by Ellen Seidler | Copyright, Film, Piracy, Tech
When people talk about DMCA abuse it’s usually folks representing companies like Google or the Electronic Frontier Foundation. Time and time again this red herring is used as a cudgel to attack those who believe in copyright law. However, as I’ve pointed out numerous times, if one really wants to examine the law and its potential for abuse it’s worthwhile to explain why Google and the EFF have it backwards.
Bottom line, if an erroneous DMCA is sent all the recipient really needs to do to stop enforcement is to file a “counter-claim.” Unless sender of the DMCA wants to spend money to go to court to enforce their rights, that’s it, end of the story. This is why the characterization of who is “damaged” should be reversed.
Let me show you an example that I recently uncovered that demonstrates my point. French indie filmmaker Celine Sciamma’s 2011 film “Tomboy” was uploaded to YouTube on July 13th of this year (all 122 minutes) At the time the film’s U.S. distributor, a small independent company, matched the infringing content via Content ID on YouTube and issued a DMCA “takedown” in order to remove the infringing copy from the site. The uploader, who goes by the YouTube user name “Dirceu Alves” filed a “counter-claim” with YouTube saying he had the right to upload the film.
At this point, regardless of the fact the YouTube user filed an false counter-notice, per U.S. law, the only option remaining for the distributor to enforce the takedown is spend money and seek a court order against the uploader:
If the subscriber serves a counter notification complying with statutory requirements, including a statement under penalty of perjury that the material was removed or disabled through mistake or misidentification, then unless the copyright owner files an action seeking a court order against the subscriber [emphasis added],the service provider must put the material back up within 10-14 business days after receiving the counter notification.
Perhaps, because he appears to live in Brazil, Dirceu Alves isn’t too worried about being charged with perjury. Note YouTube’s instructions for filing a counter-claim to a DMCA notice:
A counter notification is a legal request for YouTube to reinstate a video that has been removed for alleged copyright infringement. The process may only be pursued in instances where the upload was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled, such as fair use. It should not be pursued under any other circumstances. [emphasis added]
Despite the fact this YouTube user does not own rights to this film in the United States (or anywhere), because its indie distributor doesn’t have deep pockets to fight the matter in court, the pirated movie remains online. Now, if the distributor tries to remove the pirated film, this is the notification from YouTube that appears:
According to a graphic overlaid at the beginning of the pirated film, the pirated copy originates from a Brazilian-based pirate website (offering illegal downloads). There’s also a companion Twitter account and Facebook Page as well. It’s not clear whether the YouTube account holder is one in the same, but the upload’s links to online piracy are obvious.
So, for all the hoopla surrounding DMCA abuse, maybe it’s time to look at who’s really damaged when the law is used under false circumstances–content creators who have limited resources to protect their work and their rights. As I wrote in an earlier post on this blog:
…if one takes the time to read the DMCA, it’s easy to see that the law actually favors the reported party, not the other way around. If online content has been removed in error, the owner can file a counter-claim. That immediately puts the onus on the party that filed the original DMCA request to go to court and prove the legitimacy of their claim. If that next step isn’t taken, the takedown becomes moot. Filing a court case is a costly endeavor so it’s unlikely that those whose file false DMCA claims, whether in error or purposely, would bother to spend money to enforce a bogus DMCA. Conversely, those content creators who don’t have deep pockets have little recourse when it comes to enforcing a valid DMCA takedown if the other party, representing an infringing (pirate) website, chooses to file a counter-claim.
by Ellen Seidler | Copyright, Film, Piracy, Tech
It’s time to “un-like” Facebook’s habit of turning a blind eye to the flagrant piracy for profit on its pages
There’s been a lot of breaking news lately about online piracy. This past week, two new studies were released that document the scope of online piracy and search engines’ role in leading consumers to infringing content. Yet there’s another area, in addition to search, that should be drawing more scrutiny–the role that social media sites like Facebook play in leading consumers to illegal downloads.
I’ve blogged about Facebook’s link to piracy in the past, but today came across a Facebook page promoting pirated content that has 1.3 Million “Likes.” The page also features advertising from entities like the Oklahoma Department of Commerce , Coach Handbags, and Petco. Apparently Facebook has no problem collecting tainted income from advertisers who likely have no clue that their ads are adjacent to a pages linking to pirated movies.
I found this particular Facebook page when I happened upon a pirate website, “Filmes Online Gratis” (Films Online Free) while researching illegal streams to a colleague’s film. It’s a Brazilian site (Portuguese language) that offers more than 393 pages of streams for pirated movies and TV shows. The site also features a link promoting its companion Facebook page that, as of today, apparently has 1,305,449 “likes.”
This pirate website promotes its offerings via a companion Facebook page
I checked several of the movies featured on the site and found that the infringing streams were indeed active. Of course this particular pirate entrepreneur’s business model, like the majority of them, is based on earning revenue from advertising so its pages–and the embedded streams — are plastered with ads. The infringing streams are hosted via a variety of sites known for offering pirated content including the Russian Facebook wannabe Vk.com and a favorite pirate cyberlocker site, Putlocker.
What’s troubling is that the Filmes Online Gratis Facebook Page also features direct links to these same pages (and infringing streams). Spin it any way you like, but the fact is, Facebook is profiting from, and helping promote, pirated content.
Its Silicon Valley neighbor, Google, has been under (justifiable) scrutiny for its connection to the pirate economy; now it’s time to hold Facebook accountable. One should also take note that in terms of this pirate’s FB page, Facebook doesn’t share any of its ad revenue with the pirate–the company gets to keep all its dirty money for itself (and its shareholders). For Facebook, ad income on this page = pure piracy profit.
Last April, when I attempted to get a response from Facebook about this issue for an earlier blog post, this is the email response (see below) I ultimately received. I’ll try to contact them again, but I would guess that not much will have have changed since my last effort to communicate, save for the price of its stock.
