by Ellen Seidler | Copyright, Law, Piracy, Politics, TV
Some good news from my neck of the woods as California Attorney General Kamala Harris announced that her office had filed charges against 3 brothers who operated pirate websites featuring stolen movies and TV shows. According to a press release issued today, the 3 Bay Area men, Hop Hoang, 26, Tony Hoang, 23, and Huynh Hoang, 20, could face up to five years in prison if convicted. The brothers were arraigned in Alameda County Superior Court yesterday on charges that they operated a website (mediamp4.com) that allowed users access to illegal streams of more than 1,000 copyrighted TV shows and movies. More from the press release:
The three have each been charged with one count of conspiracy, four counts of receiving stolen property and one count of grand theft.
“Digital piracy is theft. It is a serious crime that harms one of California’s most important economic engines – our entertainment industry,” said Attorney General Harris. “This case sends a clear message that the California Department of Justice will investigate digital piracy and prosecute violators to the fullest extent of the law.”
The Motion Picture Association of America (MPAA) initially began an investigation into iphonetvshows.net and movieiphone.net and sent a cease and desist letter to Tony Hoang. Thereafter, Tony Hoang and his co-defendant brothers allegedly resumed the illegal operation under a new domain name, mediamp4.com. The Attorney General’s office then initiated an investigation into mediamp4.com, executed a search warrant, seized property used in connection with the illegal operation and filed charges against the Hoang brothers.
Is this the beginning of a positive trend in the battle against online piracy? Last week we saw Mississippi’s AG Jim Hood raise concerns over Google’s links to illegal online activity and now California’s AG Kamala D. Harris steps into the fray. The California investigation was directed by the eCrime Unit of the California Attorney General’s Office, California Highway Patrol, and REACT (Rapid Enforcement Allied Computer Team) a law enforcement task force located in Silicon Valley specializing in investigating technology crimes and identity theft.
It’s alleged that the brothers earned approximately $150,000 over the past 18 months through advertising and that they drove traffic to the site via Google search ads. Once again this illustrates the ongoing link between the lure of piracy profits via online advertising and these illegal websites. The pirates are not in business for altruistic reasons; they were pirating content because it pays.
Kudos too, to the MPAA that initiated the initial investigation. Let’s not forget that taking down illegal online piracy sites not only benefits Hollywood movie-makers, but also helps independent filmmakers around the globe in the ongoing battle to protect their films from being stolen and monetized by thieves. As MPPA CEO and former Senator Chris Dodd explained,
There are now nearly 80 legal online services in the United States dedicated to providing movies and television shows to viewers. But to realize the enormous potential of these businesses and ensure an Internet that works for everyone, it is critical that government, content creators, the tech community and others work together to stop illegal rogue sites.
I tried to visit the website in question but it’s apparently already been taken offline and the domain parked, but I did find this YouTube “review” for the site which pretty much covers its (former) operations. Watching this review it seems evident that the site was designed to allow users to easily stream or watch pirated content on iPhones, iPads or computers.
[youtube http://www.youtube.com/watch?v=oPeEjRJ_tiQ&w=560&h=315]
I must say, it was heartening to hear the reviewer note that it is “becoming harder and harder to find good sites.” Let’s hope other state attorney generals get on board. Bit by bit, piece by piece, we are making progress against the black market business of online piracy.
by Ellen Seidler | Copyright, Law, Piracy, Politics, Tech
Surprise, surprise…Google is once again in the spotlight for its role in linking to websites that promote illegal activities. In a statement released Thursday, Mississippi Attorney General Jim Hood charged that the search giant facilitates commerce in counterfeit goods and drugs online. Hood is co-chair of the National Association of Attorney General’s intellectual property committee. In the press release issued by his office, he outlined the issues:
…Google’s search algorithm often leads to sites known to sell counterfeit goods being at the top of the Google search results. Additionally, attorneys general are concerned that some of the sites selling counterfeit goods are advertising with Google.
“On every check we have made, Google’s search engine gave us easy access to illegal goods including websites which offer dangerous drugs without a prescription, counterfeit goods of every description, and infringing copies of movies, music, software and games,” said Attorney General Hood. “This behavior means that Google is putting consumers at risk and facilitating wrongdoing, all while profiting handsomely from illegal behavior.”
