by Ellen Seidler | Copyright, Film, Law, Piracy, Politics
Momentum is building for changes to the DMCA that will better protect creators
Content creators from all walks of life are coalescing around the need to update copyright law to protect their work against theft in digital age. A piece in yesterday’s NY Times, Music World Bands Together Against YouTube, Seeking Change to Law, is the latest to highlight growing calls by the creative community to update a woefully antiquated Digital Millennium Copyright Act of 1998.
In its newest effort, the music industry has asked the federal government to change the Digital Millennium Copyright Act, saying that the law, which was passed in 1998 and protects sites like YouTube that host copyrighted material posted by users, is outdated and makes removing unauthorized content too difficult.
Cary Sherman, the chief executive of the Recording Industry Association of America, says that even when songs are taken down, they can easily be uploaded again.
“This is a new form of piracy,” he said. “You don’t have to go into dark corners and sell stuff out of your car. You can do it in plain sight and rely on the D.M.C.A. to justify that what you’re doing is perfectly legal.” –NY Times
Last month the U.S. Copyright Office held public roundtables in New York and San Francisco to hear testimony as part of its study to “evaluate the impact and effectiveness of the safe harbor provisions contained in section 512 of title 17, United States Code.”
As part of the study, the Copyright Office also solicited public comments. While I shared by thoughts with researchers at Mason Law’s Arts & Entertainment Advocacy Clinic for its submission, “Middle Class Artists Want a DMCA System that Works” I also drafted my own statement. Although my comments are part of the public record, I thought I’d share my them here as well. My hope is to generate further dialogue as to how we can advocate for a meaningful update to the DMCA so that moving forward, creators’ rights (and livelihoods) will be better protected.
Here’s my submission to the U.S. Copyright Office.
Updating the DMCA – Areas of Concern
Overwhelming volume
The DMCA is currently the only tool content creators have available to safeguard their work from online theft and profiteering. Unfortunately, these days, using the DMCA to fight piracy is about effective as standing under Niagara Falls holding an umbrella.
Within a few months of our independent film’s release in 2010 we’d found more than 56,000 illegal download links and streams for pirated copies. Those are only the ones we managed to uncover. There were likely thousands more.
Multiply that figure by hundreds, if not thousands, of downloads per link and one can begin to appreciate the scope of the problem. Of course not every illegal download equals a lost sale, but even looking at a fraction of the total, the income lost by diluting legit sales can represent the difference between paying off production debts and making another film, or not.
The time and effort spent in policing piracy on the web is time and effort most independent artists cannot afford. For larger entities that can engage takedown services to manage the work for them the process remains an expensive and daunting task.
Ultimately such efforts can only slow, not stop, the incredible tide of online piracy.
Overly complex takedown procedures
While that language required to craft a legal DMCA takedown notice is straightforward, the process for actually sending it to an OSP’s takedown agent is often not so clear. While some OSPs accept email notification (as required by law), other larger entities, like Google, prefer that requests be sent via a cumbersome and time-consuming online process.
Uploading infringing content to a Google site can be done with a mere click of a mouse, unfortunately removing it is not quite so simple. Because the email address for Google’s DMCA Agent is not posted on its websites, rights holders must jump through various hoops and navigate through a series of questions in order to arrive at the correct form. Once there it takes additional time to complete the 9-part form. Before one can actually send it one must be sure to create a Google account, then login and send.
Once the takedown request is sent, no copy of the actual takedown request is generated, only a brief acknowledgement of receipt. Then it’s a waiting game to see whether the infringing content gets removed.
Sending a simple DMCA takedown notice via email is simple, fast, and makes record keeping and follow up easy. Any update to the DMCA should continue to support email as an efficient way to send takedown requests and require that OSPs process emails with the same speed as those submitted via the web form.
Repeat infringement
Even if one sends a DMCA takedown notice to Google reporting a site for dozens of illegal links, Google allows the site to remain online. It takes multiple notices, sent 48 hours apart, to trigger any sort of account disabling.
Other sites employ varying degrees of punishment for repeat infringers and some do nothing. This is certainly an area of concern for rights holders as it adds to the overall ineffectiveness and inefficiencies of the DMCA notice and takedown process.
