by Ellen Seidler | Ad Sponsored Piracy, Copyright, Film, Law, Piracy, TV
Online piracy is not a victimless crime
A couple weeks ago the New York Times published a profile of Hana Beshara, founder of the notorious pirate web emporium known as NinjaVideo. The site was shuttered in 2010 and Ms. Beshara, who pocketed around $200,000 from her enterprise was sentenced to 22 months in prison for conspiracy and criminal copyright infringement. She was released last year after serving 16 months and, according to the Times piece:
She acknowledges that some of her colleagues were upset when they learned she received much of the profit from NinjaVideo, but says it wasn’t out of line with her role as the voice of the site. “People took issue with the fact that I got paid,” she said. At any rate, in her opinion, the money was insignificant. To this day, she argues that the movie business is so big that skimming a little off the top doesn’t hurt anybody. She likes to say that NinjaVideo was operating in a “gray area.”
Characterizing the business of online piracy for profit as a “gray area” may be how thieves like Ms. Beshara rationalize their criminality, but in reality it’s theft–and because it’s theft–that means there ARE victims.
These actual victims of online piracy were pretty much ignored in the NY Times piece, but thankfully Dawn Prestwich, a writer for AMC’s and Netflix’s “The Killing” provided some perspective in a guest column published this week in Variety. Ms. Prestwich pointed out that piracy’s damage extends far beyond the front offices in Hollywood.
When Hana made a TV episode available for free on her website, that was worth the equivalent of thousands of downloads that weren’t watched on a legal site. And when that happened, the entire production team that collectively created the content was adversely impacted – from the most junior production assistant on up. All positions within the hierarchy became devalued.
Ms. Prestwich takes her analysis one step further television fans may inadvertently threaten the very survival of their favorite shows when they download episodes from illegal sources rather than legit streaming sites like Netflix:
…when the audience pays for creative content, they are voicing their support with their dollars. They are saying: “this show/film/whatever has personal value. I enjoy it. It’s worth paying for.” That not only helps me as a writer, it leads to further investment in the shows audiences like.
Creating quality content costs money and doesn’t it make sense that if we want to be able to consume something we should be willing to pay something to support its creation. A newly released study by the research firm KPMG,
“Film and TV title availability in the Digital Age” confirms what most of us already know to be true–consumers these days have a
myriad of legit ways to find great films and television shows online.
As of December 2013, 94 percent of the most popular and critically acclaimed films were legally available in the U.S. through online video-on-demand (VOD) services. The same study also finds that that 85 percent of the most popular and critically acclaimed television titles were available in the U.S. through online video services. This study is the latest reminder that today it’s easier than ever to watch the shows and movies you love legally online. –MPAA
For the cost of a couple lattes at Starbucks you can have a monthly subscription to a streaming service like
Netflix or Amazon Prime. Seems like a small price to pay to support those who create the works we enjoy.
by Ellen Seidler | Ad Sponsored Piracy, Copyright, Law, Piracy, Politics
Kim Dotcom, megalomaniac mastermind of Megaupload
Kim Dotcom sued by Hollywood studios
The legal woes for Megaupload’s founder Kim Dotcom continue with today’s news that six movie studios including Fox, Disney, Paramount, Columbia, Universal and Warner have filed a lawsuit in federal court charging Dotcom and his site with “massive” copyright infringement. From the complaint filed in federal district court in Virginia:
1. Until January 2012, when defendants were indicted on federal charges, defendants operated the notorious website and service located at www.Megaupload.com (“Megaupload” or ”Megaupload website”) as a commercial online hub for publicly providing popular copyrighted content, including thousands of plaintiffs’ copyrighted works, over the Internet to millions of Megaupload users without authorization ox license. On a daily basis, defendants intentionally infringed plaintiffs’ copyrighted motion picture and television programs on a massive scale and for a substantial profit. Defendants carried out this intentional, large-scale theft of plaintiffs’ intellectual property primarily through the operation of the Megaupload website, as well as associated websites like the video streanning service located at www.Megavideo.com (“Megavideo”).
