by Ellen Seidler | Copyright, Law, Piracy
Berkeley Law’s dubious study on copyright notice and takedown faces more scrutiny
Last month–a day before deadline for public comments on the U.S. Copyright Office’s study on the impact and effectiveness of the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”), section 512–UC-Berkeley School of Law and the American Assembly (via the Google-funded Takedown Project) released a study purporting to give a “broad picture of how section 512 notice and takedown works on the ground.”
A day after its release I wrote quick post highlighting some initial concerns with the study, but hadn’t had time to fully digest the entire 160 page report. Now, nearly a month later, others have taken the time to more carefully look at the study and uncover its (many) dubious findings. Kevin Madigan & Devlin Hartline scholars at the Center for the Protection of Intellectual Property (CPIP) have published a detailed response to study, “Separating Fact from Fiction in the Notice and Takedown Debate,” and note:
The study reads more like propaganda than robust empiricism. It should be taken for what it is: A policy piece masquerading as an independent study. The authors’ narrow focus on one sliver of the notice and takedown process, with no analysis of the systemic results, leads to conclusions and recommendations that completely ignore the central issue of whether Section 512 fosters an online environment that adequately protects the rights of copyright owners. The authors conveniently ignore this part of the DMCA calculus and instead put forth a series of proposals that would systematically make it harder for copyright owners to protect their property rights.
I’d urge you to read the full piece here.
Other worthwhile dissections of the study’s weakness include Stephen Carlisle’s piece, Google Funded Study Concludes Google Needs More Legal Protection From Small Copyright Owners! and David Newhoff’s post, Reports of DMCA Abuse Likely Exaggerated. Both offer more counter-points to the efforts by Google’s spin-machine to generate dubious headlines as the DMCA debate heats up.
On that note, the Copyright Office will be holding additional roundtables on section 512 study next month in New York and California. It will probably take time for officials at the USCO to separate the wheat from the chaff in the comments submitted (since the vast majority were boiler-plate web-form submissions) but hopefully these roundtables will allow interested parties to explore the issues at hand in a more thoughtful and methodical way.
by Ellen Seidler | Copyright, Film, Law, Piracy
More reliance on blockbusters means less diversity in film (graphic USC Annenberg)
Yes Virginia, piracy damages both the film industry and its audience
It’s that time of year again, when the piracy apologists pull out their annual canard that Hollywood’s profits provide proof that online piracy doesn’t hurt the film industry. It’s an assessment that found in this week’s post by Torrent Freak’s editor Ernesto, Pirates Fail to Prevent 38 Billion Box Office Record:
…the MPAA and other groups warn that hundreds of thousands of jobs are at stake, while the economy is losing billions due to piracy. Illegal downloads, they say, are slowly killing their creative industry.
Interestingly, these stark warnings are not reflected in last year’s box office revenues.
Recent numbers show that the movie industry just broke the magic $11 billion barrier, generating more revenue than ever before at the North American box office. The revenue for 2015 totals $11.3 billion, which is roughly a 9% change compared to last year.
The worldwide grosses also reached an all-time record according to research from Rentrak, which estimates the global grosses at a staggering $38 billion based on data from 25,000 theaters across the globe.
Looks like a no brainer conclusion right? Not so fast. While (most) Hollywood studios did make a lot of money in 2015, the truth conveniently omitted from the post in Torrent Freak is that they did so by producing fewer films. After all, the studios are in the business of making money for their shareholders and to that end–in this age of unchecked piracy–fewer chances can be taken on movies that won’t draw huge crowds. The Hollywood films that are being made are those that are sure bets to overcome digital theft and still make money. In 2015, the top 5 films made 20% of the revenue.
The studios have steadily been moving away from midsize movies and focusing instead on fewer, mega-budget movies. In 2006 the seven major studios combined made 187 films. In 2013 those same studios made only 139 films (a decrease of 26%). Those films generated $8.2 billion in 2006 and $8.8 billion in 2013 in real box office revenue domestically (an increase of 6%). More simply, fewer films are sharing more revenue.
