by Ellen Seidler | Copyright, Google, Piracy
Google-funded report generates desired headlines and conveniently downplays the role of DMCA counter-notices–ignoring fact the system is weighted against rights holders
A new report on the DMCA notice and takedown system, Notice and Takedown in Everyday Practice, was released yesterday. Co-authored by researchers at Berkeley Law and Columbia University (collaborators for The Takedown Project), the release is clearly timed to generate buzz to coincide with the April 1st deadline for comments to the U.S. Copyright Office on the state of the 512 statute.
The study is said to offer, “a rare, in-depth, empirical look at ways online copyright disputes are handled between Internet companies, such as Google and YouTube, and content creators, such as movie, music, and publishing companies.” Hmmm, color me a tad suspicious of any piracy-related report funded by Google*.
You can read the full 160 page document here, and despite the fact Google is a main funder, I was hopeful that the report would provide an honest look at the current sad state of the DMCA notice and takedown system. What initially encouraged me was this paragraph in the Berkeley Law announcement:
The co-authors reveal how online copyright issues have led to problematic practices that threaten free expression, but they also highlight methods that effectively protect both content creators and providers.
However, my hopes for a fair examination of the issues were (mostly) dashed by this tidbit:
Although there are “counter notice” procedures for users, it is unclear if they work well.
Of course, I really shouldn’t be surprised by this intentional oversight, particularly when the research is conducted through the generosity of Google. How can one purport to do an, “in-depth, empirical look at ways online copyright disputes are handled between Internet companies, such as Google and YouTube, and content creators, such as movie, music, and publishing companies” without finding clarity on a major piece of the current notice & takedown process?
Drilling down into the actual report I found summary regarding counter-notices on page 128:
Study 1 OSPs described hesitating to encourage targeted users to send counter notices, even when it seemed appropriate, for fear of creating liability risk for targets and themselves. Unbalanced liability standards—fear of suit by copyright holders but not users—creates incentives for OSPs to take down material. Moreover, some of the main targets of large-scale requests— search services—have no service relationship with targets or any duty to inform them that links are being removed, making it highly unlikely that the target would know to send a counter notice. Further, as we discuss in recommendations, section 512 currently leaves unclear whether search engines are protected for putback like hosting entities, exacerbating the challenge. Overall, the counter-notice process’s procedural features make it difficult for OSPs to use it as intended. The counter notice process contains other flaws. In Study 1, OSPs described it as intimidating and confusing for targets.
I am not an attorney, but in my anti-piracy work I’ve repeatedly found the counter-notice system to be weighted against the rights-holder. I ran the above statement by a couple of copyright law experts and they agreed the concerns regarding OSP’s (online service providers) increased liability seems suspect. The only thing required by a counter-notice is that the sender provides real contact information (a good thing). The Takedown Project touts the need for “greater transparency” in the notice & takedown system so it would seem that identification of the parties involved in a copyright dispute is only fair.
Once YouTube receives counter-notice, pirated movie goes back online unless rights holder goes to federal court to enforce takedown.
I’ve written about my experience with sending a takedown notice on YouTube (for the removal of a full-length feature film that uploaded) and having the sender respond with a counter-notice. BTW, in contrast to the report’s characterization of the process, YouTube makes it very easy. Once the counter-notice (claiming “fair use”) was sent, I was powerless because the law requires the sender of the DMCA takedown to go to court to enforce a request. Since the filmmaker I represented didn’t have the financial resources to do that, YouTube reposted the ENTIRE FILM 10 days later. You tell me, who is the loser in this scenario? It’s one that’s happened to me multiple times on YouTube. Why does the report downplay the frequent abuse of the counter-notice system?
I’m also curious as to why researchers had such difficulty finding examples of counter-notices? Obviously the vast majority of takedown notices are valid and would be unlikely to generate a counter-notice but if takedown abuse is as rampant as researchers claim, there must be enough to cull meaningful data from. Yet, according to the researchers, “…all available evidence suggests that counter notices are simply not used. It is indicative of the problem that the most memorable uses of counter notices for our rightsholder respondents were a few bad-faith, bogus counter notices from overseas pirates.”
It’s worth noting that the Lumen database (previously Chilling Effects) that provided researchers with the takedown notices used in the study offers a tool for generating a counter-notice. Why doesn’t Lumen offer a database for counter-notices too? Did researchers simply give this issue short shrift because data was more difficult to come by, or because it would be an inconvenient truth, or both?
I brought up my concerns about counter-notice abuse with Berkeley researchers in 2014
In fact, in October of 2014 I participated in the USPTO’s ongoing series of public multi-stakeholder forums on improving efficiency the DMCA Notice & Takedown system. At the time Brianna Schofield, a teaching fellow at the clinic who assisted with the report’s research, gave a presentation about the study. As part of the Q & A follow-up I raised the issue of invalid/inaccurate counter-notices with her, hoping to bring attention to the issue. I’m disappointed to see that this issue didn’t garner a more rigorous look.
Although I haven’t had time to give the report a thorough reading, even with a cursory review I found more cause for skepticism.
The report makes for good (false) headlines, but the data is suspect
Berkeley Law’s story announcing the report’s findings claims that a study “found nearly a third (28.4%) raised at least one question about their validity.” Of course this characterization is intended to raise eyebrows, details of which can be found on page 2 of the research summary:
Study 2’s quantitative analysis revealed deficiencies in notice and takedown procedures, especially automated requests, as all takedown requests in the sample appeared to be automated. Nearly 30% of takedown requests were of questionable validity. In one in twenty-five cases, targeted content did not match the identified infringed work, suggesting that 4.5 million requests in the entire six-month data set were fundamentally flawed. Another 15% of the requests raised questions about whether they had sufficiently identified the allegedly infringed work of the allegedly infringing material. The analysis further identified significant questions related to the availability of potential fair use defense, complaints grounded on improper (non-copyright) claims, and requests sent to defunct web sites.
