Category: Piracy

Tedious Anti-Copyright Stance of EFF is Not About Protecting Anyone

Welp (as the kids say), it looks like Katherine Trendacosta of the Electronic Frontier Foundation (EFF) found an old PowerPoint deck from 2012 and used it to write a new post ominously titled Hollywood’s Insistence on New Draconian Copyright Rules Is Not About Protecting Artists.

Typical of the EFF playbook, Trendacosta devotes an entire post maligning the motion picture industry rather than address the “rule” (the SMART Act), which she does not even mention until the final paragraph. At that point, the reader is meant to take her word for it that the proposed legislation is bad because—believe it or not—there is too much diversity and choice in the streaming market, and because film producers want to make money.

Ms. Trendacosta calls streaming a “hellscape” where consumers cannot find what they want and/or where shows and films are canceled or moved to different platforms. She writes, “It’s disingenuous for Hollywood’s lobbyists to claim that they need harsher copyright laws to protect artists when it’s the studios that are busy disappearing the creations of these artists.”

“Hellscape” is a bit dramatic as critiques go, given that market research indicates that 74% of consumers report being satisfied with streaming and that those numbers are currently trending upward. Of course, the anti-copyright playbook Trendacosta is using tells her to imply that when producers make market decisions to stop producing a given work, or to move a work from one channel to another, this is “disappearing” material that should be available in perpetuity. In fact, she inscrutably cites the “disappearance” of a film which is temporarily being made available in a new 4K cinema format and will return to streaming in a matter of months. Hellish, no?

Perhaps Trendacosta is unaware that we are enjoying a new golden age of filmed entertainment available on—or produced especially for—the private screen market. Streaming models have fostered a diverse range of projects that would never have been made, let alone been sustainable, in the narrower distribution paradigms pre-Netflix. But a reality of all this bounty is that more experimentation and risk-taking means that a higher volume of material will be canceled or redistributed more frequently as audiences respond to what gets made. That’s just the business of making entertainment media, and the EFF always acts as if the business is what makes efforts to mitigate piracy somehow dishonest or sinister.

Here, Trendacosta digs a little deeper into the big box of EFF’s toys and argues that ordinary tensions that arise among studios and talent—including strikes and financial disagreements—are evidence that the parties seeking remedies to piracy “don’t care about artists.” True to form, the folks at EFF pretend to care about artists by erecting a false dichotomy between the creators who work on projects and Hollywood, where “Hollywood” is a generic term to describe a monolith that does not exist.

It’s a very strange argument because the artists to which Trendacosta refers in those strikes, etc., want money, too. In fact, money is often exactly why they have disagreements with certain producers or studios. Yet, Trendacosta elides the fact that piracy hurts everyone in the ecosystem, regardless of their internal disputes and negotiations with one another. That’s why unions like DGA, WGA, and IATSE are members of the Copyright Alliance and work closely with the studios to fight piracy. It is categorically false to suggest that large studios are the only parties with an interest in this issue. As independent filmmakers and other artists have explained repeatedly, it’s the smaller, independent projects that are most vulnerable to the negative effects of piracy.

And let’s be honest. EFF opposes all copyright enforcement measures in the same style as this post—no substance, just uninformed, ad hominem attacks—and it behaves no differently when smaller groups or indie artists seek copyright remedies in Congress.

So, what is the supposedly “harsh” new piracy remedy that EFF is opposing this time?

The Strengthening Measures to Advance Rights Technologies (SMART) Act is a legislative response to the fact that for more than 25 years, Big Tech has refused to fulfil its side of the bargain struck with the adoption of Section 512 of the DMCA. Simply put, Section 512(i) requires online service providers to collaborate with copyright owners to develop standard technical measures (STM) to identify and expeditiously remove infringing content from internet platforms.

But not only did the development of STM never quite happen, the Googles and Facebooks of the world, who came after the OSPs that negotiated the DMCA, benefitted from mass infringement on their platforms because the DMCA shielded them from liability.

