the notion of compensating creators for their work. Fans of Adele seem to be doing so in record fashion.
Facebook faces further European scrutiny
Not really a copyright issue, but it’s always worth paying attention to what’s going on in Europe with regard to the digital economy. With that in mind…
Max Schrems, an Austrian lawyer and privacy advocate’s battle against Facebook over data privacy concerns gained momentum in October when the European Court of Justice invalidated the safe harbor agreement between the U.S. and Europe that had allowed transfer of personal data between business entities in the U.S. and EU. With the ruling in hand, Schrems has stepped up his attack against Facebook, filing complaints with data protection authorities (DPAs) in Ireland, Belgium and Germany. He outlined his actions in a statement posted on his website:
All complaints suggest a reasonable implementation period, to allow the relevant companies to take all necessary technical and organizational steps to comply with the CJEU judgement. These options may range from moving data to Europe, encrypting data that is stored in the United States or reviewing the corporate structure. Schrems: “Users really don’t have to worry that their screens go dark, but I hope we will see serious restructuring in the background – just like Microsoft has now started to offer more secure data centers in Germany, that are supposedly not subject to US jurisdiction.”
Meanwhile, as Schrems moves forward, the EU and US are busy trying to reach an agreement on a new safe harbor pact that will offer new guidelines on data transfer between companies on both sides of the Atlantic. It’s important to note that this “safe harbor” should not be confused with the “safe harbor” found in the DMCA so often mentioned in the context of online piracy.
by Ellen Seidler | Copyright, Film, Google, Law, Piracy, Politics
Google continues to dodge responsibility for its role in promoting online piracy
This past week members of the House Judiciary Committee traveled to California to hold a pair of roundtable discussions on the future of copyright. On Monday committee members were in Santa Clara, the heart of Silicon Valley, and on Tuesday traveled to Los Angeles to hear from a variety of stakeholders discussing everything from overhauling an out-dated U.S. Copyright Office to DMCA circumvention for tractor repairs.
As a participant in the Santa Clara event I offered up my observations on updating the copyright office and the need for a copyright small claims process.
Though I wasn’t at the LA event, I read with great interest a report in Variety by Ted Johnson that documented an exchange between Google’s legal director for copyright, Fred von Lohmann and Richard Gladstein, founder of Film Colony:
“Why couldn’t we find a way, in all of your wonderful genius, to prevent being directed to illegal activity,” Gladstein said…
“We are not in a position to decide what is legal and what is illegal online,” Von Lohmann responded.
Then Gladstein asked, “Is it legal or illegal to download a movie that you don’t own?”
Von Lohmann answered, “I agree. Downloading a movie, in order to watch it without paying for it, is infringing. That is not the problem. The problem is when you have over a trillion websites, you have hundreds of thousands of film titles, millions of song titles, not just in English but every language around the world … as a search engine there is no magic way for us to know in advance what is legal and what is illegal online. We rely on copyright owners to inform us.”
[Von Lohmann] noted that Google has been demoting sites based on the number of takedown notices they receive from copyright owners. He also said that such sites don’t pop up when users simply put in the name of the film title without the word “watch” before it. [emphasis added] —Variety
Von Lohmann’s posturing on Google’s piracy problem is nothing new, but it is worth pointing out how his statements are carefully crafted to dovetail with Google’s own (vague) propagandistic promises.
In 2014 Google announced that it had updated its “How Google Fights Piracy” report (first published in 2012). In it, Google once again gave lip service to its down ranking (not removal) of pirate sites in its search results:
Google also factors in the number of valid copyright removal notices we receive for any given site as one signal among the hundreds that we take into account when ranking search results. Consequently, sites with high numbers of removal notices may appear lower in search results. This ranking change helps users find legitimate, quality sources of content more easily.
Note that in its glossy report Google didn’t mention exactly what types of search terminology would trigger a down ranking of results. Apparently, if we are to believe Mr. von Lohmann, we should only expect pirate link demotions to take place when searching using the movie’s title only, not when using terms like “watch” and “download” in the hunt for pirated copies?
I did my own quick research today using a recently released indie film The Overnight. When I searched using the title only, Google does offer up a page full of legit links.
However, when I add the term “watch” to the mix and search for “watch the overnight” take a gander at what results lead the pack….The top result led directly to a notorious pirate site and 6 out of 10 gave me links to pirated versions of the film.
I checked Google’s transparency report to see how many times this particular domain had been reported for infringement. Note, the Solar Movie’s domain suffix has changed multiple times over the years. It’s latest incarnation, solarmovie.ac, seems to have come online only last month. Already its been reported for copyright infringement more than 600 times.