Hood sent a letter to Google’s Chief Executive Officer Larry Page inviting him to attend a national meeting of the attorneys general on June 18 in Boston to address the group’s concerns, categorized as follows:
- Content Removal – Google claims to only remove content from its search results in a narrow set of circumstances. The phrase “narrow set of circumstances” seems misleading. Google’s own policies on child exploitation state, “we block search results that lead to child pornography. This is a legal requirement and the right thing to do.” However, Google also removes other types of content. For instance, Google removes content from its German portal that glorifies the Nazi party on google.de or insults religion on google.co.in in India. Why will Google not remove websites or de-index known websites that purport to sell prescription drugs without a prescription or provide pirated content? Content removal can be done, but it appears Google is unwilling to remove content related to the purchase of prescription drugs without a prescription or the downloading of pirated movies and songs.
- Auto Complete – Google claims in its April 19th letter that “the predictions that appear in auto complete are an algorithmic reflection of query terms that are popular with our users and on the internet. Google does not manually select these terms or determine what queries are considered related to each other.” This statement is misleading. For example, a user cannot type in “free child” and receive an auto complete of the words “porn” or “pornography.” Google blocks an auto complete of the phrase “free child porn.” However, the phrase “buy oxycodone online” is autocompleted with the words “no prescription cod.” Google states in its April 19th letter that removing generic terms such as “prescription” or “online” is vastly overbroad. The issue is not about these words as stand-alone search terms, but phrases that facilitate known illegal behavior. For example, if you type in “buy oxycod,” the auto complete will provide “buy oxycodone online no prescription cod” as one of the choices. Another example is typing in “watch movies free so” and auto complete supplies “watch movies free solar.” Solarmovie is a known rogue website. The suggested search term by Google, “solar,” results in extensive sites containing infringing content on the first page of results. Can Google not remove phrases from auto complete such as “buy oxycodone online no prescription cod” or “watch movies free solar” without removing stand-alone terms?
- Digital Millennium Copyright Act Notices – Google has repeatedly stated that “sites with high numbers of removal notices may appear lower in our results.” However, websites that continue to appear very prominently in Google search results are the same websites highly listed on Google’s Transparency Report. For example, single searches for a popular new DVD released film results in the website torrentz.eu on the first hit of the search. Torrentz.eu has received over 2,103,239 URL removal requests according to Google’s Transparency Report.
- Role of search engines in curbing sale of counterfeit pharmaceuticals – Google does not mention the role of “search” at all in response to this question implying that search is not an issue of concern despite what is mentioned above. Moreover, Google does not mention its platform YouTube and the role of search and advertising on YouTube in promoting illegal activities. For example, users can search for and view videos purporting to sell prescription drugs without a prescription and other illegal activities all while viewing paid advertisements. What steps is Google taking to address advertising in conjunction with illicit videos on YouTube?
If reading this triggers a sense of deja vu, don’t worry– you’re not crazy. Less than 2 years ago, in August of 2011, Google agreed to a 500 million dollar settlement with the U.S. Justice Department over online advertisements for illegal Canadian pharmacies. According to the NY Times:
Google entered into a nonprosecution agreement with the government last week over the use of its AdWords program by Canadian pharmacies that helped them sell prescription drugs in the United States in violation of a federal law, 21 U.S.C. § 331(a). That law prohibits causing the “introduction or delivery for introduction into interstate commerce of any food, drug, device, tobacco product, or cosmetic that is adulterated or misbranded.
In addition to its role facilitating the trafficking of illegal and counterfeit drugs, Google’s ongoing relationship to illegal pirate movie sites has also been well established. Not only does the search giant continue to feature pirate websites high in its search results, but its YouTube and Blogger sites have also become efficient tools in online theft’s infrastructure.
In his statement Mr. Hood pointed out Google’s reluctance to regulate its own offerings and asked, as so many have before him, why is it that Google manages to block certain auto-complete phrases related to child porn or the Nazi party (on their German portal Google.de) but fails do so when it comes to other illegal, counterfeit content online?
The question of what companies like Google can and/or should do when it comes to illegal or harmful content was brought into sharp relief recently when another Silicon Valley giant, Facebook, was scrutinized for its refusal to act against pages that promoted misogynist and violent “hate speech” against women.
