by Ellen Seidler | Copyright, Google, Piracy
Googl
e’s updated piracy report offers the some well-worn excuses
It’s that time of year. The time of year where Google rolls out a shiny update on its “How Google Fights Piracy” report. Google began the tradition in 2013. At the time I noted that Google’s claim to be a “leader” in the fight against piracy was its first mistake. With today’s update, it appears the Silicon Valley giant hasn’t backed down from that dubious claim (or many others).
Katie Oyama, Senior Policy Counsel, Google asserts that, “We take protecting creativity online seriously, and we’re doing more to help battle copyright-infringing activity than ever before.” Yet, in spite of Oyama’s rosy quote, in truth the reality (for creators) battling online piracy continues to be a bleak one.
Google search continues to list pirate links at the top of results
For the moment I’ll focus on Google search. The report claims, “…Google does not want to include any links to infringing material in our search results, and we make significant efforts to prevent infringing webpages from appearing.” It goes on to outline what Google’s doing to remedy the issue including this nugget:
Google believes that providing convenient, compelling, legitimate alternatives is one of the best means of fighting piracy. Accordingly, Google has launched a number of initiatives to present legitimate alternatives to users as part of search results, including providing advertisements on queries for movies and music to link users to legitimate means of purchasing content.
The reports also notes that it has focused on providing, “Clean results for media-related queries users actually type: Thanks to the efforts of Google’s engineers, the vast majority of media-related queries that users submit every day return results that include only legitimate sites.”
Oh Yeah, I’ve heard this line before, but unfortunately it isn’t true. This morning, after taking a gander at the report I went to Google search to search for the recent indie film Carol. I typed in a pretty logical query–the kind “users submit every day” — choosing the phrase “watch Carol online.” The VERY TOP RESULT took me–instantly–to a full, high-quality, pirated, illegal stream of the film.
Top result leads to full, pirated stream of the movie
Ok, so maybe the word “online” is too linked to piracy….so let’s drop the term and use only the terms, “watch Carol,” the first result was identical and led to the same pirated stream. Yeah, there was was ad offering legit links at the top (which is a good thing) but unfortunately pirated versions remained front and center and at #1 in the actual search results.. 
So much for their well-oiled talking point. The fact is that Google search still provides a direct path to pirated content.
If some innocent person is simply looking for a way to (legally) watch Carol uses Google search instead of wheretowatch.com, why does the FIRST link in Google’s results offer a pirated version? I didn’t say I wanted to “watch Carol free” I said merely that I wanted to “watch Carol.” Is that a pretty standard approach to consuming movies??? Watching them???
Does Google really believe that watch isn’t a term people use every day to search for a movie online?
Google’s auto-complete suggests piracy-linked search terms
The only time I found somewhat clean results was by using the term “Carol movie.” Now, forgive me, but it someone is looking to “watch” a film doesn’t it make sense they’d use that same term in a search query? Apparently Google’s engineers didn’t think so. For them it seems that using the term “watch” is not a word worthy of inclusion amid their “vast quantity of media-related queries” when it comes to searching for a film title?
It’s also important to note that when I started typing in the terms “Carol mov…” Google’s own auto-complete provided the suggestion (carol movie online) which leads directly to the same pirated stream of Carol listed at #1 (see below).
Google auto-complete offers up a term that leads directly to pirated copy of the film
Didn’t Google’s engineering wizards notice this when they supposedly tweaked their algorithms to “return results that include only legitimate sites?”
I’ll be examining Google’s report further and will follow up with another post, but I couldn’t let the announcement of this update slide by with nary a mention. There’s much more to sift through, but I’d venture to guess it will be more of the same old, same old. As I noted in my analysis of an earlier version of this Google report:
After reading it I think a more accurate title would be “Why Google Shouldn’t Have to Fight Piracy Because it Offers so Much Other Good Stuff.”
While the report does outline various positive steps Google’s taken (under duress) to mitigate its role in incentivizing and enabling piracy, most of the document reads more like an evangelical tome as to how their innovations have benefited content creators, blunting any collateral damage that may have occurred. In other words, let’s overlook the bad in favor of the good…
I have a feeling not much will have changed…If there’s any truth in the claim that Google is “doing more” it’s because it’s allowing more pirated content than ever on its products.
by Ellen Seidler | Copyright, Film, Law, Piracy, Politics
Momentum is building for changes to the DMCA that will better protect creators
Content creators from all walks of life are coalescing around the need to update copyright law to protect their work against theft in digital age. A piece in yesterday’s NY Times, Music World Bands Together Against YouTube, Seeking Change to Law, is the latest to highlight growing calls by the creative community to update a woefully antiquated Digital Millennium Copyright Act of 1998.
