Category: Intellectual Property

Maybe Google Means “See No Evil”

Yesterday, Google chairman Eric Schmidt was interviewed on public radio and simulcast on Google Hangouts.  WAMU’s Diane Rhem threw softballs, slow and over the plate at Schmidt, providing a friendly platform for the chairman to evangelize the many ways Google makes the world a better place.  Coincidentally, I happened to be editing the following:

For those who don’t know, ChillingEffects.org is a database and website managed by the Electronic Frontier Foundation and The Berkman Center for Internet & Society.  It is a presumptive watchdog over the presumptive misuse of DMCA takedown notices — the implication being that free expression is “chilled” whenever such an abuse takes place.  In principle, this might seem like a reasonable thing for the EFF to oversee; after all, we don’t want free speech to get chilly, even if there is diminishing hope that speech is necessarily getting anymore valuable in the digital age.  But it turns out that whenever, say, Google receives a DMCA takedown notice for a link to infringing material, every one of these complaints is sent to ChillingEffects so that users are, in principle anyway, able to read the details of the complaint from the notice sender.   So for example, if you were to search the term “Expendables III,” which was weeks ago leaked before its theatrical release, you would find among the search results a notice from Google that reads as follows:

In response to a complaint we received under the US Digital Millennium Copyright Act, we have removed 1 result(s) from this page. If you wish, you may read the DMCA complaint that caused the removal(s) at ChillingEffects.org.

In many cases, the link to the complaint will not provide the user with much information, and it’s a bit of a mystery what most users might do with the information anyway.  After all, if you’re the creator of a file like a YouTube video that is taken down by a rights holder, you can have access to the information needed to rectify the fault, if indeed it was a false claim.  What’s truly obnoxious about this notice, and even the name ChillingEffects itself, is the not-very-subtle implication that DMCA takedowns are by default abusive and generally chill free expression. Ya see what they did there?  And by they, I mean Google, which funds ChillingEffects to no one’s surprise I’m sure.  Now, enter the Hollywood hacked photo scandal and a twist on that story that, as Eriq Gardner recently wrote for The Hollywood Reporter, “might reveal something about Google’s policies toward flagged copyrighted content.”

What Garder is referring to is the fact that former Kate Upton beau, Detroit Tigers pitcher Justin Verlander, delivered via his attorneys takedown notices identifying 461 URLs that were hosting racy photos of him and Upton. Of those URLs, Google removed links to 51%, drawing a distinction, according to Gardner, between nude photos and racy-but-clothed photos, irrespective of the fact that all of the photos in question were indeed stolen and are being published without permission.  Never ones to lose an opportunity to be complete tossers about copyright, Google is supposedly relying on an untested legal theory that the copyright holder of a selfie can only be the button pusher at the time of the taking.  This seems hardly relevant with regard to the matter of just acting like decent human beings; if images are known to be stolen, and the subject(s) of those images request that your for-profit search business remove links to them, you ought to do it on principle alone.  But this is not the mindset of the web industry despite its many self-aggrandizing proclamations as the engineers of social change for good.

Google seems to be concerned with a much higher principle than invading the privacy of a baseball star, a supermodel, or frankly you or me, and that’s the principle of doing whatever the hell it wants without consequences.  I think Gardner is right and that Google would love nothing more than a court case to affirm its position that these photos, though acquired illegally, are not the intellectual property of Mr. Verlander and that he, therefore, has no right to request their removal under DMCA.  This could even prove to be technically accurate; the copyright owner of a photo is the individual who exercises sufficient creative control (not the button pusher), so these images could still be the intellectual property of Miss Upton if indeed they were hacked from her account.  But that doesn’t mean Google isn’t benefitting from traffic driven by a prurient interest in seeing photos that were stolen and believed to be secure by their owners.  And Gardner also raises a valid point about ChillingEffects when he writes, “Google has in effect provided a road map for any voyeur looking for sites that refuse to remove stolen photos.”

All of this falls within the scope of the broad agenda maintained and well-funded by the Internet industry to foster a policy of “anything goes.”  As long as we allow them to gloss over privacy invasions, infringements on intellectual property, and profiting from social harm in the name of free speech, we only end up harming free speech in the long run.

