by Ellen Seidler | Copyright, Film, Law, Piracy
If you can’t beat ’em, join ’em. Some cyberlocker websites that offer file storage, do (eventually) respond to DMCA takedown notices, but in an ironic final twist, a fair number of them have found a way to use copyright violation notifications to their advantage–monetizing requests via pop-up ads.
Examples are easy to find. Today I went to a notorious download site that offers download/streaming links to any number of popular (recent) films. I chose to find links for the Oscar-nominated “Silver Linings Playbook.” If you look at the column on the left, you’ll see more than 2 dozen links to view and/or download the film. I did not check them all, and imagine some have already been removed by studio anti-piracy efforts.
For purposes of this piece, I chose a link hosted on a site called “Faststream.in” When I clicked the link I arrived at a splash page that offered a stream of the film. I could click the button “proceed to video” be bombarded with ads before watching the film. However, what happens when the rights holder wants to send a DMCA notice to the site? On this site there’s no DMCA option provided, only a “contact” link. Click that and (cha-ching) a pop-up ad appears. To access the actual contact page, you have to close the ad.
I’ve come across many sites that utilize the same setup. I suppose that if a site is going to lose its carrot to attract ad clicks, operators may as well make some money in the process. Aside from earning cash from clicks, this cumbersome procedure also makes sending a legit DMCA notice a time-consuming, and thus expensive, proposition. I checked the U.S. Copyright Office list of designated agents to determine if this site had registered one. No listing was found, so using this contact page–for each and every takedown request– appears to be the only way to contact the site to send a takedown notice. No wonder the movie is still online.
I checked the WHOIS information to see if their was any contact information and found that the domain was registered by a Jeremiah Haselberg of PiratePoint.Ltd. in Canada. At least he’s honest about the nature of his entrepreneurial activities eh? Or maybe he’s just named his company after a favored vacation spot, Pirates Point Resort in the Caymen Islands….a “safe harbor” in more ways than one.
Aside from making money off DMCA takedown requests, this site is follows the traditional cyberlocker pirate business model, incentivizing infringing uploads with cash rewards.
It’s bad enough that rights holders have to police these sites to safeguard their work, but adding to their coffers in the process only adds insult to injury. Such is the nature of online piracy today.
by Ellen Seidler | Copyright
“Oh what a tangled web we weave, when first we practice to deceive.”
— Sir Walter Scott
Surprise, surprise–Google announced today that its profits “surged” this quarter thanks to an increase in online advertising revenue. A company press release heralded the report:
We ended 2012 with a strong quarter,” said Larry Page, CEO of Google. “Revenues were up 36% year-on-year, and 8% quarter-on-quarter. And we hit $50 billion in revenues for the first time last year – not a bad achievement in just a decade and a half. In today’s multi-screen world we face tremendous opportunities as a technology company focused on user benefit. It’s an incredibly exciting time to be at Google.”
The company’s stock price jumped nearly 5% on the news. So, while Google executives and its shareholders are happy, one has to ask–how much of that “revenue” continues to come from not-so-ethical sources? I hate to sound like a broken record, but until Google gets its act together, I will continue to point out its duplicity with regard to online piracy and its ad revenue.
In the wake of this bullish news from Google I thought I’d point out a recent case study that demonstrates the myriad of ways Google supports (and profits from) piracy. This particular pirate movie website (shown below) is hosted on Google’s free “Blogger” platform. As with most other posts on the site, this one (published 1-18-13) features an embedded movie (a complete version of the indie film David’s Birthday) hosted via Google’s YouTube. The advertising above, and to the right of the embedded film, is served up by Google’s AdSense. Oh, and I found this site using Google’s search engine.
This Google-hosted blog features pirated films hosted on YouTube as well as AdSense advertising.
What makes this situation particularly troubling is that this blog had already been reported to Google (via their DMCA system) in December of 2012.
After receiving a takedown notice from Google the site’s owner posted a response, saying that he was considering closing it.
Blogger site owner received this notice from Google. Despite the warning and repeated violations of Blogger “Terms of Use” the site remains online.
He apparently had a change of heart, and within a few days, resumed posting (infringing) content on his site –including (ironically) the aforementioned “David’s Birthday” despite its having been cited in the December DMCA notice. This time, instead of posting infringing download links, he’s chosen to embed movies streamed via YouTube, each coupled with AdSense ads.