Why won’t Google down rank sites found in actual searches for pirated content?
I’d like to ask Mr. von Lohmann why Google can’t seem to manage down ranking pirate sites for ALL its search results–not just results found when using the film’s title. After all, folks looking for pirated movies aren’t idiots….adding the term “watch” or “free download” to a search is standard operating procedure if one is seeking pirated copies. It makes no sense for Google to ignore these search terms if it’s truly serious about how it “fights” piracy.
Sure, total searches for legit links may far outweigh overall searches for pirated ones, but in the end what we’re talking about when we are discussing “fighting piracy” are search terms like “watch” and “download free.” Look what shows up at the bottom of the results for “watch The Overnight”search… Google continues to offer handy suggestions for other search terms users could use to find more (pirate) links.
Google pretends to be working on its piracy problem, but when you drill down it’s clear that the tech giant is doing everything it can to avoid taking action or responsibility. I hope those House members who sat and listened to Mr. von Lohmann will not take him at his word, but instead, examine actual facts.
Google still has a very long way to go when it comes to fighting piracy.
by Ellen Seidler | Copyright, Law, Piracy, Politics
A conversation with Will Buckley about artists’ rights and efforts to update the DMCA
Will Buckley, is the founder of Fare Play a non-profit educational organization supporting the rights of individuals to control the digital distribution and sale of their copyrighted work. He’s spent the past five years working to bring creators together and inspire them “to become evangelists for their lives 
and careers.”
Build a unified online community where filmmakers, musicians, authors, artists and photographers are empowered to collaborate and produce peer-to-peer communication with their fans about the personal impact of illegal downloading on their lives, their dreams and their careers. — Fare Play vision statement
Buckley’s latest effort to protect the rights of artists in the digital age is the newly launched Take Down, Stay Down petition campaign to Congress. The petition aims to “Restore an artist’s right to determine what happens to their work on the internet,” by asking Congress to update Section 512 of the Digital Millennium Copyright Act and close the safe harbor “loophole” in the DMCA by adding a “stay down” provision.
Last week I had an opportunity to have a conversation with Will to talk about his advocacy work on behalf of artists and the Take Down, Stay Down petition.
ELLEN: What you inspired you to become an advocate for artists’ rights in the digital age?
WILL: I worked in the music business from 1972 to 1985. I did everything; radio, retail, band management, promotion, sales. My last project was running an indie label, Danny O’keefe was the artist. We had an almost hit, ‘Along for the Ride’ that made it to number 18 on AC. We took the record as far as we could, but didn’t have the $50k for payola needed to get airplay in the major markets. I put everything I had into that record and had relocated from LA to SF with a wife and newborn son. I felt it was time to move on and have always regretted it. You know the experience, it happened to you with your film, ‘Along Came Lola’. It’s painful.
That experience and my passion for music has me doing what I’m doing today. Fighting for artists.
ELLEN: What’s the focus of your efforts on behalf of creators?
WILL: Right now it is dealing with online piracy. We recently released a petition asking Congress to amend Section 512 take down notification provision of the DMCA. A law that fails to protect artists and their work while unintentionally granting a free ride to infringing sites. It wasn’t our idea. My Space was actually talking about a ‘staydown’ provision back in 2007.
The current law flies in the face of justice, but is indirectly supported by Google through their extensive lobbying efforts and through the EFF. That’s why this petition goes out of its’ way to avoid any “Free Speech” or “Censorship” issues by granting control to the individual copyright holder.
The real reason we’re going after this aggressively? There’s a window of opportunity. We can win. The House Judiciary Committee is reviewing all the copyright laws for the first time since 1976. Which means everything’s on the table. I’ve heard and read a lot of encouraging things from the Congress. I’ve met with Rep. Nadler in NYC, who’s been a positive advocate for Blake Morgan and I Respect Music. I travelled to DC last September to have a private meeting with Joe Keeley, Chief Counsel of the Committee and Norberto Salinas, Democratic Counsel on the Committee. I was heard. They asked the right questions. These are bright guys wanting to do the right thing.
Tomorrow, I fly to SF to attend two more open hearings on copyright with Rep. Goodlatte, the Chairman of the House Judiciary Committee and Rep. Conyers head on the Democratic side and a serious fan of Jazz. i’m going to lend my support in whatever way I can.
Meanwhile, I’ve been in talks with the Content Creators Coalition, Authors Guild, Authors United, American Society of Media Photographers trying to build a coalition of support across different groups of creators. Because that is where the true power lies. It’s easy for the public to minimize the problem when it’s just musicians or just filmmakers, but you get these groups together and the dynamic of the conversation changes dramatically as does public perception.
