Writing about online piracy and Google is a bit like living in the movie Groundhog Day. Day after day reality repeats itself. However, unlike Groundhog Day, there are no minor changes in the timeline that lead to a different outcome. When it comes to Google Drive and piracy, the story remains the same, day after day, year after year.
I’ve written about Google Drive several times over recent years, highlighting its ongoing role in giving online pirates convenient (and free) storage to make it easy for them to “share” pirated movies. Aside from providing a safe haven for pirated content, Google also blatantly defies the “safe harbor” a DMCA requirement that infringing material be “expeditiously” removed…..In reality, it can take weeks for reported links to be removed from Google Drive.
(1) In general.—A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider— (A) (i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing; (ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
(i) Conditions for Eligibility.— (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; …
Here are some images from very the same Google Drive account reported multiple times in October of 2017 for several dozen infringing titles, and again in 2018 and 2019. Despite being reported for dozens of pirated movies (many of the same titles) over several years, the account remained online.
Graphic from 2017Graphic from 2019
Despite dozens of DMCA notices over years the account remains untouched
Now, in 2020, the same Google Drive account (folder beginning with OB4Q) remains active and has re-uploaded infringing links (this time as torrent downloads) to the very same films previously removed.
Not to beat a dead horse, but why is Google allowed to sidestep the DMCA safe harbor requirements? Like other big tech companies, Google seems to routinely operate above the law. I guess having a well-paid gang of lobbyists in Washington has its benefits eh?
For easy reference, here are some of my past posts about this notorious Google Drive account from 2017 through 2019:
Of course, Google Drive piracy doesn’t damage only indie filmmakers like me. Even the big guys seem ripe for the picking. Unlike Google’s YouTube, Google Drive doesn’t provide any Content ID technology that would allow content creators (some) means to protect their work from this rampant theft. Here’s a Google Drive account I came across recently featuring dozens of Disney films. So much for needing to pay to subscribe to Disney+ eh?
As many of you know all too well, successfully removing your pirated work from online sites is a time consuming task. Not only does you have to find the infringing content, but have to spend time crafting a DMCA notice to send to the service provider hosting the illicit links and/or files.
I recently was notified about some links shared by a Twitter account that led to some pirated movies. At first I attempted to use Twitter’s web form, but it REQUIRED me to log-on to a Twitter account in order to send a DMCA notice via their web form. Sorry.
I don’t think there’s anything in the law that requires DMCA senders to have an actual account with service provider???? For me, the most efficient approach was to send the take-down notice directly Twitter’s designated DMCA agent listed in the US Copyright Office directory of DMCA agents. Here’s what I found:
Ok, so there’s an email address ([email protected]) clearly listed (as required by law) and so I sent my DMCA notice to that email address. I quickly received an automated response from [email protected] telling me, essentially, that Twitter ignored my request and that I must use their web form instead.
Now, I didn’t send an email “attachment.” I sent an email with the language of the DMCA notice and the infringing links included in the body of the email.
Twitter surely does deal with massive numbers of DMCA take down requests daily, but that’s not my problem. Attempting to force notice creators to log into their system in order to access a clunky web form not only adds greater burden by eating up valuable time, but makes record keeping on much more difficult. Emails provide me with a record of both the reported links and the time/date I sent the notice to Twitter.
This is the kind of stuff that has been happening for a long time with the DMCA. Service providers do everything they can to erect roadblocks to creators who are trying to protect their work from online theft. While Twitter is not alone in this behavior–the real question remains–why are these companies allowed to repeatedly flout the law?
Meanwhile, even a small effort toward progress like the CASE Act, which would provide creators access to a modicum of relief via a small claims process, is being held up in the Senate by Ron Wyden at the behest of tech companies, some of which happen to be big donors.
Twitter’s DMCA “process” is simply one more in a long list of examples as to why the the DMCA doesn’t work. Big tech companies simply ignore the rule of the law and make efficient take-downs as difficult as possible on creators.
Unlike their counterparts in the U.S. who seem content with a creaky DMCA law more than 2 decades old, members of the European Council passed a directive to move copyright law into the digital age:
The Council today adopted a directive that modernises existing EU copyright law to pave the way towards a true digital single market. The new rules ensure adequate protection for authors and artists, while opening up new possibilities for accessing and sharing copyright-protected content online throughout the European Union.
