by Ellen Seidler | Copyright, Film, Google, Law, Piracy
Chilling Effects reposts infringing links removed from Google. Why no consequences?
Earlier this week I sent Chilling Effects a DMCA takedown notice*, requesting that the site remove links that lead directly to a pirated stream of our film, And Then Came Lola. How did the pirate link make its way to Chilling Effects? Well, it’s not a new tale. In fact, I’ve repeatedly written about the fact that pirate links reported (and removed) by Google search are routinely reposted on Chilling Effects. Google even goes so far as to provide a direct link to the notice (and the infringing links) so as not to inconvenience its users.
In the short video clip below I document just how quickly–and easily–it was to navigate from Google to Chilling Effects to the illegal, embedded stream of our film. It took me a mere 10 seconds to complete the journey from Google-to Chilling Effects-to the illegal stream of our film.
I sent the original DMCA notice to Google on April 23, 2015 and two weeks later, the pirate links were reborn via a posted copy of DMCA notice sent to Google, courtesy of Chilling Effects. How Chilling Effects can get away with this behavior is beyond me, but I imagine the legal staff at the Berkman Center at Harvard, my alma mater, are careful to operate within the confines—if not the intent–of the DMCA’s “safe harbor” provision.
It’s worth noting that in order to be protected by safe harbor, site operators must comply with the following requirements (via Reporters Committee for Freedom of the Press):
These safe harbor provisions could provide valuable protection to you as a web site operator. In order to take advantage of them, however, you must comply with three administrative requirements:
- You must designate an agent, usually yourself though it may be someone else who agrees to do so, to receive notices of claimed copyright infringement. Your agent must provide up-to-date contact information so that copyright owners who believe their work is being infringed on your site can send complaints or take-down notices to him or her. To designate an agent, a procedural requirement for protection under the DMCA safe harbor provisions, you must file an interim designation with the U.S. Copyright Office and submit a $105 filing fee.
- You must publish on your site your policy for addressing repeated infringing activity, specifically a statement that you terminate users or account holders who are repeat infringers. If you have no subscribers or account holders, your policy may state, “If we become aware that one of our users is a repeat copyright infringer, it is our policy to take reasonable steps within our power to terminate that user.” Including the policy statement in the web site’s terms of service or privacy agreements makes logical sense, though it may be published elsewhere on the site.
- You must properly comply with a notice of claimed infringement when received, including
- the expeditious removal of the material that is claimed to be infringing;
- notification to the user or subscriber that the material has been removed;
- notification to the copyright holder if proper counter-notice is provided by the user or subscriber; and
- restoration of the removed material if proper counter-notice is provided, and the copyright holder does not file suit within 10 days.
Why doesn’t Chilling Effects make it easy to find email address to send takedown notices to?
Prior to sending my DMCA notice to the good people at Chilling Effects, I attempted to searc
h the site for an email address to send the notice to. When I couldn’t find one even after searching Google using the terms–chilling effects “DMCA agent”— I resorted to sending my notice to the only email listed on the site’s about page, [email protected].*
Update 5-8-15: Today, after receiving no response to my original notice, I forwarded a copy to the Berkman Center For Internet & Society. Shortly thereafter I received an email with a link to Chilling Effects legal policies page (https://www.chillingeffects.org/pages/legal). Of course, that was not the end of my journey. In order to get the actual email for CE’s acting DMCA agent I had to click another link (http://www.harvard.edu/reporting-copyright-infringements) and visit yet another website–this one a copyright infringement page hosted by Harvard University at Harvard.edu. Note that the Harvard page includes this verbiage:
In accordance with the Digital Millennium Copyright Act (“DMCA”), Pub. L. 105-304, Harvard has designated an agent to receive notification of alleged copyright infringement occurring in the harvard.edu domain. If you believe that your copyrighted work is being infringed, notify our designated agent specified below.
Hmmm, so I guess, technically, ChillingEffects.org is actually a Harvard.edu domain? Color me confused. Not exactly an efficient– nor transparent–way for Chilling Effects to inform people about its own DMCA takedown process.
Chilling Effects obfuscation of its own DMCA agent information is ironic given its mission is to make the takedown process transparent. Why, when it comes to its own site, do they hinder user’s ability to lawfully protect their copyrighted work from online pirates?
Chilling Effects is an independent 3rd party research project studying cease and desist letters concerning online content. We collect and analyze complaints about online activity, especially requests to remove content from online. Our goals are to educate the public, to facilitate research about the different kinds of complaints and requests for removal–both legitimate and questionable–that are being sent to Internet publishers and service providers, and to provide as much transparency as possible about the “ecology” of such notices, in terms of who is sending them and why, and to what effect.