In its newest effort, the music industry has asked the federal government to change the Digital Millennium Copyright Act, saying that the law, which was passed in 1998 and protects sites like YouTube that host copyrighted material posted by users, is outdated and makes removing unauthorized content too difficult.
Cary Sherman, the chief executive of the Recording Industry Association of America, says that even when songs are taken down, they can easily be uploaded again.
“This is a new form of piracy,” he said. “You don’t have to go into dark corners and sell stuff out of your car. You can do it in plain sight and rely on the D.M.C.A. to justify that what you’re doing is perfectly legal.” –NY Times
Last month the U.S. Copyright Office held public roundtables in New York and San Francisco to hear testimony as part of its study to “evaluate the impact and effectiveness of the safe harbor provisions contained in section 512 of title 17, United States Code.”
As part of the study, the Copyright Office also solicited public comments. While I shared by thoughts with researchers at Mason Law’s Arts & Entertainment Advocacy Clinic for its submission, “Middle Class Artists Want a DMCA System that Works” I also drafted my own statement. Although my comments are part of the public record, I thought I’d share my them here as well. My hope is to generate further dialogue as to how we can advocate for a meaningful update to the DMCA so that moving forward, creators’ rights (and livelihoods) will be better protected.
Here’s my submission to the U.S. Copyright Office.
Updating the DMCA – Areas of Concern
Overwhelming volume
The DMCA is currently the only tool content creators have available to safeguard their work from online theft and profiteering. Unfortunately, these days, using the DMCA to fight piracy is about effective as standing under Niagara Falls holding an umbrella.
Within a few months of our independent film’s release in 2010 we’d found more than 56,000 illegal download links and streams for pirated copies. Those are only the ones we managed to uncover. There were likely thousands more.
Multiply that figure by hundreds, if not thousands, of downloads per link and one can begin to appreciate the scope of the problem. Of course not every illegal download equals a lost sale, but even looking at a fraction of the total, the income lost by diluting legit sales can represent the difference between paying off production debts and making another film, or not.
The time and effort spent in policing piracy on the web is time and effort most independent artists cannot afford. For larger entities that can engage takedown services to manage the work for them the process remains an expensive and daunting task.
Ultimately such efforts can only slow, not stop, the incredible tide of online piracy.
Overly complex takedown procedures
While that language required to craft a legal DMCA takedown notice is straightforward, the process for actually sending it to an OSP’s takedown agent is often not so clear. While some OSPs accept email notification (as required by law), other larger entities, like Google, prefer that requests be sent via a cumbersome and time-consuming online process.
Uploading infringing content to a Google site can be done with a mere click of a mouse, unfortunately removing it is not quite so simple. Because the email address for Google’s DMCA Agent is not posted on its websites, rights holders must jump through various hoops and navigate through a series of questions in order to arrive at the correct form. Once there it takes additional time to complete the 9-part form. Before one can actually send it one must be sure to create a Google account, then login and send.
Once the takedown request is sent, no copy of the actual takedown request is generated, only a brief acknowledgement of receipt. Then it’s a waiting game to see whether the infringing content gets removed.
Sending a simple DMCA takedown notice via email is simple, fast, and makes record keeping and follow up easy. Any update to the DMCA should continue to support email as an efficient way to send takedown requests and require that OSPs process emails with the same speed as those submitted via the web form.
Repeat infringement
Even if one sends a DMCA takedown notice to Google reporting a site for dozens of illegal links, Google allows the site to remain online. It takes multiple notices, sent 48 hours apart, to trigger any sort of account disabling.
Other sites employ varying degrees of punishment for repeat infringers and some do nothing. This is certainly an area of concern for rights holders as it adds to the overall ineffectiveness and inefficiencies of the DMCA notice and takedown process.
Any update to the DMCA should specify what constitutes a repeat infringement and require that OSPs publish this information on their website. The law should also require that the OSP be responsible for preventing any re-upload of content already reported as infringing. This can be achieved by employing technological solutions described in the following section.
Technological Solutions
Technology brought us to this point. It’s time technology be utilized to help safeguard copyrighted work. YouTube’s Content ID system, though not without problems, at least provides a way for rights holders to find and manage YouTube access for their music or films. Cloud storage provider Dropbox also employs technology to scan files for identifying hash data so that reported files cannot be uploaded repeatedly.