Any update to the DMCA should specify what constitutes a repeat infringement and require that OSPs publish this information on their website. The law should also require that the OSP be responsible for preventing any re-upload of content already reported as infringing. This can be achieved by employing technological solutions described in the following section.
Technological Solutions
Technology brought us to this point. It’s time technology be utilized to help safeguard copyrighted work. YouTube’s Content ID system, though not without problems, at least provides a way for rights holders to find and manage YouTube access for their music or films. Cloud storage provider Dropbox also employs technology to scan files for identifying hash data so that reported files cannot be uploaded repeatedly.
If an OSP’s (online service provider) business model is predicated on monetizing user-generated content (not vetted for copyright) then the OSP should be required, by law, to implement some form of digital fingerprinting to prevent infringing material from being uploaded in the first place. This type of technology would also help address enforce a takedown – stay down approach and prevent repeated uploads of pirated content to a site.
If an OSP does not have the resources to build its own proprietary tech like YouTube’s Content ID, there are a number of third-party vendors, like Vobile, that offer digital fingerprinting. While such 3rd-party services are not free, it seems only fair that cost of implementing a digital gatekeeper be considered a cost of doing business. Creators have long borne the “costs” of OSPs monetizing their content without permission. Having OSPs tap into profits to better protect copyright seems only fair.
Any update to the law should include a requirement that, in order to qualify for the limitations to liability that safe-harbor offers, certain user-generated content sites must implement reasonable technology to mitigate content theft.
Counter-notices and small claims process
Not only are creators burdened with having to play detective to find and remove their stolen content from various websites, but even the counter-notice system works against rights holders.
The counter-notice system allows recipients of an erroneous DMCA to prevent the removal of content and while such a system of checks and balances is important, problems occur when such counter-notices are themselves erroneous. Unless the sender of the DMCA notice files in federal court to enforce the takedown, following a 10-day waiting period, the reported content is reposted.
For most indie artists, the cost of filing in federal court to enforce a DMCA takedown is far too costly and so, in these cases, the infringing content remains online. I’ve experienced this situation multiple times and have seen full copies of a film reposted after a counter-notice (claiming fair use) was sent after a takedown on YouTube.
Perhaps, as part of any update to the DMCA, the time has finally come to create a small claims process to adjudicate copyright claims outside the federal court system. The U.S. Copyright Office has already studied the issue and has recommended creation of a voluntary system of adjudication to resolve copyright small claims. (http://copyright.gov/docs/smallclaims/usco-smallcopyrightclaims.pdf )
Content removed due to infringement should not be replaced by direct links to 3rd party site(s) that republish the same infringing links
Another issue not addressed by the DMCA is a problem that’s arisen thanks to a third-party database that records all the DMCA notices received by a number of OSPs including Google. The Lumen database https://lumendatabase.org/ (formerly Chilling Effects) offers a searchable database of these DMCA notices. While this might serve as a valuable archive, Lumen’s searchable database, in its current form, does not redact the infringing URLs from the DMCA notices and so–in effect–becomes an efficient search engine for pirated content. This afternoon I used Lumen’s search engine to look for illegal copies of the recent release “Carol.” With one click I found a link, then right-click and I ended up at an active, illegal copy online.
Lumen’s DMCA notices are also easily found thanks to Google’s direct links to them in what would seem to be blatant disregard for the DMCA’s intent–if not the law. The scenario works like this: When an infringing link is removed from Google search following a DMCA request, the search result remains, but the original infringing link is simply replaced with a fresh hyperlink to the DMCA notice stored in Lumen’s database. Essentially, removing the infringing link from Google search with a DMCA takedown requests only means a web user searching for pirated copies only has to click one additional link in order to find the pirated content he/she was looking for.
While the database itself may claim to operate under the mantel of “free speech” one has to ask how Google qualifies for “safe harbor” protection when infringing links removed from its search engine are replaced by a link to the DMCA notice on the Lumen database that contains the same, un-redacted infringing link. This type of re-linking should be explicitly banned in any update of the DMCA.
What’s at stake
Takedowns will continue to be a part of any DMCA fix, but collectively we must figure out a better way streamline the process, utilize technology, and mediate disputes in order to protect copyright and support a culture where creators can flourish– and the wealth of content they create can be enjoyed, and sustained, by consumers throughout the world.
