by Ellen Seidler | Copyright, Law
Protecting private data from online theft is not the same as protecting copyrighted content
Update 8/20/15-The hackers have released the hacked data after Ashley Madison’s parent company did not comply with their demand that the site be closed. It appears, once again, Avid Media’s lawyers are misusing the DMCA in order to prevent the hacked (private) data from being widely disseminated. The post below explores why the DCMA is not the solution.
Original story from 7/21/15: In news first reported by investigative journalist/blogger Brian Krebs, hackers broke into a database containing customer data for web hook-up site Ashley Madison and threatened to post it online. Stealing customer or employee private data is always a bad thing, but what makes this particular hack particularly notable is that Ashley Madison’s business is based on promoting and enabling infidelity among couples. The company’s mantra is “Life is short. Have an affair,” and in order for customers to fool around on their mates without repercussions, anonymity is clearly key. I imagine there are more than a few Ashley Madison clients who are sweating big-time right about now.
Ashley Madison’s clientele are not the only ones at risk of having their online escapades outed. The hackers, who identify as The Impact Team, actually targeted the entire database for the site’s parent company, Toronto-based Avid Life Media (ALM). ALM also operates two other online hook-up sites, CougarLife.com and EstablishedMen.com.
According to Krebs, the hackers were motivated by the websites’ failure to comply with its $19 “full delete” feature, whereby a customer’s information is (supposedly) scrubbed from its database upon request. As Krebs reports:
“Full Delete netted ALM $1.7mm in revenue in 2014. It’s also a complete lie,” the hacking group wrote. “Users almost always pay with credit card; their purchase details are not removed as promised, and include real name and address, which is of course the most important information the users want removed.”
Desperate to protect brand, lawyers fight Ashley Madison hackers with dubious use of DMCA law
What’s notable about this hack, beyond the target itself, is how ALM is fighting back. ALM says its legal team is turning to the DMCA (Digital Millennium Copyright Act) to prevent further release of hacked client data. So far, the effort seems to have successfully kept most of the information offline. From CNBC:
ALM confirmed that the hack took place and told CNBC it has managed to take down all the personal information that hackers posted online.
“Using the Digital Millennium Copyright Act (DMCA), our team has now successfully removed the…posts related to this incident as well as all Personally Identifiable Information (PII) about our users published online,” ALM said in an emailed statement.
Is the DMCA really the right (and legal) way to fight the Ashley Madison hackers? The DMCA was designed to give creators a means to safeguard their copyrighted creations from online thieves in the digital age but does it extend to hacked data too?
When Jennifer Lawrence’s personal photographs were stolen by a hacker and posted online her lawyers used the DMCA to block their spread since technically, she (and other women who were victimized by the photo theft) owned the copyright for the stolen pictures. In the case of the Ashley Madison hackers, company lawyers claim that ALM “owns” their customers’ content and thus have legal grounds to send DMCA takedown notices to prevent it being published online. Although I’m not legal expert, it seems like a stretch.
The DMCA, old and broken as it is, is the only tool creators have to protect their work. When ALM lawyers send takedown notices in situations like this only serves to muddy the waters and give critics of the law ammunition to attack it.
The DMCA is not a band-aid to be applied in every case of online theft
One can understand why ALM is moving quickly to protect their business model, but shouldn’t the DMCA be reserved for clear instances of real copyright infringement? Can the operators of Ashley Madison really claim to own the photographs and biographical material of its clients?
I suppose the issue will eventually end up in a court of law but in the meantime why doesn’t Congress to step up to the plate and tackle issues surrounding digital hacking, cyber abuse and privacy? No matter what does or does not happen on Capitol Hill, it’s clear that companies (and governments) ultimately need to do a better job encrypting databases to protect them from determined hackers.
Using the DMCA is a dubious solution to a vexing problem. As D.E. Wittkowe noted today in an opinion piece for the Christian Science Monitor:
Copyright law is supposed to protect creative works in a marketplace so that creating and selling these works can be profitable. Protecting these intimate expressions as goods in a marketplace fails to address what’s wrong about wrongfully publishing them. It’s wrong because it’s an invasion of privacy and a violation of trust, not because it threatens someone’s profits.