Note amid this gobbledygook that phrases like one in 25 actually equals only 4.2% but meanwhile that means 4.5 million over six months…sounds like a lot until you remember that Google handles 2 million requests per day. Adding to the confusion over results is that this “report” actually consolidates 3 separate studies making it difficult to figure out which end is up and what percentage means what…purposeful chaos. In study number 3 one bad actor was responsible for 53% of problematic takedowns tallied. Throw out a bunch of percentages hoping they stick somewhere, somehow…
Strikingly, nearly 53% of the Google Image Search takedown requests were from one individual sender, Ella Miller.17 All of these requests appeared to be improper subject matter for DMCA takedown—none were copyright complaints.
BTW, she’s described as a “European individual who is embroiled in an online dispute about modeling photographs taken of her.” Along with eye-popping percentages, the report includes a myriad of pretty charts to display this colorful, yet dubious data. Why bother to include this particular red herring’s notices in the study when the report notes they weren’t copyright complaints?
More striking is the question, why did researchers include this outlier’s data in their results?
It’s also ironic so much weight is given to notices sent by Ms. Miller given researchers’ glib dismissal of false counter-notices with the observation that “the most memorable uses of counter notices for our rightsholder respondents were a few bad-faith, bogus counter notices from overseas pirates.” Meanwhile, the majority of problematic takedowns highlighted in the report were bad faith, bogus takedown notices from one overseas model.
If Ms. Miller is such a problem, take her to court. After all, a legal counter-notice requires a sender to be truthful and to swear, under penalty of perjury, that the document is correct. Talk about blowing something out of proportion. One confused, overzealous 
individual with a grudge is not representative of the millions who send legit DMCA takedown notices.
Of course, for folks in the Googlesphere these bogus numbers generated by the study had the desired effect…prompted, as if on cue, screaming headlines in Variety that read, Policing the Pirates: 30% of Takedown Requests Are Questionable (Study). Google lobbyists in Washington are no doubt quite pleased as they circulate this particular press clipping around town.
Personal blogs and social media sites are often used (knowingly) to promote piracy
Bogus headlines aside, the report also predictably raises the oft-used canard of free speech, that the DMCA is used as a nefarious cudgel against those poor bloggers et al (never mind that it was apparently the notorious “less sophisticated” Ms. Miller who was doing most of the targeting).
The third study, which focused on notices from less sophisticated senders, raised still greater concerns. These notices often targeted social media, blogs, and personal websites, raising questions about their effect on freedom of expression—and more than seven out of ten (72%) presented questions about their validity. Strikingly, more than half (all problematic) were from one individual sender. Of the rest, 36.8% were still questionable.
This Google-hosted pirate site offered dozens of free
streams to indie films
Again, my experience fighting piracy has repeatedly led to personal blogs and social media accounts with Google’s Blogger platform and Facebook leading the way. In fact, blogs hosted by Google (Blogspot sites) seem to offer pirates an easy and affordable way to set up shop to distribute their stolen movies and music. I can state without hesitation that all the DMCA notices I sent to remove pirated movies off Blogger’s Blogspot.com sites (and there have been hundreds) were accurate.
Everyone agrees that the DMCA is in dire need of an overhaul for the 21st century, but to conveniently ignore the fact that it currently puts content creators at a distinct disadvantage is disingenuous. It’s also worth reminding this report’s readers to remember who’s behind it, where the money comes from, and what types of entity finds support via its legal advocacy. Let’s just say that indie artists whose works are routinely stolen and monetized (aided by companies like Google) aren’t included.
There are some positives in this report, particularly the suggestion to improve access to takedown technology for indie artists. From page 149 of the report:
In Congressional testimony, 359 representatives of independent artists and other smaller senders also criticized a lack of meaningful access to the more sophisticated enforcement methods (including automation, REO contracts, and monetization strategies) available to larger copyright holders. Although we did not speak with small senders directly, we note that the competition issues that arise with content filtering and monetization issues (see Section III.E.) also affect independent artists, smaller labels, and other individual creators. Further information-sharing and research efforts would also be beneficial:
- Exploring ways to make monetization models more available to independent artists, smaller labels, other individual creators, and follow-on users.360
- Exploring how to make automated tools to search for potential infringements more available to independent artists, smaller labels, and other individual creators.361 Crucially, these tools must follow the best practices outlined above in order to avoid exacerbating the issues we observed with mistake and abuse. In general, any expansion of automated systems should occur in combination with the liability-balancing measures suggested in Section V.D.1 in order to ensure that mistaken or abusive notices are minimized.
In my view this should be a key part of any effort to update the DMCA. There’s no reason OSPs cannot implement technology designed to offer a more efficient and effective takedown process. Making such tools available to creators of all stripes could help mitigate the negative impact of online piracy and copyright infringement.
One of the report’s authors, Joe Karaganis, vice president of The American Assembly at Columbia University, pulls out another favorite anti-copyright meme when he offers this summation that suggests a “rebalancing” is in order.
Ideally, I hope that our work convinces policymakers that some rebalancing of responsibilities is required so that the senders of notices are a bit more on the hook for bad takedown requests.