Until that happens the problem gets swept under the rug. There’s a lot at stake here. While some may claim that there are more people creating than ever, there is no doubt that most of the real talent is being starved by a dynamic that rewards the online distributors, not the creators.
Then I do my non-profit work that includes speaking to performing arts students about the value of supporting creators and giving these students some tools to use when they talk to their friends about online piracy. Trying to enlighten the next generation to the downside of piracy and why it actually hurts people.
ELLEN: What led you to initiate the Take Down, Stay Down petition drive?
WILL: I wouldn’t be doing it if in fact Congress wasn’t meeting taking a look at copyright reform. My feeling was if we don’t at least give a run at this at this period in time, we’re really missing out on an opportunity.
ELLEN: In asking for Take Down and Stay Down are you proposing that we amend or revise the actual DMCA or is this an additional piece of legislation? How do you see it in terms of how it’s implemented, how this effort unfolds?
WILL: We are asking Congress to simply amend legislation that has failed to protect copyright holders. I see using the existing infrastructure for enforcement.
ELLEN: When I was reading through the petition, etc. and looking at the mechanism you were focusing on, the idea that people or a website will remove an infringing link but then repost the material using another link that was kind of the modus operandi of Megaupload, and cyber lockers in particular.
Do you see any applications for other like UGC sites like YouTube? Where do you see this having the biggest impact?
WILL: I see it having an impact everywhere. The way the law is written now, having this takedown notification…that really allows infringing sites to continue to post pirated material–and YouTube is culpable of this also–they play this game constantly in terms of reposting content. I see it cutting across all kinds of internet service providers.
ELLEN: Well, let’s take a look at YouTube, for example, because obviously that’s a prime example of where a fair amount of piracy happens. YouTube has put into place content matching system that works, not totally 100 percent of the time, but it chugs along and does a fair job. I won’t say it does an excellent job, but in my experience does a fair job identifying matching content that may, or may not be infringing, and that then gives the rights owner the option to remove it, monetize it, or block it.
You’re saying that you want YouTube to go beyond this?
WILL:
The biggest mistake this Congress can make is to leave enforcement up to the tech industry. Many of the problems that exist today could have been addressed a decade ago. I can’t over-stress the seriousness of piracy and the significant damage it has done to both creators and the entertainment industry.
ELLEN: So you think Take Down means Stay Down can make a dent in the problems faced by artists?
WILL: Yes, it can make a dent. Right now without ‘staydown’ copyright holders have no effective control over who uses their content. If you look at the Grooveshark case, it took nearly four of court proceedings to shut them down and they were brought down by a paper trail of e-mails from management instructing their own employees to upload specific songs. Songs Grooveshark needed to drive more traffic to their site to increase advertising revenue.
We propose that Congress set a threshold of copyright infractions based on the number of outstanding, unresolved ‘takedown and staydown’ notifications. When those thresholds are reached ISPs can be ordered to block infringing sites. We’ve ‘known’ for over a decade that Pirate Bay is an infringing website, yet without a ‘staydown’ provision ISPs can’t be ordered to block them. The fact that U.S. regulators can’t force Google to block Pirate Bay only proves that our country currently has no effective anti-piracy laws.
Artists should not have to forfeit earnings as endless appeals are filed and infringing websites are allowed to operate for years as these cases languish in the court system.
ELLEN: I think people have become complacent. People have become used to “it’s there, take it” kind of mentality. To turn the tide with regard to that is quite a difficult proposition. I think it’s interesting to note what happens though when people see their own creative work threatened. It happened when Instagram tried to change the terms of service as to who owned the uploaded photos, what could be done with them. People were all outraged. “It’s mine. It’s mine. I made it, I should be able to control it.” When it comes to personal work, they get it, but they don’t make the leap to understand that that’s what all creators are facing in terms of their own work.
WILL: The hypocrisy is palpable. It points up two things. First the incredible job the piracy generation did in creating a reality distortion field. ‘Artists are wealthy so screw them for asking.’ ‘The record labels are the evil ones.’ ‘We’ve created this incredible opportunity for exposure and broken down the barriers to access.’ ‘Artists can benefit from alternative streams of income.’ The subterfuge is so engrained and accepted that even services like Spotify are making similar claims.
To your second point about Instagram. I agree. Creativity is personal and when it’s yours you’re going to be furious, even if it was your friend who took it. How anyone can miss the correlation to professional artists is beyond me.
Taylor Swift has very little of her material pirated or downloaded illegally. I mean tiny, infinitesimal. The other thing I learned is that part of what Taylor Swift does is during her concerts, she actually talks a little bit about this to her fans and says, “Friends don’t steal from friends.”