Let’s hope someone in Washington is listening.
by Ellen Seidler | Ad Sponsored Piracy, Copyright, Google, Politics
This month marks the five-year anniversary of my first blog post about online piracy and its link to advertising profits. At the time I was pissed. The movie Megan Siler and I had spent three years creating had just been released, and within 24 hours, had found its way online as an illegal download. One illegal copy quickly morphed into many tens of thousands.
What made me angry wasn’t necessarily the fact the film had been pirated. Though certainly I wasn’t pleased, it wasn’t really a shock. I knew in the back of my mind that piracy was an issue. However, I’d never really examined it up close. When I did, I was surprised not only by the how–but by the why. Online piracy was, in fact, an insidious for-profit business cloaked behind a curtain labeled “sharing.”
Online piracy is driven by profit
It turns out our film–like thousands of others, studio and indie–was just click-bait for a flourishing online market driven by greed. The breadth and scope of this illicit online marketplace was shocking. Examining a wide range of pirate websites I discovered an insidious, profitable and widespread economy driven–in large measure–through the complicity of major American corporations.
Sure, some of the major players were well-known thieves like Kim Dotcom whose Megaupload business empire was built on content theft. But many others cashing in on the online feeding frenzy were (and still are) mainstream corporations like Google. Ad service providers and major brand advertisers were (and still are) incentivizing and sustaining online piracy as a profitable venture. It was true five years ago and unfortunately it remains true today. Legit companies supply the blood that feeds the beast.
My original blog at popuppirates.com
I didn’t begin blogging about online piracy for the sake of our film. That’s old news. The reason I’ve continued to spend the past five years investigating and writing about online piracy and copyright issues is because I don’t believe what’s happening to our creative community is fair. I write because I worry about the future of those who earn their living by creating the content we so enjoy. I write because online pirates continue to rip-off creators at every opportunity in order to make a buck.
I also write because worry that online piracy diminishes the diversity of content that’s produced. After all, we won’t know what we’re missing when it isn’t made. Creative voices on the fringes, the most fragile among us, are often the first to go, and it’s often a silent exit. Piracy apologists who believe it’s their right to take what they want– when they want–routinely belittle creators who dare speak out against such theft. For those defending piracy it seems easier to denigrate and devalue artists rather to hear them.
When I recently sent a DMCA notice to the Chilling Effects database to highlight the hypocrisy of Google’s message that it “fights piracy” my move was met with predictable derision. Few on the copyleft seemed to understand that it really wasn’t about me, or our film. The same scenario happens day after day to all types of creators who send takedown notices to Google. I used our film as an example (because I could) in order to make a point about how Google (and Chilling Effects) conduct business–removing links, but replacing the original link with another link back to a page featuring the original link. It’s a duplicitous shell game that mocks the very intent of the DMCA.
“I figured you are stupid Gay”
One blogger was so bent out of shape by my takedown notice to Chilling Effects he wrote his own post. He sent me a series of messages via my Vox Indie Facebook page and attempted to point out the futility of my anti-piracy efforts. Apparently crabbed when I didn’t respond, in a fit of pique, he resorted to childish name-calling:
A screencap showing partial excerpt of a blogger’s FB messages to me.
So much for thoughtful discourse eh? For the record, I am “Gay.” As for stupid, well, that “blogger” certainly thinks so. It would appear he has a problem with stupid Gays who dare to speak out in defense of creators. For the record I didn’t bother to read his blog post which–given the tone of his messages–was probably not particularly friendly, nor thoughtful.
That particular blogger was not the only one to mock my attempt to highlight Google’s DMCA shell game; though I must say I’ve not really experienced the homophobic angle before. TechDirt, a site well known for its not-so-friendly views on copyright, also recently posted a harangue about my DMCA notice to Chilling Effects. That piece featured the subheading “from the stupidity-in-Russian-doll-form dept” so it would seem that the word “stupid,” in various forms, is a popular term for frustrated anti-piracy apologists to use when writing rebuttals. I imagine their dependence on the word is merely a further sign they have no cogent argument at the ready.
As the saying goes, “sticks and stones…” However, the upside is that my efforts to bring attention to the damage done by online piracy are clearly having the desired effect.