If an OSP’s (online service provider) business model is predicated on monetizing user-generated content (not vetted for copyright) then the OSP should be required, by law, to implement some form of digital fingerprinting to prevent infringing material from being uploaded in the first place. This type of technology would also help address enforce a takedown – stay down approach and prevent repeated uploads of pirated content to a site.
If an OSP does not have the resources to build its own proprietary tech like YouTube’s Content ID, there are a number of third-party vendors, like Vobile, that offer digital fingerprinting. While such 3rd-party services are not free, it seems only fair that cost of implementing a digital gatekeeper be considered a cost of doing business. Creators have long borne the “costs” of OSPs monetizing their content without permission. Having OSPs tap into profits to better protect copyright seems only fair.
Any update to the law should include a requirement that, in order to qualify for the limitations to liability that safe-harbor offers, certain user-generated content sites must implement reasonable technology to mitigate content theft.
Counter-notices and small claims process
Not only are creators burdened with having to play detective to find and remove their stolen content from various websites, but even the counter-notice system works against rights holders.
The counter-notice system allows recipients of an erroneous DMCA to prevent the removal of content and while such a system of checks and balances is important, problems occur when such counter-notices are themselves erroneous. Unless the sender of the DMCA notice files in federal court to enforce the takedown, following a 10-day waiting period, the reported content is reposted.
For most indie artists, the cost of filing in federal court to enforce a DMCA takedown is far too costly and so, in these cases, the infringing content remains online. I’ve experienced this situation multiple times and have seen full copies of a film reposted after a counter-notice (claiming fair use) was sent after a takedown on YouTube.
Perhaps, as part of any update to the DMCA, the time has finally come to create a small claims process to adjudicate copyright claims outside the federal court system. The U.S. Copyright Office has already studied the issue and has recommended creation of a voluntary system of adjudication to resolve copyright small claims. (http://copyright.gov/docs/smallclaims/usco-smallcopyrightclaims.pdf )
Content removed due to infringement should not be replaced by direct links to 3rd party site(s) that republish the same infringing links
Another issue not addressed by the DMCA is a problem that’s arisen thanks to a third-party database that records all the DMCA notices received by a number of OSPs including Google. The Lumen database https://lumendatabase.org/ (formerly Chilling Effects) offers a searchable database of these DMCA notices. While this might serve as a valuable archive, Lumen’s searchable database, in its current form, does not redact the infringing URLs from the DMCA notices and so–in effect–becomes an efficient search engine for pirated content. This afternoon I used Lumen’s search engine to look for illegal copies of the recent release “Carol.” With one click I found a link, then right-click and I ended up at an active, illegal copy online.
Lumen’s DMCA notices are also easily found thanks to Google’s direct links to them in what would seem to be blatant disregard for the DMCA’s intent–if not the law. The scenario works like this: When an infringing link is removed from Google search following a DMCA request, the search result remains, but the original infringing link is simply replaced with a fresh hyperlink to the DMCA notice stored in Lumen’s database. Essentially, removing the infringing link from Google search with a DMCA takedown requests only means a web user searching for pirated copies only has to click one additional link in order to find the pirated content he/she was looking for.
While the database itself may claim to operate under the mantel of “free speech” one has to ask how Google qualifies for “safe harbor” protection when infringing links removed from its search engine are replaced by a link to the DMCA notice on the Lumen database that contains the same, un-redacted infringing link. This type of re-linking should be explicitly banned in any update of the DMCA.
What’s at stake
Takedowns will continue to be a part of any DMCA fix, but collectively we must figure out a better way streamline the process, utilize technology, and mediate disputes in order to protect copyright and support a culture where creators can flourish– and the wealth of content they create can be enjoyed, and sustained, by consumers throughout the world.
If nothing is done to update the DMCA for the 21st century, content creators of all stripes will continue to struggle and the diversity, and variety of quality of creative content available to consumers will diminish. At first, we may not miss what isn’t made, but eventually our creative culture will be the lesser for it.
by Ellen Seidler | Copyright, Google, Law, Piracy
Hop aboard for another spin on Google’s DMCA Merry-Go-Round
It’s not news that Google-hosted Blogger websites are a favorite storefront for online pirates. It’s also not news that Google does its best to obstruct DMCA takedowns by setting up various roadblocks along the way. Today I discovered yet another example of just how difficult Google makes the DMCA process–this time with Blogger-hosted sites that use custom domain names.
When you create a blog using Blogger you’re given a domain that ends in blogspot.com. However users are free to use a custom domain name instead. That’s all well and good, unless the website distributes pirated content. In that case, if you’re a creator trying to get your pirated content removed (by Google), you’re likely to run into problems.