So, despite having been reported for multiple infringing links, the site remains up and running. In the meantime, Google appears to be in no hurry to take it offline. Don’t they have an obligation to remove the site? The language in Blogger’s Terms of Service outlining their “content policy” is conveniently vague. When a site violates its policy Google promises to take action “based on the severity of the violation” but it’s not really clear what criteria is used to measure the “severity” of a reported violation.
Blogger’s terms of service
As for the AdSense, its “Terms of Service” seem pretty straightforward. Well, sort of…
Prohibited Uses. You shall not, and shall not authorize or encourage any third party to…
(v) display any Ad(s), Link(s), or Referral Button(s) on any Web page or any Web site that contains any pornographic, hate-related, violent, or illegal content;
6. Termination; Cancellation…Google may investigate any activity that may violate this Agreement. Google may at any time, in its sole discretion, terminate all or part of the Program, terminate this Agreement, or suspend or terminate the participation of any Property in all or part of the Program for any reason.
Since Google seems to have “investigated” this website in response to multiple DMCA notices, why is this AdSense account allowed to remain active? Does the aggrieved party have to file a DMCA with Blogger and with AdSense over and over again? It’s hard to imagine that Google’s copyright “team” isn’t aware these violations. Does Google not have the money to hire staff to follow-up on reported sites to enforce compliance? Is Google complying with U.S. law? What is meant by the caveat “its [Google’s] sole discretion?”
Does looking at the actual law clarify matters? According to Title 17 of U.S. Copyright Law, “conditions for eligibility” for “limitations on liability” include:
(i) Conditions for Eligibility.—
(1) Accommodation of technology. — The limitations on liability established by this section shall apply to a service provider only if the service provider —
(A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers; (emphasis added)
How exactly does Google define a “repeat infringer?” They apparently don’t.
In a post published in September of 2011 on its own Public Policy Blog entitled “Making Copyright Work Better Online-A Progress Report,” Google gave itself a pat on the back, asserting that the company had made great strides in discouraging ad-sponsored piracy.
Improving our AdSense anti-piracy review. We have always prohibited the use of our AdSense program on web pages that provide infringing materials, and we routinely terminate publishers who violate our policies. In recent months, we have worked hard to improve our internal enforcement procedures. In April, we were among the first companies to certify compliance in the Interactive Advertising Bureau’s (IAB’s) Quality Assurance Certification program, through which participating advertising companies will take steps to enhance buyer control over the placement and context of advertising and build brand safety. In addition, we have invited rightsholder associations to identify their top priority sites for immediate review, and have acted on those tips when we have received them.
Sounds good right? On paper perhaps, but given the continued and pervasive presence of Google-sponsored advertising on pirate sites throughout the web, the reality is that Google’s public pledge appears to be carefully crafted lip-service designed to obfuscate the facts, rather than a representation of any meaningful progress.
Over the past two and a half years I’ve written extensively about Google’s ongoing link to ad piracy profits. Earlier this month USC’s Annenberg Innovation Lab released a report documenting the fact that search giant is at the head of the pack when it comes to monetizing (and subsidizing) online piracy via its ad networks. The relationship between Google and online piracy seems clear as day.
Yet, in the meantime–Google apparently plays fast and loose with the DMCA’s “safe harbor” provision. Given the fact they have teams of lawyers, one has to assume the company is careful to follow the letter of the law, but certainly not the spirit of it. Did the legislators who crafted the DMCA really intend for the law to enable entities like Google to hide behind the shield of safe harbor, under the guise of “innovation and free expression”–while simultaneously make (lots of) money monetizing stolen content? I doubt it.
Even the advertising industry recognizes that this is a area of concern. In May of last year The Association of National Advertisers (ANA) and the America Association of Advertising Agencies (4A’s) issued a statement entitled, “Best Practices to Address Online Piracy and Counterfeiting.” The statement included the following:
(i) All such intermediaries shall use commercially reasonable measures to prevent ads from being placed on such sites;
(ii) All such intermediaries shall have and implement commercially reasonable processes for removing or excluding such sites from their services, and for expeditiously terminating non-compliant ad placements, in response to reasonable and sufficiently detailed complaints or notices from rights holders and advertisers;
(iii) All such intermediaries shall refund or credit the advertiser for the fees, costs and/or value associated with non-compliant ad placements, or provide alternative remediation.