It’s refreshing to see the rights of creators be taken seriously in spite of withering, and predictable, pushback from tech interests and their various astro-turf groups. Finally Google and others will actually have to arrange for proper licenses before monetizing the work of others.
Freedom on the internet, as in the real world, will continue to exist as long as the exercise of this freedom does not restrict the rights of others, or is illegal. This means that a user will be able to continue uploading content to internet platforms and that these platforms will be able to continue hosting such uploads, as long as the platforms respect the creators’ right to fair remuneration. Currently, the online platforms remunerate creators on a voluntary basis and only to a very limited degree, because they are not liable for the content they host and therefore have little to no incentive to strike deals with rights holders.
The directive will not censor. By increasing legal liability, it will increase pressure on internet platforms to conclude fair remuneration deals with the creators of work through which the platforms make money. This is not censorship.
Meanwhile, U.S. Congress remains under big tech’s thumb
Too bad our representatives in Washington seem uninterested in tackling this issue. It’s ironic to note that had Congress take action to rein in big tech, by establishing reasonable regulations mirroring those in the brick and mortar world, the institution itself would probably be a much more effective governing entity today. Instead our nation has spun into a miasma of social media manipulation and misinformation. Where Europe has stepped up, the US has fallen further and further behind.
Reasonable rules have always been the hallmark of civilized society and by allowing an entirely new online ecosystem to form (and fester) outside the bounds of legal scrutiny, a Pandora’s box was opened. It may be too late to close it
UPDATE: It seems that Lumen database has finally acknowledged that there is an issue and seen the light. Its operators have announced an important change, limiting access to actual infringing links. Per Torrent Freak:
In a nutshell, takedown notices presented in Lumen’s database will no longer list the precise URLs targeted by copyright holders. Instead, as the image below illustrates, the notices only list how many URLs were targeted at specific domains.
I’ve written about the Lumen, formerly “chilling effects” DMCA database in the past and how it “makes a mockery of the DMCA.” I’ve also pointed out that the site provides a repository for links to to pirated downloads and streams even after they’ve been reported for copyright infringement. Now, with the release of a new browser extension for Chrome and Opera, the database’s questionable practices are in the spotlight once more. The extension, aptly anointed “Google Unlocked,” makes it easy for users to once to bypass takedowns and once again use the search engine to find pirated links to their favorite movies. Its developers claim:
The extension scans hidden links that were censored on Google search results due to complaints. The tool scans those complaints and extracts the links from them, puts the links back into Google results, all in a matter of seconds.
Why are removed links still available online?
When Google removes a link reported for infringement from in its search results it conveniently (for would-be pirates) replaces the removed material with a disclaimer that, in turn, features a link to the original DMCA notice (on Lumendatabase.org) which includes infringing URLs.
Below is an example found today when searching for Captain Marvel downloads on Google.
Notice the Lumen link . Clicking that leads to the original DMCA notice and the list of reported infringing links which, when I chose one randomly, led me to an actual pirated download of the film. Piracy lives!
However, using this extension makes even such rudimentary mouse clicks moot. Basically it seems to, for all intents and purposes, undo Google’s tepid effort to comply with the DMCA. Since operators of Lumen Database refuse to redact any portion of the infringing URLs found in the DMCA notices in its database, this new extension easily restores the pirate links. According to Torrent Freak:
Since by its very nature the tool searches for allegedly infringing links, we aren’t going to demonstrate those here. Safe to say, however, the tool does scan LumenDatabase as advertised and all the removed links do get embedded in the search result page itself, very large numbers of links in some instances.
Lumen provides pirate links with eternal life online
Several years ago I actually tried to bring further attention to this problem by sending Lumen (then Chilling Effects) Database a DMCA notice for my own film. We went through the usual song and dance. I sent the notice, they sent a counter-notice, and when I couldn’t go to court to enforce the takedown, the DMCA notice containing the pirate links went be online. As a creator with no bevy of lawyers at my disposal, I had no alternative and I knew it. I did it to raise awareness.