Usually, when one of these pirate entrepreneurs creates a site on blogspot.com a rightsholder can send a DMCA by using Google’s annoying web form (or annoy them by sending an email: [email protected]). However, if you use the same DMCA form to report a blogger-hosted site with a custom domain, Google won’t remove it. They’ll just send you back to the beginning.
I found out about this twist when I sent several DMCA notices this week on behalf of an indie film distributor. I requested the removal several pages of pirated movies I found on a Blogger-hosted website with a custom domain. The claim was rejected and the response on the Google Removals Dashboard read: Inappropriate for TCRP. Please submit through the standard web form.
TCRP stands for “Trusted Copyright Removal Program” but the problem is that I didn’t use any sort of TCRP…I wish I could, but I’m just a lowly commoner who doesn’t have access to this program. I USED THE STANDARD WEB FORM!!!!
Why–when there’s no doubt that this website is streaming a full copy of the film on a Google-hosted website–do they send me back to the same standard web form I used to send the original request? It’s an endless loop. Follow along below:
A DMCA request was sent using Google’s own web form (for Blogger) yet the claim is rejected and I’m told to send the takedown again using the very same form?
Apparently, even though Google hosts the pirate site, it refuses to remove infringing content the pirate is using a custom domain, not a blogspot.com domain. Welcome to the Google DMCA Merry-Go-Round. 🙁
When I researched the issue further I discovered I’m not the only one running into this problem. On Google’s own Blogger Help Forum there’s a recent thread about the issue. Last month a user DeeLite310 posted a question after receiving the same— Inappropriate for TCRP. Please submit through the standard web form–response to a DMCA s/he sent reporting a Blogger site pirated games.
Once again the not-so-helpful Google response was to send DeeLite310 (who’s not part of the TCRP) back the beginning of the Google Blogger DMCA merry-go-round. Here’s part of the exchange (but I suggest reading the entire thread to fully appreciate just how frustrating dealing with Google can be):
Welcome to the Google Merry-Go-Round…DeeLite310 is sent back the beginning…again and again…
Google loves to throw the word “transparency” around a lot in discussions around how it handles DMCA requests. Too bad it doesn’t provide more transparency when creators, victimized by pirates using Google products, make good faith (legal) efforts to request the removal of infringing content. As I’ve said before, the DMCA is broken…
*Update 5/16/16: During May’s Section 512 hearings in San Francisco I spoke with Fred von Lohmann, Google’s senior copyright counsel, about my blog post. He told me that I had indeed discovered a “bug” and that Google staff was working to fix the issue. I was happy to hear that Google was responding in a positive manner to this problem. I’ll test out whether it has been fixed by resending the original DMCA notice that prompted this post. Stay tuned…
Update 6/28/16: According to Mr. Von Lohmann, the bug has been fixed.
by Ellen Seidler | Copyright
The Netflix VPN move will put pressure on the company (and distributors) to satisfy customers worldwide
According to a report in Wired, Netflix customers are upset the the company (finally) cracked down on the use of VPNs (virtual private networks) that allowed users to access Netflix content not available in their home country. The result is a lot of unhappy puppies, so unhappy in fact that they’ve signed a petition asking Netflix to reconsider. Of course, some of the same tired canards are being pulled out to attack the move. According to Wired, Open Media, the group behind the petition, claim that VPNs are used as a “privacy tool.” Their petition uses the following language:
I would ask, where’s the privacy concern with logging onto Netflix? I would venture to guess that the vast majority of folks using VPNs to access their Netflix account aren’t particularly worried about their privacy–they simply want to watch content they haven’t paid for. Geo-blocking isn’t a sin. In fact it’s a legal obligation for Netflix (and any other streaming entity). YouTube geo-blocks content every day.
There also seems to be confusion as to what paying for a Netflix subscription actually means. For a standard subscription of $10 per month customers are paying for access to content that Netflix has paid for ONLY in a specific territory, not worldwide. According to Wired, many are indignant about the crackdown:
Maique Madeira of Portugal says his VPN still works just fine as well, but if it stops, he has no problem going back to torrenting shows and films. “I’m using a VPN because I feel I should get access to the same catalog as the US customers, or any other country’s user,” he said in an email. “We pay the same amount and yet we get a fraction of the content available elsewhere.” -Wired
Sorry Maique, but if you don’t like the quantity or quality of the content you’re getting from Netflix, don’t subscribe. Filmmakers who sold Netflix the rights to their film(s) in the U.S. may not have been able to sell Netflix the same rights in Portugal. Why should you be allowed to watch something that Netflix hasn’t paid for in your territory? Your subscription does not included access and despite what you think, you really haven’t paid for it. Perhaps Netflix should do a better job explaining that part of its business model. Netflix Portugal does not equal Netflix U.S. or Netflix U.K. or so on….