Talking Cyberlockers with Dr. David Price (Podcast)

This time last year, I had the opportunity to talk to Dr. David Price of London-based NetNames shortly after they released a report on the scale and scope of media piracy worldwide.  Presently, Dr. Price is in Washington DC where, along with collaborator Tom Galvin of the Digital Citizens Alliance, he officially released a new report on piracy, this one focused entirely on sites known as cyberlockers.  Titled “Behind the Cyberlocker Door,”  the report focuses on the top thirty sites that use this technology to facilitate and profit from the illegal distribution of copyrighted content like motion pictures, music, books, and video games.  The report describes how these black-market businesses function, and how they earn their money.  And among the more striking aspects of the study is the fact that Visa and Master Card, despite claims to the contrary, are facilitating transactions for these cyberlocker sites.  Moreover, users of these sites may be surprised to learn that signing up for premium accounts to enable faster downloads could well expose them to malware designed to enable identity theft.

Guess who the real victims of piracy are…

People like to tell themselves and others that piracy of entertainment media is a victimless crime, by which they typically mean that their one little download of a major motion picture doesn’t hurt anyone when the studio that produced said picture is making millions.  I’ve assailed this fallacy in more than a few posts, but a report released today by London-based NetNames, in collaboration with the Digital Citizens Alliance, makes quite clear that if you’re a user of a pirate site, the most vulnerable victim in the transaction may well be you.

This time last year, Dr. David Price authored a report for NetNames called “Sizing the Piracy Universe,” which as the title implies, took a very broad look at the global piracy ecosystem.  This new report “Behind the Cyberlocker Door” specifically examines the mechanics and finances of the top 30 cyberlocker sites, which are designed specifically to facilitate mass theft of copyrighted material.  Fifteen of the sites were direct download sites, and fifteen were streaming sites, and all were found to be profitable enterprises deriving revenues from a combination of advertising and the sale of premium accounts, primarily process through Visa and MasterCard.

For readers who don’t know about cyberlockers, think of the system as a vastly more robust version of a legal cloud storage service like Dropbox designed to share a limited volume of files with family, friends, and business colleagues.  These cyberlockers facilitate uploading and downloading of unlimited files worldwide among complete strangers, and  the report states unsurprisingly that the majority of the content (roughly 80% not including pornography) found on these sites is comprised of illegally distributed copyrighted works — movies, music, books, and video games.  The 30 sites studied earn collective annual profit of about $69 million.

These may not be compelling statistics to the staunch piracy advocate or even the casual piracy dabbler, who wants to convince himself that these enterprises are just a reaction to outdated scarcity caused by unreasonable copyright regimes and greedy producers.  But just because Kim Dotcom, the founders of The Pirate Bay, and even Internet industry advocates like to make grandiose, ideological claims about piracy, people should not be fooled for a second that the owners of these sites are quite so high-minded as all that.  In fact, parents of kids with unfettered access to computers ought to pay particular attention because these sites can be plain dangerous.  Dr. Price’s report indicates that more than half of all cyberlocker sties are responsible for malware infections on computers.  This is particularly worrisome as more and more consumers gravitate toward mobile devices, and the threat of identity theft through malware will likely become more acute.  Mobile devices are typically less secure than home computers, and people are storing an increasing amount of personal and financial data on mobile devices through apps designed to make transactions and communications more convenient.

A typical way in which malware is introduced by a content-theft cyberlocker, one offering downloads of movies for instance, is to sell users premium accounts and/or third-party software to expedite downloads and playback of motion pictures.  Not only do these sites charge for the service — and we’ll come back to that — but the process stepping users through sign-up and/or downloading player software is designed to mask the introduction of malware to a computer that can then be used for identity theft.  The money made by advertising and selling premium accounts to infringing material is good money for these sites, but that business model is really just bait to attract users to these sites in order to exploit their data in some more substantial fashion.  So, I know it’s terrible that content producers would ever presume to charge dirty dirty money for legal access to their works, but $3.99 to rent a movie seems like a way better deal than letting some hacker in Ukraine roam around in my personal data.

One might rationally ask why someone would pay $10/month for a premium account on one of these cyberlockers but refuse to pay $8 for an account with a legal distributor like Netflix.  The answer will invariably come back that a Netflix or a Hulu, for instance, doesn’t have every film or TV show ever made whereas these sites that don’t enter into legal agreements with producers do have just about every title you can name.   I suppose for some, that rationale is enough justification for doing harm to producers as well as risking their own data security, but the premium account phenomenon does give lie to all that nonsense calling copyright a form of “artificial scarcity.”  I mean, what are the pirates doing offering slow downloads for free and fast downloads for a price other than “creating artificial scarcity” in their own black-market paradigm?

Quite simply, piracy is a business that exploits the labor of one segment of society in order to fleece another segment of society who think they’re getting away with something.  And if that other segment is you and your data gets hacked, maybe all this pseudo-progressive talk about piracy as a social good will start to sound more like the hogwash it is.