The NY Times featured a piece By Tanzina Vega and Leslie Kaufman “The Distasteful Side of Social Media Puts Advertisers on Their Guard” that examined the balance between free speech and civic responsibility. They aptly noted: “With the money, they are discovering, comes responsibility,” According to the story, YouTube officials claim to be pro-active when it comes to controlling where advertising appears:
YouTube also has mechanisms that give advertisers some control over where their brands appear. “When we become aware of ads that are showing against sensitive content, we immediately remove them,” Lucas Watson, the company’s vice president for video online global sales, wrote in an e-mail. “We also give advertisers control to target specific content, and they can choose to block ads against certain content categories or individual videos.”
The key here is “when we become aware.” The real question for YouTube and Google’s other services (search, Blogger, AdSense) is why isn’t the company pro-active to prevent these abuses rather than reactive? Preventing abuse of its products is not censorship; it’s the responsible thing to do.
via http://www.fairsearch.org/
Google’s reluctance to take decisive action seems to demonstrate that despite half-billion dollar fines and ongoing scrutiny from governments around the world, profits remain paramount, no matter the source.
Unfortunately, these days it seems that Google’s not alone in looking the other way. Just last month shipping giant UPS had to cough up a 40 million dollar settlement for knowingly distributing shipments for illegal online pharmacies.
Enabling trafficking in illegal products is illegal. The time for Google to clean house is long overdue. The question is, will it do so voluntarily or will it have to be dragged kicking and screaming to the table? If past is prologue then my guess is that it will be the latter.
by Ellen Seidler | Copyright, Piracy, Politics, Tech
The Silicon Valley giant debates, deflects and downplays its role in facilitating and profiting from online piracy
Google’s ongoing role in facilitating (and profiting from ) online piracy was back in the spotlight this week thanks to a debate held this past Tuesday, May 28th, at the University of Westminster in London. The debate,“Follow The Money: Can The Business Of Ad-Funded Piracy Be Throttled?” was sponsored Music Tank, a university business network and included musician (and blogger) David Lowery; BPI (British Recorded Music Industry) boss Geoff Taylor; Theo Bertram, Google UK policy manager ; Alexandra Scott, public policy manager at the Internet Advertising Bureau in the UK; and James Barton, artist manager at The Blue Team.
The presence of a Google representative at a debate on this issue was itself newsworthy, and I might add, overdue. The evening’s discussion on the issue of ad supported piracy (summarized by Musically.com here) seemed to be focused on two main questions: who was responsible and what could be done about it.
David Lowery opened the evening’s discussion and framed a central problem with ad-sponsored piracy this way:
If the future of music really is access to songs rather than owning as many as we do nowadays, those services are all advertising-supported, and they’re competing with these illegitimate sites for these ads…Spotify and Pandora should have probably rightfully got that advertising money.
This is a key point. Online piracy harms content creators (across all disciplines) because it dilutes the market for legitimate consumption and siphons income away from creators and to the pirates (and their enablers). Online advertising revenue gives online pirates an advantage. The thieves can monetize stolen content at zero cost while the creators, who’ve expended capital to create the content, are forced to compete against free versions of their own product. Without income from online advertising, online piracy would not be viable on the scale that it is today.
When it was Google’s turn, per usual, Google was Google as Theo Bertram carefully paid lip-service to the notion that the search giant is proactive in the fight against piracy–citing how much it cost them to implement Content ID on YouTube (30 million) and assuring the audience that “If people have got content up there that is unlicensed and infringing, that would be a breach of our rules,”
Sure, it’s a “breach” of Google’s rules, but the point is, so what? As I have explained numerous times–when confronted with users who routinely and repeatedly break the rules–Google often looks the other way. I would have liked to ask Mr. Bertram how many times does it take for a Blogspot.com pirate site to be reported before Google will remove it? Just how many times does a YouTube user making money for themselves and Google off stolen content have to be reported before the account is terminated? Google refuses to say.
Blogger hosted pirate movie site
Blogger hosted pirate movie site
Blogger hosted pirate movie site
Blogger hosted pirate movie site
Blogger hosted pirate movie site
Blogger hosted pirate movie site
Blogger hosted pirate movie site
Blogger hosted pirate movie site
Blogger hosted pirate movie site
Blogger hosted pirate movie site
Blogger hosted pirate movie site
Blogger hosted pirate movie site
Google may have created a “transparency report” that lists takedown requests received for its web searches, but when it comes to the inner workings of how it polices Blogger, AdSense and YouTube there’s little transparency–just continued obfuscation.