Seems a tad disingenuous to “prohibit” activity, yet do nothing about it. This Filmes Online Gratis Facebook page didn’t get to 1.3 million followers overnight. One can only guess how much advertising income Facebook has earned from its visitors.
Why do we let Facebook off the hook for making money off piracy on its pages?
Like other companies whose business models profit from piracy (search engines, ad servers, payment processors, etc.) Facebook’s lack of response adheres to the popular “Three Wise Monkeys” principle of corporate PR-hear no evil, see no evil, speak no evil. By the way, there is a fourth monkey from the proverb–the often forgotten Shizaru—who symbolizes “do no evil.”
Ironically that particular phrase is a well-known part of Google’s corporate code of conduct that reads, in part, “…it’s [do no evil] also about doing the right thing more generally – following the law, acting honorably…”
While I wouldn’t characterize Google’s corporate behavior as being particularly “honorable,” at least the company acknowledges on some level that online piracy is a problem. The time for Facebook to pull its head out of the sand and do the same is long overdue. Playing ostrich will only work for so long.
(original images credit: iStock)
by Ellen Seidler | Copyright, Film, Music, Piracy, Tech
I don’t need a study to prove that search engines are an integral force in fueling online piracy, but since the piracy debate is awash in dueling studies I’ll happily chime in on the subject again.
Last week Google published a report–a characteristically self-congratulatory piece of fluff–declaring themselves to be a leader in the fight against piracy and that took great pains to deny the significance of “search” in maintaining the online pirate economy. The report repeated claims made in a recent study (published by a consortium of tech giants including Google) that it’s poor SEO techniques that are the problem–not search engines.
Today, the MPAA came riding to the rescue with its own study, “Understanding the Role of Search in Online Piracy,” that sticks a pin in Google’s hot air balloon. Of course the MPAA is one of the anti-copyright lobby’s favorite whipping boys, because, after all, they represent big, bad Hollywood–an industry that employs more than three hundred thousand people in the U.S. (according to 2012 federal labor statistics).
May 2012 National Industry-Specific Occupational Employment and Wage Estimates
NAICS 512000 – Motion Picture and Sound Recording Industries
Why do I believe the MPAA study more accurately reflects reality? Because it jibes with everything I’ve discovered while digging through the world of online piracy (and profits) these past three years; and although I’ve never worked for a major studio, my interests as an independent filmmaker dovetail with those who do.
Whether grips, gaffers, makeup artists, script supervisors or caterers–we all have a shared interest in protecting our livelihoods so I’m thankful that the MPAA commissioned and released this study. The results are relevant for all content creators whose livelihoods are threatened by rampant online theft.
The MPAA study methodically examined how consumers, intentionally or not, ended up on pirates sites. It found that between 2010 and 2012 “approximately 20% of all visits to infringing content were influenced by a search query.” As wrote in an earlier blog post criticizing the Google funded study, its search engine should be considered a “gateway” to pirated content online. The MPAA study affirms this:
“Search is an important resource for consumers when they seek new content online, especially for the first time. 74% of consumers surveyed cited using a search engine as either a discovery or navigational tool in their initial viewing sessions on domains with infringing content.”
Even more troubling was the finding that many people who use search aren’t actually looking for pirated content, but by using typical generic search queries to look for content they often end up on pirate sites.
Ironically, the only good thing about the fact Google search makes it easy to find pirate websites is that content creators (like me) can use it to track down pirated copies of their own work so they can send those beloved DMCA notices.
At any rate, I’m sure there will be those who disparage these findings, but in my view, these results mirror my reality. I recommend reading the full report, including the methodology if you’re so inclined, and drawing your own conclusions. You can read the full version here.
While you have your reading glasses on you should take a look at another very comprehensive report (commissioned by NBCUniversal) released yesterday titled, “Sizing the Piracy Universe.“ This study found, among other things that, “Users of piracy ecosystems, the number of internet users who regularly obtain infringing content, and the amount of bandwidth consumed by infringing uses of content all increased significantly between 2010 and 2013.”
There’s an executive summary available if you don’t have the patience for in-depth analysis, but either way, the reality is that online piracy continues to be a growing problem.
Statistical analysis is helpful in putting the issue into context for policy makers in Washington and beyond who will debate what, if any, action to take. However, as content creators worldwide hope for progress in the fight against piracy, the reality detailed by these studies is a sobering one.
by Ellen Seidler | Copyright, Google, Law, Piracy, Tech
Claiming to be a “leader” in the fight against piracy is Google’s first mistake
This past week Google issued a report, “How Google Fights Piracy,” in which the tech giant attempts to explain what a great job it’s doing leading battle against online piracy. After reading it I think a more accurate title would be “Why Google Shouldn’t Have to Fight Piracy Because it Offers so Much Other Good Stuff.”
While the report does outline various positive steps Google’s taken (under duress) to mitigate its role in incentivizing and enabling piracy, most of the document reads more like an evangelical tome as to how their innovations have benefited content creators, blunting any collateral damage that may have occurred. In other words, let’s overlook the bad in favor of the good…
On a personal note, one line I found particularly galling was: “Google is a leader in rooting out and ejecting rogue sites from our advertising and payment services, and is raising standards across the industry.” The claim that Google has been a “leader” in any way in the fight against online piracy is chutzpah at its best. A more accurate characterization would be that–after years of obfuscation and inaction–Google’s finally taking (some) action. Never mind that such efforts are long overdue and may never have happened had their nefarious business model (profiting off content theft) not been exposed to the light of day.
In an effort to burnish their tarnished image, the authors resort to repeating well-worn and disingenuous Google-spawned memes (which I’ve repeatedly deconstructed on this blog). These include:
- YouTube makes money for artists so there’s no need to provide a transparent accounting.