Perhaps those who work at Chilling Effects (and the lawyers who advise them) believe that the database’s work falls outside that of the “service providers” as defined by the DMCA.
Until someone with deep pockets can take them to task, Chilling Effects is apparently quite willing to create its own ecology, above the law, where pirate links are reborn and disseminated. The Chilling Effects database may be used for legitimate research, but in its current form, it also gives users one of the most efficient piracy search engines around.
*Update: Today, Friday, May 8th I forwarded my DMCA notice to [email protected] which apparently serves as the DMCA agent for Chilling Effects.
by Ellen Seidler | Copyright, Film, Law, Piracy, Tech
PayPal has finally ceased doing business with Kim Dotcom’s Mega site and he’s pouting about it. The man who has made millions be monetizing content stolen from others continues to assert that Mega is a legit cloud-based service and that its operations are legal. A statement posted on the site announcing that, “PayPal has ceased processing MEGA customer payments effective immediately…” also makes the claim that the cyberlocker site is being unfairly targeted:
MEGA has demonstrated that it is as compliant with its legal obligations as USA cloud storage services operated by Google, Microsoft, Apple, Dropbox, Box, Spideroak etc, but PayPal has advised that MEGA’s “unique encryption model” presents an insurmountable difficulty. The encryption models claimed by various USA and other entities apparently do not represent any problem to PayPal or the parties behind PayPal.
Nice try but even if you dress a wolf in sheep’s clothing he’s still just a wolf. It’s important to note that Mega rose from the ashes of Megaupload, the granddaddy of cyberlockers where the piracy for profit model was perfected and later copied by dozens of other online entrepreneurial thieves. 
After the feds shut the site down in January of 2012, Dotcom got busy working a better way to circumvent copyright law and a year later launched a more nefarious piracy for profit site named Mega. The site uses encryption technology to protect its users (and site operators) from prying eyes. Dotcom claims Mega is full of folks’ baby pictures and the like, but in reality its business model continues to provide pirates with a profitable, and protected, haven for their transactions.
Until PayPal’s recent departure, officials at Mega even pointed to the relationship with the payment processor as a sign that Mega was “legit.” In response to charges in a study published last September by NetNames and the Digital Citizens Alliance, Mega CEO Graham Gaylard told TorrentFreak:
“We consider the report grossly untrue and highly defamatory of Mega…Mega has been accepted by PayPal because we were able to show that we are a legitimate cloud storage site. Mega has a productive and respected relationship with PayPal, demonstrating the validity of Mega’s business…”
For the past few years payment processors like Visa, Mastercard and PayPal have come under increasing scrutiny for their role in facilitating (and profiting from) pirate-linked transactions. Following publication of the NetNames study, Senator Patrick Leahy, Chairman of the Senate Judiciary Committee at the time, sent letters to the head of both Mastercard and Visa urging that the companies sever ties with piracy operations.
I’ve been reporting on this issue since 2010, and while some progress has been made as processors have severed ties with many of the worst offenders, much work remains. According to the study, PayPal was singled out for its business dealings with Dotcom:
PayPal was offered as payment option on only one site (Mega). This represents a major change in the cyberlocker universe compared to just three years ago. The fact that the vast majority of cyberlocker sites do not attempt to take PayPal through hidden or disguised means demonstrates that the payment method is not even considered as an option for accepting subscription payments.
Dropvideo still depends on PayPal
Apparently PayPal officials finally decided that doing business with Mega was no longer an option. Unfortunately, aside from Mega, PayPal’s involvement with pirate sites persists and extends beyond offering subscribers a way to pay for services.
PayPal remains an important cog in the the flow of money that’s central to the business model Dotcom perfected on Megaupload. It was essentially a pyramid scheme as I explained in this blog post from 2011. Basically, cyberlocker affiliates provide the fuel that drive the piracy machine. Individuals sign who up to be cyberlocker affiliates earn money for uploading (stolen) content based on the number of times a file was downloaded. They can also earn commissions for attracting other to enroll in various cyberlocker account offerings. Affiliate payments continue to be the lifeblood that sustain the cyberlocker eco-system and PayPal continues a popular means for affiliates to receive payment for their role in bringing traffic to sites. According to the NetNames report:
…PayPal is still used by some sites for affiliate or reward scheme payments. Of the thirteen sites that offered an affiliate scheme, eight (61.5 percent) offered PayPal as a way for affiliates to receive their payments (other online payment systems such as WebMoney and Payza were also used but PayPal was the most popular).
