Tim Wu, the legal scholar credited with coining the oft used term “net neutrality” was hired by Yelp to conduct research into Google’s search algorithm. Wu, along with Harvard Business School professor Michael Luca and researchers at Yelp, examined whether Google gives consumers the best results. The results don’t look good. Per Recode.net:
Google knowingly manipulates search results according to a research paper published Monday from several academics. The study presents evidence that the search giant sets out to hamper competitors and limit consumers’ options. The paper lands as Google prepares to release its response to the European Union investigation, which rests on similar claims about Google’s comparison-shopping product.
Meanwhile, in the EU a new website Focus on the User (http://www.focusontheuser.eu/) has been set up to publicize the issue, charging, “Google+ is hurting the Internet. Europeans have the power to stop it.” Along with a rundown of the various ways Google manipulates search results to favor its own product via Google+ the website offers a video explainer (below).
2. 40 State Attorneys Generals file amicus brief in support of subpoena process to investigate Google
Attorneys General from 40 states have filed in amicus brief in support of Mississippi’s AG Jim Hood’s efforts to subpoena Google. In the brief they ask a U.S. Appeals Court to overturn a preliminary injunction issued last March by U.S. District Judge Henry Wingate that blocked Hood’s efforts to investigate Google’s anti-consumer business practices. From the brief:
As is evident from the letters of record signed by multiple Attorneys General, Mississippi is not the only state with concerns about Google’s consumer practices. (See ROA.1199-1200, ROA.1243-1244, ROA.1245-1246). Mississippi, like every state, is entitled to address these concerns through further investigation utilizing proper tools, including administrative subpoenas. Mississippi, like every state, also is entitled to review information gathered pursuant to its investigation and make decisions about actions to take—or not take—to enforce its consumer protection laws for its citizens. Google may challenge Mississippi’s Subpoena consistent with state law. But Google should not be allowed to bypass state subpoena review processes and derail a legitimate state consumer protection investigation by filing premature declaratory judgment lawsuits and obtaining sweeping preliminary injunctions in federal court. Both the law and public policy counsel against it.
3. Google accused of eavesdropping
According to an article published in The Guardian, Google is also under fire from privacy advocates for incorporating technology into its Chrome browser that allows eavesdropping.
“Without consent, Google’s code had downloaded a black box of code that – according to itself – had turned on the microphone and was actively listening to your room,” said Rick Falkvinge, the Pirate party founder, in a blog post. “Which means that your computer had been stealth configured to send what was being said in your room to somebody else, to a private company in another country, without your consent or knowledge, an audio transmission triggered by … an unknown and unverifiable set of conditions.”
Scott Cleland, a noted Google critic, points out that it’s business as usual in comments posted on his Precursor Blog:
This is not an isolated incident. It is a part of a broader Google pattern of behavior.
What should be big news and scandalous here is that the company that has gathered the most Internet users in the world based upon public representations of being pro-privacy and open — is secretly engaged in widespread wiretapping.
June Gloom for Googleiath
Earlier this month Google was slapped down by a Canadian appeals court, Its judges were not impressed by Google’s specious “free speech” arguments and affirmed a lower court ruling mandating Google remove certain search results (linking to illegal products) on a worldwide basis.
As regulators in Europe continue to tighten the vise, perhaps this summer will be a turning point in efforts to hold Google accountable for its bad business practices. Stay tuned…
Google’s global reach has global implications when it comes to the law
In a case that could have broad implications moving forward, a Canadian appeals court handed Google a rare legal setback when it upheld a worldwide injunction ordering the search giant to remove results linked to counterfeit hardware. The ruling was an affirmation of a lower court ruling that mandated Google remove certain search results (linking to illegal products) on a worldwide basis.
Reading the court’s decision, the plaintiff’s arguments–and Google’s responses–are familiar to anyone who’s gone toe to toe with tech behemoth and its shills like the EFF. What’s new is that the appeals court not only upheld the lower court’s worldwide injunction, but it also shot down the tired, oft-used “free speech” canard employed by tech apologists to attack rights holders:
[105] The plaintiffs made considerable efforts attempting to track down the defendants, and find ways to eliminate their websites. The judge’s finding that the granting of the injunction was the only practical way to impede the defendants from flouting the court’s orders amounts to a finding that the involvement of Google in this matter was necessary.