- DMCA abuse is a considerable problem.
- Search is “not a major driver of traffic to pirate sites.”
- Google is committed to “rooting out and ejecting rogue sites” from AdSense.
- Google quickly and efficiently terminates Blogger websites that feature pirated content.
I would counter that Google should be doing much more, including:
- Offer complete transparency with its YouTube content monetization accounting. It shouldn’t be opaque. Provide content owners with an accounting breakdown for each and every piece of claimed content. Reveal precisely how much Google makes monetizing the work of others? Employ more safeguards to prevent pirates from using YouTube as a stepping-stone to infringing content and do more to prevent bogus claims that allow criminal users to earn money by uploading content they do not own.
- Stop claiming that Google search isn’t an important link to pirated content and review and remove sites that are in the business of trafficking in pirated content. Allow others into the mysterious “Trusted Copyright Removal Program for Web Search (TCRP).” After al, it’s those with the fewest resources (like independent filmmakers and musicians) that have the least access to takedown resources and could benefit the most from access to a such a (supposedly) streamlined process.
- Offer more transparency as to where AdSense revenues come from and what sites have had accounts disabled.
- Quickly remove Blogger websites have been reported (and verified) for trafficking in pirated content.
YouTube
Google’s report begins with a warm and fuzzy anecdote about the previously unknown Korean K-pop “artist” Psy whose viral video “Gangnam Style” became an online sensation and generated more than 8 million dollars in ad “deals” in addition to having been purchased “digitally millions of times.” According to a footnote, the figures quoted come from an article in New York Magazine, “Gangnam-Buster Profits,” It’s worth noting that along with Psy’s profits, Google’s bank account did pretty well too:
Number of YouTube views of the “Gangnam Style” video (as of 1 p.m., November 30): 853,942,076
Standard rate YouTube pays to video owners for every 1,000 views: $2
Estimated total YouTube revenue received by Team Psy: $1,707,884.15
YouTube’s estimated cut: $1,366,307.32
(Based on rates provided by Jason Calacanis, CEO of Mahalo, a top YouTube partner.)
I’m not sure what the report authors meant when they wrote “8 million dollars in ad deals” as there’s no documentation to back that claim up…perhaps they were confused and mixed up deals with YouTube “views?” Even though the actual figures quoted are at best guesses, there’s no denying that the video was a YouTube sensation and made mega-bucks for both the artist and Google–but so what? What does that really have to do with explaining Google’s anti-piracy efforts? The answer is nothing.
The tale of this outlier merely seems designed to deflect attention (and disgust) away from Google’s long-standing role in promoting, and profiting from, content theft. No one’s saying that YouTube doesn’t offer opportunity to content creators–but with opportunity comes responsibility–and that’s where Google still has far to go.
I’ve written previously about the positive aspects of YouTube Content ID and monetization, but there remains that nagging question Google fails to address–transparency. As demonstrated by our dependence on “guesstimates” to calculate the Gangnam Style video’s possible profits, why does Google still refuse to offer content owners specific information about how much money is being made from their work?
Sure, content owners can see how much they earn, but how much does Google take off the top? How much is earned per view, etc? Such basic information has never been made clear. Nor are breakdowns offered when there are multiple claimants on a video (i.e. movie mash-up with music from another artist). Why does Google refuse to offer a “transparent” accounting breakdown of just how much everyone makes off advertising on claimed content? What’s there to hide?
Uploads on YouTube that feature links to infringing downloads
Also, try as they might to focus on the positives, YouTube is also still a conduit for illegal activity. Not only does the site provide online pirates with a convenient means to advertise their illegal download links (on other sites) but it also allows thieves (content leeches) to earn income by monetizing bogus claims.
Why doesn’t Google do more on this front? Simple answer, monetized uploads make them money. Who cares what the uploaded file actually is and who owns it (never mind the advertisers being ripped off paying for adjacent ads). Google/YouTube pays these parasitic pirates and pockets more profit for themselves.
Google Search
When it comes to reporting on the role Google’s search engine plays in promoting piracy, the report report borrows heavily from the recent (Google-funded) study that alleges “search engines are not a major tool in the infringer’s toolbox.” Both that study and this report concluded that better SEO optimization on the part of content creators is all that’s required to fix the problem. Given Google’s report merely repeats talking points from the CCIA repeating part of my response seems appropriate:
Sorry, but I read the entire paper and found no evidence to support this. Sure, lots of downloaders bypass search because they are experienced downloaders and know how to go to Pirate Bay or Filestube to find what they’re looking for, but where did they get their start? Perhaps it’s better to think of search engines like Google as a “gateway” to finding pirated content online.
Google search leads to illegal downloads, counterfeit products, illegal pharmacies and more. Clearly the search giant can de-list sites engaged in unlawful behavior (like child pornography) but rather than do so in this case, its proxy (the CIAA) gins up headlines to muddy the waters, deflect and obfuscate the real issues at play.
If Google were a brick and mortar mall featuring stores selling bootleg DVDs authorities would step in a force them to shut down the illegal enterprises, but when it comes to the online world the “tech” industry’s constant refrain is that the need to “innovate” trumps the need to do what’s right. Yet this debate isn’t really about protecting innovation, that’s simply tech-speak for protecting the industry’s bottom line (at the expense of those other innovators, content creators).
Since Google deems search to “not be a major driver of traffic to pirate sites” one wonders why in the same breath, the company touts how efficiently it responds to the 4 million weekly requests it receives in a report on its efforts to fight piracy?
…today we receive removal requests for more URLs every week than we did in the twelve years from 1998 to 2010 combined. At the same time, Google is processing the notices we receive for Search faster than ever before—currently, on average, in less than six hours.