If nothing is done to update the DMCA for the 21st century, content creators of all stripes will continue to struggle and the diversity, and variety of quality of creative content available to consumers will diminish. At first, we may not miss what isn’t made, but eventually our creative culture will be the lesser for it.
by Ellen Seidler | Copyright, Google, Law, Piracy
Hop aboard for another spin on Google’s DMCA Merry-Go-Round
It’s not news that Google-hosted Blogger websites are a favorite storefront for online pirates. It’s also not news that Google does its best to obstruct DMCA takedowns by setting up various roadblocks along the way. Today I discovered yet another example of just how difficult Google makes the DMCA process–this time with Blogger-hosted sites that use custom domain names.
When you create a blog using Blogger you’re given a domain that ends in blogspot.com. However users are free to use a custom domain name instead. That’s all well and good, unless the website distributes pirated content. In that case, if you’re a creator trying to get your pirated content removed (by Google), you’re likely to run into problems.
Usually, when one of these pirate entrepreneurs creates a site on blogspot.com a rightsholder can send a DMCA by using Google’s annoying web form (or annoy them by sending an email: [email protected]). However, if you use the same DMCA form to report a blogger-hosted site with a custom domain, Google won’t remove it. They’ll just send you back to the beginning.
I found out about this twist when I sent several DMCA notices this week on behalf of an indie film distributor. I requested the removal several pages of pirated movies I found on a Blogger-hosted website with a custom domain. The claim was rejected and the response on the Google Removals Dashboard read: Inappropriate for TCRP. Please submit through the standard web form.
TCRP stands for “Trusted Copyright Removal Program” but the problem is that I didn’t use any sort of TCRP…I wish I could, but I’m just a lowly commoner who doesn’t have access to this program. I USED THE STANDARD WEB FORM!!!!
Why–when there’s no doubt that this website is streaming a full copy of the film on a Google-hosted website–do they send me back to the same standard web form I used to send the original request? It’s an endless loop. Follow along below:
A DMCA request was sent using Google’s own web form (for Blogger) yet the claim is rejected and I’m told to send the takedown again using the very same form?
Apparently, even though Google hosts the pirate site, it refuses to remove infringing content the pirate is using a custom domain, not a blogspot.com domain. Welcome to the Google DMCA Merry-Go-Round. 🙁
When I researched the issue further I discovered I’m not the only one running into this problem. On Google’s own Blogger Help Forum there’s a recent thread about the issue. Last month a user DeeLite310 posted a question after receiving the same— Inappropriate for TCRP. Please submit through the standard web form–response to a DMCA s/he sent reporting a Blogger site pirated games.
Once again the not-so-helpful Google response was to send DeeLite310 (who’s not part of the TCRP) back the beginning of the Google Blogger DMCA merry-go-round. Here’s part of the exchange (but I suggest reading the entire thread to fully appreciate just how frustrating dealing with Google can be):
Welcome to the Google Merry-Go-Round…DeeLite310 is sent back the beginning…again and again…
Google loves to throw the word “transparency” around a lot in discussions around how it handles DMCA requests. Too bad it doesn’t provide more transparency when creators, victimized by pirates using Google products, make good faith (legal) efforts to request the removal of infringing content. As I’ve said before, the DMCA is broken…
*Update 5/16/16: During May’s Section 512 hearings in San Francisco I spoke with Fred von Lohmann, Google’s senior copyright counsel, about my blog post. He told me that I had indeed discovered a “bug” and that Google staff was working to fix the issue. I was happy to hear that Google was responding in a positive manner to this problem. I’ll test out whether it has been fixed by resending the original DMCA notice that prompted this post. Stay tuned…
Update 6/28/16: According to Mr. Von Lohmann, the bug has been fixed.
by Ellen Seidler | Copyright, Film, Piracy
Piracy erodes audience options-forces studios to make fewer films
The movie industry makes record profits so piracy doesn’t matter after all.…that’s the gist of many headlines following MPAA Chief Chris Dodd’s recent speech at Cinemacon’s Las Vegas convention last week where he said, “the state of our industry has never been stronger.” We’ve seen this phenomenon before. Positive news about record global box office revenue is twisted into justification for the pro-piracy mantra that piracy doesn’t hurt filmmakers.