[106] With respect to extraterritorial effects, Google has, in this Court, suggested that a more limited order ought to have been made, affecting only searches that take place on the google.ca site. I accept that an order with international scope should not be made lightly, and that where an order with only domestic consequences will accomplish all that is necessary, a more expansive order should not be made…
[107] The plaintiffs have established, in my view, that an order limited to the google.ca search site would not be effective. I am satisfied that there was a basis, here, for giving the injunction worldwide effect. [emphasis added] I have already noted that applications can be made to vary the order should unexpected issues arise concerning comity.
[108] Finally, I note concerns expressed by Google and by the intervenors Canadian Civil Liberties Association and Electronic Frontier Foundation concerning the openness of the World Wide Web, and the need to avoid unnecessary impediments to free speech.
[109] The order made in this case is an ancillary order designed to give force to earlier orders prohibiting the defendants from marketing their product. Those orders were made after thorough consideration of the strength of the plaintiffs’ and defendants’ cases. Google does not suggest that the orders made against the defendants were inappropriate, nor do the intervenors suggest that those orders constituted an inappropriate intrusion on freedom of speech.
[110] There has, in the course of argument, been some reference to the possibility that the defendants (or others) might wish to use their websites for legitimate free speech, rather than for unlawfully marketing the GW1000. That possibility, it seems to me, is entirely speculative. There is no evidence that the websites in question have ever been used for lawful purposes, nor is there any reason to believe that the domain names are in any way uniquely suitable for any sort of expression other than the marketing of the illegal product. [emphasis added] Of course, if the character of the websites changes, it is always open to the defendants or others to seek a variation of the injunction.
It’s refreshing to see a court of a law look past EFF hyperbole and distinguish between legit websites and those engaged in criminal activity. Score one for common sense (and the law). It should be noted that in predictable fashion, the EFF characterized the decision as “dangerous precedent” and that allows an intermediate to “edit the internet” and warned that the ruling “lays the groundwork for nations with authoritarian restrictions on speech to also impose their own rules on the global Internet.”
I suppose we should consider it progress that instead of “breaking the internet” we are now only accused of wanting to “edit it?”
Over the years, Google has run roughshod over any effort to impede its take-no-prisoners business practices, but lately its veneer of invincibility seems to have cracked. As this latest ruling demonstrates, courts and regulators (outside the U.S.) are finally beginning to treat Google as the global beast that it is.
In May of 2014 the Court of Justice of the European Union found that EU citizens had the “right to be forgotten” and that search engines like Google must remove search results upon request. Last November, Article 29 Data Protection Working Party, the group charged with overseeing the ruling, issued guidelines on implementation that .com domains worldwide, not just those in the European Union should be included in requests for data removal.
7. Territorial effect of a de-listing decision In order to give full effect to the data subject’s rights as defined in the Court’s ruling, delisting decisions must be implemented in such a way that they guarantee the effective and complete protection of data subjects’ rights and that EU law cannot be circumvented. In that sense, limiting de-listing to EU domains on the grounds that users tend to access search engines via their national domains cannot be considered a sufficient mean to satisfactorily guarantee the rights of data subjects according to the ruling. In practice, this means that in any case de-listing should also be effective on all relevant domains, including .com. [emphasis added]
In April, the EU’s scrutiny of Google’s business practices became even bolder when it charged the company with anti-trust violations. From the Wall Street Journal:
The European Commission took direct aim at Google Inc. Wednesday, charging the Internet-search giant with skewing results to favor its comparison-shopping service. But the formal complaint may only be the opening salvo in a broader assault that prompts big changes at Google.
European antitrust chief Margrethe Vestager said she continues to examine other domains, such as travel and local services, where Google is accused of favoring its own services over those of others. She also opened a second front, intensifying a separate probe of Google’s conduct with its Android mobile-operating system.