Google has a strong track record of developing solutions that scale efficiently. The trend line is striking—from more than three million pages for all of 2011 to more than 4 million pages per week today. As the numbers continue to swell, it becomes both more difficult and more important to detect and pick out the abusive [emphasis added] and erroneous removal notices.
This so-called DMCA “abuse” is another tired red herring. Google routinely employs to deflect attention from the 4 million pages per week of mostly legitimate ones. Given the huge volume of takedown requests Google receives it’s no surprise there are errors, but the collective “damage” done by mistaken DMCA notices does not begin to compare to the damage piracy has on content creators. However, Google would like us to believe otherwise. As I wrote in an earlier post:
Piracy apologists like to focus on erroneous takedowns and highlight stories whereby a 9 year-old in Finland had her computer confiscated, or a grandmother in Colorado had her ISP account wrongfully suspended. Certainly mistakes happen, and when they do it’s unfortunate, but they are few and far between when compared with the cumulative harm being done to those whose livelihoods are damaged by rampant online theft. For every search result removed in error there are thousands, if not hundreds of thousands, removed for valid reasons. Sensationalistic anecdotes make for splashy headlines and provide convenient red herrings for those who defend the piracy status quo–big bad Hollywood versus the grandmothers of the world–but meanwhile the genuine stories documenting piracy’s ruin are routinely minimized or ignored.
Also lost in this debate is the fact that if one takes the time to read the DMCA, it’s easy to see that the law actually favors the reported party, not the other way around. If a site has been removed in error, the owner can use the Google website to file a counter-claim with a click of a mouse. That immediately puts the onus on the party that filed the original DMCA request to go to court and prove the legitimacy of their claim. If that next step isn’t taken, the takedown becomes moot. Filing a court case is a costly endeavor so it’s unlikely that those whose file false DMCA claims, whether in error or purposely, would bother to spend money to enforce a bogus DMCA. Conversely, those content creators who don’t have deep pockets have little recourse when it comes to enforcing a valid DMCA takedown if the other party, representing an infringing (pirate) website, chooses to file a counter-claim.
Chilling the rights of creators who attempt to protect their work from theft
Demonstrating a (selective) dedication to transparency and warning hat DMCA abuse can be a “pretext for censorship,” Google touts the fact that copies of all DMCA notices received are posted on ChillingEffects.org, an online “clearinghouse” operated by a various legal clinics that depend heavily on Google donations for financial support.
According to their website, “Chilling Effects aims to support lawful online activity against the chill of unwarranted legal threats,” but it appears they’re not too interested in the threat that illegal content theft has on the livelihoods of musicians, filmmakers, authors, etc. From the beginning, Google’s posting of DMCA notices on Chilling Effects seems designed to intimidate those whose rights are being trampled upon. In this scenario the only thing being “chilled” is the right of content creators to protect their work from theft in order to make a living.
Google also claims to lower the rankings of sites that are repeatedly reported for content theft (another questionable claim), but justifies the fact it refuses to remove such sites, like the notorious Pirate Bay, entirely.
While we use the number of valid copyright removal notices as a signal for ranking purposes, we do not remove pages from results unless we receive a specific removal request for the page. As shown on the Transparency Report, we generally receive removal notices for a very small portion of the pages on a site. Even for the websites that have received the highest numbers of notices, the number of noticed pages is typically only a tiny fraction of the total number of pages on the site. It would be inappropriate to remove entire sites under these circumstances.
I should add here that when I checked today and did a search for the movie ” a ‘Perfect Ending’ download” the second result (after a paid Netflix link) was none other than a torrent on the Pirate Bay. So much for re-ranking pirate sites eh?
Why is it inappropriate to remove a site that routinely engages in illegal activity? If a brick and mortar store’s merchandise routinely includes stolen goods it would be put out of business. Why does Google hold sites like Pirate Bay in such high regard? Does every single infringing torrent on Pirate Bay have to reported for Google to consider blocking it? Is there a tipping point, ever?
AdSense
I could only shake my head when I read that Google claims to be the industry leader when it comes to “following the money.” When I first began blogging about the link between online piracy and profit when my film was released in 2010, Google wouldn’t even admit there was a problem. Finally, after having a spotlight shined on their dubious sources of profit, Google has been forced to take action–but a leader they ain’t.
Despite the claim that “Google does not want to be in business with rogue sites specializing in piracy” they’ve yet to provide any documentation to support it. One nugget in the report noted, “…we find that AdSense ads appear on far fewer than 1% of the pages that copyright owners identify in copyright removal notices for Search.” Does this mean that Google is screening the reported pages for AdSense accounts before removing the link from its search engine? If so, in the name of “transparency” it would be great to see these results documented. Speaking of “transparency,” how about letting us “follow the money” to Google’s own bank account. Just how much money has Google made off advertising on rogue sites over the years?
In my experience with AdSense links were often removed while the site (and its AdSense ads) on other illegal downloads remained active, but looking around the web it does seem that fewer AdSense sponsored ads appear on pirate websites. I’m thankful some progress appears to have been made, but for Google to infer that it acted willingly to clean up its dirty laundry and has become leader in the battle against ad-sponsored piracy is just absurd.
Blogger
Last but not least we come to Google’s Blogger hosted websites, a go-to (free) platform favored by web pirates around the world. According to the report, Google’s efforts to keep the Blogger platform pirate-free should earn the company another feather in its cap.
Blogger is Google’s free blog publishing platform, which enables users to create and update blogs. We remain vigilant against use of the Blogger platform by pirates looking to set up a free website. Consistent with other Google products that host user-uploaded content, we will remove infringing blog posts when properly notified by a copyright owner, and will terminate the entire blog where multiple complaints establish it as a repeat infringer.