LGBT Filmmakers are among those whose voices are diminished by online piracy
Pirates sites around the world stealing LGBT films
I should also point out that LGBT filmmakers regularly send me emails asking what they can do to protect their films from online piracy. Some of them have spent years trying to bring their vision to the big screen and when they see their newly released film showing up as downloads and streams on pirate sites across the globe they are crushed. I wrote a piece about this some time ago, but it’s worth reminding audiences that these are some of the independent voices that are damaged when we allow online theft to flourish.
How can we change the status quo? We speak out. The good news is that we are. Artists across the spectrum have begun to focus frustration into action. We’ve begun to speak out and formed coalitions, demanding with one voice that our representatives in Washington take action to better safeguard creative work (and livelihoods) in the digital age. Whether it’s by re-tweeting for the #IRespectMusic campaign or joining the new Content Creators Coalition, as WE come together, WE will make progress–of that I am sure.
I didn’t make a film in order to become an “anti-piracy” activist. I made a film with my (also gay) filmmaker friend Megan Siler because we had a creative idea we wanted to share with lesbian audiences. However, once our film was released, and subjected to the online piracy pulverizer, this particular stupid Gay couldn’t look the other way. It opened my eyes to what was happening across the board to content creators of all stripes–and it wasn’t OK.
Hopefully, over these past years, through my research and subsequent blog posts, I’ve helped frame the debate over piracy in a way that exposes criminal nature of online piracy and motivates others to acknowledge it’s a problem in search of a solution. I also hope readers can better appreciate the long-term value of safeguarding our creative communities large and small.
Here’s to the next five years and hoping creators continue to make progress against the scourge of online piracy…I may be stupid, but I’m also stubborn. 🙂
by Ellen Seidler | Copyright, Law, Photography, Piracy, Politics
Richard Prince is not an artist, he’s a con-artist.
Ripping off artists in the name of ART is not OK
How long are we going to continue to let small artists get screwed by those with deep pockets? Talk to any small creator–filmmakers, musicians, photographers, artists, authors–and ask whether they’ve had their work stolen (and monetized) by others and most will likely say “yes.” Then ask them what they did about it. The answer will likely be, “nothing.”
Right now a con-artist named Richard Prince is busy raking in the dough by selling Instagram photographs taken by others. Oh yeah, he adds some drivel and emojis to the bottom of each photo before he blows it up a 65 x 48 print. Yes art is often derivative, and yes these photographs are altered–but, in essence, at its core, the art remains a photograph taken (and owned) by someone else.
Prince, and the Gagosian Gallery where his work was shown, apparently have no qualms about blatantly appropriating and cashing by selling the work of other artists without their permission. As a Paddy Johnson noted so succinctly in a piece he wrote for Artnet News, “Richard Prince sucks.”
So, while there’s no doubt Prince is a phony, piggy-backing off the work of Instagram artists; the question is–returning to my original query–Can the photographers whose pictures were stolen do anything to stop Prince’s outrageous fraud? Well, not really. You see, quite simply, Mr. Prince is loaded and the people he steals from are not.
Prince’s scam, disguised as art, is nothing new. Over his career he’s developed a reputation as a serial thief and has ended up in court before. Two years ago he prevailed (partially) on appeal in a suit brought by photographer Patrick Cariou who claimed copyright infringement when Prince produced a series of photographs based on Cariou’s work. Ultimately a settlement was reached.
For his part Prince purports not to care much about copyright, telling Russhumazine.com:
…sometimes it’s better not to be successful and well known and you can get away with much more. I knew what I was stealing 30 years ago but it didn’t matter because no one cared, no one was paying any attention.
Why should he care? With millions in the bank Prince can afford not to. Does his past legal success mean he’d win this round? Unfortunately, it’s unlikely we’ll ever find out since filing a lawsuit costs mega money–money that most everyday creators don’t have.
Doe Deere, one of the Instagram artists whose work was stolen, posted this response on the social media site aside the photo Prince filched:
Figured I might as well post this since everyone is texting me. Yes, my portrait is currently displayed at the Frieze Gallery in NYC. Yes, it’s just a screenshot (not a painting). No, I did not give my permission and yes, the controversial artist Richard Prince put it up anyway. It’s already sold ($90K I’ve been told) during the VIP preview. No, I’m not gonna go after him. And nope, I have no idea who ended up with it! ? #lifeisstrange #modernart #wannabuyaninstagrampicture
Once again we’re left with a scenario where a rich charlatan can get away with stealing from the little guy.