Given Google’s growing influence as a Washington lobbying force, don’t expect to see U.S. lawmakers following in the EU’s footsteps any time soon. However, any crack in Google’s armor is progress. While U.S. authorities won’t hold Google accountable, it seems like the rest of the world just might.
This month marks the five-year anniversary of my first blog post about online piracy and its link to advertising profits. At the time I was pissed. The movie Megan Siler and I had spent three years creating had just been released, and within 24 hours, had found its way online as an illegal download. One illegal copy quickly morphed into many tens of thousands.
What made me angry wasn’t necessarily the fact the film had been pirated. Though certainly I wasn’t pleased, it wasn’t really a shock. I knew in the back of my mind that piracy was an issue. However, I’d never really examined it up close. When I did, I was surprised not only by the how–but by the why. Online piracy was, in fact, an insidious for-profit business cloaked behind a curtain labeled “sharing.”
Online piracy is driven by profit
It turns out our film–like thousands of others, studio and indie–was just click-bait for a flourishing online market driven by greed. The breadth and scope of this illicit online marketplace was shocking. Examining a wide range of pirate websites I discovered an insidious, profitable and widespread economy driven–in large measure–through the complicity of major American corporations.
Sure, some of the major players were well-known thieves like Kim Dotcom whose Megaupload business empire was built on content theft. But many others cashing in on the online feeding frenzy were (and still are) mainstream corporations like Google. Ad service providers and major brand advertisers were (and still are) incentivizing and sustaining online piracy as a profitable venture. It was true five years ago and unfortunately it remains true today. Legit companies supply the blood that feeds the beast.
My original blog at popuppirates.com
I didn’t begin blogging about online piracy for the sake of our film. That’s old news. The reason I’ve continued to spend the past five years investigating and writing about online piracy and copyright issues is because I don’t believe what’s happening to our creative community is fair. I write because I worry about the future of those who earn their living by creating the content we so enjoy. I write because online pirates continue to rip-off creators at every opportunity in order to make a buck.
I also write because worry that online piracy diminishes the diversity of content that’s produced. After all, we won’t know what we’re missing when it isn’t made. Creative voices on the fringes, the most fragile among us, are often the first to go, and it’s often a silent exit. Piracy apologists who believe it’s their right to take what they want– when they want–routinely belittle creators who dare speak out against such theft. For those defending piracy it seems easier to denigrate and devalue artists rather to hear them.
When I recently sent a DMCA notice to the Chilling Effects database to highlight the hypocrisy of Google’s message that it “fights piracy” my move was met with predictable derision. Few on the copyleft seemed to understand that it really wasn’t about me, or our film. The same scenario happens day after day to all types of creators who send takedown notices to Google. I used our film as an example (because I could) in order to make a point about how Google (and Chilling Effects) conduct business–removing links, but replacing the original link with another link back to a page featuring the original link. It’s a duplicitous shell game that mocks the very intent of the DMCA.
“I figured you are stupid Gay”
One blogger was so bent out of shape by my takedown notice to Chilling Effects he wrote his own post. He sent me a series of messages via my Vox Indie Facebook page and attempted to point out the futility of my anti-piracy efforts. Apparently crabbed when I didn’t respond, in a fit of pique, he resorted to childish name-calling:
A screencap showing partial excerpt of a blogger’s FB messages to me.
So much for thoughtful discourse eh? For the record, I am “Gay.” As for stupid, well, that “blogger” certainly thinks so. It would appear he has a problem with stupid Gayswho dare to speak out in defense of creators. For the record I didn’t bother to read his blog post which–given the tone of his messages–was probably not particularly friendly, nor thoughtful.
That particular blogger was not the only one to mock my attempt to highlight Google’s DMCA shell game; though I must say I’ve not really experienced the homophobic angle before. TechDirt, a site well known for its not-so-friendly views on copyright, also recently posted a harangue about my DMCA notice to Chilling Effects. That piece featured the subheading “from the stupidity-in-Russian-doll-form dept” so it would seem that the word “stupid,” in various forms, is a popular term for frustrated anti-piracy apologists to use when writing rebuttals. I imagine their dependence on the word is merely a further sign they have no cogent argument at the ready.