I even raised this issue in front of various industry stakeholders (including Google) at a 2016 U.S. Copyright Section 512 roundtable discussion in San Francisco. Here’s part of what I said at the the time:
Google removes the link from the search results, yet provides a link to the document that actually has the same link in it. So it may be following the letter of the law. But I don’t think it follows the spirit of the law. And I’m not suggesting that the Lumen Database shouldn’t exist. I think it’s important and I know Berkeley Law used that extensively in their most recent study. But what I would suggest is maybe using technology to redact a little bit of the URL. And researchers who really want to go and look at the information could go to Lumen and actually get the DMCA notice. But it doesn’t need to be so convenient that a user looking for pirated content can find it so easily.
Per usual, my remarks were ignored and the LumenDatabase.org continued its dubious practice of listing all the infringing links in full. Perhaps this new extension, Google Unlocked, will cause some to rethink this approach and pay close attention to Google’s sleight of hand when it comes to compliance with the DMCA. Hey, how about revisiting the DMCA entirely while we’re at it? A girl can dream…..
Excellent news out of the European Union, as contentious copyright reform directive (Copyright in the Digital Single Market) was recently approved by the European Council. While the agreement still has a couple more hurdles before it can become law, momentum seems to be moving in the right direction.
Agreement reached on #copyright! Europeans will finally have modern copyright rules fit for digital age with real benefits for everyone: guaranteed rights for users, fair remuneration for creators, clarity of rules for platforms. pic.twitter.com/dwQGsAlJvK— Andrus Ansip (@Ansip_EU) February 13, 2019
Familiar tropes offered by Google and other tech interests have, of course, been legion. However, since Google’s bad behavior was a catalyst for these reforms, fortunately these complaints have not prevented the directive from moving forward.
Artists rights advocates in the United States have long been calling for reform to our own Digital Millennium Copyright Act (DMCA), a law enacted more than two decades ago that is woefully out of date. The new EU proposal will address some of these same concerns regarding notice and takedown.
When unlicensed content is uploaded, platforms have to act “expeditiously” to remove it and make “best efforts” to prevent its future upload. That means YouTube will be required to implement “notice and staydown,” as opposed to the current regime of “notice and takedown” — or “Whac-A-Mole,” as some call it.
The majority of rightsholders see notice-and-staydown legislation, and the placing of primary liability on user-uploaded content (UUC) services, as a significant win for the music industry. However, some fear that that ambiguities in the final text could be undermined or loosely interpreted when the directive is transposed into law by EU member states, indirectly creating new loopholes and safe harbors for platforms to exploit.
As with the ill-fated Stop Online Piracy Act, opposition from tech astro-tuft entities has been loud. The Google-funded EFF warns that blowback to the reforms, particularly in Germany, will be fierce.
Rhetoric aside, what will this new legislation actually do? It will stop forcing content creators to be the only entity responsible for safeguarding their creations from content theft.
Simply put, the Directive on Copyright places more responsibility on websites such as YouTube, Facebook and Twitter to make sure that copyrighted material isn’t being illegally shared on their platforms. Until now, the onus has mostly been on the copyright holders – usually the companies that produce audio, video or written content – to enforce copyright protection but under the new law this responsibility will shift onto the major platforms themselves.
Such reform is long overdue. As with digital privacy issues, it seems that the United States is once again lagging. Perhaps the lobbyists in Brussels haven’t (yet) bought the same influence as they do in Washington.
According to EU Vice-President for the Digital Single Market Andrus Ansip:
“To finally have modern copyright rules for the whole of EU is a major achievement that was long overdue. The negotiations were difficult, but what counts in the end is that we have a fair and balanced result that is fit for a digital Europe: the freedoms and rights enjoyed by internet users today will be enhanced, our creators will be better remunerated for their work, and the internet economy will have clearer rules for operating and thriving.”
Two reports show that 2018 did not bring the progress many hoped to see
Hollywood is known for making sequels, but unfortunately there’s one refrain that grows increasingly stale with each passing year– the narrative that women continue to remain woefully underrepresented behind-the-scenes according to two studies just released. Both San Diego State’s Center for the Study of Women in Television and Film annual Celluloid Ceiling report and USC Annenberg’s Inclusion in the Director’s Chairprovide evidence of this discouraging tale.