Blogger has also created an automated bulk submission tool for copyright owners who have a track record of reliable submissions and a regular need to submit large volumes of takedown notices. This tool allows qualified copyright owners to obtain rapid removals of infringing posts appearing on Blogger.
Sounds good, but as I’ve written many times previously on this blog, the truth with regard to Blogger-hosted websites is not so rosy. Also, to be honest, Google’s “automated” bulk submission tool is a time-consuming pain. Why not give content creators a Copyright Management Account that allows for bulk reporting of Blogger sites and search links? Why should continually have to fill out my name, company, email, etc. each and every time I have more blogger sites and pirate search links to report? Actually sending an email to Google would be much faster but that’s not allowed. Ironic that the now defunct Megaupload made it easier to send DMCA notices than Google does…
Google’s online removal process is time consuming. Sending an email would be much more efficient.
More significant is the fact that, in my experience, the word “rapid” should not be part of Google’s lexicon when it comes to targeting piracy on Blogger sites. Despite repeated reports of piracy and obvious and repeated copyright infringement, many Blogger pirate sites remain online. I will be posting a follow-up on this subject soon.
Google-hosted Blogger (blogspot.com) websites are a pirate favorite
There’s no doubt that Google has revolutionized the online world in a variety of positive ways but when it comes to its role fertilizing online piracy, the company has been spinning and deflecting its way through the a minefield for the better part of a decade. Thanks to outside pressure the situation has finally begun to improve, but there’s still much to be done before Google can rightfully claim to be a leader in the fight against online piracy.
by Ellen Seidler | Copyright, Law, Music, Piracy, Tech
MPAA victory against Hotfile is a victory shared by all content creators hurt by online piracy
The best news in the fight against online piracy since Megaupload’s demise came yesterday as the MPAA annouced a big victory in their copyright infringement lawsuit against Hotfile, a cloud-based cyberlocker website known to harbor pirated movies, music, books and more. Though specific details of the court decision won’t be released for another two weeks, the judge issued a summary judgement in favor of the plaintiffs. From the LA Times:
This decision sends a clear signal that businesses like Hotfile that are built on a foundation of stolen works will be held accountable for the damage they do both to the hardworking people in the creative industries and to a secure, legitimate Internet,” said former Sen. Christopher J. Dodd, Chairman and CEO of the Motion Picture Assn. of America.
“We applaud the court for recognizing that Hotfile was not simply a storage locker, but an entire business model built on mass distribution of stolen content,” Dodd added. “Today’s decision is a victory for all of the men and women who work hard to create our favorite movies and TV shows, and it’s a victory for audiences who deserve to feel confident that the content they’re watching online is high quality, legitimate and secure.
Headlines called the decision a huge victory for the MPAA, which of course it is, but it’s also important to appreciate that it’s really a victory for the rest of us who create content for a living. Cyberlocker sites do not discriminate, offering pirated copies of indie films alongside the latest Hollywood blockbusters. It’s a business model that depends on stolen content (and the website traffic it attracts) to make money and pirate operators are happy to exploit the public’s thirst for free content, no matter the source. Hopefully this court decision will cause other pirates who operate similar sites and willfully facilitate copyright infringement to give pause.
Given these developments I thought I’d repost “Cyberlockers: Explaining Piracy’s Profit Pyramid ” a piece I wrote in 2011 explaining the cyberlocker (pirate) business model whereby operators earn millions by monetizing content theft at the expense of content creators around the globe. Some of the names have changed, but they piracy game remains the same.
First of all, make no mistake, the vast majority of today’s piracy is driven by the thing that has motivated mankind since time began—the desire to make money. If you take the time to spend a few minutes online exploring websites engaged in piracy (most people who speak out on the issue don’t seem to bother) you’ll quickly recognize that money is at the center of everything.
Mediafire download link (for flm-Unhappy Birthday) featuring Google ads.
If the ads aren’t hitting you squarely in the face, or the offers of high-speed, high quality downloads don’t spark suspicion, then perhaps it’s time to clean your glasses. How ‘bout I take you on a tour?
Let’s begin with the sites that serve as the lynchpin for today’s online pirates. No, I’m not going to talk about Pirate Bay or other notorious P2P (peer to peer) sites. No need for that. Consumers are all about convenience, and it’s not particularly convenient to download torrents and reconfigure the numerous file parts in order to view a movie. Today it’s all about the one-stop shopping experience, and for that there’s no better storefront than the cyberlockers where, with the click of a mouse, you can download (or watch) your favorite film. You’ll likely find other items on your wish list (e-books, music, software, and more) available for easy download as well.
You’ve probably heard the term “cloud based storage” floating around a lot lately. Well, thanks to companies like Apple, and the recent launch of their cloud based offering called “iCloud,” the notion of storing files online via a virtual hard drive is gaining ground. Cyberlockers have been providing this “service” for nearly half a decade now, and while there is legitimate activity taking place via some cloud-based storage sites like Drop Box and Yousendit, there are many others whose business model is predicated on content theft. The now disabled Megaupload.com is a good example of the latter variety. (Read the indictment for a step-by-step tour through the inner-workings of their criminal enterprise.)
How does an illicit Megaupload-like business model work? Well, if you want to understand how cyber lockers work it’s helpful to think of a company like Amway. Amway’s business success popularized the multi-level marketing style pyramid business model (or scheme ) whereby the operators at the top of the pyramid recruit people to work for them. They, in turn, recruit more workers who, in turn, sell products to the public. Those at the top make money only if they can recruit, and keep, enough people below to do the actual work. Those doing the bulk of the work earn money, but at a much lower rate than those at the top. It’s the trickle up theory of profits.
At any rate, if you journey to the cyberlocker of your choice–Megaupload, Filesonic, Fileserve, Filefactory, Uploading, Uploadstation, Mediafire, Megashares, Sockpuppet, Putlocker, etc. you will see enticements offered encouraging visitors to join this type of profit pyramid.