As the saying goes, “sticks and stones…” However, the upside is that my efforts to bring attention to the damage done by online piracy are clearly having the desired effect.
LGBT Filmmakers are among those whose voices are diminished by online piracy
Pirates sites around the world stealing LGBT films
I should also point out that LGBT filmmakers regularly send me emails asking what they can do to protect their films from online piracy. Some of them have spent years trying to bring their vision to the big screen and when they see their newly released film showing up as downloads and streams on pirate sites across the globe they are crushed. I wrote a piece about this some time ago, but it’s worth reminding audiences that these are some of the independent voices that are damaged when we allow online theft to flourish.
How can we change the status quo? We speak out. The good news is that we are. Artists across the spectrum have begun to focus frustration into action. We’ve begun to speak out and formed coalitions, demanding with one voice that our representatives in Washington take action to better safeguard creative work (and livelihoods) in the digital age. Whether it’s by re-tweeting for the #IRespectMusic campaign or joining the new Content Creators Coalition, as WE come together, WE will make progress–of that I am sure.
I didn’t make a film in order to become an “anti-piracy” activist. I made a film with my (also gay) filmmaker friend Megan Siler because we had a creative idea we wanted to share with lesbian audiences. However, once our film was released, and subjected to the online piracy pulverizer, this particular stupid Gay couldn’t look the other way. It opened my eyes to what was happening across the board to content creators of all stripes–and it wasn’t OK.
Hopefully, over these past years, through my research and subsequent blog posts, I’ve helped frame the debate over piracy in a way that exposes criminal nature of online piracy and motivates others to acknowledge it’s a problem in search of a solution. I also hope readers can better appreciate the long-term value of safeguarding our creative communities large and small.
Here’s to the next five years and hoping creators continue to make progress against the scourge of online piracy…I may be stupid, but I’m also stubborn. 🙂
Today the Digital Citizens Alliance* released a follow-up to last year’s report that examined the connection between online piracy and advertising profits. According to results documented in today’s release, Good Money Still Going Bad, not much has changed. Tainted revenue totals from 2014 aren’t very different from 2013. The 589 websites included in the report generated 209 million dollars from advertising. This, despite the fact that many of the rogue sites included in the earlier report had been shuttered.
Google’s DoubleClick leads the way serving ads to pirate websites
With mountains of evidence that ad sponsored piracy remains a hydra with many heads, why do supposedly legit companies like Google still find themselves intimately attached to this beast? According to the report Google’s DoubleClick “ad-revenue engine” leads the pack of illicit ad service providers ( AKA-piracy enablers and profiteers). Per the report, DoubleClick was found to serve ads for 109 of the rogue sites included in the report. Adcash.com came it at number two with 63 sites.
Not only does Google continue to be a prime player in ad-sponsored piracy, but the study finds that major American brands remain hopelessly entangled as well.
There were 132 premium brands observed by MediaLink researchers on the sites, up from 89 the previous year.
Promises, promises…
YouTube also profits off ads on pirated content
Over and over again we’ve heard promises from ad industry reps that advertisers were finally going to take serious action against ad-sponsored piracy. During the summer of 2013 the White House trumpeted that the IAB (Interactive Advertising Bureau) and various companies (including Google) had “committed to a set of best practices to address online infringement by reducing the flow of ad revenue to operators of sites engaged in significant piracy and counterfeiting.”
Last summer Creative Future wrote a letter to ad industry representatives praising efforts to thwart ad-sponsored piracy and in February the same IAB made announced formation of TAG (Trustworthy Accountability Group). On its website the group cites 4 areas of work which include:
Prevent advertising revenue from flowing to criminals who steal copyrighted material and place it on “pirate” sites
Budget car rental ad on streaming copy of pirate movie
Catchy acronyms and new “initiatives” are nice y’all, but when do we actually get to see results?
Yet for all the praise and press release, has any progress really been made? I’ve been writing about ad-sponsored piracy for five years and, despite much lip-service to the contrary, the online advertising industry still seems to be in pretty much the same place.