It’s a scenario that’s played out many times. We’ve witnessed similar rip-offs by corporate interests that routinely steal the work of artists. Sam Levin wrote an expose for the East Bay Express last year documenting the ways in which artists are routinely victimized by such theft:
Visual artists and designers throughout the Bay Area and across the country are, at alarming rates, facing copyright infringements from large retail and wholesale companies stealing their intellectual property for their own products and profit. As artists increasingly promote their work and crafts online — through Etsy or their own websites and Facebook pages — corporations are stealing their designs and mass-producing them for sale.
Here too, an artist whose work is stolen has little recourse when it comes to fighting back. Even if they do, Levin points out that any settlement is likely to be paltry and include a non-disclosure agreement, thereby shielding the thief from any negative public shaming.
The time has come for Congress to establish a small claims court for copyright
Perhaps the time has come to get serious about establishing a copyright small claims court. It’s an idea the U.S. Copyright Office spent several years studying. A report summarizing its findings was sent to Congress in September of 2013. It outlined potential bureaucratic hurdles and ultimately recommended “the creation of a voluntary system of adjudication to be administered by the Copyright Office.” In any case, the report’s findings reinforce the need for some type of action on this issue. From the introduction:
While infringement is nothing new when it comes to the world of creative works, there is no question that it has proliferated with the ascendance of digital culture and the unprecedented desire for content. Today it is not only easy to make unauthorized copies, but to do so at virtually no cost, much to the detriment of authors and the market for their works. …Unfortunately, and perhaps ironically, as the rate of infringement has increased, so too have the barriers to pursuing copyright claims in the federal courts. These barriers are largely practical: federal litigation is expensive and time-consuming, and therefore out of reach for many copyright owners…If exclusive rights are unenforceable, they are weakened as the pillars of the copyright law, and public respect for our nation’s creativity is eroded in turn.
Other documentation gathered for the report included this startling nugget:.
In fact, one recent survey found that, as of 2011, the median cost for litigating a copyright infringement lawsuit with less than $1 million at risk was $350,000.
More analysis of the report can be found by Jonathan Bailey’s post on Plagiarism Today.
Yet here we are. More than a year and a half has passed since the Copyright Office published its recommendations, Congress has yet to act. I realize the wheels of progress move at a glacial pass in Washington, and there are other copyright-related issues being bandied about, but let’s hope this idea will move to the front burner soon.
Bottom line, establishing a small claims court where copyright claims could be heard would at least level the playing field a bit. Small creators would not have to sit idly as skunks like Richard Prince co-opt their work and make money at their expense. Obviously damages are limited in small claims court, but at least those whose work is stolen could seek redress and perhaps, collectively, turn the tide against this type of chronic theft.
Prince can afford to go to court. The Instagram users he stole from cannot. There has got to be a better way don’t you think?
Update 5/29/15: I think this article by posted at fstoppers.com is a good overview of the copyright issues involved: The Latest Richard Prince Controversy, Clarified by Patent and Copyright Attorney John Arsenault
by Ellen Seidler | Copyright, Law, Photography
The DMCA Protects Thieves at the Expense of Creators
Photographer Daniel Foster has written a great post on petapixel.com in which he documents (once again) how creators–in this instance photographers–are at a real disadvantage when it comes to protecting their work from online thieves. In his piece, “Is Etsy the New Silk Road for Copyright Infringement?” Foster explains how Etsy (an e-commerce site where users can sell hand-made and vintage merchandise) looks the other way when it comes to cracking down on copyright abuse.
Etsy is selling thousands of stolen photos and doesn’t seem to care. Their system lets sellers hide their contact information, and Etsy will not disclose the identities of sellers stealing work even after being presented with clear evidence.
Etsy is in essence the new Silk Road for copyright infringement
Foster arrives at this conclusion after discovering an Etsy entrepreneur was using one of his photographs on mouse pad she was selling. After wending his way through the legal maze that is the DMCA process, and successfully having the infringing item removed from Etsy, Foster wanted to go a step further. He wanted to contact the seller who was, apparently, offering numerous other products that include stolen photographs. Foster notes, “…she seems to be stealing thousands of photos from other photographers, and Etsy is letting her get away with it.” The seller, Kharma Lu, was selling her products as “Liilproducts” and offered no contact information. While Etsy removed the infringing mousepad, it refused to provide Foster with any additional information regarding the seller, saying it would do so only if a subpoena is issued.