…At the end of the day, if you’re a studio and looking to mitigate your overall financial risk, I guess it sort of does make financial sense stick with mega-budget films. So you have permission to greenlight Avatar v. Terminator v. Batman: The Oz Adventures!
This it’s important to drill down and examine the implications of this trend. Yes, Hollywood
shareholders may be doing OK, but with fewer films being produced, fewer people are employed in film production and audiences have fewer options when it comes to what they can see in movie theaters. There’s a reason that the majority of cineplexes across the land are filled with formulaic, big budget faire.
Strategically, the blockbuster approach involves “making disproportionately big investments in a few products designed to appeal to mass audiences,” Elberse explains. “Smart executives bet heavily on a few likely winners. That’s where the big payoffs come from.”“In the movie business, the product is the same price to the consumer regardless of the cost of manufacturing it—whether its production budget is $15 million or $150 million,” he told her. “So it may be counterintuitive to spend more money. But in the end, it is all about getting people to come to the theater. The idea was that movies with greater production value should be more appealing to prospective moviegoers.”
Fast fading are those lower budget films with limited audiences that carry more box office risk. As noted in an article by Flavorwire’s Jason Bailey, How the Death of Mid-Budget Cinema Left a Generation of Iconic Filmmakers MIA:
Back in the 1980s and 1990s, when Waters and Lynch were doing their most commercially successful work, it was possible to finance — either independently or via or the studio system — mid-budget films (anywhere from $5 million to $60 million) with an adult sensibility. But slowly, quietly, over roughly the decade and a half since the turn of the century, the paradigm shifted. Studios began to make fewer films, betting big on would-be blockbusters, operating under the assumption that large investments equal large returns. Movies that don’t fit into that box (thoughtful dramas, dark comedies, oddball thrillers, experimental efforts) were relegated to the indies, where freedom is greater, but resources are far more limited. As Mad Men’s Matthew Weiner put it, “Something happened that nobody can make a movie between $500,000 and $80 million. That can’t be possible.”
Let’s look at in another way. If studios didn’t have to deal with a business model predicated on minimizing the threat posed by online piracy it’s more likely more of these mid-budget films would be made. Film industry profits should not be considered poison–they provide the means to produce more, and potentially riskier films. By diminishing this flow of money to potential productions, piracy does indeed erode the overall health of Hollywood.
With more blockbusters comes less diversity
Academics analyzed the 100 top-grossing films for 2014 and found that none of of them, save for those with ensemble casts, featured a woman 45 or older. They found only three non-ensemble films that featured minority women.
The percentage of women in speaking roles has actually gone down since 2007, when about 30 percent of films featured speaking women, USC found. In 2014 that percentage is 28.1 percent. That’s about the percentage of films featuring women in sexy attire or at least partially nude. When it comes to men, that figure is 8 percent.
The report says “females function as eye candy” in top-grossing movies.
Women behind the camera aren’t likely to fare much better in an industry focused on the next great blockbuster either. According to research by San Diego State’s Center for the Study of Women in TV and Film independent films are where women find the greatest opportunity:
In 2014-15, women comprised 29% of directors working on documentaries and 18% of directors working on narrative features screening at more than 20 high profile film festivals in the United States. These figures stand in stark contrast to the percentage of women directing top grossing films in 2014 (7%).
Looking further at their research its safe to say that as Hollywood become more focused on tent-pole productions to generate profits, women are less likely to find opportunity. As budgets go up, opportunities go down.
SD State Center for Study of Women in TV and Film graphic
This lack of diversity extends beyond sex. According to the Annenberg Study:
The landscape of popular cinema in 2014 remains skewed and stereotypical. Across 700 films and over 30,000 speaking characters from 2007 to present, movies continue to distort the demographic reality of their audience. Film characters are overwhelmingly White and male, despite both population statistics and viewing patterns.
