by Ellen Seidler | Copyright, Film, Law, Piracy
Court’s language on “fair use” won’t change fight against online piracy
Indie filmmakers and musicians who find their work uploaded to YouTube without permission are probably pretty familiar with sending DMCA notices to Google. I know I am. I also know that the 9th Circuit U.S. Court of Appeal’s decision in the EFF’s infamous “Dancing Baby” lawsuit will have ZERO impact on how I approach sending those notices moving forward.
In the wake of Monday’s decision, much has been made (and written) about the potential impact it will have on content creators who must use the DMCA to remove infringing/pirated copies of their work online. Debate centers around the court’s interpretation of “fair use” and whether a rights holder must consider whether fair use applies before sending a takedown notice. Fact is, I already do that each and every time I send a notice.
When I find a full copy of our film on YouTube, I send a takedown notice. When I find our film uploaded in parts on YouTube (part 1, part 2, part 3, etc) I send a takedown notice. When I find sections of our film more than 3 or 4 minutes long uploaded on YouTube, I typically send a takedown notice. When I find someone has edited and uploaded a mashup using short clips from our film I generally just monetize the video (usually the music is owned by someone else) and leave the clip alone. As much as I believe that the DMCA is broken--and weighted against creators–it’s the only tool we have to protect our work from online theft so I use it…often.
In terms of judging whether something is “fair use” I consider how much of our film is used and the way it’s used. While I’m pretty well aware of what “fair use” means, I’m sorry to say that those who upload content to YouTube are not. In a number of instances YouTube users have uploaded copies of our film in its entirety. When I find these copies I immediately issue a takedown. No brainer right?
Many YouTube users don’t understand “fair use”
Well, apparently many YouTube users don’t have a clue as to what fair use means since some protest my takedowns saying they have the right to upload my film because doing so is “fair use.” When this happens I reinstate my claim and send them a polite note explaining that they are wrong and that it would be a good idea to review YouTube’s own explanations as to what fair use actually means:
The four factors of fair use
In the United States, fair use is determined by a judge, who analyzes how each of the four factors of fair use applies to a specific case.
1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
Courts typically focus on whether the use is “transformative.” That is, whether it adds new expression or meaning to the original, or whether it merely copies from the original. Commercial uses are less likely to be considered fair, though it’s possible to monetize a video and still take advantage of the fair use defense.
2. The nature of the copyrighted work
Using material from primarily factual works is more likely to be fair than using purely fictional works.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
Borrowing small bits of material from an original work is more likely to be considered fair use than borrowing large portions. However, even a small taking may weigh against fair use in some situations if it constitutes the “heart” of the work.
4. The effect of the use upon the potential market for, or value of, the copyrighted work
Uses that harm the copyright owner’s ability to profit from his or her original work are less likely to be fair uses. Courts have sometimes made an exception under this factor in cases involving parodies.
I must say, however, that as a filmmaker I’ve not really taken advantage of fair use. When I co-directed and produced the documentary Fighting for Our Lives-Facing AIDS in San Francisco we used short video and music clips from various secondary sources. Sometimes the video clips we used were only a few seconds long, but we always asked for permission (in writing) from the creator(s). Sure, we probably could have used most of this material without asking, but as a filmmakers we respected the work of other creators.
Just last week I received a request from from a national network for permission to use some of our clips from Fighting for Our Lives for a new documentary on the AIDS epidemic that’s being produced. As with past requests for footage, I will say “yes” because I do believe that there’s value in sharing the precious pieces of history we recorded during the height of the AIDS epidemic in the 1980s. However, if someone grabbed bits and pieces of our documentary without bothering to ask, I would not be pleased.
Over the years respect for the work of creators has been undermined by an online ecosystem where anything digital is assumed to be ripe for the picking. Those who routinely rail against creators and copyright are saying the Lenz case decision didn’t go far enough, but I would flip it around and propose that the court should have asked whether YouTube users “unambiguously contemplate” whether a clip would infringe someone’s copyright before uploading content to the site?
When I teach my film students about copyright I start by asking them if any of them have ever downloaded music or movies from the internet. Not surprisingly, most sheepishly raise their hands. However, as the semester progresses and they learn that it will be their work that’s at stake, perspectives gradually shift. My students realize their work has value and the effort that went into creating should be honored.
Perhaps if we stop justifying our lack of respect for creators by demonizing the business of creation ( i.e. the record companies and Hollywood studios) and start appreciating (and rewarding) the work done by creators–both individually and collectively–we won’t have to depend on courts to determine what’s fair.