Part of the confusion lies in the fact that most Netflix customers don’t understand how film financing and release territories work. Why would they? It is, however, the way many films get financed and produced. If the viewing public doesn’t respect these arrangements, many of the films they watch would never be made.
Ultimately the crackdown on VPN use may well be good news for Netflix customers as it will force the company to license content (and pay for) content its customers want to watch. It will also require that worldwide film and television markets and distribution licensing scheme continue to evolve and adapt to changing consumer habits.
In the meantime, if one is desperate to watch a foreign program, buy the DVD or Blu-ray. I’ve done that with a number of British programs and Nordic Noir (Danish) shows I enjoy. Yeah, I pay extra (above and beyond my Netflix, Hulu, and Prime subscriptions), but that’s the price of watching something I enjoy. Otherwise I can wait.
This entire VPN issue is one I covered in a blog post in February, 2015 so I won’t rehash, but I will repost my original piece from a year ago below.
–First published, February 15, 2015.
Netflix doesn’t pay for all the content it allows subscribers to stream
VPNs make it easy for Netflix subscribers to watch movies and TV shows that aren’t licensed in their country
source: http://www.nasdaq.com/
Netflix profits grow as its brand spreads around the world–but who’s paying the price?
In January the popular online streaming service claimed its subscriber base had grown to nearly 60 million worldwide. Although nearly 3/4 of those are in the U.S., Netflix has already extended its reach to 50 countries and by 2017 has plans to expand to 200. Just this past week Netflix opened up shop in Cuba.
As Netflix grows, so too should the amount of money filmmakers earn right? Well, no…not really. Enter the VPN, or virtual private network, a simple technology that allows internet users to access geo-blocked websites by providing access via a local IP address. Also known as “tunneling,” a VPN makes it easy to jump virtual fences.
How does it work? Let’s say I want to watch a movie that isn’t available via my Netflix account in the U.S. but it is available on Netflix’s Danish site. With the help of a free browser plugin that takes just seconds to install, I can click a button and surf the web from an IP address in Denmark. When I go to Netflix.com/dk/ and login using my U.S. account, and voilá–I can stream the program (see example above).
Why is this a problem? After all, I have a legit, Netflix account which I pay $8.99 per month for, so why shouldn’t I be able to watch content via Netflix portals around the world? It’s a problem because while I’m happy as consumer to watch a film via Netflix sites worldwide, those who actually paid to produce it are financially left out in the cold. For Netflix it can be viewed as a win, win. Netflix pays for U.S. rights, but forgoes purchasing rights elsewhere knowing full well its subscribers worldwide can still watch. Netflix profits grow at the creators’ expense.
This scenario also hurts smaller distributors of independent film who negotiate with Netflix to license titles for streaming rights in their territories. Why should Netflix worry about spending more money to (legally) acquire rights for from distributors operating in small territories when subscribers can happily watch their films on U.S. Netflix via a VPN?
As Netflix expands offerings to attract subscribers worldwide who pays the price?
How much of an impact might this type of VPN pirate viewing be? GlobalWebIndex, a UK firm, estimates that some 54 million people access Netflix via VPNs each month, 21.6 million of them from China alone. How do subscribers in China get Netflix accounts in the first place? It’s easy using PayPal or other payment method like a virtual credit card. Apparently Netflix doesn’t dig too deep–since it can pocket more cash and grow its brand to reach markets outside its realm. Why should the company crack down on a winning, albeit slimy, way to attract customers?
There was some speculation that Netflix was changing course when it reportedly tweaked its Android app to make accessing content via illegitimate VPNs more difficult, but according to the BBC company officials denied reports that it has changed its approach:
“The claims that we have changed our policy on VPN are false,” said Netflix’s chief product officer Neil Hunt….”People who are using a VPN to access our service from outside of the area will find that it still works exactly as it has always done.”
According to Variety, Netflix supposedly employs other methods to thwart subscribers who don’t belong:
Netflix has always tried to block such unauthorized access, via a multistep verification process that encompasses credit card info, mailing addresses and Internet addresses.
“You may view a movie or TV show through the Netflix service primarily within the country in which you have established your account and only in geographic locations where we offer our service and have licensed such movie or TV show,” the company’s terms of use say. “Netflix will use technologies to verify your geographic location.”