Employment trends behind the camera evidence a similar dearth of diversity. Only five Black directors helmed top movies in 2014, and women were underrepresented by a factor of 5.3 to 1 as directors, writers, and producers in 2014. Further, the 100 top films of 2014 featured no Asian directors. Despite activism, attention, and statements about addressing the issue, Hollywood’s default setting for characters and content creators remains fixed on “status quo.”
The “film industry” is more than just Hollywood
Per usual, piracy apologists as frame their pro-piracy arguments using a David vs. Goliath scenario with Hollywood being Goliath. Somehow the industry made to be the enemy because it deigns to defend the products it produces from theft. As part of their construct piracy-apologists propaganda that paint big bad Hollywood as an enemy, conveniently neglect to mention any filmmaking that takes place outside Hollywood. It’s a convenient omission, but one that undermines the credibility of their thesis that piracy is a victimless crime.
bfi.org.uk
Take film production in the United Kingdom, which boasts a film industry second only to that of the U.S. According to a British Film Institute (BFI) study released last month, UK film production, particularly in the lower budget range has actually fallen.
- The total filmed entertainment market in the UK in 2014 was worth an estimated £3.8 billion, down from £4.1 billion in 2013.
- Revenues across all platforms were down compared with 2013 except for digital video which recorded a rise of 35%.
- Gross revenues for UK film were an estimated £840 million, down from £895 million in 2013.
- The 2014 market down 26% from the peak. In real terms, film revenues in 2014 were the lowest since 2000.
An even more glaring omission comes with the refusal to acknowledge impact that piracy has on indie film production worldwide. For the Hollywood blockbusters, millions can be had via the box office, but for independent films with small or no theatrical release, revenue comes via the backend, DVD and digital distribution. This revenue has been shrinking for both Hollywood and independent producers, and for the latter, is crucial to paying off production debt and can be the difference-maker as to whether a filmmaker ever makes another film. It’s here where online piracy and legit sales really do compete head to head.
Smaller budget films are particularly dependent on this back-end income to recoup production costs. As I noted in an
blog post last summer:
Unlike those in Hollywood, indie filmmakers are not well-funded and often have to cobble together lean production budgets using a variety of sources from credit cards to crowd-funding. Without the deep pockets of the studios, these filmmakers often go deep into the red to create their not-so-mainstream films.
So, when it comes to assessing piracy’s damage, indie filmmakers, like their counterparts in music, are often the most vulnerable.
When indie filmmakers lose, so too do audiences
Given that unchecked piracy cannibalizes this much-needed income stream, online piracy does HURT the “film industry” and filmmakers like
David Ward who
described how online piracy undermined revenue for his film,
Balls Out, in a
Tumblr post:
I am writing this as a producer of the indie movie “
Balls Out” that was just released on June 19th in theaters and VOD. Immediately upon its release, it made its way onto all the top torrent sites in full HD quality. We’re not stupid, we knew that as soon as the movie was out it would be up to download for free online. What we didn’t expect was just how popular it would be on those sites. We’re one of the most pirated movies right now in terms of how many people are currently downloading, and seemingly the only independent film currently on the list… we have a very small theatrical release and have to count on VOD to make our investors’ money back…None of the filmmakers I know are getting rich doing this, they are doing it because they love making movies and entertaining people. It’s unbelievably hard to get any kind of movie made, let alone one worth watching, and if people don’t support the filmmakers doing original work then we’ll be forever stuck watching sequels and spin-offs and sequel spin-offs of tie-ins until the end of time.
Jean Prewitt, head of Independent Film and Television Alliance, puts piracy’s ultimate impact on film production even more succinctly in comments to
The Guardian:
What this means to the consumer is not that some producers don’t get rich, it means the product doesn’t get made.”
Let’s not forget that piracy’s cannibalization of back-end revenue streams has also played a hand in forcing Hollywood studios to make sure the movies they produce draw big at the box office the first few weeks in theaters. Markets that used to serve as a financial cushion for margins is no longer and while digital sales continue to grow, it’s logical to assume that piracy will continue to take a bite out the profit pie.