Percentages of Top 250 Films with No Women in Roles Considered
92% had no women directors 73% had no women writers 42% had no women exec. producers 27% had no women producers 74% had no women editors 96% had no women cinematographers One quarter or 25% of films had no or 1 woman in the above roles
womenintvfilm.sdsu.edu
Rather than making progress, it appears that opportunities for women to contribute as directors, writers, producers, executive producers, editors, and cinematographers actually diminished in 2018.
In 2018, women comprised 20% of all directors, writers, producers, executive producers, editors, and cinematographers working on the top 250 domestic grossing films. This represents an increase of 2 percentage points from 18% in 2017. Last year, only 1% of films employed 10 or more women in the above roles. In contrast, 74% of films employed 10 or more men. Women accounted for 8% of directors, down 3 percentage points from 11% in 2017. This is 1 percentage point below the 9% achieved in 1998. By role, women comprised 16% of writers, 21% of executive producers, 26% of producers, 21% of editors, and 4% of cinematographers. The study also found that women accounted for 6% of composers, 6% of sound designers, and 10% of supervising sound editors.
Variety noted that Dr. Martha Lauzen, author of The Celluloid Ceiling asserts that real change will not happen unless all industry stakeholders make it a priority:
The study provides no evidence that the mainstream film industry has experienced the profound positive shift predicted by so many industry observers over the last year. This radical underrepresentation is unlikely to be remedied by the voluntary efforts of a few individuals or a single studio…Without a large-scale effort mounted by the major players – the studios, talent agencies, guilds, and associations – we are unlikely to see meaningful change. The distance from 8% to some semblance of parity is simply too vast. What is needed is a will to change, ownership of the issue – meaning the effort originates with the major players, transparency, and the setting of concrete goals. Will, ownership, transparency, and goals are the keys to moving forward.
Despite the disappointing numbers for women overall, there were some positives, particularly for black directors. However, of that group, only one was a woman, Ava DuVernay who helmed A Wrinkle in Time.
The breakdown in ages is also interesting. It seems young women and older women need not apply for directing gigs and while indie films offer opportunities, success there doesn’t seem to carry over into the realm of big budget Hollywood fare.
The disregard of female filmmakers is also reflected in upcoming awards offerings. Neither the Golden Globes nor the Producers Guild nominated films directed by women.
There were certainly female directors to choose from this year. Can You Ever Forgive Me?, which earned Richard E. Grant a Best Supporting Actor nomination, was directed by Marielle Heller. Nicole Kidman earned a nomination for Destroyer (as Best Actress), but director Karyn Kusama did not. Mary Queen of Scots, which stars Saoirse Ronan and Margot Robbie as warring 16th-century English royals, was directed by Josie Rourke with a “keenly feminist sensibility” …but was shut out of the nominations. Debra Granik, who helped launch Jennifer Lawrence into fame with her 2010 film Winter’s Bone, returned this year with Leave No Trace, but did not earn a nomination. Chloé Zhao’s The Rider recently won Best Feature at this year’s Gotham Awards, but was not nominated for any Globes.
It’s discouraging to see women directors did better in 1998 than in 2018.
Looking northward, perhaps the U.S. film industry could learn a thing or two from our Canadian neighbors. Telefilm Canada has made it a priority to achieve gender parity in its offerings by 2020.
source: Telefilm Canada
While Telefilm Canada still has work to do, particularly with bigger budget productions, its obvious success demonstrates that progress is possible.
A year after setting a goal for gender parity in Canadian film by 2020, Telefilm is closer to the finish line than expected. Among the film projects the federal funding agency has in the pipeline for this fiscal year, 44 per cent have a female director attached, 46 per cent feature a female screenwriter and 51 per cent have a female producer. The figure is a heartening leap from the 2013-2014 fiscal year when only 17 per cent of Canadian film projects had women directors. That number plummeted to four per cent for films budgeted over $1 million.
As an indie film and broadcast journalism veteran, I'll share my perspectives on issues of interest to the creative community and beyond--Ellen Seidler