2. Defendants intentionally and actively encouraged theix users to upload to the Megaupload computer servers infringing copies of the most popular entertainment content, including plaintiffs’ copyrighted television shows and movies. For example, through Megaupload’s “Uploader Rewards” program, defendants openly paid Megaupload users money to upload popular unauthorized and unlicensed content, including plaintiffs’ copyrighted television shows and movies, onto Megaupload’s computer servers. Pursuant to the Uploader Rewards program, the more often an uploaded file was downloaded by other users, the more money the uploader made.
3. Once a Megaupload user uploaded a file, defendants provided that user with a “link” to the infringing content and encouraged the user to disseminate the “link” as broadly as possible on the Internet so that as many people as possible would find the link and use it to download the infringing content from Megaupload’s servers.
4. Defendants profited handsomely from this copyright infringement in at least two ways: by selling users “premium” subscriptions, which enabled rapid, unrestricted downloading; and by selling online advertising space to advertisers.
The complaint goes to describe the site’s business model–one built on piracy whereby the more content uploaded, the more traffic for the site, and the more ad and subscription revenue earned–more than 25 million according to the complaint. It also pokes holes in the claims of Dotcom, and his apologists, that the site was a legitimate enterprise that merely provided storage for its users:
Contrary to some of defendants’ public assertions, Megaupload was not designed to be a private data storage provider. Users without premium subscriptions were restricted not only in their downloading capabilities, but also in their ability to store files on the site. Any content they uploaded would be deleted if it was not also downloaded within a certain period of time —after 21 days in the case of unregistered, anonymous users and after 90 days in the case of registered users who were not premium subscribers. Only premium subscribers (estimated to be 1% of users) could use Megaupload for long-term file storage. Thus, by design, Megaupload functioned not as a private online storage locker, but rather as a hub for uploading and downloading infringing copies of popular movies and television shows, including plaintiffs’ copyrighted works.
With this latest legal salvo fired against Megaupload and its founder perhaps it’s worth taking a moment to examine why YouTube, another site dependent on user-generated content (UGC) managed to survive and thrive, despite early accusations (and a major lawsuit) that labeled it a piracy cornucopia. Why did Megaupload end up on the dust bin of history while YouTube has become a web video (and music) juggernaut?
The early growth and popularity of both sites was dependent on the public’s general disregard for copyright law. Sure, some of the traffic to YouTube was generated by cute cat videos gone viral, but much of the site’s popular content included clips and often entire copies of tv shows and movies–content uploaders certainly had no right to disseminate. Like Megaupload, YouTube hid behind the shield of “safe harbor” and monetized the content with advertising but unlike Megaupload, the site did not offer cash or other incentives to uploaders, not directly anyway.*
In 2007 Viacom filed suit against YouTube and like today’s filing against Megaupload, the charge was “massive” and “brazen” copyright infringement. After seven years of legal back and forth, the parties finally announced they had settled the case in March, one week before they were scheduled to again face off in court. The companies issued a joint statement which characterized the resolution this way: “The settlement reflects the growing collaborative dialogue between our two companies on important opportunities, and we look forward to working more closely together.”
Ultimately what separates YouTube/Google’s success versus Megaupload’s demise lies with the fact that the head honchos at Google determined that respecting copyright ultimately provided a better business model than ignoring it. On the heels of Viacom’s infringement suit, YouTube introduced its Content ID (digital fingerprinting) system in 2008 which gave rights holders a (relatively) efficient way to deal the massive copyright abuses that plagued the site. Rather than send hundreds, if not thousands of DMCA takedowns, musicians and filmmakers could claim content they own and be proactive in blocking, removing, or monetizing it. The key was that Content ID allowed the creators to determine if and how their content could be viewed on YouTube, not the other way around.
Megaupload paid lip service to honoring DMCA takedown requests, but in actuality was playing a shell game, removing infringing links but not removing the actual files. If you read the 70 page federal indictment against notorious pirate cyberlocker website Megaupload, you will find this charge on page 10, section 22:
When a file is being uploaded to Megaupload.com, the Conspiracy’s automated system calculates a unique identifier for the file (called a “MD5 hash”) that is generated using a mathematical algorithm. If, after the MD5 hash calculation, the system determines that the uploading file already exists on a server controlled by the Mega Conspiracy, Megaupload.com does not reproduce a second copy of the file on that server. Instead, the system provides a newand unique URL link to the new user that is pointed to the original file already present on the server. If there is more than one URL link to a file, then any attempt by the copyright holder to terminate access to the file using the Abuse Tool or other DMCA takedown request will fail because the additional access links will continue to be available.