Sorry Joe, but there’s already a “hook” in place to deter “bad” takedown requests….the counter-notice. Of course, as I explained earlier in this post, that discussion was conveniently side-stepped by these studies.
And so it goes…overblown data, fancy charts, Google talking points, suspect timing….
Clearly there are ways to update the DMCA that will benefit consumers and creators alike, but making false claims about how the law does or doesn’t work won’t accomplish much beyond reinforcing well-worn tech talking points in advance of efforts to remake the DMCA.
In the meantime I can suggest one very simple way to lower these questionable takedown numbers…companies like Google should do more to prevent online piracy and copyright infringement.
*Here’s what the report says about its funder in its acknowledgements on page 5:
We are grateful for funding support from Google Inc. as a gift to The American Assembly and from the Sloan Foundation for its support through the Berkeley Law Digital Library Copyright Project. Neither funder directed our approach in any way, and neither funder reviewed any methods, data, results, or reporting before public release.
by Ellen Seidler | Copyright, Google, Piracy
The Google team doesn’t seem to appreciate email as a form of communication
I’ve written about Google’s laborious and time-consuming DMCA takedown maze, a process that forces creators to find, then fill out cumbersome online forms. I’ve also written about the fact that Google makes it difficult, if not impossible, to find the email address for its DMCA Agent–in apparent violation of the law’s requirements.
Even when you do find the correct email address for Google’s DMCA agent (via the U.S. Copyright Office), the Google team’s correspondence makes it clear that you will be penalized for taking this legal, more efficient approach. Sending a DMCA takedown request via email is far less burdensome for a couple significant reasons:
- Sending a DMCA via email is fast and easy in contrast to Google’s online form
- You have a copy of the DMCA notice you send, making record-keeping and follow-up much easier
Of course, if you do send a DMCA takedown notice to Google via email it seems to really annoy the Google “team.” Take a look at the email responses to a DMCA notice I recently sent via email. Note that the DMCA template I used was crafted by my attorney.
In response to this perfectly legal and accurate DMCA notice, I received this email asking me to be sure that my original notice complied with the law. I was forced to send a second email confirming that yes, I do know what the heck I am doing when I send a DMCA takedown notice.
Google makes you send a second email
Ok, after all this, Google still isn’t happy. Yes, they eventually end up complying with the law and sending me confirmation that they are acting on my takedown request…but, but….next time, you’d better do it the Google-way using their online takedown maze.
No thank you. I prefer to send my DMCA notices in a way that benefits ME, not Google. It’s not my fault that Google’s business model is such that attracts a tsunami of takedowns every day.
The fact is that Google has the technology to process DMCA notices via email just as easily those sent via its web form(s). While submitting DMCA requests via an online form may be helpful for those individuals who aren’t familiar with the process–or creators who send them infrequently–Google’s convoluted online takedown process serves simply as a time- sucking deterrent.
Maybe if I sent the DMCA via a GMAIL account they’d be more receptive? 😉
by Ellen Seidler | Copyright
Instead of griping about growing flood of takedowns, why doesn’t Google change its approach?
Poor Google….bad, bad copyright holders….that’s essentially the subtext beneath headlines that scream, “Google received over 75 million copyright takedown requests in February-The company is processing over 100,000 links each and every hour.” My response–why not try a different approach?
The massive volume of takedowns that Google deals with every hour is a sign of its failure, not– as some would have us believe–overzealous rights holders. Dealing with the copyright notices is a byproduct of Google’s business model and its continued refusal to take meaningful action against the rampant piracy enabled by its products (search, blogger, drive, etc).
As Google’s empire has grown over the years, its teflon-resistant coating to all things copyright has thickened. Year after year, the company has spun the truth about its role in propagating online piracy by demonizing piracy’s victims. The 97% that send valid takedown notices are dissed, while the 3% receiving erroneous (or incomplete) notices are somehow portrayed as victims??? It’s a ridiculous posit, but one Google has repeatedly burnished so as to be accepted as truth.
Why not try to “do a better job” reducing piracy and protecting creators?
Just last week the folks at Google trumpeted their latest initiative to do a better job to minimize takedown and monetization mistakes on YouTube. If the company really wants to do a “better job” why not assemble a “team” to figure out better ways to deal with the rampant (and growing) problem of copyright abuse throughout its products? Google could employ a team approach to refine and improve its DMCA takedown system company-wide.
Market forces could work to encourage compliance with copyright law
If processing 100,000 takedowns every hour is a burden, why not do something concrete to reduce those numbers? I’d suggest starting with pirate websites that appear at the top of the reported domains list each month. Take a look at those domains and you’ll find that one reason Google receives so many takedown notices is due to the fact that many sites hosting pirated content ignore copyright takedown requests. To protect their work from thieves, creators have little recourse but to move down the food chain and turn to Google to remove the infringing links. If only Google applied some appropriate (temporary) pressure, perhaps it could influence a change in these site’s non-compliant behavior.
Why not temporarily block top offenders? Pirate sites could risk losing traffic for failure to deal with takedown requests
What type of pressure am I talking about? I’m suggesting Google create a team to focus on the domains at the top of the complaint list. Google purports to down-rank these domains already, but those claims don’t match up with reality. The company should go further to investigate, and temporarily block, the top offenders from Google’s search results.
