Astroturf Organizations Typically Hysterical on DMCA

As the deadline approached for public comments to the Copyright Office in anticipation of its review of Section 512 of the DMCA, TorrentFreak reported yesterday morning that 50,000 “citizens” chimed in to protest DMCA “abuse,” apparently enough to “crash” the government’s servers.  Assuming the crash did occur, it’s probably an endorsement for Copyright Office modernization, but to the matter at hand, if there are 50,000 actual, non-attorney citizens who understand DMCA, I’ll eat my hat and the box it came in. This is more SOPA-fying, scare-mongering bullshit, and I really wonder how many times people are going to fall for it.

The TF article quotes this statement by Tiffani Cheng of the Google-funded organization Fight for the Future: “The DMCA affects all Internet users and they should have an opportunity to express their concerns with the ways content is censored from the Internet, causing damage to free speech that can’t be undone.”

To describe DMCA as a tool for censorship is a gross exaggeration that enables major OSPs (Online Service Providers) to use individuals as human shields to cover their profit interest in keeping DMCA ineffective for rights holders. It’s not that DMCA abuse does not occur, but the comparatively few incidents in which an individual or entity purposely misuses takedown should not be allowed to mask the enterprise-scale motives for major OSPs to support, promote, or even condone mass infringement.  That was never the intent of the DMCA.

Millions of copyright stakeholders know first hand that the OSPs have been incentivized by the terms of the DMCA to fabricate an illusion of ignorance with regard to obvious cases of infringement hosted on their platforms, promoted by their search engines, or supported by the access they provide.  Simply put, in order to retain the safe harbor (i.e. neutral) status, which service providers consider essential to their existence, they are supposed to meet certain obligations according to the statutes.  In many cases, large providers either fail to meet these conditions outright (as we saw in Cox v BMG) or they push the boundaries of reason and good faith when it comes to what’s called “red flag” knowledge of infringing or other illegal activity making use of their services.

For instance, among the conditions an OSP must meet to retain safe harbor under DMCA is that it may not benefit financially from infringement.  So, when a user uploads a whole TV episode, let’s say, to YouTube (which nobody disputes is infringing) and YouTube generates ad impressions during the period when the file is online before the rights holder takes it down, that’s revenue.  Why is that transaction not a clear violation of the statutory conditions, which would appear to make YouTube liable for the infringement rather than the neutral party it claims to be?

For obvious reasons, OSPs do not want to change the status quo.  And to be clear, rights holders are not looking to end safe harbor protections or to seek new means of taking down more material that is non-infringing; they have enough challenges just trying to keep a lid on the large volume of undisputedly infringing content.  And make no mistake, the major OSPs could give a damn about your free speech or your remix videos beyond the extent to which defending those things makes them money. (One could make far more compelling arguments that these service providers stifle speech through manipulation of their algorithms than all the DMCA abuse that’s ever been cataloged.) So, with regard to DMCA, these service providers would like to perpetuate the game that earns them revenue and grows their market share without having to bother with the legitimate rights of creators.

Even a Google-funded report released last week on DMCA notice and takedown procedures, conducted by researchers at Berkeley and Columbia Law, indicates that the majority of errors and abuses of the DMCA takedown process occurs among smaller and mid-sized rights holders, OSPs, and plain bad actors.  I may write a more detailed discussion of that fairly large report in a future post. But I mention it here because not even research—at least the anecdotal portion of it—slanted in favor of the internet industry appears to really support the assertion that DMCA takedown is widely abused as a tool to censor your “tweets and videos.” This is a typically hysterical claim that sounds sillier with each passing day that trillions of online expressions are exchanged without incident.  Meanwhile,  the  DMCA remains an inadequate tool for most rights holders of all sizes to mitigate large scale infringement and outright piracy of their works.  And these uses are still not free speech.

Dept. of Commerce Creates Board of Inevitability

Yesterday, Commerce Secretary Penny Pritzker announced the official launch of the Digital Economy Board of Advisors, presenting seventeen volunteer professionals described in a press release as a “diverse group.”  And while it’s true that this diversity does represent the full spectrum from tech industry power players (YouTube & ATT) to tech industry startups (Lyft & Handy), Secretary Pritzker did not see fit to make room at the table for even one individual representing the core copyright industries.  It’s an unfortunate omission, not only for the more than five million people who work in the creative sectors, but for the country as a whole. After all, it is the creative workers who have leading-edge experience with some of the pitfalls of the so-called digital economy, so maybe there’s something to be learned by having one or two representative voices in the room.