Cyber lockers offer CASH for uploads.
Why do they do this? Well the cyberlocker business model depends on traffic. In order to drive traffic to their site they need content that will attract visitors. What better carrot than popular movies, books or music? Never mind copyright, there’s the “safe harbor” provision of the DMCA that allows the cyberlocker operators to essentially look the other way (plead ignorance) when it comes to the content that affiliates upload. In fact, if uploaders did abide by a site’s published Terms of Service, the cyberlockers would quickly be out of business.
In other words, cyberlockers depend on an army of affiliates to do the dirty work for them. It’s a scenario that enables the cyberlockers to shield themselves from legal liability, while their servers are simultaneously receiving thousands of (stolen) files every day–fresh content sure to attract new (and returning) customers.
So, in order to set this eco-system into motion, the cyberlockers lure their minions. Uploaders can earn rewards, which usually start at around $35 per 1,000 downloads. Simply put, the more downloads you generate for your file, the more money you earn.
Cyberlockers are booming thanks to profits from piracy.
That fact sets in motion the next level of piracy—the viral spread of the download links. The affiliate armies take their links and post them on download (Warez) forums far and wide. The more these links are “shared” across the web, the more money made.
Click to for PDF with 36 posts of viral links.
To further ensure their earnings, these cyberlocker affiliate pirates—I’ll refer to them as CAPs from now on–usually upload their stolen files to multiple cyberlocker sites. This is called ‘mirroring” and what it means is that if a link is disabled on one cyberlocker site you can easily find the identical file on another. Each CAP generally has affiliate accounts with multiple cyberlockers so that their illicit income won’t suffer if some links are disabled.
Since they are paid per download to maximize profits, CAPs often break a film file into several parts. An average size for an uploaded film is around 700 MB (HD films can easily be double that size) but if divided into smaller chunks, requiring multiple links, and thus multiple downloads, the CAP can earn more download points. There’s a trade-off to this approach, however, as it can dissuade downloaders who prefer the convenience factor of downloading a “single” file.
Film download broken into several links in order to maximize profits.
Some sites like Megavideo (the streaming partner site to Megaupload) offer visitors the ability to watch an entire film streaming online with no download wait time. Watch the film, and if you like it, you can add it to your “collection” and download a copy for later viewing.
So, now that it’s pretty easy to understand how so much illegal content gets uploaded to the cyberlocker sites, let’s look for a moment how site operators turn that traffic into actual income.
At the top of the list is online advertising. Click a cyberlocker download link and you will arrive at a page like this.
Cyber locker site streaming the film “Unhappy Birthday” with Netflix ads serviced by Google.
There’s a link or stream for a film and there are ads. Various companies serve these ads, but one can’t ignore the fact that Google and other U.S. based ad servers like AdBrite are ubiquitous on the cyberlockers. For the record, the ads seen on the image above and below are served by Google, though now that they’ve changed their icon and obscured their connection to them, it’s more difficult to tell. In any case, no matter who serves the ad, the cyberlocker makes money and the ad service provider makes money. The creator gets squat.
Another cyber locker stream with more ads (provided by Google).
In addition to ad income, cyberlockers derive profit by offering “subscriptions.” In this instance users pay a fee, averaging around $9.00 per month, that enables high-speed downloads on the website. This means instead of waiting a half hour to download a full film, the entire process takes only 3 minutes. For those who are repeat customers, this may be money well spent. In this instance the cyberlocker site is making money and the payment processors (Visa, MasterCard, PayPal and the like) are making money. Again, the content creator earns ZERO.
Cyber lockers cash in on selling subscriptions for high speed downloads.
In order to boost its subscriptions cyber lockers again turn to affiliate rewards. Remember those forums where the CAPs go to spread their viral seed? Well, many, if not most of those forum operators also have relationships with the cyberlockers and are an integral part of the piracy profit pyramid. For every individual they “refer” who becomes a cyberlocker affiliate, they earn a referral fee. Thanks to unfettered access to free content and income, the eco-system of online piracy continues to thrive and grow.
HD-BB an online forum where viral cyberlocker links are spread.
HD-BB is just one example of such a forum. The forum operators boast of the high-quality “rips” shared by its members. If you drill down into forum posts you’ll quickly discover that moderators only allow users to post links to specific, “approved” cyberlockers that the forum has a relationship with. There are also links that direct users to the various affiliate options ensuring that the forum earns its fair share. The forum makes money, the cyberlocker makes money and the creator of the content makes ZERO.
This is what I know.
Now that this black market business model is entrenched as a way of doing business around the globe, what can be done to stop it? Well, I’m afraid that nothing can stop it–piracy will never disappear entirely–but something can be done to mitigate its effects. This can happen if we can encourage the majority of websites at the center of this illicit cyberlocker eco-system to become (more) legitimate.
Cutting off the money that feeds this pirate profit pyramid is one part of the equation, but there’s also another component that may be equally important. It’s a solution that it’s already working right in our own back yard.
I look to Youtube’s solution to piracy as an imperfect, but reasonable fix. Let’s meet the pirates halfway. Why not ask them to set up Content Management Systems (CMS) like the one Youtube has? A system like this would allow content owners to determine the fate of their work. A CMS system basically allows for the fingerprinting of content so that infringing content can be instantly identified upon upload to the cyber locker site.
Dashboard for Youtube’s “Content Management System.”
The content owner could then determine, as they do on Youtube, whether to remove the content, monetize the content, or block it in certain territories. In this scenario the cyberlocker can still earn money off uploaded content, but only at the discretion of the content owner. Users will also be less inclined to post infringing content in the first place. It’s a solution that allows the content owner to take back control from the pirates (thieves) and earn income off files that previously were simply stolen. In this equation, at least everyone gets a piece of the pie.