While Google’s equivocation was not unexpected, equally frustrating was Alexandra Scott’s attempt to explain why online ad services are so inept when it comes to keeping content off illegal sites:
This is a huge industry. We’re talking about hundreds and hundreds of players here. It’s not always obvious to those players where that advertising is going. There’s a huge amount of work that we’re undertaking to address that.
Often those middlemen are helping to make advertising more efficient, more targeted and more relevant…I don’t think we want to do away with that, because that innovation is helping to drive the business… Obviously there are concerns about where that advertising is going to appear… It’s not something that’s easy to address: there’s no one-size fits all.
Yep, there it is again, that word “innovation” which–in today’s debate about piracy–is habitually employed as shield by those who wish to avoid taking action (or responsibility) for their role in it. In their world it seems that “responsibility” and “innovation” are considered to be mutually exclusive concepts.
Pop-up ads found on a Google-hosted Blogger website in March of 2013 including a number of name brands.
The oft-used ad industry excuse that “it’s not always obvious to those players where that advertising is going…” is also growing old. As I’ve pointed out many times, advertisers in the print and TV industry are keenly aware of where their ads appear and what editorial/entertainment content they partner with. How is that these same advertisers allow this editorial control to go missing on the internet? Is this “innovation” at work or are advertisers so desperate not to miss out on potential customers that blanketing the web with their promotions is seen as the only way to compete in this brave new world? Scott tried to address this conundrum, but ultimately fell back on the same, tired excuse:
Coca-Cola may say ‘we only want to work on a white-list basis, we only want to appear against certain publishers…They don’t want to be going on these sites. They’re just not always aware of the issue. They don’t necessarily know it’s happening until there’s a crisis… I don’t think that people actively seek out these sites to go and advertise on… Eyeballs isn’t the only thing for advertising: it’s all about context.
While Ms. Scott tried to explain why ad sponsored piracy is a difficult nut to crack, Mr. Bertram seemed more than willing to direct most of the responsibility for ad placement on the clients themselves:
…the only way you get that scale is if you get the big brands…Thus, the responsibility lies with brands to take responsibility, even though there is more work to do for Google in policing how and where ads are served on its network.
It’s not Google’s job to go around the web to declare whether sites are legal or illegal, but if Coca-Cola comes to us and says here’s a list of 500 dynamic sites, and we don’t want you to place ads on those… that’s a slightly different thing. It’s almost a marketing thing for the brand…Getting them to say ‘I’m going to be really clear with you: I don’t want you to put advertising on these sites, I do want you to put advertising on these sites’.
Mr. Bertram also returned to Google’s (not-so-effective) efforts to lower search results for sites known to offer illegal download links:
We’re trying to dampen that in the search results…so we are doing a bit of that. I am an optimist, in that search will get better, and be able to serve people with the results exactly that they want, and to do so utterly lawfully as well.
One nagging question that wasn’t addressed is was how much revenue Google generates from its connections to online piracy (and counterfeit product sites) via its various entities (AdSense, Blogger, YouTube, search, et al). It’s a significant question in this debate , but unfortunately wasn’t addressed.
Tap dancing aside, I suppose it’s a sign of progress that Google was willing to send a representative to the debate. There finally seems to be a growing recognition that ad money is a driving force behind online piracy. As I wrote three years ago when I began blogging about this topic:
Online piracy isn’t about altruism, it’s about income. Today’s technology allows web pirates to steal content and monetize that content with a click of a mouse. Meanwhile, “legit” companies encourage and facilitate this theft while also profiting from it (ad service providers, advertisers and payment processors). The time has come for reasonable measures to be taken to discourage this theft. Content creators and consumers will benefit. Only the pirates and those who profit from their theft will lose.
In the process of scouring the web for the thousands of illegal download links and online streams of our film (more than 55,000 documented to date) I quickly discovered that various, theoretically legit companies, seemed to be (indirectly) generating income through the placement advertising on websites featuring streams and download links to pirated films. In addition, and most troubling, is that fact these ads generate income for operators of these pirate websites and add to generous profit totals for ad providers.
At the end of the debate, Geoff Taylor noted that some progress was being made in efforts to tackle the problem, “to their credit Google and the IAB are working very closely with the music and film industries.”