These rosy 2015 box office figures were first announced in January. Then, as with now, piracy apologists pounced on the message as proof piracy doesn’t negatively impact the movie industry. Even those writing about it took note of the repetitive nature of their particular meme as Techdirt’s Mike Masnick noted in a January post:
We seem to end up posting stories like this every year, but it just keeps on happening. Hollywood whines and whines and whines about how piracy is killing the movie business… and then announces yet another record year at the box office.
The idea that record profits prove piracy doesn’t matter both simplistic and naive. Sure, Hollywood (and studios throughout the world) are making movies….big movies, blockbuster movies, superhero movies, sequels galore…remakes of movies that have already been made. Such fare performs well at the box office. However, if one drills deeper, beyond the totals, it’s easy to find proof that online piracy is corroding filmmaking in a way that undermines both consumers and creators.
Piracy diminishes both the number–and diversity– of films being made, both inside and outside Hollywood.
I’ve written about this issue before.
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.
Evidence of the less is more trend is everywhere. Earlier this month it was reported that Warner Brothers would produce fewer films, focusing instead on “tentpole” productions. According to a recent story in The Hollywood Reporter:
Warners long has been known for its commitment to filmmaker- and star-driven projects, but sources see signs of a change in culture, though the studio denies there is one. Several executives and agents say Warners seems to be greenlighting fewer homegrown movies as it focuses on silos that echo those that generate so many hits for Disney (Marvel, Lucasfilm, Pixar and Disney Animation). In Warners’ case, the silos are DC Comics, Lego and a planned franchise spun off from the Harry Potter series.
In March, Variety reported on a report “Another Memo to Hollywood. Prediction? Pain.” Written Creutz, an analyst for research firm Cowen and Company, Cruetz told Variety’s James Rainey that Hollywood’s future looked “increasingly dire” due to shrinking audiences.
Creutz says the industry’s woes are demonstrated by the fifth consecutive year in which domestic box office demand “has taken a step function lower.” The fight for remaining audiences has become increasingly fierce as “the market appears to be condensing into fewer, but bigger, hits,” as studios crank out more films in the $100 million-plus budget range…
…Creutz offers a welter of stats to back up his contraction argument: “Last year, over 25% of total box office came from just five films, well above the average of roughly 16% from 2001-14 and the prior peak of 19% in 2012.” He called this a “consistent phenomenon.”
Consumers should be worried that, over the last decade, the number of films Hollywood’s produced has dropped precipitously. What this means is fewer choices for audiences. Films that tell stories about characters (people) who are neither CGI super heroes nor animated characters are quickly becoming an endangered species.
David Gritten examined Hollywood’s move toward producing fewer films for a piece in The Telegraph:
BUT EVEN SUPPOSING THE STUDIOS ARE RIGHT: THAT FEWER FILMS ARE BETTER, BIGGER FILMS MAKE MORE SENSE, THAT COMMERCIALLY TESTED AND TRIED MATERIAL IS THE PRUDENT WAY TO GO, THAT TEENAGERS WILL ALWAYS BE THE MOST PLIABLE AUDIENCES – WHERE’S THE VICTORY IN THAT?
EVEN IF CURRENT STUDIO THINKING IS PROVED RIGHT AND IN THE LONG TERM, BLOCKBUSTERS ENABLE THEM TO RAKE IN REVENUE AND LOOK WALL STREET SQUARELY IN THE EYE, CONSIDER WHAT’S BEEN LOST. HOLLYWOOD WILL BE CHURNING OUT A PREDICTABLE SERIES OF DULL, MONOTONOUS, SPECIAL-EFFECTS HEAVY, DRAMATICALLY INCOHERENT MOVIES FOR A RELATIVELY SMALL SEGMENT OF THE CINEMA-GOING AUDIENCE. THE STUDIOS MAY SURVIVE: BUT WHAT A DIMINISHED INDUSTRY THEY’LL BE PRESIDING OVER.