This is the same problem that arises when a copyright holder receives a false counter-notice, say on YouTube. YouTube will repost the infringing content and the rights holders are forced to go to court to enforce their rights. We constantly hear about DMCA abuse, but no one mentions the fact that the DMCA process is tilted in favor of thieves as ultimately those without the deep pockets required to go to court cannot enforce (valid) claims.
Fosters summarized his frustrations this way:
In order to simply find out who is stealing my photo, I would have to a) hire an attorney, b) go to court and c) request a subpoena for Etsy. Assuming Etsy did not challenge the subpoena, it would cost at least $3,000- $5,000 just to get Kharma Lu’s address.
LiilProducts’ shop is still active, even after I reported the copyright infringement to Etsy. Kharma Lu appears to have gotten away scot-free thanks to Etsy’s protection. This just isn’t right.
Etsy, of course, is not alone in its response. YouTube, or any other site profiting off stolen content, will cite the DMCA and refuse to provide contact information for its users, even when they are clearly violating the law. These sites do nothing to ensure that its users comply with copyright law prior to uploading or sharing content. The DMCA does provide web hosts with this glaring loophole thanks to its “safe harbor” provision. As explained on the Google-funded Chilling Effects website:
The safe harbor provisions permit a copyright owner to subpoena the identity of the individual allegedly responsible for the infringing activities. [512(h)] Such a subpoena is granted on the condition that the information about the individual’s identity will only be used in relation to the protection of the intellectual property rights of the copyright owner. [512(h)(2)(C)]
Until the law is changed creators are stuck with this scenario. I suggest you read Foster’s full piece here to get the full picture as to how this can impact individual creators. His narrative provides just one more example of an online eco-system where the rights of creators are subsumed by the rights of thieves. I should note that Foster has also recently founded PIXSY, a much-needed service that promises to help photographers safeguard their work against copyright infringement. You can find out more about Pixy here.
Note: When I checked LiilProducts page on Etsy this morning it seems that Foster may have (indirectly) gotten his wish. According to the site, “Liilproducts is taking a short break.” 🙂
by Ellen Seidler | Copyright, Politics, Tech
The fledgling news site vox.com’s (no relation to this site) purported “simple” mission, according to its founder Ezra Klein, is to “explain the news,” as he noted on his Facebook page:
Vox is a general interest news site for the 21st century. Our mission is simple: Explain the news. Politics, public policy, world affairs, pop culture, science, business, food, sports, and everything else that matters are part of our editorial ambit.
Our goal is to move people from curiosity to understanding:
Given its stated mission, one has to wonder then, if giving voice to right-wing anti-copyright talking points, under the guise of journalism, fulfills this goal?
This morning as I enjoyed my morning coffee I came across a piece on Vox by former Washington Post columnist Timothy B. Lee. Since I’ve written about Mr. Lee’s columns in the past (when he touted the sham study by a Mercatus-backed website piracydata.org) I was a bit skeptical when I read his headline, “How Google money is helping turn the political right against strong copyrights.”
In writing about Mr. Lee last October, I took issue with a Washington Post column that trumpeted piracydata.org’s* dubious findings that blamed distributors, not online thieves, for the growth of online piracy. I noted at the time that Mr. Lee’s piece should be taken with a huge grain of salt given his (undisclosed) ties to an anti-copyright think tank.
Too bad their original graphic (and data) contained errors–a fact belatedly pointed out by the Washington Post’s Timothy B. Lee in his story which featured the provocative headline, “Here’s why Hollywood should blame itself for its piracy problems.” Lee updated his piece (and changed his headline):
Correction: The original data supplied to us by PiracyData.org was inaccurate. It showed 1 movie available for rental and 4 available for purchase. In fact, 3 are available for rental and 6 are available for purchase. We regret the error…
It’s a shame Lee didn’t also disclose his former ties to the libertarian Cato Institute and Google.