Blue Team manager James Barton also struck a hopeful tone:
How refreshing that finally in 2013 we’re able to have a conversation with members of big tech and big music industry where we can find common ground, and look for a pragmatic solution to the piracy problem…
Perhaps it’s a matter of putting lipstick on a pig, but after watching this play out over these past three years, it appears we still have a long way to go. Recognizing there is a problem is step one, now let’s do something about it.
by Ellen Seidler | Copyright, Film, Law, Music, Piracy, Politics, Tech
Derek Khanna first came to public notice in 2012 after writing a lopsided anti-copyright “policy brief” for Republican Study Committee called “Three Myths About Copyright Law and Where to Start to Fix It.” A day after the document was released it was withdrawn and Khanna lost his job at the end of the 112th Congress. He blamed wealthy donors in the “entertainment industry” for his dismissal and quickly became a martyr for the anti-copyright cause. He ended up at as Yale Law Fellow with the Information Society Project.
Unfortunately, like many of those in the legal field who are working to undermine creator’s rights, Mr. Khanna speaks from a decidedly one-sided perspective in penning a piece for today’s Washington Post that ominously warns that “Hollywood should not decide our copyright laws.” Aside from selecting a splashy but lazy (and inaccurate) headline for his piece, he conveniently ignored the (Tech) elephant in the room when he wrote, ” Last year’s defeat of the Stop Online Piracy Act (SOPA) caused industry groups to intensify their lobbying efforts. And they haven’t been subtle about it.” Sure, television and motion picture interests have increased their presence in Washington, but then so has “Big Tech.”
May I remind you that the reality of the anti-SOPA uprising was in large part a result of a deliberate (and well-funded) astro-turf campaign managed by the big guns of tech (Google, et al) to gin up the public. How hard is it to get the internet in a spin when you’re in control of its major gateways? Certainly there was room for open discussion about the Stop Online Piracy Act and possible revisions to improve it, but the option for an open debate was quickly overwhelmed by an online avalanche of protest. Never mind that the majority of those who Tweeted or posted condemnations on Facebook hadn’t actually read the bill. For them all that was required was a mendacious meme that SOPA would “break the internet” and do away with “free speech” online.
It’s also worth noting that Mr. Khanna’s current employer (the Yale Law Information Society Project) receives some of its funding from Google–a company not exactly known for its love of present copyright law.
I do agree with one thing Khanna wrote in his post piece:
So in its deliberations, Goodlatte’s committee should ensure that Hollywood isn’t the only voice at the table. Both content creators and innovators desperately want to see copyright reform.
However, after that non-controversial statement it all goes downhill, quickly as Mr. Khanna gives readers a list of examples that, to him, demonstrate why copyright law is bad for creators and industry innovators alike. Why’s that a problem? Well, it’s a problem because, as is often the case with the copy-left, he doesn’t see fit to talk to tell the full story as to how crucial copyright protection is for those whose livelihoods depend on content creation. Khanna lists Hank Shocklee of Public Enemy, as an example of an artist constrained by current copyright law, but fails to mention that while Shocklee is a musician, he’s known for work often derived from sampling the work of others. His situation is not exactly representative of all artists, musical or otherwise, who have a stake in this debate.
Why not talk to some 45% of professional musicians who are no longer working in large part because our current copyright law is flouted by today’s digital pirate profiteers? Why not make mention of the independent filmmakers whose innovations are routinely stolen and monetized by bootleggers and online thieves?
Mr. Khanna also drones on in typical fashion about the DMCA. Yes, it’s an outdated law, but not for the reason he states. It’s outdated because it’s unworkable for creators, small and large, because its “safe harbor” provisions make protecting one’s content from pirate profiteers nearly impossible. He closes his piece by saying:
We can craft a system of copyright that compensates rights holders and incentivizes innovation for start-ups and new artists. It is not an either or proposition. But we’ll only get a balanced copyright system if Congress hears from a broad range of voices. It can’t just be special interests controlling the debate, writing the amendments in backrooms, and writing big checks to members of Congress.