SMART seeks to address more than two decades of stonewalling by adding a new Section 514 to the DMCA that would create new remedies to confront Big Tech’s refusal to adopt appropriate and affordable technical measures to reduce online piracy. At the same time, its proposals would protect smaller and less well-resourced service providers by calling for a variety of tailored and practical technical measures to be developed under a multi-stakeholder process overseen by the Librarian of Congress.

This is what the EFF is calling “draconian”—a proposal to restore the intent of the DMCA as it was enacted in 1998. SMART is the first substantive response to Big Tech’s two big lies: 1) We can’t do it; and 2) We shouldn’t do it because it will chill speech. Those arguments have worn paper thin in recent years given the role these same companies have played in fostering the most toxic, Republic-shaking nonsense ever to be “freely spoken.” But credit where it’s due. At least Ms. Trendacosta didn’t say SOPA.

Would You Fall for the Anti-SOPA Campaign Today?

“The more desperate one is to get attention, rather than to accurately communicate what one believes a problem is, the more one ventures into the realm of sensationalist propaganda.”

That observation was not written about anyone promoting the Stop the Steal narrative that led to the insurrection on January 6, 2020. No, that’s Chris Ruen, in his book Freeloading (2012), describing Fight for the Future co-founder Holmes Wilson trying to come up with a line to rally support among Redditors for American Censorship Day in November 2011 to protest the anti-piracy bills SOPA/PIPA. According to Wilson’s own description, as quoted by Ruen, he eventually grabbed readers’ attention with this lulu: “The MPAA will soon have the power to block American’s [sic] access to any website unless we fight back, hard!”

There was zero truth in that statement. And although FFTF is terribly concerned about the power of social media today, for instance, Facebook’s role in fostering the events of January 6th …

…the organization is not likely to acknowledge that ten years ago, they and their friends in the “digital rights” world exploited the same manipulative tools and the same human flaws in what was arguably the first misinformation campaign to succeed at scale.

Hyperbole like Wilson’s headline naturally went viral and accreted even more outlandish claims as the Stop SOPA crusade gained momentum through the end of 2011 and culminated on January 18, 2012 with “Blackout Day.” The idea, hatched by Wikipedia founder Jimmy Wales, perhaps imagining himself as John Galt, was to get prominent websites to go dark on a single day and show us what a post-SOPA internet would allegedly look like. Wales also went on TV as the erudite and magnanimous representative of “the internet” and wove a crazy quilt of lies about SOPA/PIPA causing harm to free speech online.[1]

Behind the scenes, death and rape threats (a common feature in any digital-age campaign) were directed at female congressional staffers and other women in pro-copyright organizations, along with the predictable spate of DNS attacks against the websites of any organization that dared voice support for—or even just try to explain—the legislation. Relatedly, it is not a minor footnote that the Stop SOPA folks reached out to 4Chan, which Wilson described as “awesome,” to help push the censorship message.

Today, many readers know 4Chan as a site where misogyny, racism, and legit fascism intersect with bored adolescent boys and hackers espousing a broad spectrum of moral relativism. The output of this crucible has often been a prankster/hacktivist hybrid in which the motive for action may be nothing more than a laugh (aka for the lulz). 4Chan begat 8Chan, and 8Chan begat QAnon. And my point is not that the anti-SOPA organizers spawned Q but rather that it is significant that both January 18th and January 6th were, in part, fueled by tapping into this nebulous digital underworld.   

Above ground, Google, Mozilla, the Electronic Frontier Foundation, and other organizations with internet-industry resources, coordinated and directed a deluge of messages that jammed phone lines and clogged email servers on Capitol Hill, leading Congress to abandon the SOPA/PIPA legislation in a bipartisan group shrug, with staffers and Members mystified as to what exactly had just happened. In the days that followed, some Members even reported that upon returning to their districts, they discovered that constituents had not only not protested SOPA, but that they had never even heard of it.

January 18th is also something of a tenth anniversary for this blog, which first launched in August 2012 but really began with an editorial in The Hill in which I called support for in the anti-SOPA campaign Pavlovian and dysfunctional. At the time, I wrote that “I believe we are seeing the most extreme, most egotistical voices — from the Tea Party to Anonymous — aiming not for change, but to dismantle the system itself.”