Of course those who support piracy see things differently. Torrent Freak’s Ernesto sardonically suggests that perhaps pirates should “up their game” if they really want to create havoc among those whose livelihoods depend on a healthy film industry.
That said, piracy has certainly not destroyed the movie business just yet. There are still plenty of people who are going to the movie theater to pay for their entertainment. Perhaps pirates should up their game?
But Piracy isn’t a “game”
Problem is, piracy isn’t a game and Hollywood isn’t an enemy. It isn’t David v Goliath. It’s not Robin Hood in Sherwood Forest. Piracy is theft. Piracy has victims. It’s a crime that takes a financial and cultural toll.
For those working in the film industry, it’s their livelihoods–and opportunity for advancement–at risk. For consumers, online piracy has quietly eroded both the number and diversity of quality movies to choose from.
So, when piracy apologists crow about Hollywood profits, look past headlines and cherry-picked facts and remember piracy incurs a cost we all pay for.
In the meantime, last time I checked, industries are allowed to (thrive) and make money off the products they produce. Why should Hollywood, or any other creative industry, not have the same right?
Ultimately piracy apologists try to rationalize and excuse morally dubious behavior by doing all they can to deflect and obscure the truth. This latest, routine round of headlines is more of the same.
by Ellen Seidler | Copyright, Law, Piracy, Politics
DMCA is outdated and broken
U.S. Copyright Office announces study on impact and effectiveness of the DMCA safe harbor provisions
The Digital Millennium Copyright Act’s (DMCA) “safe harbor” provision has long been a source of frustration for creators. For years it’s allowed 3rd parties who enable, and often profit from piracy, to avoid legal liability for infringement. Momentum to tighten eligibility standards to qualify for safe harbor protection has been growing of late, both in courts and at the U.S. Copyright Office. In December, a federal jury’s verdict awarded BMG Rights Management 25 million in damages in its copyright infringement suit against Cox Communications. The suit went forward after the judge ruled against Cox, determining that because of an inadequate “repeat infringer” policy the company did not meet eligibility for a safe harbor defense as stipulated in section §512(i) of the DMCA.
(1)Accommodation of technology.—The limitations on liability established by this section shall apply to a service provider only if the service provider- (A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers;
Perhaps even more significant news came on the final day of 2015 when the U.S. Copyright
announced it was
“undertaking a public study to evaluate the impact and effectiveness of the safe harbor provisions contained in section 512 of title 17, United States Code.”
While Congress understood that it would be essential to address online infringement as the internet continued to grow, it may have been difficult to anticipate the online world as we now know it, where each day users upload hundreds of millions of photos, videos and other items, and service providers receive over a million notices of alleged infringement. The growth of the internet has highlighted issues concerning section 512 that appear ripe for study….Among other issues, the Office will consider the costs and burdens of the notice-and-takedown process on large- and small-scale copyright owners, online service providers, and the general public.
Though somewhat buried by the holidays, this announcement is welcome news for artists who been lobbying members of Congress tackle the outdated DMCA. Most notable is the fact attention is finally being paid to smaller
copyright owners who don’t have the resources to fight back effectively against online thieves:
Many smaller copyright owners, for example, lack access to third-party services and sophisticated tools to monitor for infringing uses, which can be costly, and must instead rely on manual search and notification processes —an effort that has been likened to ‘‘trying to empty the ocean with a teaspoon.’’ In addition to the burden of policing infringement across the internet, copyright owners complain that material they succeed in having taken down is often promptly reposted on the same site—the so-called ‘‘whacka-mole’’ problem. Under section 512 as it has been interpreted, providers are not required to filter out or prevent the reposting of copyrighted content.
Others, like Fare Play’s Will Buckley have been tireless advocates on this issue in Washington. Buckley launched the
Take Down, Stay Down petition campaign to
“Restore an artist’s right to determine what happens to their work on the internet,” that asks Congress to update
Section 512 of the Digital Millennium Copyright Act and close the safe harbor “loophole” in the DMCA by adding a “stay down” provision.