If Google blocked the top domains reported for piracy for 30 days, site operators might be induced to better respond to copyright complaints, or risk losing crucial Google search traffic. In essence, it could be a self-regulating, temporary punishment leading ultimately to a correction…
- Domain blocked
- Domain cleans up its act
- Complaints to Google decrease
- Domain drops out of top offender list
- Domain’s links restored to Google search
If a site operator continued to ignore takedown requests and the domain remains atop of the complaint list, the block could be extended to 90 days, then 180, etc. The initial blockade could be reviewed by a human team, but once added a site is in the queue, Google’s much vaunted algorithms could likely handle such a process.
How many domains on the list should be considered? Taking a look at the monthly report it seems that domains with more than 100k reported months might be a place to start. That would mean the top 100 offenders would be blocked for (at least) 30 days. I’m sure a reasonable cut-off point could –I’ll leave that to the Google team to figure out specifics.
If a carrot and stick approach like this were implemented by Google, perhaps it would nudge (some) sites into respecting copyright law while simultaneously reducing the number of complaints it handles. Create a middle ground where the rights of creators are balanced against the dubious “free speech” mantra Google so often wields to justify (lack of ) response to online piracy. If, according to Google, “whole-site removal sends the wrong message to other countries by favoring over-inclusive private censorship over the rule of law,” then why not at least try a more moderate approach?
Of course Google’s modus operandi is to deflect, not seek compromise, and its flacks will undoubtedly argue the company dare not become copyright police. Meanwhile, in other spheres, Google manages to be pretty effective using technology to detect online child porn activity. Of course piracy is not child porn, but there’s really no excuse for Google not to employ its tech largess to find a path forward to dampen online piracy (and takedown requests).
If Google were to initiate such a reasonable approach, one that could encourage voluntary compliance with copyright law, both the company and rights holders could benefit.
Websites hosting pirated content might begin responding to copyright takedown requests, rights holders would not be forced to turn to Google for takedowns, and the company wouldn’t be processing 100K takedowns per hour. It would be a win for creators, Google and consumers.
Isn’t it worth trying something different? Would Google be willing to consider a new approach to a growing problem? Given its stubborn obstinacy, probably not–but it never hurts to ask. I’d happy to team up with Google to help find that middle ground.
by Ellen Seidler | Copyright
The Netflix VPN move will put pressure on the company (and distributors) to satisfy customers worldwide
According to a report in Wired, Netflix customers are upset the the company (finally) cracked down on the use of VPNs (virtual private networks) that allowed users to access Netflix content not available in their home country. The result is a lot of unhappy puppies, so unhappy in fact that they’ve signed a petition asking Netflix to reconsider. Of course, some of the same tired canards are being pulled out to attack the move. According to Wired, Open Media, the group behind the petition, claim that VPNs are used as a “privacy tool.” Their petition uses the following language:
I would ask, where’s the privacy concern with logging onto Netflix? I would venture to guess that the vast majority of folks using VPNs to access their Netflix account aren’t particularly worried about their privacy–they simply want to watch content they haven’t paid for. Geo-blocking isn’t a sin. In fact it’s a legal obligation for Netflix (and any other streaming entity). YouTube geo-blocks content every day.
There also seems to be confusion as to what paying for a Netflix subscription actually means. For a standard subscription of $10 per month customers are paying for access to content that Netflix has paid for ONLY in a specific territory, not worldwide. According to Wired, many are indignant about the crackdown:
Maique Madeira of Portugal says his VPN still works just fine as well, but if it stops, he has no problem going back to torrenting shows and films. “I’m using a VPN because I feel I should get access to the same catalog as the US customers, or any other country’s user,” he said in an email. “We pay the same amount and yet we get a fraction of the content available elsewhere.” -Wired
Sorry Maique, but if you don’t like the quantity or quality of the content you’re getting from Netflix, don’t subscribe. Filmmakers who sold Netflix the rights to their film(s) in the U.S. may not have been able to sell Netflix the same rights in Portugal. Why should you be allowed to watch something that Netflix hasn’t paid for in your territory? Your subscription does not included access and despite what you think, you really haven’t paid for it. Perhaps Netflix should do a better job explaining that part of its business model. Netflix Portugal does not equal Netflix U.S. or Netflix U.K. or so on….
Part of the confusion lies in the fact that most Netflix customers don’t understand how film financing and release territories work. Why would they? It is, however, the way many films get financed and produced. If the viewing public doesn’t respect these arrangements, many of the films they watch would never be made.
Ultimately the crackdown on VPN use may well be good news for Netflix customers as it will force the company to license content (and pay for) content its customers want to watch. It will also require that worldwide film and television markets and distribution licensing scheme continue to evolve and adapt to changing consumer habits.
In the meantime, if one is desperate to watch a foreign program, buy the DVD or Blu-ray. I’ve done that with a number of British programs and Nordic Noir (Danish) shows I enjoy. Yeah, I pay extra (above and beyond my Netflix, Hulu, and Prime subscriptions), but that’s the price of watching something I enjoy. Otherwise I can wait.
This entire VPN issue is one I covered in a blog post in February, 2015 so I won’t rehash, but I will repost my original piece from a year ago below.
–First published, February 15, 2015.
Netflix doesn’t pay for all the content it allows subscribers to stream
VPNs make it easy for Netflix subscribers to watch movies and TV shows that aren’t licensed in their country
source: http://www.nasdaq.com/
Netflix profits grow as its brand spreads around the world–but who’s paying the price?
In January the popular online streaming service claimed its subscriber base had grown to nearly 60 million worldwide. Although nearly 3/4 of those are in the U.S., Netflix has already extended its reach to 50 countries and by 2017 has plans to expand to 200. Just this past week Netflix opened up shop in Cuba.