Until advertisers, and ad service providers, transform words into action, online thieves will continue make money at the expense of creators. Remember, ad money is the fuel that feeds online pirates and thieves:
Ad revenue is the oxygen that allows content theft to breathe. We know from new research by the online rights protection firm Incopro that 88% of the most popular content theft sites in Europe rely on advertising for some, if not all, revenues. Incopro called advertising the “predominant revenue source” for the top 250 unauthorized sites.
It took me only a couple seconds today to find a major brand, Budget car rental, advertising on a pirate site streaming our film. It’s worth noting that the DCA report also finds video streaming sites are a increasing threat in this illicit ecosystem:
Video Streaming a Growing Model: As consumer appetites have shifted from downloading to streaming, content theft sites have followed suit. The number of video streaming sites in 2014 was up 40% from the original report, and revenue grew significantly due to video CPMs (cost-per-impressions) that are far higher than those for display ads. Video Streaming was the only segment to generate more revenue than the year before, even with half as many large sites. Aggregate annual revenue was up more than 50 percent. It made up 12 percent of all advertising revenue in last year’s sample. This year, it made up 21 percent.
For now it seems the mantra remains-More money for the pirate, more customers for Budget and less money for the filmmaker.
*Full disclosure, I’m a member of the Digital Citizens Alliance advisory board.
Last week I sent a DMCA notice to Chilling Effects to request that the site remove a copy of a DMCA notice (sent to Google search) containing a direct link to infringing (pirated) online streams of our film. I explained my actions in an earlier blog post. This morning I published a blog post noting that I’d not received any response from Chilling Effects’ DMCA agent ([email protected]) but that the content had been removed….
Chilling Effects has the deep pockets so they’ll win this round and keeping links to pirate copies of our film (and thousands of others) online
Turns out, mere minutesafter I posted by blog post, Tracy Walden,Harvard’s DMCA agent, forwarded me a counter-notice from Chilling Effects’ Adam Holland. Now, if I hope to enforce the takedown I must file suit in district court. Apparently my DMCA notice falls into the category of “mistaken removal.”
While the safe harbor provisions provide a way for individuals to object to the removal of their materials once taken down, they do not require service providers to notify those individuals before their allegedly infringing materials are removed. If the material on your site does not infringe the intellectual property rights of a copyright owner and it has been improperly removed from the Web, you can file a counter-notice with the service provider, who must transmit it to the person who made the complaint. If the copyright owner does not notify the service provider within 14 business days that it has filed a claim against you in court, your materials can be restored to the Internet.
I don’t have the deep pockets required to go to court so it’s likely that after a couple weeks the pirate links will go back online. As I’m not an attorney it’s not entirely clear to me why Chilling Effects–a site that in its current form operates as a de facto search engine for pirate links–is allowed to operate above the law. I’m sure, however, there will be plenty of folks who will fill me in.
Just to be clear, here’s a video documenting how the page in question at Chilling Effects links directly to an infringing stream of our film. I guess my eyes deceive me eh?
For the record, I’m not opposed to Chilling Effects operating a database to document DMCA takedowns. Transparency is a good thing. However, I do believe the site could, and should, redact a portion of the infringing links posted on its public, searchable database. That would be the responsible (and ethical) thing to do.
Chilling Effects reposts infringing links removed from Google. Why no consequences?
Earlier this week I sent Chilling Effects a DMCA takedown notice*, requesting that the site remove links that lead directly to a pirated stream of our film, And Then Came Lola. How did the pirate link make its way to Chilling Effects? Well, it’s not a new tale. In fact, I’ve repeatedly written about the fact that pirate links reported (and removed) by Google search are routinely reposted on Chilling Effects. Google even goes so far as to provide a direct link to the notice (and the infringing links) so as not to inconvenience its users.
In the short video clip below I document just how quickly–and easily–it was to navigate from Google to Chilling Effects to the illegal, embedded stream of our film. It took me a mere 10 seconds to complete the journey from Google-to Chilling Effects-to the illegal stream of our film.