During my dealings with Megaupload I’d long suspected as much. Time after time, I’d remove links using Megaupload’s content management tool only to see a duplicate file reappear (with a new link) minutes later. Of course, unlike federal authorities, I did not have access to the actual content residing on Megaupload’s servers, so I couldn’t really prove it.
In the fall of 2011 while I was researching a pirate blog that offered illegal downloads to LGBT films, I saw that the film “Kyss Mig” was being pirated. Since it’s a film distributed by the same company (Wolfe Video) that distributes our film I notified them of the infringing link. A DMCA notice was sent and, as expected, the link was disabled. However, when I went back to the website the following day I noticed that the disabled link had been replaced by a new one. That led me to again notify Wolfe and the exercise in futility was repeated. A few days later I noticed that the link was alive yet again, but the blog owner had changed things up (to protect her download) and the link now took me to an intermediate site “undeadlink.com.”
Essentially the site offered a convenient way to regenerate links to supposedly “dead” files on Megaupload (and apparently Fileserve). If Megaupload had actually removed the infringing file when it was originally reported, this wouldn’t have been an option. However, because Megaupload apparently did exactly what is spelled out in the indictment, it was very possible (and efficient). When I discovered what was going on last fall, and that it verified my suspicions, I decided to record the process. This video documents what I found.
[fve]http://vimeo.com/35648310[/fve]
Dotcom likes to pontificate (to anyone who will listen) and claims he’s “…at the forefront of creating the cool stuff that will allow creative works to thrive in an Internet age. I have the solutions to your problems. I am not your enemy.” Were that really true, why didn’t Mr. Dotcom use technology to transform Megaupload.com into legitimate UGC site by implementing a Content ID system like Youtube’s? Oh right, he would have had to share the profits. Despite disingenuous rhetoric to the contrary, unlike YouTube, Megaupload actually employed technology to ensure that copyright infringement continued rather than prevent it.
It’s an ethos that has allowed online piracy for profit (under the guise of innovation) to propagate across the globe. Why invest in a product when it’s just as easy to steal (and monetize) it? Of course Dotcom and Michael Robertson (founder of MP3tunes who was found liable and hit with a 41 million dollar verdict last month in a copyright infringement suit) have both discovered there are consequences to such theft, but this should be the norm, not the exception. Dotcom’s unbridled hubris and greed got the better of him. One can only imagine what he could have achieved had he crossed over from the dark side and followed YouTube’s lead.
Moving forward, preventing such businesses from taking root in the first place should be one goal in Congressional efforts to update the Digital Millennium Copyright Act for the 21st century. For all its faults, YouTube’s Content ID system lights the way for a possible path forward in redefining “safe harbor.” If a website’s business model to is predicated on “sharing” creative work, providing content creators with technological tools to safeguard their work should be a requirement for meeting the “safe harbor” provisions of the law. Such a requirement would not “break” the internet. It actually would could go a long way in fixing what’s currently broken.
Meanwhile, while YouTube has thrived where Megaupload has failed, businesses like YouTube can and should better reward the creators on whose work they depend. As online distribution options grow and improve, hopefully many will say goodbye to the opaque revenue “sharing” model imposed by YouTube (and others) and take their content to sites/businesses where formulas for compensation are more transparent, and more generous to those who actually create the content.
A download link to a pirated copy of our film on Megaupload.com
BTW, is there a way indie artists could jump on board the lawsuit filed by the studios? Why not make it a class action affair? There are plenty of indie musicians, filmmakers and authors around the world whose works (and livelihoods) were ripped off by Kim Dotcom’s enterprise. In their lawsuit the studios are asking for maximum statutory damages of $150,000 per infringement plus the profits the defendants generated. Just imagine how many new works might be in the offing if those thousands of creators whose works were pirated on Megaupload were awarded damages along with the studios?