As Netflix grows, so too should the amount of money filmmakers earn right? Well, no…not really. Enter the VPN, or virtual private network, a simple technology that allows internet users to access geo-blocked websites by providing access via a local IP address. Also known as “tunneling,” a VPN makes it easy to jump virtual fences.
How does it work? Let’s say I want to watch a movie that isn’t available via my Netflix account in the U.S. but it is available on Netflix’s Danish site. With the help of a free browser plugin that takes just seconds to install, I can click a button and surf the web from an IP address in Denmark. When I go to Netflix.com/dk/ and login using my U.S. account, and voilá–I can stream the program (see example above).
Why is this a problem? After all, I have a legit, Netflix account which I pay $8.99 per month for, so why shouldn’t I be able to watch content via Netflix portals around the world? It’s a problem because while I’m happy as consumer to watch a film via Netflix sites worldwide, those who actually paid to produce it are financially left out in the cold. For Netflix it can be viewed as a win, win. Netflix pays for U.S. rights, but forgoes purchasing rights elsewhere knowing full well its subscribers worldwide can still watch. Netflix profits grow at the creators’ expense.
This scenario also hurts smaller distributors of independent film who negotiate with Netflix to license titles for streaming rights in their territories. Why should Netflix worry about spending more money to (legally) acquire rights for from distributors operating in small territories when subscribers can happily watch their films on U.S. Netflix via a VPN?
As Netflix expands offerings to attract subscribers worldwide who pays the price?
How much of an impact might this type of VPN pirate viewing be? GlobalWebIndex, a UK firm, estimates that some 54 million people access Netflix via VPNs each month, 21.6 million of them from China alone. How do subscribers in China get Netflix accounts in the first place? It’s easy using PayPal or other payment method like a virtual credit card. Apparently Netflix doesn’t dig too deep–since it can pocket more cash and grow its brand to reach markets outside its realm. Why should the company crack down on a winning, albeit slimy, way to attract customers?
There was some speculation that Netflix was changing course when it reportedly tweaked its Android app to make accessing content via illegitimate VPNs more difficult, but according to the BBC company officials denied reports that it has changed its approach:
“The claims that we have changed our policy on VPN are false,” said Netflix’s chief product officer Neil Hunt….”People who are using a VPN to access our service from outside of the area will find that it still works exactly as it has always done.”
According to Variety, Netflix supposedly employs other methods to thwart subscribers who don’t belong:
Netflix has always tried to block such unauthorized access, via a multistep verification process that encompasses credit card info, mailing addresses and Internet addresses.
“You may view a movie or TV show through the Netflix service primarily within the country in which you have established your account and only in geographic locations where we offer our service and have licensed such movie or TV show,” the company’s terms of use say. “Netflix will use technologies to verify your geographic location.”
Despite company claims to the contrary, this morning, as I sat at computer to write this post I found it only took me seconds to login to Netflix sites in the UK, Denmark, Cuba and Brazil. Instead of blocking me, a pop-up window politely explained since I was “traveling with Netflix” I might notice a different offering of movies, etc. Of course, one could ask shouldn’t I be able to travel with Netflix? Of course that should be OK, but the problem is, using a VPN I can travel with them while seated at my home computer.
In fact, in order to confirm that I had full, unfettered access to geo-blocked content I searched for a TV series unavailable in the U.S. I chose the Danish series Den som dræber (Those Who Kill) I own on dvd. By selecting Denmark via the VPN (see graphic at the top of post) I was able to log into Netflix.dk and easily stream the program. Question is, are the producers of the program being paid by Netflix for viewers, like me, who watch outside of Denmark? I believe the answer is no.
Generally distributors receive a flat fee for programs/films Netflix adds to its catalog. Rights are given for specific territories and, while sometimes rights are worldwide, often they’re restricted. Why not just give Netflix worldwide rights? Well, easier said than done.
Contrary to the rhetoric promoted by piracy apologists, financing TV and films productions is not a simple task. In many cases foreign rights pre-sold as part of financing deals cobbled together to cover the costs of production. Without such agreements many of the films and TV shows we enjoy could never be made. So for now, when it comes time to distribute them, these financing packages are invariably part of the equation. It often means a single entity doesn’t hold all the (territorial) distribution cards, hence the complexity.
However, with VPNs, Netflix doesn’t have to make negotiating territorial rights a priority. By not restricting the use of VPNs and indirectly allow users to watch programming they aren’t paying for, Netflix can continue to grow its subscriber base and pocket more profit. Why pay the producers of Den som dræber for U.S. rights when U.S. viewers, using their VPN, can use their accounts to watch it anyway?
Emails uncovered in the Sony hack show that Netflix do-si-do around the geo-blocking issue is of growing concern to producers and distributors. As noted in a recent piece by Sean Gallagher in Ars Technica:
The latest data leaked from Sony Pictures Entertainment by hackers reveals that Sony executives had accused Netflix of breaching its licensing contract for Sony Pictures Television (SPT) shows by allowing customers in foreign markets to use virtual private networks to stream them, calling it piracy that is “semi-sanctioned by Netflix.”
Sony pressed Netflix for increased “geofiltering” control over its customers to prevent the practice, including restricting payment methods for the service to ways that would allow screening for customers living outside countries where Netflix had contractual rights.
Gallagher quotes a hacked email between Sony Pictures Television’s president, international distribution,Keith LeGoy and the division’s president, Steve Mosko that outlines concerns over Netflix’s tacit acceptance of VPN abuse:
Netflix are [sic] heavily resistant to enforcing stricter financial geofiltering controls, as they claim this would present a too high bar to entry from legitimate subscribers. For example, they want people to be able to use various methods of payment (e.g. PayPal) where it is harder to determine where the subscriber is based. They recognize that this may cause illegal subscribers but they (of course) would rather err that way than create barriers to legitimate subscribers to sign up.