She has been able to create this relationship with her fans so that they actually appreciate and respect it so unlike in the past she’s not taunted for that. Her fans actually get it.
ELLEN: That kind of engagement is sort of an educational teaching moment, I guess.
As an advocate for legislative changes I’m operating as a private citizen. My work in the non-profit sector has to do with education, going into performing arts schools and talking to students with an established interest in the arts about online piracy and the importance of contribution to those who create. When I ask students if they will pursue a career in the arts, most say no. When I ask why, they talk about economic uncertainty and how in today’s world it is a bad career choice.
ELLEN: So back to copyright reform and Washington, what’s happening?
WILL: My sense is that artists have support from many of the members of Judiciary Committee, but they are up against powerful, well financed companies and trade organizations investing tens of millions in lobbyists who are well connected and fighting hard to maintain the status quo.
Artists groups: authors, filmmakers, musicians, photographers and other creators will really need to step up their game in terms of individual participation to prevail. And while there are far more creators speaking out than ever before, in the scheme of things, it is far fewer than one percent. If that doesn’t change the creative community may come away empty handed from the proceedings.
ELLEN: Well, one of my favorite ways to defining is you won’t miss what isn’t made. People say, “Oh, well there’s plenty of stuff. There’s plenty of things out there.” You don’t know how many musicians aren’t creating music anymore or filmmakers aren’t creating films. Yeah, there’s always going to be stuff out there but not necessarily at the quality that we have come to expect. Yeah, we’re all citizen creators now with our iPhones and Instagram accounts, etc. but we still just because, I tell my students, “Just because you can type on a computer and use Word to write a document or write a story, doesn’t mean it’s a story that’s particularly good.”
It takes time and effort to craft something that’s worth while. Time equals money and people have to put food on the table and there’s this disconnect between, “Oh, if I can do it with my iPhone it must be easy so why should I bother to pay for it?” Or “Why should I pay for it if I don’t like it?” It’s like well, do you go into a restaurant and not pay for your meal? Even if it’s not the best one you’ve ever had?
I think if we continue to try and frame it in the right way, we might make some progress. The US, it’s part of a world economy and these companies have to do business elsewhere–and fortunately– in places like Europe they’re a little more protective of their arts and creators than perhaps the US is. Maybe that will help a bit..
WILL: Well, you know back to what you said. One of the first things that I saw that taught me so much about the problem was your video “Popup Pirates” and when I watched that I was astounded at how virulent this disease was and how many high-profile advertisers and players were involved in this. There’s something fundamentally broken about that that really disturbs me.
As a country we should be supporting each other and pulling together. The fact that we have the kinds of advertisers continually popping up supporting these pirate sites, which are for-profit as we both know. They either sell advertising upgrades, things of that sort. It’s not Santa Claus giving stuff away, it’s a for-profit business.
ELLEN: Yeah, it’s not altruism.
WILL: It’s not altruism. I think it comes down to we need to have the laws in place. We shouldn’t have anarchy where people make a decision whether they want to download or not. First of all, I don’t think it’s fair to somebody that age that they’re offered all of this stuff without any kind of constraints and continue to thumb their noses at the establishment because half the time we go to court with these entities, we lose. Oftentimes we lose and the sites pop back up again.
I believe that creates a feeling with a lot of these people that if something was really wrong with it, they’d shut it down kind of thing.
ELLEN: Right, right… Well, it’s like anything that’s online is sacrosanct. It’s not treated the same way brick and mortar situation would be treated, when essentially, it’s the same thing going on…even with the behavior of advertisers, everybody’s out to make a buck no matter what it takes. As long as no one’s slapping them down, they’re going to continue to do it because they’re not it’s not necessarily … their activities aren’t necessarily concerned with what’s moral. They’re concerned with what’s profitable. As long as they can get away with it, they’ll continue to do so.
That’s why you have this whole ecosystem that’s evolved that’s based on take first and maybe ask for permission later if you absolutely have to.
Back to your petition, what happens when someone signs?
WILL: Everyone who signs the petition will be sending a letter, signed by them electronically, to every member of the House Judiciary Committee instructing Congress to amend Section 512 Takedown Notifications to include a ‘stay down’ provision.
We’re going to need a major turn out of support from the artistic community if we’re going to even get copyright reform to the floor for a vote, much less score some positive gains. If we fail to get bills passed that protect artists and provide equitable compensation this time around it will further limit the number of creators who can earn a living from their work. The issue of Take Down and Stay Down impacts every creator whose work can be digitized and distributed over the internet. It presents our best opportunity to bring everyone together on one initiative.
The Illusion of More’s David Newhoff takes Pirate Bay founder Peter Sunde to task