This morning I took a quick look at Dropvideo.com, a cyberlocker I’d recently sent DMCA notices to. Sure enough, they use PayPal for their affiliate payments. So while PayPal has distanced itself from Mega, the company still has a long way to go to clean up its dirty piracy profits.
by Ellen Seidler | Copyright, Film, Law, Piracy
Photo via http://commons.wikimedia.org/
Piracy apologists love to pull out the Robin Hood card in order to justify their theft. After all who cares about all those rich people in Hollywood right? Wrong….a fact which the MPAA’s Chris Dodd pointed out in piece published in Variety this week:
Two million people get up every morning in all 50 states to go to work in good-paying jobs. Few will ever walk a red carpet, but their jobs are in jeopardy because of piracy.
When we talk about stolen property like pirated films or shows, I think the assumption is these are wealthy people, so what difference does it make if I steal from them? There’s not an understanding that 96% are hard-working, middle-income families paying mortgages and trying to educate their kids.
Like any other industry, the American film industry depends on its worker bees to make its products. In turn, those workers depend on a healthy film industry for their paychecks.
In fact, one of the reasons Hollywood became such a successful cog in the U.S. economy was because the studio system that emerged in the early part of the 20th century was really a factory system modeled after Henry Ford’s automobile assembly line. In Hollywood’s studio system, each worker played a specific role in the film production (or manufacturing) process.
At their peak, Hollywood studios were producing hundreds of movies each year. Last year, the six major studios produced only 120 movies. Contrast that with the 204 produced in 2006. Fewer films means fewer jobs on the production line for Hollywood’s 96%.
Looking back, it’s also worth noting that a thriving movie industry allowed some of the greatest American movies of all time to be made. As noted in Wikipedia:
Many film historians have remarked upon the many great works of cinema that emerged from this period of highly regimented film-making. One reason this was possible is that, with so many films being made, not every one had to be a big hit. A studio could gamble on a medium-budget feature with a good script and relatively unknown actors: Citizen Kane, directed by Orson Welles and often regarded as the greatest film of all time, fits that description.
The more income studio’s generate, the more chances they can take to finance less mainstream movies. When losses due to online piracy undermine the industry, it also undermines the diversity of choices that movie lovers appreciate. In lieu of funding less mainstream fare, studios stick with formulaic flicks that generate big bucks opening weekend (before piracy can dilute audiences). The sad thing is that we won’t know what we’re missing because it’s not made. In the future films like Citizen Kane may never see the light of day.
Of course, new ways of producing and distributing films online are taking hold, but even the new guard is suffering from the scourge of online piracy. As Netflix CEO Reed Hastings wrote in a recent letter to shareholders, “Piracy continues to be one of our biggest competitors.” He pointed to Popcorn Time, a platform that makes viewing pirated films as easy as watching one on Netflix as evidence of the damage being done.
Online piracy not only diminishes livelihoods, but consumer choices and unless we can limit the losses, the picture will only grow dimmer. In the end, we may well be left with only cute cat videos on YouTube to entertain us. Piracy hurts everyone.
by Ellen Seidler | Copyright, Google, Law, Piracy
For those of you who still depend on the Chilling Effects search to find your pirated content, don’t worry, the DMCA database is still alive and well, ready to offer you a streamlined way to find illegal content online. Earlier this month Torrent Freak headlines claimed that the archive had “censored itself” and warned that the move was “a telling example of how pressure from rightsholders causes a chilling effect on free speech.” Hyperbole much? Here’s the truth.
Chilling Effects has, for the time being, de-indexed “individual notice pages” from search engines results. In a blog post, the move was explained this way:
Given increased public attention on the project, the wide variety of notices and types of claims that we catalog, and the sheer number of notices included in Chilling Effects’ database, we decided to take the interim step of de-indexing the site’s individual notice pages from search engines’ search results. Now that we have taken this step, we are hard at work building new tools and workflows that will allow us to better achieve the balance we are constantly seeking to strike between our dual missions of transparency and educating the public (on the one hand) and the strongly-felt concerns of those who send takedown notices (on the other).
Sounds nice, but the real impact of this move on creators’ rights is minor. Neither Torrent Freak nor Chilling Effects mentioned that the “balance” the folks at Chilling Effects are trying to strike includes continuing to operate a search engine that provides a direct line to illegal content.