So, back to Google. Would a “reasonable measure” include removing AdSense ads from a site reported for piracy? What about reimbursing the advertiser who paid Google for these “non-compliant” ads and how does the fact Blogger is a Google-hosted site factor in? Should ad services do business with hosts that routinely serve pirated ads? In other words, should Google (AdSense) do business with itself (Blogger) if they are to honor these “best practices?”
My head is spinning. I guess that’s just the way the powers that be at Google like it.
by Ellen Seidler | Copyright
I was pleased to read today’s “Advertising Transparency Report” issued by USC’s Annenberg Innovation Lab that documents the flow of ad dollars from legit companies to pirate websites. According to the report:
…many major brands are not aware that they are in fact the key source of funds for the Piracy industry, it is the goal of this “transparency report” to aid in helping these brands steer their ad dollars away from sites that exploit film, TV and music artists for what appears to be criminal gain.
Though I applaud the report’s overall findings that ad dollars incentivize and subsidize online piracy, I question the conclusion that “major brands” were not “aware that they are in fact the key source of funds for the Piracy industry.” As I’ve noted in the past, advertisers are usually extremely careful, and cognizant, about where their advertising appears. Why the sudden lack of concern for their ad placements online?
More than two years ago I was inspired to start the blog, Popup Pirates (www.popuppirates.com), to document this very issue. As an indie filmmaker facing piracy, it didn’t take me long to recognize there was a major link between ad dollars and the growth of online piracy. In the blog I attempted to answer the question “Who Profits from Piracy?” From my introduction:
Online piracy isn’t about altruism, it’s about income. Today’s technology allows web pirates to steal content and monetize that content with a click of a mouse. Meanwhile, “legit” companies encourage and facilitate this theft while also profiting from it (ad service providers, advertisers and payment processors). The time has come for reasonable measures to be taken to discourage this theft. Content creators and consumers will benefit. Only the pirates and those who profit from their theft will lose.
I wrote that in June of 2010. Yet here we are, nearly three years later, and what has changed? Reading the latest news, it appears the answer is, “not much.” According to the LA Times Levi’s was said to surprised by the report’s findings and contacted their ad agency and instructed them to take immediate action to prevent their ads from appear on illegal file-sharing websites. Was Levi’s really surprised–and more important–will other companies finally follow their lead and become vigilant in preventing their ads from appearing on pirate websites? Forgive me if I remain skeptical. The fact that ad dollars fuel online piracy is not news.
Here’s a video I put together based on a presentation I gave at Canadian Music Week’s Global Forum in the spring of 2011. It documents my journey through the labyrinth of online piracy and its undeniable link to advertising revenues. Follow the money…
Some progress has been made since then, most notably, last year’s takedown of Megaupload–the Big Daddy of illegal file sharing. It’s worth noting at this juncture, that Megaupload’s millions were generated in large measure by ad dollars (as well as subscription fees). Numerous copycat websites have sprung up to fill the void left by Megaupload, and they too depend business models sustained by advertising dollars. With the demise of legislative efforts to address this black market, content creators are left with little recourse.
Back in 2010 I attempted to contact advertisers like Netflix and others whose ads were, and still are, ubiquitous on numerous illegal download sites. Most of my efforts were ignored, but on July of 2010, after NPR aired a story about my blog on “All Things Considered” that mentioned Netflix ads; I received an email from Steve Swasey, their VP of Corporate Communications who wrote the following:
Netflix does not tolerate piracy and we do not support pirate sites. We are very clear with our advertising agencies and affiliate partners about this. Sometimes ads slip through and when this happens, we react swiftly and decisively, removing the ad and not paying the site.
Again, that was over two years ago. Yet here’s an example of a Netflix ad (served by Google) on a pirate site I posted on this blog last month. The ad appears alongside an embedded, full stream of a pirated film, “Kyss Mig.” As I said, not much seems to have changed.
We’ll see if this latest report from Annenberg precipitates real change. I did take heart by looking at the results of an unofficial poll that accompanied the LA Times piece asking readers: “Should brands avoid advertising on so-called pirate sites?” As of now, 63% said yes, while 37% said no.
Perhaps there’s reason to hope, that at long last, the balance could shift away from an insidious equation where everyone, except the actual content creators, make money from online theft. When presented with clear and tangible evidence, the public seems to be on the side of creators. Yet in this game, for any real progress to be made, the ball remains squarely in the advertisers’ court.