Buckley is thrilled that Washington seems to be getting serious about looking at the law’s deficiencies.
“I think it’s great that they’re seriously interested in taking a deeper look into safe harbor.” When asked what impact the
take down,stay down petition drive may have had in pushing the issue to the fore, Buckley observed,
“the petition has helped drive more conversation about the serious problems we have with an artists inability to control who monetizes their work and how they’re compensated.”With this study, let’s hope conversations continue so that real solutions can be found for the issues vexing artists trying to earn a fair living in this digital age. If you’d like to have your voice heard, according to the Copyright Office there will be an opportunity for you to
comment:
Written comments must be received no later than 11:59 p.m. Eastern Time on March 21, 2016. Specific instructions for submitting comments will be posted on the Copyright Office website on or before February 1, 2016. The Office will also be announcing one or more public meetings, to take place after the initial written comments are received, by separate notice in the future.
I’ll be sure to alert you when I hear more regarding this important issue.
by Ellen Seidler | Copyright, Film, Law, Piracy, Politics, Tech
Lots of news in the copyright, piracy and privacy world of late. Here’s some worth a look:
First up, this thoughtful piece by Nelson Granados on Forbes.com “How Piracy Is Still Hurting The Filmmakers And Artists You Admire.” Granados takes direct aim at the fallacy that piracy doesn’t cause damage to Hollywood studios.
Many think naively that studios cannot be hurt too much, because after all, you hear mostly about the movies that make hundreds of millions of dollars. But the reality for many filmmakers is that they often live on the edge, seeking financing to produce quality content, and enduring high uncertainty about whether they will be able to pay off debt and have any profit left. Given the high fixed cost of producing a quality movie, losses from piracy can be the difference between making a profit or not.
He notes that a number of “peer-reviewed” studies quantify this damage. Bottom line, like any industry, Hollywood depends on making a return on its investment to flourish. No matter what piracy apologists allege, that’s a basic economic fact. Granados also touches on the particular vulnerability faced by independent filmmakers.
Most artists struggle to make ends meet as they pursue their creative work with passion and dedication. Piracy may be tipping the next Quentin Tarantino over the financial edge into bankruptcy, and we will all lose.
As I’ve often said, audiences won’t know what we’re missing if it isn’t made. Piracy’s damage is insidious–and for the public–somewhat invisible. Ultimately it diminishes the quantity (and quality) of film offerings consumers have to choose from.
Here’s a link to Granados’ full article on Forbes.
Popcorn Time growing stale, but remains alive
In other piracy-related news, the pox that is Popcorn Time rears its ugly head yet again. According to Torrent Freak, a group of “developers” have launched their own community edition of the piracy platform. Not surprisingly developers responsible for the new rendition of Popcorn Time rely on well-worn justifications for their thievery:
“Popcorn Time will probably never go away, despite the efforts made by organizations such as BREIN, the MPAA and others. Instead of fighting this great software they should embrace it,” PTCE tells TF.
It appears efforts are being made to quash this new effort, but as of today the site seems to be operational. Perhaps it would be better if those who love to watch films “embrace” the notion of compensating creators for their work. Fans of Adele seem to be doing so in record fashion.
Facebook faces further European scrutiny
Not really a copyright issue, but it’s always worth paying attention to what’s going on in Europe with regard to the digital economy. With that in mind…
Max Schrems, an Austrian lawyer and privacy advocate’s battle against Facebook over data privacy concerns gained momentum in October when the European Court of Justice invalidated the safe harbor agreement between the U.S. and Europe that had allowed transfer of personal data between business entities in the U.S. and EU. With the ruling in hand, Schrems has stepped up his attack against Facebook, filing complaints with data protection authorities (DPAs) in Ireland, Belgium and Germany. He outlined his actions in a statement posted on his website:
All complaints suggest a reasonable implementation period, to allow the relevant companies to take all necessary technical and organizational steps to comply with the CJEU judgement. These options may range from moving data to Europe, encrypting data that is stored in the United States or reviewing the corporate structure. Schrems: “Users really don’t have to worry that their screens go dark, but I hope we will see serious restructuring in the background – just like Microsoft has now started to offer more secure data centers in Germany, that are supposedly not subject to US jurisdiction.”