Chilling Effects is a Where to Watch for pirated movies
In fact, it’s so easy to use that Chilling Effects’ search engine should be called a “Where to Watch” for pirate movies. I’ve written about this fact before, but given the recent hyperbolic hullabaloo I’d thought I’d take another look to see if anything has really changed? The answer is NO.
Search results removed from Google are replaced by direct link to DMCA notice containing original pirate link.
Not only does the Chilling Effects database search engine make it easy to find pirated movies, its benefactor Google, still includes referral links to when its search results are removed due to DMCA notices. For both sites it’s business as usual.
As I wrote in an earlier post, here’s how Google makes sure users are not inconvenienced by DMCA removals:
- Search for a free (pirated) movie
- Review results and find one removed due to a DMCA notice, the link replaced by this statement:
- Click the link “read the DMCA complaint.”
- Arrive at a list that includes the missing pirate link along with a bunch of others infringing links (courtesy of Chilling Effects)
- Click one of the listed pirate links and go directly to (free) movie
Chilling Effects own search provides users with an uncluttered path to piracy.
Finding pirated music and movies via Google search requires persistence since one has to comb through various types of results to find actual live links. In contrast, hop over to Chilling Effects and voilà , most every result is a stripped down list of URLs reported for piracy. It’s a simple and direct path to pirate URLs that, in fact, are vetted by rightholders (via their DMCA notices).
After the Torrent Freak headlines hit the web I went to Chilling Effects and did a search for the recently released “Boyhood.” Using Chilling Effects’ search results, it only took me a couple of minutes to find a streaming version of the film online. Google and Chilling Effects remain partners in piracy, having perfected a shell game that makes a mockery of creators’ rights and the DMCA.
For now, Chilling Effects remains what it has long been–a site where pirate links are eternal.
by Ellen Seidler | Ad Sponsored Piracy, Copyright, Film, Google, Law, Piracy, Tech
Google releases another self-serving piracy report
On Friday Google announced an update to last year’s “How Google Fights Piracy” that included this claim:
In October 2014, we have improved and refined the DMCA demotion signal in search results, increasing the effectiveness of just one tool rightsholders have at their disposal.
Given that last year’s report was little more than a puff-piece designed to deflect growing criticism that Google is, in fact, a major enabler of online piracy--and profits from it in various ways–this new report seems to be more Silicon Valley search giant spin.
Google’s piracy report begins by crowing about how many billions artists have made thanks to its YouTube platform. No mention, of course, how many billions Google has pocketed thanks to said content and the billions more it continues to earn off the millions of infringing video and music clips posted annually to the site. Take a look at YouTube any day of the week and you’ll find infringing content laden with advertisements. Where does that profit go? It ends up in the pirate’s pockets and Google coffers.
Yes, the company has instituted a Content ID system but remember it did so only after enormous pressure (and lawsuits) from those whose work was being ripped off right and left. Even that system puts the burden on creators to sign up and constantly monitor YouTube for infringements. Not every creators has the wherewithal, or the time, to act as a security guard for their own work. Wouldn’t we prefer they be creating more music or films?
Google uses the report to pat itself on the back for testimony given last March by Google’s Senior Copyright Policy Counsel Katherine Oyama before the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet:
In our testimony, we note our own experiences with the notice-and-takedown process, and highlight its importance in a developing media landscape where online platforms are creating more and more opportunities for creators every year.
Great, so you’re helping create an online landscape that offers more opportunities to creators….sure, if you’re a creator of cat videos.
She also gave a rosy assessment of how well the DMCA works for everyone:
The DMCA’s shared responsibility approach works. Copyright holders identify infringement and,if they choose, request its removal. Upon notification, online service providers remove or disable access to the infringing material. This approach makes sense, as only copyright holders know what material they own, what they have licensed, and where they want their works to appear online. Service providers cannot by themselves determine whether a given use is infringing.
Perhaps the last line should read, “Service providers have chosen not to make any attempt to determine whether a given use is infringing even after its reported as being such.” As the RIAA noted in a point by point rebuttal rebuttal of her testimony:
The DMCA did not intend for service providers like Google to get away with indexing rogue sites again and again after clear notice of rampant
infringement, creating an endless source of frustration for copyright owners.
There’s no doubt that the “safe harbor” provisions of the DMCA has given companies like Google the freedom to build a business model dependent, to a large extent, on copyright infringement to fuel its growth. It’s a landscape where content creators are at a distinct disadvantage from the get go. In the online world, filmmakers, musicians and other creators–and not the uploader–have to prove they are the rightful owners of uploaded content. In what other universe are property owners at such a disadvantage? If Google wants to use another company’s software in one of its products, do its engineers just take it when another company owns rights to it? Probably not. They seek a license (or buy the company outright).