…Netflix of course get to collect sub revenues and inflate their sub count which in turn boosts their stock on Wall St., so they have every motivation to continue, even if it is illegal…
So what to do? Clearly, there’s a problem. In certain situations VPNs can be a good thing, particularly for those who live in places like China where access to web services is routinely restricted by government firewalls. However, when tens of millions of Netflix subscribers are using VPNs to access unlicensed content it’s clear that the company isn’t doing enough to make sure that content creators receive fair compensation.
Netflix isn’t cracking down on VPN use because it’s good for (their) business
When Australian journalists attending the recent Consumer Electronics Show in Las Vegas tried to ask Netflix officials about a VPN crackdown reported by Torrent Freak, they were rebuffed–even though, according to an article on news.com.au, “An estimated 200,000 Australians pay for Netflix subscriptions, and access the service by masking their computer’s location so they appear to reside in America.” The story also notes:
The movie giant is due to launch its service in Australia this March, but many of its popular shows including Orange is the New Black and Better Call Saul, are unlikely to screen on the local service due to licensing agreements, potentially providing little incentive for existing subscribers to switch.
It’s yet another tangible example of how a program’s producers may be left holding the bag. Netflix gets 200,000 paid subscribers from Australia, but it doesn’t have to pay the filmmakers for rights to their films in that territory.
Some make the argument that overall, Netflix is a good online influence and has helped diminish the lure of piracy, because, as this piece in Billboard explains, it offers consumers, “Content, value and ease of use.” While that’s mostly true, it’s really a tangential issue and certainly doesn’t exempt Netflix’s business practices from scrutiny. Nor does the fact that Netflix has opened the door to new creative possibilities–both in terms of production and distribution. Creators are justified in demanding that the content Netflix subscribers stream is actually paid for–otherwise it becomes just another variant of (corporate) piracy.
What next? Well, as moves forward its with global expansion plans, either Netflix needs to spend some of its profit to find a way to begin effective geo-blocking, or–if that’s not possible–find another formula to calculate a fair price for content that factors in total (worldwide) views, VPN or no VPN. It might be a bitter pill for stockholders to swallow, but for now, it’s the only legitimate way forward.
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by Ellen Seidler | Copyright
Why doesn’t YouTube make it easier for people to work things out when there’s a dispute over content?
Every week it seems there’s a new headline bemoaning content that has been mistakenly removed from YouTube due to bogus copyright claims. This so-called “takedown abuse” makes for good headlines, but per usual, there’s much more to the story of what happens behind-the-scenes on YouTube with various types of claims on copyrighted content.
Perhaps in reaction to some of these inflammatory headlines, YouTube recently announced it was creating a team dedicated to “minimize mistakes” when videos are removed from the site. The announcement came via a post on Google’s own blog:
…Recently, there’s been a lot of discussion about the enforcement of our policies, from video takedowns to channel demonetization. We want you to know that we monitor video takedowns very closely, and while we haven’t seen a big change in the overall rate of removals, it’s true that we do make mistakes. For this, we’re sorry and we strive to do better by you, our community.
The good news is that the feedback you’ve raised in comments and videos on YouTube and beyond is having an impact. It’s caused us to look closely at our policies and helped us identify areas where we can get better. It’s led us to create a team dedicated to minimizing mistakes and improving the quality of our actions. And it’s encouraged us to roll out some initiatives in the coming months that will help strengthen communications between creators and YouTube support. We’ll also make improvements to increase transparency into the status of monetization claims. And of course, as we work to implement these improvements as quickly as we can, we’ll continue to take your feedback seriously.
— Spencer from YouTube’s Policy Team
Improving “transparency” on YouTube’s Content ID System would across the board is needed
Unfortunately, YouTube’s new initiative seems only to address “transparency” having to do with monetization claims, not Content ID in general. Content ID is the fingerprinting system that YouTube established to help rights holders protect their creative work from online piracy. Though imperfect, it’s certainly better than nothing but there are many ways to improve it.
If the YouTube team is serious about improving the way Content ID works it could help fix what’s broken is by increasing transparency throughout the system, particularly when it comes to disputes over how content is claimed.
In particular, I’d suggest a simple fix that would benefit both copyright holders and YouTube uploaders–allow people to communicate directly when Content ID claims are disputed. If this happened, many misunderstandings could be worked out to the satisfaction of everyone involved.
I’ll give you an example. Let’s say you have a film and someone uploads some scenes from it that are matched via Content ID. It’s a clip that lasts, only several minutes in length and you’ve set up Content ID to match and monetize clips of this length. The matched content is not commentary or a review, only a mashup of scenes taken from your film. You receive notification via your Content ID dashboard that the uploader has “disputed” your monetization claim. (Never mind that this doesn’t involve a takedown, only monetization of the clip).
You take a look at the claim and the justification for filing the dispute. It says:
Reason: All non-original content is in the public domain
Note: Copyright Disclaimer Under Section 107 of the Copyright Act 1976, allowance is made for “fair use”; for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. Fair use is a use permitted by copyright statute that might otherwise be infringing. Non-profit, educational or personal use tips the balance in favor of fair use.
Ok, clearly there’s some confusion here. First of all, the uploaded clip is NOT in the “public domain” –it’s surprising how often I see this justification and how many people don’t have a clue as to what it actually means–and secondly, there’s no real criticism, comment, news reporting, etc. going on with the excerpt.