Meanwhile, as Schrems moves forward, the EU and US are busy trying to reach an agreement on a new safe harbor pact that will offer new guidelines on data transfer between companies on both sides of the Atlantic. It’s important to note that this “safe harbor” should not be confused with the “safe harbor” found in the DMCA so often mentioned in the context of online piracy.
by Ellen Seidler | Copyright, Film, Google, Law
YouTube will pay copyright court costs for a few users–not because it’s right–but to protect Google’s bottom line
According to a story in the NY Times, the folks at YouTube are ready to pony up cash to support some of its users “fair use” claims in court.
YouTube said on Thursday that it would pick up the legal costs of a handful of video creators that the company thinks are the targets of unfair takedown demands. It said the creators it chose legally use third-party content under “fair use” provisions carved out for commentary, criticism, news and parody.
You’ve probably read a lot about “fair use” lately. It’s the Google-funded (EFF) Electronic Frontier Foundation’s mantra and if the folks there had their way, pretty much everything and anything would be considered “fair use.” Fair use an important legal doctrine and when applied properly (criticism, comment, news reporting, teaching, scholarship, or research) is not an infringement of copyright. However, these days, too often it’s used as a disingenuous defense for copyright theft.
The tech-funded campaign to turn villains into victims
When a court recently ruled that a snippet of a Prince song playing in the background of a YouTube video in the notorious Dancing Baby case was indeed “fair use,”it gave a boost to efforts to use fair use as a cudgel against rights holders who legitimately assert their rights using the DMCA takedown process.
Note that the actual video at the center of this case was reposted after the uploader sent a counter-notice. The only reason the case ended up in court was because the uploader, Stephanie Lenz, filed suit and the only reason she did so was because she was bankrolled by the EFF. The EFF saw it as an opportunity to advance its Google-funded agenda. As Terry Hart noted in 2010 on his Copyhype blog:
Luckily, our society has survived the brief time when Lenz’s video was not available to the world. But does this episode only highlight the DMCA’s sword of Damocles hanging over free speech and creativity? Or is it just another example of the cries of internet freedom fighters that the sky is falling as content industries adapt to technological changes? I think it’s the latter: despite the elevation of this dancing baby video to a cause célèbre, our freedom to speak is not threatened, and any “burden” the DMCA places on users uploading content is almost illusory.
With this YouTube gambit–which Jonathan Bailey breaks down in a blog post on Plagiarism Today–one can imagine that EFF is chomping at the bit to find yet another test case to take to court in an effort to expand the definition of fair use beyond those prescribed by current copyright law.
At last weeks House Judiciary committee copyright roundtable in Santa Clara the term “fair use” was bandied about repeatedly. At some point a panelist complained that bogus DMCAs made up more than half the takedowns sent. NOT TRUE!
Legit DMCA takedowns on Google outnumber false ones by a huge margin–97% to 3%.
The EFF and their compatriots routinely like to assert that every day, everywhere, poor innocent uploaders are being damaged by DMCA takedowns on YouTube and elsewhere. Give me a break. The fact is that creators victimized by piracy, forced into the time-consuming process of sending DMCA notices to protect their work, FAR outnumber users victimized by erroneous DMCA takedowns. According to the most recent numbers I could find (via Google’s transparency report) the company “removed 97% of search results specified in requests that we received between July and December 2011.”
I have to give the EFF and its well-paid attorneys credit though. They have successfully made the victims into villains through an ongoing campaign of carefully crafted rhetoric. Never mind the actual truth–that for every “bogus” and “absurd” takedown sent there are thousands that are legit. Sadly it’s a fact that gets lost on most of the public and very likely some of the politicians considering copyright reform that were sitting in that room.