The DMCA is a dated and dusty law and puts an undue burden on creators, but until Congress takes action, it’s the only tool creators have to protect themselves.The silly dancing baby clip in question was actually allowed to remain on YouTube after a counter-notice was submitted because the creaky system had actually worked as intended….much ado about nothing–save for the fact folks at the EFF saw an opportunity to further their anti-copyright agenda.
Has this decision made it even harder for artists to compete in the digital age? Perhaps–but for me, and probably most everyone else, it’s merely business as usual. I’ll continue to consider fair use before I send that takedown notice on YouTube (or elsewhere) and in doing so, give more thought to the process than those (who routinely flout copyright law) do at the other end.
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 | Copyright, Google, Law, Piracy, Tech
Google could learn a thing or two from VIMEO about how to run an efficient DMCA takedown system
Love it or hate it, for now the DMCA (Digital Millennium Copyright Act) is the law of the land when it comes to safeguarding creative content online. The law, passed nearly 20 years ago, is woefully outdated, but for now, it’s the only tool creators have to protect their work from online thieves. Unfortunately, not every company in the business of “user generated content” approaches DMCA compliance the same way.
Google, a company that makes billions each year in ad revenues generated via trafficking in dubious content, has set up a takedown system that ensures the sending of a DMCA takedown notice is an onerous and inefficient task. After all, the harder Google makes it, the more discouraged creators will become, and the more money continues to flow into its coffers…
Anyone who’s made music or a movie probably has had experience with sending a DMCA takedown request to Google in some form. Whether it’s removing pirated music on YouTube, or requesting the takedown of pirated movies off Blogger sites, creators must tackle a haphazard and convoluted patchwork of online forms in order to get their work removed from Google’s online products.
Not that Google will listen to me, but I’m going to offer some suggestions for simple ways the company could improve the takedown system. Part I will focus on Blogger, Google’s online website platform that’s become the favorite of many pirate entrepreneurs due to its ease of use.
As a creator, when you discover a pirate website hosted by Google’s Blogger (on blogspot.com) is offering pirated copies of your music or movie, to get it removed you usually have to send a DMCA notice to Google.
Here’s where Google turns what could be a relatively easy task into a huge time suck. First, in order to find the correct online form for Blogger you’re forced to click through a myriad of radio-buttons on Google’s Removing Content From Google page. When you finally do manage to click your way through to the proper form (it takes 7 clicks) you’ll waste more time carefully filling in each and every section. Note, your browser’s auto-fill function won’t work particularly well here. Finally, after you complete the form and click send, you can only wait (and hope) that the content will be removed. It can literally take weeks and sometimes it never gets removed.
Here’s where it gets particularly annoying. Many companies, take the video-hosting site Vimeo, for example, give rights holders several ways to send a takedown notice: email, a web form or snail mail. When sending a DMCA to Vimeo (and many other sites) I use a template I created (with an attorney’s help) that makes it easy to copy and paste infringing links into a DMCA takedown email. It’s not only quick, but I have a record of the notice in my sent email box. For indie content creators fighting online piracy, email is by far the most efficient way to send and record DMCA notices. As far as I’m concerned, Vimeo earns a gold start for DMCA takedown efficiency.
Vimeo provides a shining example of good DMCA takedown practices:
- Vimeo accepts email submissions. It’s quick and efficient–a godsend if you have to send notices routinely (as many musicians and filmmakers do).
- You have a copy of the DMCA notice you sent and proof of when it was sent.
- You receive an email confirmation from Vimeo that the material has been removed and their message includes a copy of your original DMCA notice.
- Vimeo provides a reference # so that if there are any issues with your notice, you can easily follow-up with the real person that signs the email receipt.
Meanwhile, over at Google, things aren’t so straightforward. Each time I send a DMCA takedown to Google via its web form, if I want to keep a copy, I’m forced to create a PDF copy of web form. Even then some of the entries don’t show up. For the rights holder it’s an imperfect and time-wasting process. Google has intentionally created a takedown process that impedes creators at every step.
Google’s Blogger takedown procedure is a joke:
- Google requires users navigate through a series of buttons (7 clicks) to get to the DMCA web takedown form.
- Google requires you fill in the entire form each time you need to sent a takedown notice.
- Google does not give you a copy of the form you sent, only a brief acknowledgement that you sent something signed by the mysterious “Google Team.”
- Sender never receives notification infringing material has been disabled.
Because of their business practices, Google does have to deal with tons of takedown notices every day. It’s a mess of its own making and they certainly have the financial resources to deal with it responsibly. Google reps insist a web form is the only way to make sure they receive the information required in a DMCA notice. However, their refusal to accept emails (that could be read by a bot) forces indie artists who routinely send takedown requests to its web maze.