Online piracy’s corrosive impact on content creation not limited to theatrical releases
Of course, piracy is but one factor in a complex potpourri of influences provoking shifts in the movie business. As distribution models continue to evolve in this digital age the rise of streaming services like Netflix, Amazon, et al has certainly been felt. Yet, even as viewing choices shift away from theaters to streaming outlets, these producers are not immune from piracy’s damage effect. Streaming’s top dog Netflix has teamed with digital protection firm Vobile to safeguard its digital content (and subscriber base) from online thieves. Whether productions are destined for theatrical release or for viewing in the comfort of ones own home, content producers still need to generate revenue in order to thrive.
Piracy’s apologists who chortle that Hollywood should adopt new business practices as a response to piracy are getting their wish. Under duress Hollywood is adapting, but at what cost to us–the viewing public? Evolving to to meet the 21st century digital world is inevitable, but should it be illegal theft that dictates how such change will manifest itself?
With this type of evolution, in the end, we will be the losers. It’s difficult to appreciate how much we’re truly missing if it’s never made…
by Ellen Seidler | Ad Sponsored Piracy, Copyright, Film, Piracy
Headlines say one thing, Google’s actions say another
Despite headlines, it’s still business as usual for Google — Piracy sites full of malware and deceptive ads remain at top in Google search results
Last fall Google introduced a series of steps to strengthen its Safe Browsing initiative announcing it would include protection against, “social engineering attacks – deceptive tactics that try to trick you into doing something dangerous, like installing unwanted software or revealing your personal information (for example, passwords, phone numbers, or credit cards).
In February Google went further and announced it would add protection against what it called “deceptive embedded content, like social engineering ads” to its “Safe Browsing” strategy. According to Google, such sites would:
- Pretend to act, or look and feel, like a trusted entity — like your own device or browser, or the website itself.
- Try to trick you into doing something you’d only do for a trusted entity — like sharing a password or calling tech support.
If a user attempted to visit such a site, Google said this warning screen would appear.
Of course to benefit from “safe search” one has to set Chrome preferences to “protect you and your devices from dangerous sites.”
Is re-posting 2 month old news Google’s technique for generating positive headlines?
Today, the very same post re-posted on Google’s Official Webmaster Central Blog. Why repost an old post? Could it be Google’s way of generating positive headlines and muddying the waters as to its real business practices? Despite the fact today’s post was identical to the February announcement, a new round of headlines splashed across multiple websites making it seem like the “news” was new news….Google’s PR folks must be patting themselves on the back.
Google explains Safe Browsing this way:
Google’s Safe Browsing technology examines billions of URLs per day looking for unsafe websites…
When we detect unsafe sites, we show warnings on Google Search and in web browsers.
These unsafe sites fall into two categories, both of which threaten users’ privacy and security:
- Malware sites contain code to install malicious software onto users’ computers. Hackers can use this software to capture and transmit users’ private or sensitive information.
- Phishing sites pretend to be legitimate while trying to trick users into typing in their username and password or sharing other private information. Common examples are web pages that impersonate legitimate bank websites or online stores.
Google’s “safe search” warnings are nowhere to be found on piracy websites I checked as part of a little test I conducted today using Google Chrome.
Using Google search I looked for the recently released film ‘Carol’ using the search terms, “watch carol online.”
What I found was the same old, same old. In typical Google fashion, three out of the top four results lead to pirate websites that offer up free, full pirated copies of the movie. In addition–contrary to Google’s new “safe browsing” policy–all two of the pirate sites featured embedded and pop-up featuring the very type of deceptive content Google claimed it would slap with warnings. Despite this, nary a Google “warning” to be found on any of these sites.
3 out of 4 top results are for piracy sites that feature malware or Google advertising
Google warns against visiting scam sites, but continues to send consumers there via its search engine?
What’s even more puzzling is that I Google’s “safe search” initiative is also more talk than action when sites (flagged warnings about “deceptive content”) that are found via its own search engine.
Below is an example from a SolarMovie site which offers up links to pirated movies galore. Amid the pirated movies were sporadic warnings from Google. If Google is serious about protecting users from malware and phishing scams, why not simply remove these flagged sites from Google search?
Of course Google hypocrisy is nothing new. Google flacks can generate all the fresh headlines they want by reposting old news, but in the end, the story remains the same. The team from Mountain View talk a good game, but in reality, nothing changes. Google search continues to point the way to pirated content, malware or scams be damned…maybe the safest way to browse is to avoid Google entirely?
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.