Hey YouTube! What about covering legal costs of creators who receive bogus counter-notices?
Yes Virginia, not every counter-notice in response to a DMCA takedown sent is legitimate. It’s a fact that creators who send a legitimate DMCA notice, to remove full copies of a film from YouTube for example (no debate about fair use here) have received a counter-notice from the uploader.
I wrote about this specific scenario in a blog post “How DMCA Abuse Hurts Creators” in 2013. In this case the uploader had zero right to upload the film, but because she sent a counter-notice, YouTube put the full copy of the film back online.
This film was reposted (in its entirety) to YouTube after the uploader sent a counter-notice. The filmmakers’ only recourse is to go to court. Will YouTube cover those costs?
What now? The only recourse the user has is to go to court. Is YouTube willing to cover those court costs? Will YouTube step up to protect rights holders whose work is ripped off on their site? The answer is a simple, NO.
YouTube’s move is not about doing what’s right, or protecting legal rights. It’s about protecting Google’s bottom line. YouTube depends on fresh content to drive traffic to its site. From a business perspective, it makes total sense to streamline that path from any speed bumps along the way, including those pesky copyright claims.
DMCA does not work well for creators trying to protect their work from online theft
The DMCA is broken, but not in the way the EFF would have you think. It’s broken because it does a lousy job protecting the work of filmmakers, musicians, photographers, and authors.
Over these past few years I’ve written plenty on the subject so if you’re so inclined, you can a sampling of some of my other posts that explore why the DMCA needs fixing:
Dancing around DMCA Takedowns on YouTube
Using DMCA to fight Ashley Madison hackers is poor use of copyright law
Google lives on tech’s cutting edge–but in DMCA takedown Luddite-land
Why does Google play a DMCA piracy shell game?
Does Chilling Effects make a mockery of the DMCA?
Etsy uses DMCA “safe harbor” to protect photography pirates
Google and the Art of the DMCA Dawdle
Google’s Blogger DMCA takedown procedures a hot mess
Everyone hates the DMCA
Is this really what Congress had in mind when it created the DMCA?
How DMCA Abuse Hurts Content Creators
Hollywood and Silicon Valley talk distribution, DMCA, and more during panel on piracy
The RIAA Explains Why DMCA doesn’t work
Nickel and Dimed to Death? Pirates Profit off DMCA Requests
Anti-copyright Astroturf gangs, fertilized with tech cash, suddenly sprout
Google’s downranking of pirate sites is a big, fat, LIE
Google’s 100 Million Takedowns-A Mess of its Own Making
Chilling Effects (still) makes searching for pirate links easy
Pirate Bay shut down-Is it a sign of progress against piracy’s “free for me” mantra?
Piracy for profit-YouTube’s dirty secret
Electronic Frontier Foundation (EFF) uses copyright law as censorship canard again
Google’s demotion of pirate search results earns a FAIL so far
Should we trust Google’s piracy report? Probably not….
Google gets called out (again) for its laissez faire attitude on piracy
Google’s “We fight piracy” Gobbledygook
Raise your hand if you’re tired of EFF tech-funded talking points
Google’s piracy profit machine continues unchecked
Busting Piracy on Google’s Blogger Barnacle Sites
Free Speech According to Google? Blackmailing Indie Music Labels Over YouTube Streaming?
Piracy’s Potpourri of Profit and Prevarication
Record Share Price Aside, Google Still has a Piracy Problem
Search Engines = G.P.S. for Online Piracy
How Google (Doesn’t) Fight Piracy
LGBT Cinema, Diverse Voices Quieted by Piracy’s Punch?
Google and friends spin search piracy study
YouTube’s Paid Channels are Here and a Counterfeit Cleanup is Past Due
by Ellen Seidler | Copyright, Film, Google, Law, Piracy, Politics
Google continues to dodge responsibility for its role in promoting online piracy
This past week members of the House Judiciary Committee traveled to California to hold a pair of roundtable discussions on the future of copyright. On Monday committee members were in Santa Clara, the heart of Silicon Valley, and on Tuesday traveled to Los Angeles to hear from a variety of stakeholders discussing everything from overhauling an out-dated U.S. Copyright Office to DMCA circumvention for tractor repairs.