True enough, BUT please remember that artists ARE innovators and that the tech industry represents a big “special interest.” Next time hearings are held in Washington let’s hope that a diversity of creator’s voices is heard rather than a panel of legal theorists–and if he writes about copyright reform again, perhaps Mr. Khanna would be wise take the same “balanced” approach he’s suggesting for members of Congress.
by Ellen Seidler | Copyright, Piracy, Politics
This week there’s been an uproar about a billboard that ostensibly asks artists to “pick a side” as to whether they support piracy or not. According to the NY Times:
For the last week a mysterious ad has flashed on the LED billboard above the American Eagle Outfitters store at Broadway and 46th Street, just over the bronze shoulder of George M. Cohan. Variably positing piracy as “criminal,” “progress” and “the future,” it asks the observer to “pick a side” on Twitter, as #artistsforpiracy or #artistsagainstpiracy.
It turns out that the entity behind the flashing billboard is a rather innocuous Brooklyn based band (of two) named “Ghost Beach.” The apparel company “American Eagle” had arranged for band’s use of the billboard as part of a deal to license one of their songs.
In posting the provocative messages, band member Josh Ocean explained their intent to the New York Times: “Since we started we’ve given away all our music for free, so just telling people to purchase our music somewhere didn’t seem natural for us. So we said, ‘What if we take advantage of this and open up a discussion about the new music industry?’ ”
Definition of piracy found at dictionary.reference.com
The ad agency TBWA\Chiat\Day created the campaign on a pro bono basis for the band and certainly it’s been successful in raising their profile. Unfortunately, as is often the case with advertisements, the challenge posed by the flashing LED in Times Square is based on a false equivalency. Though purported to be designed to generate discussion about a worthy topic, in reality the campaign is merely a slick and sophistic illusion that does little to advance, or inform, artists (or anyone else) about scenarios for music distribution in our digital age.
While it’s worthwhile for artists to debate such issues, it’s disingenuous to equate the choice to give one’s music away as being equivalent to piracy. Piracy is not about giving, it’s about stealing.
Despite the advertisement’s apparent theme, Ocean told the New York Times the band doesn’t support piracy:
“We are against piracy in the sense that we are for new technologies and using the Internet in a way that wins over it by us giving away our music directly to fans,” Mr. Ocean said. “That way we know where the music is going and can establish that connection directly with fans.”
“We never want to promote blatantly going out and stealing music,” he added. “What we do want to do is offer choices that we think are right.”
If you don’t want to promote “stealing music” then perhaps you should think twice before allowing an ad agency to glibly frame a discussion about digital distribution around the mendacious premise that artists must be either “for” piracy or “against” it because last time I checked, the definition of piracy includes:
“the unauthorized reproduction or use of a copyrighted book, recording, television program, patented invention, trademarked product, etc.”
Note the key word being “unauthorized.” When artists choose to give their work away, they’re not choosing to support piracy, they’re choosing to offer their creations to the public at no cost. It’s a distribution decision any artist is free to make, but please don’t call it piracy…
by Ellen Seidler | Copyright, Piracy, Politics
Billboard reported on a SXSW panel “Copyright & Disruptive Technologies” held last week in Austin. The panel included moderator Margot Kaminski, executive director of the Information Society Project at Yale Law School; Andrew Bridges, partner at Fenwick & West LLP; Ben Huh, CEO of the Cheezburger Network; Derek Khanna, visiting fellow at Yale Law’s Information Society Project; and Wendy Seltzer, policy counsel to the World Wide Web Consortium.
Not exactly a “balanced” panel on the issue, so it wasn’t surprising to hear them echo well-worn talking points critical of current U.S. copyright law. As is typical of such panels, real facts presented seemed few and far between.
Attorney Andrew Bridges’ secured the chutzpah award for the day when he suggested that copyright owners should “lose” protection under copyright law if they sent more than 6 erroneous DMCA takedown notices. According to Billboard:
People on both sides of the SOPA/PIPA debate can probably agree that copyright law and enforcement ensnares some undeserving individuals and businesses. Attorney Andrew Bridges, a partner at Fenwick & West LLP, recovered the Dajaz1.com domain after the Immigration and Customs Enforcement (ICE) determined the New York-based hip-hop site had violated copyright law. ICE dropped the case after a year of secret requests for more time to file paperwork….
Bridges had a suggestion to prevent record labels and movie studios from sending false-positive infringement notices: copyright owners lose protection under copyright law if they send six false infringement notices. The comments were met with loud applause.