*To this day there are still some YouTube users ‘s that earn ad revenue by uploading dubious content. Of course YouTube/Google earns income off these uploads too.
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, Law, Politics
Terry Hart takes the EFF to task for their misleading take on copyright history
Copyhype blogger Terry Hart wrote a thoughtful response yesterday to an post on the Electronic Frontier Foundation’s blog by Mitch Stoltz that purported to be analysis (and rebuttal) of what he called the MPPA’s “copyright agenda”. The piece published Monday was in response to MPAA CEO Chris Dodd’s recent remarks at a L.A. Copyright Society event earlier this month. Dodd said:
What would Jefferson think about the current state of copyright law?
First, the men who met in Philadelphia during that summer of 1787 and drafted the Constitution, considered copyright so important to unlocking the creative potential of the citizens of this new country, that they explicitly empowered Congress to incentivize creativity through patent and copyright legislation.
According to Stoltz’s EFF’s piece, the MPAA chief got it wrong.
Dodd claims that copyright as we know it is what “the founders of this republic intended.” Hardly. The first copyright act in the U.S, passed in 1790 by some of the same people who helped write the Constitution and the Bill of Rights, was very limited. It covered only books, maps, and charts – not music, theater, pamphlets, newspapers, sculpture, or any other 18th-century creative medium. The Founders’ copyrights lasted 14 years, with an option to renew for another 14. Today, of course, copyright covers nearly all written, visual, sculptural, architectural, and performing art, not to mention computer software and games, and it lasts for the author’s life plus 70 years. We suspect that if anyone had described today’s copyright system to, say, Thomas Jefferson, he would have been shocked. By all means, let’s look at how the Founders thought copyright should work, as one guidepost for fixing today’s law.
But according to Terry Hart, in this case, it’s really the EFF that got it wrong by conveniently ignoring the complete copyright picture as it’s evolved over time:
What’s curious is that the EFF would focus so much on the provisions rather than the principles of early U.S. copyright law (never mind how incorrectly they stated the former) yet leave out so many provisions in current copyright law that the early acts lacked. For example, the 1790 Copyright Act included no statutory recognition of fair use, the first sale doctrine, or the idea/expression dichotomy; no prohibition on protecting government works by copyright;13 no exceptions for libraries, educational institutions, or non-profit groups; no centralized registration system or deposit requirement.
The grave inaccuracies contained in just a few short sentences should leave little surprise that the EFF is on shaky ground concluding that their views on copyright would be compatible with the Founders…
You can read Hart’s full piece here. It’s well worth it if you’re looking for a more balanced perspective on what the true intent of our founding fathers may have been when it comes to copyright.
by Ellen Seidler | Copyright, Law, Piracy, Tech
Websites that offer pirated movies and music are taking it on the chin as of late. First movie2k.to disappeared (only to be reborn as a dubious duplicate) and now Kickass Torrents, one of the most popular torrent sites on the web, has had its domain name (kat.ph) seized by Philippine officials. According to Torrent Freak:
The action was taken following a complaint from local record labels who argued that the second largest torrent site on the Internet was causing “irreparable damages” to the music industry.
The domain seizure didn’t stop the site of course, it merely moved to a new domain name. A message posted at the new domain explained,
We had to drop Kat.ph as a part of our global maintenance….This was a hard decision, but it was necessary for the further development of KickassTorrents. Stay tuned for more news.
“Global maintenance” seems to be their euphemism for staying one step ahead of the law. At any rate, despite the fact the site has moved to a new domain, the good news in all this is that there seems to be increasing momentum to shutdown, or at least disrupt, websites that facilitate illegal content theft. Of course, if you want to find a site to watch or download movies and support the filmmakers who make them you could go here instead.
Update: Torrent Freak has updated this story and adds the MPAA is targeting the new domain for Kickass Torrents in order to get the site’s homepage links delisted by Google.
… the MPAA appears to be hand-picking torrent sites and streaming portals in an effort to have their homepages de-listed from Google. The new KickassTorrents domain Kickass.to is one of the first casualties of this strategy.
This is good news for all the musicians, filmmakers and authors whose work is routinely ripped off via this site.