Even so, you have no wish to actually remove the clip from YouTube, only claim it and monetize it. Seems reasonable right? Well, in this case, the sender does not allow messages to be sent (via her channel) and no email is provided so there’s no way to contact her to explain the situation. You only want ads to appear with the video (to help you pay down that production debt)–not remove or block it. In this case the only recourse is to “reinstate” the claim and hope the uploader doesn’t file–what would be–a bogus counter-notice.
YouTube user disputed monetization claim with erroneous justification
Why doesn’t YouTube provide a way for parties to contact each other?
All this confusion could be avoided IF there was simply a way for both parties to discuss things. Why doesn’t YouTube, as part of this dispute form, allow the recipient to send a message to the uploader who disputed the claim. Personal information could be protected, BUT a conversation (via email or message) could be had and most likely clear up any confusion over the claim.
As shown in example below, this uploader who filed a dispute doesn’t have a contact sender option on her YouTube channel. In this scenario the rights holder’s only recourse would be to do nothing OR reinstate the claim and risk further misunderstanding.
Not every dispute needs to escalate
Because there’s no way to have a dialogue these situations often escalate into an actual counter-notice being filed. It’s ironic that at that point the party that files a counter-notice has to provide accurate contact info. Of course, many do not but that’s a post for another day. When a dispute reaches this level, the only way for the rights holder to keep their work off YouTube is to spend money and file in federal court.
For most indie creators, this is where the story ends. Their content goes back up on YouTube and nothing more can be done. For all the talk of abusive takedowns, there’s not much press coverage for the ongoing problem of abusive (and false) counter-notices.
Bottom line, in many cases, folks could simply work things out if YouTube made it easier to communicate. Seems like a simple move. Can’t we just all try to get along?
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by Ellen Seidler | Copyright
Google sets up roadblocks at every step of the DMCA process, doesn’t provide DMCA agent’s email address, and requires senders to login to a Google account
As the U.S. Copyright Office solicits public comments for its study to evaluate the impact and effectiveness of the safe harbor provisions contained in section 512 of the (DMCA) Digital Millennium Copyright Act it’s worth examining how Google–the Sugar Daddy of pirate purveyors– openly skirts the law to obstruct the process at every turn.
Of course Google would have you believe it’s the victim when it comes to enforcing the DMCA. Its flacks regularly bleat about the millions of DMCA notices the company processes each week–a small price for profiting (indirectly) off the lucrative myriad of online exchanges it provides for pirated content. As I’ve written before, Google’s millions of takedowns is a “mess of its own making.”
What about those on the other end of the pipeline–the victims whose only recourse is to send a DMCA notice in order to have their (stolen) movies, music, books, etc. removed from Google websites? For these creators, Google’s DMCA process becomes a maze of twists and turns that, more often than not, leads back to the beginning.
Pity creators who have to send Google a DMCA takedown notice.
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Google doesn’t provide the email address of its designated DMCA agent (as required by law)
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Google requires users to send takedown requests via online forms
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Google makes finding the correct form a laborious 9 step process
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Once the correct form is found, Google requires DMCA senders to login to a Google account
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Google doesn’t provide clear URL on pirated files forcing rights holders to drill down further into the abyss to find the correct URL to report the pirated file
Most websites–say for example Vimeo--post copyright or DMCA links at the bottom of each page.
Vimeo makes it easy to find DMCA contact information and online form
Does Google, king of the internet, follow Vimeo’s example? Don’t be silly.
In sharp contrast to Vimeo’s example, Google’s apparent goal is to make the DMCA takedown process as onerous as possible. (Note the irony since, with its profitable products, Google has mastered the art of making user experience as seamless as possible).
Unlike Vimeo, on Google sites there’s no handy copyright link at the bottom of every page and unlike Vimeo, there’s a myriad of online DMCA forms rather than one. I realize Google offers a number of products, but for simplicity’s sake, why not use ONE form and direct users to check a box for the specific product involved? Of course that would be make the DMCA process too easy, an achievement Google has no interest in pursuing.
Instead, Google has a set up DMCA process that forces users to embark upon a time-consuming quest–a journey that only the determined will complete.
If you start you takedown efforts on Google by looking for an actual DMCA contact you’ll come up empty. The Google contacts page merely drops you have at the first stop on its never-ending DMCA merry-go-round.
Unlike Vimeo’s clean and direct approach, Google does everything possible to muddy the waters and make sending a DMCA takedown notice a difficult thing to do
At first glance, the cornucopia of options seems overwhelming. Never mind the fact most links essentially lead to the same starting point. Ironic that Google reps love to bandy the the word “transparency” about except when it comes to its own takedown process. Again, those this seems an appropriate location for it, contact info for Google’s designated DMCA Agent, required by law, is not posted. (*See more on that later in post).
An example of what it takes to send takedown notice to report pirated movie hosted on Google Drive
To gain a better understanding of just how unnecessarily convoluted Google makes its DMCA procedure, follow along as I describe the the steps a filmmaker must take in to remove a pirated movie from a Google site.
As an example I’ll use a stash of pirated films hosted on Google Drive I recently discovered. More than 200 lesbian films have been uploaded to a private Google Group that boasts 1275 members. Included among the pirated titles is a copy of the recent release ‘Carol,’ a film still in theaters by the way. The pirated films organized alphabetically and can be streamed, downloaded or shared to another Google Drive.