The crowd’s pleasure not withstanding, it’s important to understand that a takedown as part of the government’s “Operation in Our Sites” anti-IP theft enforcement, is not equivalent to a filmmaker, or musician, sending a DMCA notice to demand takedown of an infringing file. Certainly these such takedown notices are occasionally sent in error, but does the harm done by that really outweigh the harm done by the massive online copyright infringement (piracy) that currently thrives online? If a rights holder is forced to send literally tens of thousands takedown notices to safeguard their content is it really unreasonable to believe that a few erroneous ones would be sent?
The idea that there’s any actual harm done by false takedowns is vastly overblown.
In the anti-copyright lobby’s opposite-world a takedown sent to an “innocent” party brings the spectre of prison and/or poverty. In the real world it’s generally an email. If sent in error, the aggrieved party can, often with the click of his mouse, respond with a counter notice and explain why the takedown was in error. Usually that’s the end of it. Case closed.
If the sender of the original DMCA notice wants to ultimately enforce what they believe to be a legitimate takedown they must then go to court (and spend money) to prove their case. If anything, this set-up favors pirates who knowingly upload infringing content. I’ve witnessed situations where counter-notices where filed (even though the uploader didn’t own rights to the material) thus nullifying the original (albeit legit) takedown. It ended with the infringing content remaining online because the rights owner couldn’t afford to go to court. What do pirates have to lose by filing a counterclaim, even if it is a lie?
Sometimes an uploader will file counterclaim based on the principle of “fair use.” If it’s legit, rights holders will generally allow it to remain online. However not every “fair use” claim is valid. I’ve had the experience on YouTube where my entire film was uploaded. When I filed a takedown notice the user specified “fair use” as the justification for the upload. In that case I sent a friendly email to the uploader and included a link explaining the perimeters of “fair use.” The file was ultimately removed, no courtroom required.
In other instances, the line between fair use and copyright infringement is not so clear. The oft-sited Dancing Baby video, featuring Prince’s “Let’s Go Crazy” was taken off YouTube after a complaint by the Universal Music Group. The uploader filed a counter-notice and the video was restored to YouTube. Not satisfied with having the video restored, the uploader sued UMG for “bad faith” in having sent the original takedown. In that case no apparent “harm” was done, yet the issue ends up in court and the uploader becomes a “free speech” hero (her case supported in part by the EFF, the Electronic Frontier Foundation ) while the creator is vilified.
Yet, Dancing Baby aside, it’s important to note that despite hyperbole to the contrary, “record labels and movie studios” are not the only entities that send takedown notices. Independent artists, who don’t have a bevy of lawyers (or an entity like the EFF) at their disposal, are particularly vulnerable to the damages of piracy, but generally cannot afford to fight (false) counterclaims. Tell me again who is the victim in this scenario?
The talking points echoed by the panel at SXSW reflected the anti-copyright lobby’s disingenuous mantra that content creators seeking to protect their work from theft should be viewed as criminals, while those who brazenly steal (and monetize) the work of others are somehow the “innovators.” Are you serious? I hate to break it to these folks, but the tech industry does not have first dibs on the adjective “innovative.” Creative artists have always thrived on the cutting edge–and while the modern-day tech industry has developed new means of delivery and consumption–their innovations would be useless were it not for the content their products deliver. In many ways, creative content is the fuel has fed the tech revolution. Why can’t we have a discussion that acknowledges this symbiosis, rather than diminishes it?
As for the ICE seizures, it’s certainly a subject worthy of discussion, but not one that should be equated with DMCA takedown notices. Of course muddying the waters to obscure the truth plays to the advantage of those who see copyright law, and any effort to enforce it, as “disruptive” to their bottom line.
Some good news from my neck of the woods as California Attorney General Kamala Harris announced that her office had filed charges against 3 brothers who operated pirate websites featuring stolen movies and TV shows. According to a press release issued today, the 3 Bay Area men, Hop Hoang, 26, Tony Hoang, 23, and Huynh Hoang, 20, could face up to five years in prison if convicted. The brothers were arraigned in Alameda County Superior Court yesterday on charges that they operated a website (mediamp4.com) that allowed users access to illegal streams of more than 1,000 copyrighted TV shows and movies. More from the press release:
It’s alleged that the brothers earned approximately $150,000 over the past 18 months through advertising and that they drove traffic to the site via Google search ads. Once again this illustrates the ongoing link between the lure of piracy profits via online advertising and these illegal websites. The pirates are not in business for altruistic reasons; they were pirating content because it pays.