But I digress…back to Google’s updated report. Google touts how efficient and streamlined its online content removal process is and notes that 80 companies have access to a “trusted submitter” program which streamlines the process of notice and takedown:
In addition to the public content removal web form for copyright owners who have a proven track record of submitting accurate notices and who have a consistent need to submit thousands of URLs each day, Google created the Trusted Copyright Removal Program for Web Search (TCRP). This program streamlines the submission process, allowing copyright owners or their enforcement agents to submit large volumes of URLs on a consistent basis. There are now more than 80 TCRP partners, who together submit the vast majority of notices every year.
What about those of us who don’t have access to this TCRP program? There are plenty of content creators who find their work pirated repeatedly on various Google platforms, from Blogger to search, who are forced to send in DMCA notices via a web form over and over again. (FYI this “efficient” form doesn’t even allow for auto-fill of submitters name and contact information). I’ve written about how inefficient Google’s takedown procedure is for those of us who aren’t “trusted submitters” and frankly, it sucks. I included this slide show in a post I wrote earlier this year explaining just how difficult it was to remove pirated content from Google’s Blogger platform. Efficient is not an adjective I would use.
[rev_slider Google_DMCA_circus]
In another demonstration of how Google is adept at transforming a sow’s ear into a silk purse, the report touts the rise in takedown requests as a great thing, not a sign of just how rampant online theft is on Google platforms:
Since launching new submission tools for copyright owners and their agents in 2011, we have seen remarkable growth in the number of pages that copyright owners have asked us to remove from search results. [emphasis added] In fact, today we receive removal requests for more URLs every week than we did in the twelve years from 1998 to 2010 combined. At the same time, Google is processing the notices we receive for Search faster than ever before—currently, on average, in less than six hours.
Rather than celebrate how they’ve responded to a growth in the number of takedown notices received and processed (not something to brag about IMHO) why not work toward creating an online environment where it would not be necessary for rights holders to send DMCA notices time and time again, often for the same pirate website and duplicate infringing links? As the RIAA noted in its response to Oyama’s testimony:
… we’ve sent more than 2 million notices to Google regarding illegal site mp3skull.com, and yet Google still lists mp3skull at the top of search results when users search for an artist’s name + song title + ‘download.’ Google still has a lot of work to do in this area.
In its report Google repeats its tired claim that “search is not a major driver of traffic to pirate sites.” Maybe in Google’s world, but not in the real one. As the MPAA study, Understanding the Role of Search in Online Piracy points out:
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.
No matter how Google frames it, the basic truth is that Google search remains a path to piracy, a fact even piracy websites acknowledge and as I noted in an earlier blog post.
In its sidebar, the website (primewire.ag) has posted a poll asking this question: How did you find us through our new name?
According to the results users turned, in large numbers, to that tried and true source for pirated content worldwide, Google search. Nearly 200,000 (29.88 %) users chose Google as their path to the site, second only to word of mouth which took top honors at 43%. While the poll is not scientific, it does provide more anecdotal evidence to what most believe to be true, Google is a major sign post on the path to online piracy. Even when pirate sites run into trouble with other pirates hacking and stealing their domains (ironic isn’t it), leave it to Google to come to the rescue.
Yes, Google still does have a lot of work to do in this area. Until then, reports like the “update” released last week mean nothing beyond fuel for the PR spin machine. The proof is in the pudding and right now the ingredients are still in the box, on the shelf, waiting for Google to get real in the fight against online piracy (for profit).
Earlier this week I sent Chilling Effects a DMCA takedown notice*, requesting that the site remove links that lead directly to a pirated stream of our film, And Then Came Lola. How did the pirate link make its way to Chilling Effects? Well, it’s not a new tale. In fact, I’ve repeatedly written about the fact that pirate links reported (and removed) by Google search are routinely reposted on Chilling Effects. Google even goes so far as to provide a direct link to the notice (and the infringing links) so as not to inconvenience its users.
h the site for an email address to send the notice to. When I couldn’t find one even after searching Google using the terms–chilling effects “DMCA agent”— I resorted to sending my notice to the only email listed on the site’s about page, [email protected].*
Until someone with deep pockets can take them to task, Chilling Effects is apparently quite willing to create its own ecology, above the law, where pirate links are reborn and disseminated. The Chilling Effects database may be used for legitimate research, but in its current form, it also gives users one of the most efficient piracy search engines around.