As a participant in the Santa Clara event I offered up my observations on updating the copyright office and the need for a copyright small claims process.
Though I wasn’t at the LA event, I read with great interest a report in Variety by Ted Johnson that documented an exchange between Google’s legal director for copyright, Fred von Lohmann and Richard Gladstein, founder of Film Colony:
“Why couldn’t we find a way, in all of your wonderful genius, to prevent being directed to illegal activity,” Gladstein said…
“We are not in a position to decide what is legal and what is illegal online,” Von Lohmann responded.
Then Gladstein asked, “Is it legal or illegal to download a movie that you don’t own?”
Von Lohmann answered, “I agree. Downloading a movie, in order to watch it without paying for it, is infringing. That is not the problem. The problem is when you have over a trillion websites, you have hundreds of thousands of film titles, millions of song titles, not just in English but every language around the world … as a search engine there is no magic way for us to know in advance what is legal and what is illegal online. We rely on copyright owners to inform us.”
[Von Lohmann] noted that Google has been demoting sites based on the number of takedown notices they receive from copyright owners. He also said that such sites don’t pop up when users simply put in the name of the film title without the word “watch” before it. [emphasis added] —Variety
Von Lohmann’s posturing on Google’s piracy problem is nothing new, but it is worth pointing out how his statements are carefully crafted to dovetail with Google’s own (vague) propagandistic promises.
In 2014 Google announced that it had updated its “How Google Fights Piracy” report (first published in 2012). In it, Google once again gave lip service to its down ranking (not removal) of pirate sites in its search results:
Google also factors in the number of valid copyright removal notices we receive for any given site as one signal among the hundreds that we take into account when ranking search results. Consequently, sites with high numbers of removal notices may appear lower in search results. This ranking change helps users find legitimate, quality sources of content more easily.
Note that in its glossy report Google didn’t mention exactly what types of search terminology would trigger a down ranking of results. Apparently, if we are to believe Mr. von Lohmann, we should only expect pirate link demotions to take place when searching using the movie’s title only, not when using terms like “watch” and “download” in the hunt for pirated copies?
I did my own quick research today using a recently released indie film The Overnight. When I searched using the title only, Google does offer up a page full of legit links.
However, when I add the term “watch” to the mix and search for “watch the overnight” take a gander at what results lead the pack….The top result led directly to a notorious pirate site and 6 out of 10 gave me links to pirated versions of the film.
I checked Google’s transparency report to see how many times this particular domain had been reported for infringement. Note, the Solar Movie’s domain suffix has changed multiple times over the years. It’s latest incarnation, solarmovie.ac, seems to have come online only last month. Already its been reported for copyright infringement more than 600 times.
Why won’t Google down rank sites found in actual searches for pirated content?
I’d like to ask Mr. von Lohmann why Google can’t seem to manage down ranking pirate sites for ALL its search results–not just results found when using the film’s title. After all, folks looking for pirated movies aren’t idiots….adding the term “watch” or “free download” to a search is standard operating procedure if one is seeking pirated copies. It makes no sense for Google to ignore these search terms if it’s truly serious about how it “fights” piracy.
Sure, total searches for legit links may far outweigh overall searches for pirated ones, but in the end what we’re talking about when we are discussing “fighting piracy” are search terms like “watch” and “download free.” Look what shows up at the bottom of the results for “watch The Overnight”search… Google continues to offer handy suggestions for other search terms users could use to find more (pirate) links.
Google pretends to be working on its piracy problem, but when you drill down it’s clear that the tech giant is doing everything it can to avoid taking action or responsibility. I hope those House members who sat and listened to Mr. von Lohmann will not take him at his word, but instead, examine actual facts.
Google still has a very long way to go when it comes to fighting piracy.