Despite company claims to the contrary, this morning, as I sat at computer to write this post I found it only took me seconds to login to Netflix sites in the UK, Denmark, Cuba and Brazil. Instead of blocking me, a pop-up window politely explained since I was “traveling with Netflix” I might notice a different offering of movies, etc. Of course, one could ask shouldn’t I be able to travel with Netflix? Of course that should be OK, but the problem is, using a VPN I can travel with them while seated at my home computer.
In fact, in order to confirm that I had full, unfettered access to geo-blocked content I searched for a TV series unavailable in the U.S. I chose the Danish series Den som dræber (Those Who Kill) I own on dvd. By selecting Denmark via the VPN (see graphic at the top of post) I was able to log into Netflix.dk and easily stream the program. Question is, are the producers of the program being paid by Netflix for viewers, like me, who watch outside of Denmark? I believe the answer is no.
Generally distributors receive a flat fee for programs/films Netflix adds to its catalog. Rights are given for specific territories and, while sometimes rights are worldwide, often they’re restricted. Why not just give Netflix worldwide rights? Well, easier said than done.
Contrary to the rhetoric promoted by piracy apologists, financing TV and films productions is not a simple task. In many cases foreign rights pre-sold as part of financing deals cobbled together to cover the costs of production. Without such agreements many of the films and TV shows we enjoy could never be made. So for now, when it comes time to distribute them, these financing packages are invariably part of the equation. It often means a single entity doesn’t hold all the (territorial) distribution cards, hence the complexity.
However, with VPNs, Netflix doesn’t have to make negotiating territorial rights a priority. By not restricting the use of VPNs and indirectly allow users to watch programming they aren’t paying for, Netflix can continue to grow its subscriber base and pocket more profit. Why pay the producers of Den som dræber for U.S. rights when U.S. viewers, using their VPN, can use their accounts to watch it anyway?
Emails uncovered in the Sony hack show that Netflix do-si-do around the geo-blocking issue is of growing concern to producers and distributors. As noted in a recent piece by Sean Gallagher in Ars Technica:
The latest data leaked from Sony Pictures Entertainment by hackers reveals that Sony executives had accused Netflix of breaching its licensing contract for Sony Pictures Television (SPT) shows by allowing customers in foreign markets to use virtual private networks to stream them, calling it piracy that is “semi-sanctioned by Netflix.”
Sony pressed Netflix for increased “geofiltering” control over its customers to prevent the practice, including restricting payment methods for the service to ways that would allow screening for customers living outside countries where Netflix had contractual rights.
Gallagher quotes a hacked email between Sony Pictures Television’s president, international distribution,Keith LeGoy and the division’s president, Steve Mosko that outlines concerns over Netflix’s tacit acceptance of VPN abuse:
Netflix are [sic] heavily resistant to enforcing stricter financial geofiltering controls, as they claim this would present a too high bar to entry from legitimate subscribers. For example, they want people to be able to use various methods of payment (e.g. PayPal) where it is harder to determine where the subscriber is based. They recognize that this may cause illegal subscribers but they (of course) would rather err that way than create barriers to legitimate subscribers to sign up.
…Netflix of course get to collect sub revenues and inflate their sub count which in turn boosts their stock on Wall St., so they have every motivation to continue, even if it is illegal…
So what to do? Clearly, there’s a problem. In certain situations VPNs can be a good thing, particularly for those who live in places like China where access to web services is routinely restricted by government firewalls. However, when tens of millions of Netflix subscribers are using VPNs to access unlicensed content it’s clear that the company isn’t doing enough to make sure that content creators receive fair compensation.
Netflix isn’t cracking down on VPN use because it’s good for (their) business
When Australian journalists attending the recent Consumer Electronics Show in Las Vegas tried to ask Netflix officials about a VPN crackdown reported by Torrent Freak, they were rebuffed–even though, according to an article on news.com.au, “An estimated 200,000 Australians pay for Netflix subscriptions, and access the service by masking their computer’s location so they appear to reside in America.” The story also notes:
The movie giant is due to launch its service in Australia this March, but many of its popular shows including Orange is the New Black and Better Call Saul, are unlikely to screen on the local service due to licensing agreements, potentially providing little incentive for existing subscribers to switch.
It’s yet another tangible example of how a program’s producers may be left holding the bag. Netflix gets 200,000 paid subscribers from Australia, but it doesn’t have to pay the filmmakers for rights to their films in that territory.