Notice that says nothing about media piracy. Piracy was secondary. It was the mechanisms of the anti-SOPA campaign that scared the hell out of me. Worse than the specific lies about the legislation was the bigger lie being promoted by the “digital rights” groups, telling the world that Stop SOPA represented a new model for grassroots activism in which the people are finally empowered by real information and social platforms. In truth, these groups simply showed us how easy it is to rally thoughtless action with little more than some provocative bullshit on a web page.

Wilson posted that nonsense about the MPAA and site-blocking in November, and by January, a virtual mob that knew nothing about what it was protesting stopped Congress in its tracks. Fast-forward to the era of Trump, and a different breed of unscrupulous provocateur, including one calling himself Q, post even more outrageous lies online, and by January, a physical and violent mob tries to stop Congress in its tracks. If we believe there is an ethical chasm between Q and Wilson, it’s because we are overlooking the fact that this is the same disease causing different symptoms.

There is little difference between the fearmongering declarations, “Fight like hell, or you won’t have a country anymore,” and “Fight like hell, or you won’t have an internet anymore.” Convince people that someone is trying to rob them of their liberty—End piracy. Not liberty. was Google’s message in 2012—and you just might start a riot. And during this interval between the first anniversary of January 6th and the tenth anniversary of January 18th, I truly doubt that anyone intending to memorialize their role in the latter would ever acknowledge their insidious contribution to the former.

In a healthy democracy, the means are always more important than the ends, and the inversion of this principle—that it’s okay, even admirable, to lie like hell as long as you win—is the underlying pathology driving both decorum and integrity to the margins of our political discourse. The vector bearing the pathogen is social media, a force which was not so widely understood in 2012 as an addictive, dopamine-inducing activity that neutralizes reason while feeding emotion. That was the human frailty exploited by the professional anti-SOPA crowd ten years ago. And considering all the destruction that misinformation has done to the world since, I cannot imagine why anyone would want to celebrate that travesty of a milestone.

[1] For instance, the legal remedies in SOPA/PIPA have been applied in different ways both prior to and since the defeat of the bills without any effect on the speech right.

Podcast – The Multi-Billion-Dollar Piracy Industry with Tom Galvin of Digital Citizens Alliance

In this episode, I speak with Tom Galvin, CEO of Digital Citizens Alliance, about piracy of creative works and DCA’s latest report, issued this month in collaboration with the research group White Bullet. The report, entitled Breaking Bad(s): How Advertiser-Supported Piracy Helps Fuel a Booming Multi-Billion Dollar Illegal Market, reveals that piracy is a highly profitable criminal enterprise and is intertwined with other forms of cyber-crime—from personal identity theft to national security

Piracy of creative works like motion pictures, TV shows, music, and live sports is a vast and growing criminal enterprise. In its latest report, Digital Citizens Alliance estimates the combined advertising and subscription revenue generated by piracy is at least $2.34 billion annually. Meanwhile, in addition to its ill-effects on the creators whose works are pirated and the online advertising ecosystem, piracy plays a key role in fostering other forms of cyber crime.

Episode Contents

  • 01:52 – Breaking Bad(s) Report Overview
  • 04:05 – Ad and subscription supported piracy
  • 06:49 – The online advertising ecosystem.
  • 08:49 – Some successful mitigation since 2014.
  • 11:14 – The downsides of piracy for brands.
  • 15:10 – Major brands found were Amazon, Facebook, & Google.
  • 18:01 – It is possible to do something.
  • 19:24 – Advertiser pressure to get ad tech to clean up its act.
  • 21:09 – Dangers to the consumer.
  • 27:13 – Why aren’t the hazards deterrents?
  • 30:30 – Drive-by malware.
  • 32:07 – Piracy is a vertical for broader criminal enterprise.
  • 33:26 – What about solutions.
  • 37:33 – Even if you don’t care about copyright owners…
  • 40:30 – Intersection with disinformation campaigns?