Since users are forced to use a DMCA web form, there’s certainly NO justifiable reason Google can’t respond with an email confirmation that includes the original takedown notice. After all, that’s an automated process and would require ZERO resources on their part. Google chooses not to do so because they want to make the process as opaque and complicated as possible. While it complies with the letter of the law, Google has refined a system whereby creators are discouraged from exercising their legal rights at every turn.
Google’s DMCA practices are designed to impede rights holders every step of the way
Vimeo quickly sends an email confirming removal
Along with the email, Vimeo includes the original DMCA notice
Google makes users jump through hoops to send a DMCA notice, doesn’t provide a copy, and offers no confirmation that any action has been taken
Google includes a case number in the subject heading of the email, but don’t bother trying to contact Google using it. The “Google Team” won’t respond. So what’s the case number good for? Not much.
As for turnaround time-when I send VIMEO a notice within hours the content has been removed (and I receive an email confirmation along with a copy of my notice). With Google it can literally take weeks…and sometimes nothing happens…ever.
In order to improve the DMCA system on Blogger I would ask for the following:
- Offer a direct link to the Blogger DMCA takedown form
- Allow the form to be auto-filled and if one has a Google account information the form would be pre-filled with the appropriate information
- Send an email receipt that includes a copy of the DMCA notice
- Send confirmation when the infringing content has been disabled
- Remove content in a timely manner. This means days, NOT weeks.
For a company like Google that can take us to the top of Mt. Everest with the click of a mouse it’s beyond comprehension as to why they can’t offer content creators a better way to utilize the DMCA process. Google periodically publishes puff PR pieces extolling the myriad of ways it supposedly tackles piracy, but in reality helps maintain the status quo where the rights of online thieves are held in higher regard than those of creators. Of course for Google impeding the legal rights of creators is good for business. Profits ahead of people is the key to Google’s success.
Next week-Part II-YouTube’s DMCA CMS takedown, another inefficient mess for rights holders.
by Ellen Seidler | Film, Google, Law
Last week I sent a DMCA notice to Chilling Effects to request that the site remove a copy of a DMCA notice (sent to Google search) containing a direct link to infringing (pirated) online streams of our film. I explained my actions in an earlier blog post. This morning I published a blog post noting that I’d not received any response from Chilling Effects’ DMCA agent ([email protected]) but that the content had been removed….
Chilling Effects has the deep pockets so they’ll win this round and keeping links to pirate copies of our film (and thousands of others) online
Turns out, mere minutes after I posted by blog post, Tracy Walden, Harvard’s DMCA agent, forwarded me a counter-notice from Chilling Effects’ Adam Holland. Now, if I hope to enforce the takedown I must file suit in district court. Apparently my DMCA notice falls into the category of “mistaken removal.”
Here’s how Chilling Effects describes the counter-notice process on its own site:
While the safe harbor provisions provide a way for individuals to object to the removal of their materials once taken down, they do not require service providers to notify those individuals before their allegedly infringing materials are removed. If the material on your site does not infringe the intellectual property rights of a copyright owner and it has been improperly removed from the Web, you can file a counter-notice with the service provider, who must transmit it to the person who made the complaint. If the copyright owner does not notify the service provider within 14 business days that it has filed a claim against you in court, your materials can be restored to the Internet.
I don’t have the deep pockets required to go to court so it’s likely that after a couple weeks the pirate links will go back online. As I’m not an attorney it’s not entirely clear to me why Chilling Effects–a site that in its current form operates as a de facto search engine for pirate links–is allowed to operate above the law. I’m sure, however, there will be plenty of folks who will fill me in.
Just to be clear, here’s a video documenting how the page in question at Chilling Effects links directly to an infringing stream of our film. I guess my eyes deceive me eh?
For the record, I’m not opposed to Chilling Effects operating a database to document DMCA takedowns. Transparency is a good thing. However, I do believe the site could, and should, redact a portion of the infringing links posted on its public, searchable database. That would be the responsible (and ethical) thing to do.
by Ellen Seidler | Copyright, Film, Google, Law, Piracy
Chilling Effects reposts infringing links removed from Google. Why no consequences?
Earlier this week I sent Chilling Effects a DMCA takedown notice*, requesting that the site remove links that lead directly to a pirated stream of our film, And Then Came Lola. How did the pirate link make its way to Chilling Effects? Well, it’s not a new tale. In fact, I’ve repeatedly written about the fact that pirate links reported (and removed) by Google search are routinely reposted on Chilling Effects. Google even goes so far as to provide a direct link to the notice (and the infringing links) so as not to inconvenience its users.