Some make the argument that overall, Netflix is a good online influence and has helped diminish the lure of piracy, because, as this piece in Billboard explains, it offers consumers, “Content, value and ease of use.” While that’s mostly true, it’s really a tangential issue and certainly doesn’t exempt Netflix’s business practices from scrutiny. Nor does the fact that Netflix has opened the door to new creative possibilities–both in terms of production and distribution. Creators are justified in demanding that the content Netflix subscribers stream is actually paid for–otherwise it becomes just another variant of (corporate) piracy.
What next? Well, as moves forward its with global expansion plans, either Netflix needs to spend some of its profit to find a way to begin effective geo-blocking, or–if that’s not possible–find another formula to calculate a fair price for content that factors in total (worldwide) views, VPN or no VPN. It might be a bitter pill for stockholders to swallow, but for now, it’s the only legitimate way forward.
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by Ellen Seidler | Copyright
Once again, EFF pulls out the piracy as “free speech” mantra
When it comes to the EFF and piracy, it’s kind of like the movie Ground Hog Day….same thing over and over and over again. As such, it was no surprise this week when the EFF’s Mitch Stoltz—-displaying typically knee-jerk EFF form, published a blog post decrying this week’s announcement that the MPAA and top-level domain registrar Donuts had reached a voluntary partnership to “reduce online piracy.” Of course, when it comes to the EFF, there’s no middle ground, and any effort to combat piracy is always met with the same, tired talking points.
While there’s little debate that protecting “free speech” online is important, the EFF routinely makes a point of muddying the waters so as to push its own misguided agenda of absolutism. According the its political playbook–any effort made to fight online piracy–warrants conflating “theft” with “speech” in all communiqués on the subject. Of this most recent agreement, Stoltz dutifully warns:
Taking away a website’s domain name means interrupting all of the speech that takes place on that site. It creates a much greater danger of censorship than suppressing individual pages or files.
To the EFF piracy = free speech
Ah yes, he pulls out the crumpled “censorship” card…Last time I checked, websites in the business of piracy for profit don’t offer any speech worth protecting, unless of course, phrases like “free download” or “watch free” fit the bill.
As I noted in a post earlier this week, many pirate websites don’t provide DMCA contact information. Creators who find their work illegally posted there have little recourse but to turn to web hosts and/or domain registrars for relief. If a site truly offers visitors worthwhile “speech,” why hide? Why not provide a legit contact email? Because there’s nothing legit about it. They’re engaging in criminal activity and they know it.
According to EFF rules, any website that exists, save for maybe those trafficking in child porn, should be allowed to operate unimpeded by the rule of law. Essentially, as far as the EFF is concerned, piracy should be considered a protected form of speech. Shutting down pirate sites would censor the rights of criminals, don’t cha know?
The fact is these sites–often rife with malware and explicit ads–have nothing to do with speech and everything to do with making a buck off the backs of others. Doesn’t it cheapen the concept of “free speech” when it’s disingenuously used as an excuse to shield criminal sites from the consequences of illegal activities? What exactly is it about profiteering pirate websites that makes them worthy of protection under the mantle of “free speech?” The answer–absolutely nothing.
Another argument found in the EFF playbook, along with piracy = protected speech refrain, is the slippery slope excuse. Stoltz makes use of this tattered canard as well:
The danger in agreements like this is that they could become a blanket policy that Internet users cannot avoid. If what’s past is prologue, expect to see MPAA and other groups of powerful media companies touting the Donuts agreement as a new norm, and using it to push ICANN and governments towards making all domain name registries disable access to an entire website on a mere accusation of infringement.
Insert sound of ominous drumbeats here. True to form, the EFF doesn’t shy away from hyperbole and histrionics to advance its agenda.
Stoltz’s warning of dire consequences comes despite the fact there’s nothing in the agreement that could be construed as allowing the disabling of access to an “entire website” based solely on a mere “accusation of infringement.” Stoltz attempts to massage his argument by pulling a truncated quote from Torrent Freak:
According to the website TorrentFreak, this will make MPAA “the definitive authority on what is considered a large-scale piracy website.” This raises the risk of a website losing its domain name, or having it co-opted, without a court judgment or other legal process. [emphasis added]
Well, not quite…though it makes for a good talking point, in reality the process is a tad more complex than he would have us believe. Torrent Freak’s analysis by Andy is actually quite balanced, and the paragraph Stoltz pulls a quote from should really be read in its entirety to appreciate its true context:
Under the agreement the MPAA will be granted “Trusted Notifier” status, i.e. it will become the definitive authority on what is considered a large-scale piracy website. Sites that are subsequently found to be breaching Donuts’ terms and conditions will either have their domains suspended or put on hold.
