by Ellen Seidler | Copyright, Law, Piracy, Politics
The IP Awareness Foundation report on piracy demonstrates that an effective war against piracy is one fought on multiple fronts
Piracy rates decrease 4% overall
Some positive news on the piracy front from Australia in a report just released by the Intellectual Property Awareness Foundation. The study finds that Australian piracy rates (among those 18 to 64) have decreased 4% in the past year.
Following the report’s release some of the headlines focused on new streaming services like Netflix as the reason for the decrease, but IP Awareness Executive Director Lori Flekser says other factors like the high-profile Dallas Buyers Club lawsuit, and legislation allowing blocking of pirate sites and a soon-to-be-enforced requirement that ISPs send customers “copyright infringement” warnings if they download pirated content.
Flekser expressed the belief that to successfully fight online piracy, the battle needs to happen on multiple fronts:
Piracy has always needed a range of measures to tackle the problem as we all know there is no silver bullet. This fall in piracy rates is definitely largely attributable to the combination of the government’s new legislation, plus the ongoing efforts of the creative industries to continue delivering great content at accessible prices to Australian consumers and the work being done to educate consumers about the impact of copyright theft…
…Strong copyright laws are needed to ensure the vibrancy and growth of the creative sector which in turn contributes to the economy, provides jobs and stimulates local culture. Copyright facilitates innovation rather than hinders it.
Despite the positive trends found by the study, there’s also indications that so-called “persistent pirates” have dug in and are stealing at greater rates than in the past. Some key findings from the study include:
• 25% of Australian adults aged 18-64 pirate – a decrease from 29% in the previous year.
• Persistent pirates continue to maintain high levels of frequency with 40% claiming to be pirating more than they did 12 months ago.
• Those who have pirated are far more likely than those who have never pirated to be aware of anti-piracy initiatives such as the Copyright Amendment Bill 2015 (43% vs 24%), Dallas Buyers Club litigation (51% vs 42%) and proposed notification scheme (48% vs 32%).
• Streaming services show growth – from 26% in 2014 to 32% in 2015, with high levels of awareness of new services. 33% of respondents accessing a subscription service are taking advantage of a free trial, with 66% of those indicating their intention to take up a paid service in future.
• Of those who claim to be pirating less frequently, 33% identify legal alternatives as the main reason for declining piracy rates, while 63% cite other reasons including moral considerations (21% – feeling bad about pirating/acknowledging piracy is theft) or self-interest (16% – worrying about being caught or getting a virus) or no longer having time (13%)
Flekser also noted that education plays an important role in lowering piracy rates and she was quick to praise Australian government officials for their work in helping safeguard the rights of creators:
We applaud the leadership shown by Government in passing critical legislation, and the public discourse from Ministers Turnbull and Brandis, which has shone a light on this issue and given the creative industry the opportunity to have its say amidst the very vocal blogosphere and wide media coverage of a well intentioned but not always well-informed consumer advocacy campaign…
It’s always positive news to see piracy numbers decline anywhere in the world. And while it’s too early to predict where all the chips may fall, one hopes that U.S. lawmakers will look to Australia’s approach as a potential blueprint for designing a successful attack on piracy here.
Our representatives in Congress need to understand that taking legislative action against online piracy profiteers won’t break the internet, but it will help protect the livelihoods of American workers who work in a wide swath of creative industries.
As Wade Tyree wrote in a recent piece for The Hill, “The magic depends on us all, creators and audiences alike.”
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 | Ad Sponsored Piracy, Copyright, Piracy
Facebook has long turned a blind eye to profiting from piracy on its pages. Has the worm finally turned?
This past week Facebook reached a milestone when, according to founder Mark Zuckerberg, more than one billion users logged on to the social media site in a single day. Part of that growth has come from video views (4 billion per day) and so this week Facebook also announced it would (finally) tackle the online piracy that has long plagued the site.
In recent months, as a result of its increased focus on encouraging video uploads, the social media giant has faced growing criticism that it allows “freebooters” to rip-off (monetized) YouTube videos and repost them on Facebook, thereby cannibalizing creators’ profits. According to Time’s Victor Luckerson:
Online video creators, who make money by selling advertising against their content, are increasingly frustrated with the problem. In June, George Strompolos, CEO of the multichannel network Fullscreen, said on Twitter that pirated versions of Fullscreen creators’ videos were racking up more than 50 million views on Facebook. This month, Hank Green, longtime YouTube vlogger and co-founder of the online video conference VidCon, penned a diatribe against Facebook’s video policies, arguing that the social network’s preference for Facebook-native videos in its News Feed algorithm encourages theft of creators’ YouTube videos. –
Of course the same thing has happened to filmmakers for what seems like forever, but it now appears complaints (and users) have reached critical mass so Facebook may finally have to confront the rampant copyright abuse that flourishes on its pages.
Given that Facebook has its sights set on competing with YouTube as the go-to (monetized) video platform–in order to effectively compete–it seems Facebook’s days of skipping around copyright compliance may have come to an end. Following in YouTube’s Content ID footsteps, Facebook will begin to rollout its own content fingerprinting technology. According to Recode two of Facebook piracy’s loudest critics will be the first in line to test the technology:
Now Facebook says Jukin and Fullscreen are two of its initial launch partners for the new technology, along with Zefr, a service company that helps content owners track their clips on YouTube. Facebook says it is also working with major media companies on the effort, but won’t identify them.
original image-iStock
Despite this news, Facebook still has a long way to go. Not only does it need to implement and effective content matching technology (and user interface), but it also has to figure out how to split up ad profits. If history is any indication, monetization income is likely to favor Facebook rather than creators.
As with YouTube, video monetization also opens the door to scammers and may in fact worsen the problem of bootleg uploads. YouTube, despite its Content ID system, is a tangled mess. Scammers routinely upload stolen and/or dummy content and monetize it. Perhaps Facebook will do a better job and learn from YouTube’s bad example, but I’m not holding out much hope.
Has the Ostrich finally (been forced) to pull its head out of the sand?
Meanwhile Facebook, like Google, still provides fertile ground for online pirates to share their stolen goods and it’s not limited to video uploads. Like their legit counterparts, it seems every online pirate website also has its own Facebook page to share illegal links and drive traffic and ad dollars to their sites. In typical fashion, Facebook also makes money from these pirate pages by placing advertising on them. Per usual, it’s the creators who lose.
The DMCA’s safe harbor provisions have allowed this Wild West to flourish. Some call it “innovation,” but for creators, it’s just plain theft. Facebook has profited from piracy for a long time. Its proposed actions against piracy are long overdue.
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 | 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. 🙂