To begin the process of removing one of these pirated films one has to find the correct online form to send. As I noted above, to do that you must first find (using Google search) this “legal troubleshooter page for Google. Again I ask–why not an easy-to-find link at the bottom of the web page?
From that page one must select “submit legal request.” Next, respond to a series of 7 questions before ending up at the proper form—But wait, Google requires that you have a Google account and login in order to access the form. Can that really legal?
Google makes you login in to access online DMCA form. Is this even legal?
Let’s say eventually (once you create a Google account and login) you end up at the right DMCA form, guess what? You’re still not finished. You’ll need to have the correct URL to report. That seems simple enough…you already copied the URL from the address bar of the pirated stream so that’s the link to report, right? WRONG! That would be too easy.
If you did report that URL nothing will happen. You must READ THE FINE PRINT on the DMCA form silly. Apparently the URL that appears in the address bar that appears–when you click a film to watch it in a new window– is NOT really the link to the pirated movie. It’s actually the URL for the Drive folder and, as the fine print notes, this type of URL is “unacceptable.”
The URL on this pirated copy of Carol is not the URL to use in a DMCA notice
So how to you find the right URL to report? Google doesn’t offer up any tips on that front. To find an actual link specific to the pirated movie requires some further detective work. Return to the page with the pirated stream and poke around. There’s nothing that says “here’s the video link” but after clicking various clickable things you may, if you’re lucky, eventually discover that by navigating to menu bar and sliding your cursor over the three dots–an option for more actions appears.
Don’t follow your instincts and click “report copyright infringement” or you’ll end up back at the beginning of the DMCA maze
From there if you click report abuse you’ll arrive at yet another page with a new URL. You’re asked to click the type of abuse….Warning, if you select report “copyright abuse” then ruh roh, you end up back at the beginning the DMCA maze that Google has so conveniently created to impede and confuse you once again.
Don’t listen to your instincts or think logically…In this case you’d better just copy the URL on the page and head back to the online form you already found….Confused much? Yeah, me too and that’s exactly how Google likes it. Another way to find the real link is to click another not-so-intuitive menu icon that let’s you “pop-out” the video. Basically nothing changes except a new window opens with a new URL (see below).
Another way to find a hidden URL to a pirated movie it to click on this icon…who knew right? It’s beyond ridiculous.
It’s an absurd maze, but for Google, it’s clearly no accident. The more confused and frustrated rights holders become, the less likely they’ll actually complete the DMCA process. Even if you do finally send a takedown notice, it’s often a crapshoot as to whether the content gets removed in a timely fashion.
Google has designed cutting edge online tech, but its DMCA procedures are something out of the Dark Ages. That’s no accident.
To say Google’s takedown procedures is an obstacle course is an understatement. Circling back to the beginning, why can’t I just send an email to Google to report the illegal link(s) like I do with Vimeo? Google’s response would most likely (again) be to pull out the whine machine and prattle on about the massive number of DMCA notices it receives. So what? There’s technology that can cope with pirate links report via email. Kim Dotcom’s site Megaupload was able to, so does Vimeo, so did Hotfile and Rapidshare and….well you get the picture. It ain’t that hard.
Does Google skirt requirements to qualify for “safe harbor” protection under the DMCA?
Since I began this piece with a mention of the Copyright Office’s ongoing review of 512c, it’s worth focusing in on a particular provision of it. *The DMCA’s “safe harbor” provision exempts service providers from liability for infringements if certain requirements of the law are met, including publication (on its website) of the name, address, phone number and electronic mail (email) address of its designated DMCA agent:
(2) Designated agent.—The limitations on liability established in this subsection apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement described in paragraph (3), by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information:
(A) the name, address, phone number, and electronic mail address of the agent.
(B) other contact information which the Register of Copyrights may deem appropriate.
I’m sure Google has a massive team of lawyers at its disposal, but from my lay reading of the law it seems that something is amiss. If Google has to provide this contact information in order to qualify for “safe harbor” from liability, shouldn’t it follow the law and provide an “electronic mail address” for its designated agent its website right? Perhaps I’m not reading the law correctly?
Finding pirated movies via Google search is easy. Finding contact information for Google’s designated DMCA agent isn’t.
Even though, from my lay perspective, the DMCA seems to be pretty explicit in requiring that contact information for a service provider’s designated agent contact to be readily available on “its website” Google fails to comply. Try searching for Google’s designated DMCA agent and you’ll come up empty despite using several variations. Google algorithms seem primed to offer up stolen goods….but for information pertaining to the DMCA, not so much….
Use Google search to find the email address for its designated agent and you’ll come up empty
If you search for Google and DMCA you’ll end up back at the beginning of the DMCA maze, Google’s “Legal Removal Requests” page.
The law states an email address is required…does that mean its required for anyone BUT Google? Perhaps its there somewhere, but hidden in a thicket of clicks or maybe Google’s lobbying largess has caused mass blindness. Maybe folks at the U.S. Copyright Office should look more carefully at Google’s compliance with the letter of the law and not depend on the word of Google’s PR team.
For the record I did manage to find the email for Google’s copyright agent by using the U.S. Copyright Office’s index for designated agents. Here’s a link to Google’s information and for the record, the official email is [email protected]. Note the caveat that says it’s faster to use the URL above which, by the way, takes you back to the beginning of the takedown maze. Sorry, but I’ll take my chances with email from now on…..
The easiest way to find Google’s designated agent is via the U.S. Copyright office…not via the pages of Google
If we want to talk about updating the law for the 21st century, why not start with enforcing it and demand that Google develop a DMCA takedown system that is efficient, transparent, and follows the requirements of the law.