It’s at this point that the false “piracy is good for business” refrain parroted by piracy apologists begins to gain some traction and some truth. If piracy’s black market business model can be remolded into a practice that can financially compensate the content creator–and restore their control of the content–perhaps it could become better for business.
The problem is that cyberlockers are not going to adopt a CMS system just to be nice. Youtube, a U.S. company, was forced to act under threat of ongoing litigation and legislation. The only way today’s crop of cyberlockers can be forced to institute similar content ID systems is if their current business model becomes unsustainable. For that to happen, like Youtube, they too will need to face the threat of litigation and/or the long arm of the law. At this point, that puts the ball squarely back in the lap of Congress.
That is what I know…
by Ellen Seidler | Copyright, Film, Music, Piracy, Tech
Study says SEO lapses by legit distributors are to blame for high ranking of pirate sites by search engines
What are we to make of the recently released study by the CCIA (a Washington D.C. tech industry lobbying group whose membership includes Facebook, Google, Microsoft, and Yahoo) that claims that search is not a popular path to discover pirated content online? The study asserts, “that search engines are not a major tool in the infringer’s toolbox.” Apparently the real reason it’s easy to find links to illegal content online is not the fault of search engines, but simply poor SEO techniques by legit content distributors.
This so-called “research paper” titled “The Search Fixation: Infringement, Search Results, and Online Content” was written by Matt Schruers, an adjunct law professor and CCIA’s VP for Law and Policy. Freudian notions aside, headlines the paper generated were predictable. With the exception of Torrent Freak, every tech-oriented blog seems to have fallen in line echoing the idea that poor, maligned search engines play only a minor role in helping folks find free stuff online.
In this tit for tat spin war, this paper was designed as a direct response to a recent RIAA study that criticized Google for not being proactive in demoting pirate search results despite promises to the contrary. According to the study:
The contention that disappearing undesirable entries from search results would substantially prevent piracy is flawed however. The solutions to online infringement have little to do with search. Infringing sites receive limited traffic from search. In the context of music, the available evidence suggest that the frequency with which users input queries like “download,” “mp3,” or “torrent” is relatively low…
…Concerns about organic search results containing terms such as “mp3” or “download” are misplaced, however. Actual search data indicates that appending “mp3” or “download” as the RIAA paper suggests is statistically uncommon. Users far more frequently search for “[artist]” or “[artist]””[track]”…Google Trends data indicate that only a small fraction of searches for the artist’s name and track name also included the words “mp3” or “download.”
As evidence for his conclusions he makes the point (using a fancy Google trends chart) by using the (very wealthy) recording artist Rihanna to bolster his argument.
Sure looks convincing right? Well, the thing is, this chart doesn’t really say much of anything besides the fact that folks searched for “Rihanna” a lot when she had a new song released and searched for “Rihanna” a lot more than “Rihanna diamonds mp3.” So what? No one suggested that searching for information about an artist was equivalent to searching for free downloads. The RIAA’s research never made that point.
By combining the multiple search terms into one search on using Google trends, Schruers gives us a graph that looks to mirror his claim. The problem is–what is he actually comparing? Examining “search interest” (which is what Google trends allows you to do) and making the leap that piracy isn’t a problem because more people happened to search using the term “Rihanna” rather than for a (free) mp3 of her popular song? Come again?
It’s not hard to assume that lots of folks search for Rihanna because they want to find out more about her, not just because they’re seeking free downloads to her song. It’s no surprise that Rihanna searches outnumber those for mp3 downloads. It’s really a case of apples and oranges.
More useful might be putting in various search terms one by one as I did. Note searched for “rihanna diamonds download” the related terms (circled in red) included “mp3 rihanna diamonds” and “diamonds mp3 download.”
(Note: I actually included the search box in my screen grab example for clarity’s sake):
What about the terms “rihanna diamonds free.”
Looking at these results one can postulate upon the release of “Diamonds” interest in searching for illegal download options spiked. Below is the Google trends chart for the search term “Rihanna” and an inset for 2012 results. Clearly over that period searches for Rihanna fluctuate for various reasons–whether it is a new album release or altercation with Chris Brown.
What about trends in searching for watching free movies online now that Netflix and other streaming services are available? The chart below indicates the point at which Netflix launched its streaming service in early 2007. It’s worth noting that its launch coincides with an increased trend in search for “free” movies online. Does this mean Netflix streaming influenced piracy? No, what’s likely is that the upward trend partly reflects the emergence of technology that enables efficient streaming (and direct downloads) of high-quality movies online–pirated or otherwise.
While search is not the cause of this trend BUT there’s no denying it makes finding free content online (pirated content) easier. If one limits search to the United States, the trend line seems to have been more consistent, probably due to the fact users here have had better access to the internet than many other parts of the developing world.
One other point worth noting is that searches for the word “torrent” have diminished, after a peak in 2010 the trend-line has moved steadily downward.
Here’s an animated look at this over time. While it’s good news that interest in torrents appears to be waning, I imagine it’s because there’s now a myriad of easier ways to watch pirated films online. Why bother with torrents when with one click you can watch or download a movie? Here’s an animated view of search trends for the term “torrent” since 2004.
So while search trends may change over time–whether working on a term paper or looking up cancer treatments, online search is usually the starting point–what’s wrong with pressuring Google et al to be more proactive in removing results linking to illegal music, movies or counterfeit goods? In his report Schruers argues for an alternative:
The inclusion of NARM-recommended text (“don’t torrent; buy [here] instead”) on the artist’s site would remedy this. Linking users to other lawful music services in addition to iTunes could be another way to contribute toward improving those services’ page rank. Similarly, Universal Music points to Rihanna’s official website, Twitter account, and Facebook page, but points to no commercial websites from which the artist’s music is available. Addressing this would also contribute toward improved page rank.