In the short video clip below I document just how quickly–and easily–it was to navigate from Google to Chilling Effects to the illegal, embedded stream of our film. It took me a mere 10 seconds to complete the journey from Google-to Chilling Effects-to the illegal stream of our film.
I sent the original DMCA notice to Google on April 23, 2015 and two weeks later, the pirate links were reborn via a posted copy of DMCA notice sent to Google, courtesy of Chilling Effects. How Chilling Effects can get away with this behavior is beyond me, but I imagine the legal staff at the Berkman Center at Harvard, my alma mater, are careful to operate within the confines—if not the intent–of the DMCA’s “safe harbor” provision.
It’s worth noting that in order to be protected by safe harbor, site operators must comply with the following requirements (via Reporters Committee for Freedom of the Press):
These safe harbor provisions could provide valuable protection to you as a web site operator. In order to take advantage of them, however, you must comply with three administrative requirements:
- You must designate an agent, usually yourself though it may be someone else who agrees to do so, to receive notices of claimed copyright infringement. Your agent must provide up-to-date contact information so that copyright owners who believe their work is being infringed on your site can send complaints or take-down notices to him or her. To designate an agent, a procedural requirement for protection under the DMCA safe harbor provisions, you must file an interim designation with the U.S. Copyright Office and submit a $105 filing fee.
- You must publish on your site your policy for addressing repeated infringing activity, specifically a statement that you terminate users or account holders who are repeat infringers. If you have no subscribers or account holders, your policy may state, “If we become aware that one of our users is a repeat copyright infringer, it is our policy to take reasonable steps within our power to terminate that user.” Including the policy statement in the web site’s terms of service or privacy agreements makes logical sense, though it may be published elsewhere on the site.
- You must properly comply with a notice of claimed infringement when received, including
- the expeditious removal of the material that is claimed to be infringing;
- notification to the user or subscriber that the material has been removed;
- notification to the copyright holder if proper counter-notice is provided by the user or subscriber; and
- restoration of the removed material if proper counter-notice is provided, and the copyright holder does not file suit within 10 days.
Why doesn’t Chilling Effects make it easy to find email address to send takedown notices to?
Prior to sending my DMCA notice to the good people at Chilling Effects, I attempted to searc
h the site for an email address to send the notice to. When I couldn’t find one even after searching Google using the terms–chilling effects “DMCA agent”— I resorted to sending my notice to the only email listed on the site’s about page, [email protected].*
Update 5-8-15: Today, after receiving no response to my original notice, I forwarded a copy to the Berkman Center For Internet & Society. Shortly thereafter I received an email with a link to Chilling Effects legal policies page (https://www.chillingeffects.org/pages/legal). Of course, that was not the end of my journey. In order to get the actual email for CE’s acting DMCA agent I had to click another link (http://www.harvard.edu/reporting-copyright-infringements) and visit yet another website–this one a copyright infringement page hosted by Harvard University at Harvard.edu. Note that the Harvard page includes this verbiage:
In accordance with the Digital Millennium Copyright Act (“DMCA”), Pub. L. 105-304, Harvard has designated an agent to receive notification of alleged copyright infringement occurring in the harvard.edu domain. If you believe that your copyrighted work is being infringed, notify our designated agent specified below.
Hmmm, so I guess, technically, ChillingEffects.org is actually a Harvard.edu domain? Color me confused. Not exactly an efficient– nor transparent–way for Chilling Effects to inform people about its own DMCA takedown process.
Chilling Effects obfuscation of its own DMCA agent information is ironic given its mission is to make the takedown process transparent. Why, when it comes to its own site, do they hinder user’s ability to lawfully protect their copyrighted work from online pirates?
Chilling Effects is an independent 3rd party research project studying cease and desist letters concerning online content. We collect and analyze complaints about online activity, especially requests to remove content from online. Our goals are to educate the public, to facilitate research about the different kinds of complaints and requests for removal–both legitimate and questionable–that are being sent to Internet publishers and service providers, and to provide as much transparency as possible about the “ecology” of such notices, in terms of who is sending them and why, and to what effect.
Perhaps those who work at Chilling Effects (and the lawyers who advise them) believe that the database’s work falls outside that of the “service providers” as defined by the DMCA.
Until someone with deep pockets can take them to task, Chilling Effects is apparently quite willing to create its own ecology, above the law, where pirate links are reborn and disseminated. The Chilling Effects database may be used for legitimate research, but in its current form, it also gives users one of the most efficient piracy search engines around.
*Update: Today, Friday, May 8th I forwarded my DMCA notice to [email protected] which apparently serves as the DMCA agent for Chilling Effects.