At the time, I wasn’t the only one to cast doubt on Mr. Lee’s journalism. In a piece published in the Columbia Journalism Review, “A piracy defense walks the plank at the Post,” Ryan Chittum questioned Mr. Lee’s reporting:
There are many problems with Timothy B. Lee’s Washington Post blog post on Hollywood’s supposed culpability for the theft of its own movies, beginning with the morally unserious jujitsu deployed in arguing that Hollywood is culpable for the theft of its own movies. The Mercatus- and Cato-connected editor of the Washington Post tech blog that aims “to be indispensable to telecom lobbyists and IT professionals alike, while also being compelling and provocative to the average iPhone-toting commuter” also had a major correction that undermines the entire premise of the piece and reveals its one-sided reporting.
Fast forward to today’s story. Mr. Lee, now writing for Vox, has given us a piece that once again manages to deftly advance anti-copyright memes. At first blush the title is disarming in that seems to take Google to task for its growing lobbying clout, yet if one actually reads the work it’s actually a clear effort to amplify the talking points recently spouted by notorious anti-copyright shill Derek Khanna in a recent Business Insider piece, “It’s Time To Confront the Anti-Copyright Lobby.” Khanna argued that, “We know the costs of continuing extremist copyright policies completely removed from the Constitution’s original public meaning; the American people deserve better then politicians selling out to Hollywood.”
According to Mr. Lee, this right-wing “shift” against copyright “seems overdue.”
Conservatives have long loathed Hollywood for the liberal values promoted in its movies and for the tendency of Hollywood celebrities to make campaign contributions to Democrats. That might be why Republicans broke ranks more quickly than Democrats in opposing the controversial Stop Online Piracy Act in 2012.
There are also genuinely conservative arguments for reining in the excesses of the copyright system. A recurring theme in both Khanna and Bell’s writing is that today’s laws are far more generous to copyright holders than those that existed in the early years of the republic. Bell and Khanna emphasize that the Founding Fathers viewed copyright as more a government-granted monopoly than a form of property rights.
Mr. Lee is certainly free to write about the debate over copyright legislation, and he appears to have learned the lesson that it’s important to disclose his affiliations with anti-copyright organizations (or risk be outed by the CJR) as he included this caveat in paragraph 3 of his piece.
And, to be clear, I’m not an impartial observer to this debate, having written about copyright issues for both Cato and Mercatus.
However, given his close ties political interests with a stake in the very topic he examines, readers should digest his piece with the skepticism is deserves and appreciate why he insists on characterizing Hollywood’s ongoing efforts to protect its creative products as a “copyright agenda.”
Lee reveals his hand when he concludes with a summation that, while not as biting, clearly mirrors the sentiments expressed by Mr. Khanna:
And internet companies like Google will only become more important to the American economy in the coming years, so Hollywood’s copyright agenda is going to increasingly face bipartisan skepticism on Capitol Hill.
In taking a not-so-veiled swipe at movie industry concerns, Mr. Lee also conveniently fails to mention that independent artists, musicians, filmmakers, authors etc. share Hollywood’s “copyright agenda.” This omission reveals another reason his superficial analysis remains suspect. When he writes about copyright, whether in the Washington Post or Vox, Lee’s predictable, myopic and simplistic condemnations of big Hollywood seem knee-jerk in nature.
Why is it that when writing about copyright reform writers/bloggers like Mr. Lee never seem to acknowledge, nor explore, the fact that “big” Hollywood employs thousands of little people and what the vitality of movie manufacturing means to them? They also routinely fail to include the perspectives of a vast number of small creators in the United States whose livelihoods depend on copyright. Why not admit that there are interests besides Hollywood that have skin in the game?
Surely there is room for discussion over revisiting copyright terms, etc. but given that the mindset of insiders like Khanna and Lee–who continue to author pieces that paint discussions regarding copyright reform in broad brushstrokes of black versus white–there’s little chance of that happening. By ignoring the very existence of (most) creators who depend on copyright, such posts become nothing more than a megaphone for memes generated by the very “think” tanks under scrutiny. If Vox editors are serious about “explaining the news” why not publish a piece that covers both sides of the debate–deconstructing the shades of gray that exist–and that all too often, are forgotten in today’s so-called journalism? Help the public “understand” that copyright is a complex issue that deserves to be clarified–not clouded by oblique reportage.
*BTW, it’s interesting to note that piracydata.org’s website hasn’t been updated since late November (2103). I guess now that it’s served it’s PR purpose the site’s “dataset” has gone into hibernation.