In a further effort to let search engines off the hook Schruers concludes his report with this:
While DMCA notices and DMCA compliance programs are one component promoting a robust digital marketplace, efforts to disappear search results are unlikely to mitigate online infringement, in large part due to the irrelevance of general-purpose search engines in the average infringer’s toolbox. A more robust strategy would entail licensors and their licensees focusing on strategic search engine optimization–including but not limited to ‘objectionable’ terms–so as to promote the page rank of lawful sites and increase the visibility of legitimate online content offerings.
So, if I’m to understand him, the real solution to this problem would be for all of use content creators–filmmakers, musicians, etc.–to employ better SEO keyword methodology, i.e. co-opt popular pirate search terms like “free mp3” or “watch movies online free” so that legit search results will trump those of the pirate sites. Well duh…we did just that long ago on the website for our film “And Then Came Lola.” Included among our SEO keywords are:
free, movie, lola movie, and then came lola, online, buy, watch, telecharger, portugués (brasileño) subtítulos,subtítulos en español,sottotitoli in italiano, lesbian, download, movie, film, romantic comedy, fast girl films, streaming,video on demand, vod, DVD, iTunes, Amazon, Hulu, subtitles, مشاهدة فيلم مثليه,劳拉现身 , lezbiyen filmi, watch online, watch, free, putlocker, السينما للجميع
Doing so is a no brainer and-Rihanna aside–most indie filmmakers and musicians I know do just that AND also provide multiple links to legit content for their work….but despite such efforts, pirate sites can still dominate searches for “free” (illegal) content. Maybe we should just hire better web masters and SEO experts? For the record our film website’s home page includes both a list of worldwide links for purchase/watch the film, an iTunes app and embedded links in the text that include links to subtitles versions.
I took a look at various “objectionable” search terms via the Alexa website (note that it’s a subsidiary of Amazon) that provides data on web traffic and here’s what I discovered. Search for “watch free movies online” and you find this page.
Out of the first 9 results, only 2 appear to be legit sites (highlighted in yellow) are Crackle. and Hulu. The first result is for a site called “TubePlus” (pirate sites highlighted in green) which according to this story on itproportal.com is a “YouTube for pirates.”
Controversial file-sharing service Pirate Bay is openly supporting TubePlus, a revolutionary new hybrid video-sharing site that brings together content from BitTorrent sites, along with cyberlockers such as Megaupload and Hotfile, as well as P2P service eMule.
The newly launched site marks a big step into the mainstream for the traditionally geeky business of file-sharing.
Rather than finding and downloading files, users of TubePlus simply search for their favourite movies and TV programmes – and stream them directly into their browser using an interface that’s more than a little reminiscent of popular video-sharing site YouTube. There are even links to IMDb reviews of films and shows.
Another site (ranked at 945) is 1channel.ch, another notorious pirate website. Go there and you’ll find they’ve changed their name (yet again). At any rate, bottom line is that finding pirate sites is made possible in large part via web search.
Here’s another example using the search term “mp3” which demonstrates that pirate sites abound.
Also, for the record, using Rihanna’s approach to web promotion is not necessarily the best example as most people are well aware of who she is and where to find her music should they want to purchase it. Those who are that are really hurt by piracy are not the big stars with big bank accounts.
That brings us back full circle to the claim that “CCIA’s research paper indicates that search engines are not a major tool in the infringer’s toolbox.”
Sorry, but I read the entire paper and found no evidence to support this. Sure, lots of downloaders bypass search because they are experienced downloaders and know how to go to Pirate Bay or Filestube to find what they’re looking for, but where did they get their start? Perhaps it’s better to think of search engines like Google as a “gateway” to finding pirated content online.
Google search leads to illegal downloads, counterfeit products, illegal pharmacies and more. Clearly the search giant can de-list sites engaged in unlawful behavior (like child pornography) but rather than do so in this case, its proxy (the CIAA) gins up headlines to muddy the waters, deflect and obfuscate the real issues at play.
If Google were a brick and mortar mall featuring stores selling bootleg DVDs authorities would step in a force them to shut down the illegal enterprises, but when it comes to the online world the “tech” industry’s constant refrain is that the need to “innovate” trumps the need to do what’s right. Yet this debate isn’t really about protecting innovation, that’s simply tech-speak for protecting the industry’s bottom line (at the expense of those other innovators, content creators).
Last month I read another article by the same Matt Schruers titled “The Thing We Don’t Talk About in Piracy Estimates.” In it he noted, “some degree of infringement is not wealth destruction but rather wealth redistribution.” He went on to clarify:
Clearly, intellectual property is important to our economy — as is open competition, and the free exchange of ideas. These three forces are each valuable tools in the “innovation toolbox”, and allowing any one of them to be undermined – including intellectual property – may impair innovation, along with other important social goals. But as long as the empirical evidence around the policy conversation is so impoverished, we won’t be making well-informed decisions.
Schruer’s fondness for the term “toolbox” aside, I think he may want to take a look at his own use of “empirical evidence” to advance, or rather inhibit, meaningful conversations around web search and online piracy. This “free exchange of ideas” does not necessitate the “free” exchange of pirated content.
Let me show you an example that I recently uncovered that demonstrates my point. French indie filmmaker Celine Sciamma’s 2011 film “Tomboy” was uploaded to YouTube on July 13th of this year (all 122 minutes) At the time the film’s U.S. distributor, a small independent company, matched the infringing content via Content ID on YouTube and issued a DMCA “takedown” in order to remove the infringing copy from the site. The uploader, who goes by the YouTube user name “Dirceu Alves” filed a “counter-claim” with YouTube saying he had the right to upload the film.