“This is a groundbreaking partnership and one we’re proud to undertake,” says Donuts Co-Founder and Executive Vice President Jon Nevett.
How convenient to omit the second sentence as well as additional details as to what “subsequently found to be breaching” actually means.
Remember, this is a “partnership” that both the MPAA and Donuts agreed to. If the MPAA has been given “Trusted Notifier” status it’s because Donuts has given the OK. This status also comes with a myriad of strings attached.
A number of safeguards have been established to prevent the very alarmist scenario Stoltz warns of. Like other online service providers, Donuts has a “terms of service” and as such, has the right to assess whether a site has broken those terms, no court judgment required. It’s also worth noting that Donuts will also investigate the allegations before taking any final action against a site: According to terms of the agreement:
…If Donuts is satisfied that the domain clearly is devoted to clear and pervasive copyright infringement, Donuts may, in its discretion and as permitted under its Acceptable Use and Anti-Abuse Policy, suspend, terminate, or place the domain on registry lock, hold, or similar status as it determines necessary to mitigate the infringement…
Reading the various checks and balances outline via Torrent Freak, the multi-step process seems thoughtful and fair to both sides. Of course, it’s not a process that requires litigation, but certainly appears to be within the bounds of what’s allowed by law. There’s also nothing preventing site operators from taking the issue to court, though it’s doubtful that any–known for scattering like a cockroach when a light is shone on their activities–will avail themselves of that option. Indeed, though the agreement may not be to the EFF’s liking, one assumes its been carefully vetted by attorneys for both Donuts and the MPAA.
The MPAA will also have to do its research before initiating any move against a site. As Torrent Freak noted in its analysis:
the MPAA is required to fulfill several criteria, including that any complaint filed with Donuts is authorized by its members. The movie industry group is then expected to provide evidence of “clear and pervasive copyright infringement” on the domain in question while indicating which laws have been violated.
…before contacting Donuts the MPAA will have to do additional preparatory work, including alerting both the site’s registrar and hosting provider to the alleged problems. While providing Donuts with the details of the discussions, the MPAA will be required to indicate why these failed to stop the alleged infringement.
Of course, examining the agreement’s actual (rather than imaginary) language provides an inconvenient truth not in line with EFF talking points. The organization’s public posture has always been rigid, and its analysis myopic–if not fabricated outright–when it comes to assessing any reasonable efforts to reduce online piracy.
In furthering his criticism of the voluntary agreement between the MPAA and Donuts, Stoltz sees ulterior motives, this despite the numerous safeguards in place to prevent abuse, including human review of forwarded complaints. According to Stoltz:
…Donuts may have business reasons for bowing to MPAA’s demands, such as encouraging the major studios that make up MPAA to buy lucrative domains in the .movie space.
It’s yet another predictable red herring. It’s a no-brainer that, deal or no-deal, movie studios are likely to purchase .movie domains if it’s thought to be in their best (business) interests to do so. On the other hand it makes total sense that Donuts, as seller of the .movie domain, may well want to ensure that its products–assorted top-level domains–don’t become cesspools of criminal activity. Isn’t that just a good business practice?
For the EFF, “compromise” is a dirty word
Speaking of business, this agreement provides yet another example of voluntary efforts among the business and tech industries to find a path forward that respects the interests of both. We’ve seen similar efforts among advertisers working with the creative industry to stop the flow of ad money to pirate sites. Another example of this trend were the recent House Judiciary Committee copyright “listening tour” roundtables where the perspectives of “a wide range of creators, innovators, technology professionals, and users of copyrighted” were heard.
Despite ongoing efforts by many to bridge the gaps and find consensus on ways to find workable solutions to issues like online piracy, the EFF seems committed to the position that finding “compromise” is an untenable approach. The organization routinely targets any–and all– attempts to tame bad behavior in the Wild West corners of today’s internet. No matter whether legislative initiatives or stakeholders developing voluntary best practices, the EFF response is always a resounding, “NO!”
The EFF’s response to any progress made to safeguard online commerce resembles ‘Chicken Little’s’ Henny Penny. It’s an act that’s growing old. Perhaps it’s time the EFF to take a page from The Day No One Played Together instead.
There is common ground to be found, if only we are willing to look. The agreement between the MPAA and Donuts may well provide a good blueprint for where we can begin.
The reports also notes that it has focused on providing, “Clean results for media-related queries users actually type: Thanks to the efforts of Google’s engineers, the vast majority of media-related queries that users submit every day return results that include only legitimate sites.”