I sent the original DMCA notice to Google on April 23, 2015 and two weeks later, the pirate links were reborn via a posted copy of DMCA notice sent to Google, courtesy of Chilling Effects. How Chilling Effects can get away with this behavior is beyond me, but I imagine the legal staff at the Berkman Center at Harvard, my alma mater, are careful to operate within the confines—if not the intent–of the DMCA’s “safe harbor”provision.
These safe harbor provisions could provide valuable protection to you as a web site operator. In order to take advantage of them, however, you must comply with three administrative requirements:
You must designate an agent, usually yourself though it may be someone else who agrees to do so, to receive notices of claimed copyright infringement. Your agent must provide up-to-date contact information so that copyright owners who believe their work is being infringed on your site can send complaints or take-down notices to him or her. To designate an agent, a procedural requirement for protection under the DMCA safe harbor provisions, you must file an interim designation with the U.S. Copyright Office and submit a $105 filing fee.
You must publish on your site your policy for addressing repeated infringing activity, specifically a statement that you terminate users or account holders who are repeat infringers. If you have no subscribers or account holders, your policy may state, “If we become aware that one of our users is a repeat copyright infringer, it is our policy to take reasonable steps within our power to terminate that user.” Including the policy statement in the web site’s terms of service or privacy agreements makes logical sense, though it may be published elsewhere on the site.
You must properly comply with a notice of claimed infringement when received, including
the expeditious removal of the material that is claimed to be infringing;
notification to the user or subscriber that the material has been removed;
notification to the copyright holder if proper counter-notice is provided by the user or subscriber; and
restoration of the removed material if proper counter-notice is provided, and the copyright holder does not file suit within 10 days.
Why doesn’t Chilling Effects make it easy to find email address to send takedown notices to?
Prior to sending my DMCA notice to the good people at Chilling Effects, I attempted to search the site for an email address to send the notice to. When I couldn’t find one even after searching Google using the terms–chilling effects “DMCA agent”— I resorted to sending my notice to the only email listed on the site’s about page, [email protected].*
Update 5-8-15:Today, after receiving no response to my original notice, I forwarded a copy to the Berkman Center For Internet & Society. Shortly thereafter I received an email with a link to Chilling Effects legal policies page (https://www.chillingeffects.org/pages/legal). Of course, that was not the end of my journey. In order to get the actual email for CE’s acting DMCA agent I had to click another link (http://www.harvard.edu/reporting-copyright-infringements) and visit yet another website–this one a copyright infringement page hosted by Harvard University at Harvard.edu. Note that the Harvard page includes this verbiage:
In accordance with the Digital Millennium Copyright Act (“DMCA”), Pub. L. 105-304, Harvard has designated an agent to receive notification of alleged copyright infringement occurring in the harvard.edu domain. If you believe that your copyrighted work is being infringed, notify our designated agent specified below.
Hmmm, so I guess, technically, ChillingEffects.org is actually a Harvard.edu domain? Color me confused. Not exactly an efficient– nor transparent–way for Chilling Effects to inform people about its own DMCA takedown process.
Chilling Effects obfuscation of its own DMCA agent information is ironic given its mission is to make the takedown process transparent. Why, when it comes to its own site, do they hinder user’s ability to lawfully protect their copyrighted work from online pirates?
Chilling Effects is an independent 3rd party research project studying cease and desist letters concerning online content. We collect and analyze complaints about online activity, especially requests to remove content from online. Our goals are to educate the public, to facilitate research about the different kinds of complaints and requests for removal–both legitimate and questionable–that are being sent to Internet publishers and service providers, and to provide as much transparency as possible about the “ecology” of such notices, in terms of who is sending them and why, and to what effect.
Perhaps those who work at Chilling Effects (and the lawyers who advise them) believe that the database’s work falls outside that of the “service providers” as defined by the DMCA.
Until someone with deep pockets can take them to task, Chilling Effects is apparently quite willing to create its own ecology, above the law, where pirate links are reborn and disseminated. The Chilling Effects database may be used for legitimate research, but in its current form, it also gives users one of the most efficient piracy search engines around.
*Update: Today, Friday, May 8th I forwarded my DMCA notice to [email protected] which apparently serves as the DMCA agent for Chilling Effects.
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
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