Granted the digital revolution is already reaching beyond the Internet of Content into the Internet of Things, but Content is still the reason the Web grew the way it did, and Content is still one of this country’s biggest employers and biggest exports.  The number-one user of bandwidth worldwide is Netflix, and each of those programs we so easily stream and binge-watch represents hundreds of jobs—jobs that are threatened by another big user of bandwidth as an estimated 24% of all Internet traffic is directed at criminal sites hosting infringed movies, TV, books, video games, etc.

When technologist Jaron Lanier described the creative industries as the “canary in the coal mine” of the digital economy, it was among the more prophetic statements most people ignored.  Former Secretary of Labor Robert Reich has alluded to the possibility of “uncertain work” for most people within a decade.  We read accounts of college-educated millennials trying to navigate the instability of what we now call the “gig economy”, which directly affects marriage and birth rates, which directly affects housing and quite a few other major sectors.  So, it is dismaying to note that Secretary Pritzker seems to have filled her board with several digital economy cheerleaders but almost no representatives from industries that employ large numbers of people who are being told to “adapt” to the new economy, which in some cases is outright stealing from the “old” economy.

I know YouTube is very sparkly, but the platform with a billion viewers and about $4 billion in revenue is still not profitable, employs fewer than a thousand workers, and is exclusively a vehicle for advertising, the value of which can only decrease in an economy that doesn’t grow sustainable jobs where consumers can afford competitive choices.  It is disconcerting to think that the Commerce Secretary may not consider the cannibalistic nature of the digital economy if she is uninterested in hearing from some of those who are being eaten.  As many expert observers have noted, the technological transformation this time is not necessarily a case of creative destruction so much as it may be one of destructive destruction.  Certainly, this continues to be true for the core copyright industries.  As noted in a recent post, when Google directs users to an illegal platform for watching a movie, that’s not commerce; it’s the opposite of commerce.

Historically, democrats are pro union, pro labor, pro civil rights. As such, the Obama administration should take note of the way in which the major Silicon Valley companies have been antagonistic toward intellectual property rights as there is a direct philosophical line from disregarding one individual’s copyright (or patent) to disregarding millions of individuals’ labor rights. But I fear the Obama administration, of which I approve in many ways, has drunk a bit too much Silicon Kool-Aid.  From the number of former Google execs working in the administration to the appointment of Eric Schmidt as head of a new DoD advisory board, and now the composition of this board at Commerce, it’s hard not to feel a sense of inevitability—that one industry’s world view is quickly becoming national policy.  Not only is that no more desirable than excessive influence from oil or banking or any other traditional industry, but the Silicon Valley crowd—although they do have some cool and audacious ideas—is also amok with zealots and egomaniacs who’ve made personal billions on businesses that are neither profitable nor job-creating.  To the contrary, many of them are job-destroying, which leads to the question as to whether or not the digital economy is an economy at all.  Surely, the fact that digital technology will have a profound effect on commerce is inevitable, but how we choose to manage it should not be.

Copyright Office to Review Safe Harbor in DMCA

(Republishing as the April 1 deadline for comments to the US Copyright Office approaches.)

Remember Bill Clinton?  If you don’t, he’s that guy who was just in New Hampshire campaigning for his wife Hilary, who’s running for president. Anyway, Bill Clinton was president so damn long ago that when he was first sworn into office, most of us didn’t even have email.  I mean in real history terms, the Clinton administration was just yesterday; but in Internet history terms, it was like forever ago. After all, most of the general public (which is to say folks other than university professors and members of the military-industrial complex) all suddenly jumped online during Bill Clinton’s first term in office. You might even say we became collectively and instantly an America Online.  Ah, the 90s. Good times. Or should I say YAHOO!?  I don’t know. Anyway, the Web looked very different. If you don’t believe me, you can Ask Jeeves.

During President Clinton’s second term, in October of 1998, he signed into law the Digital Millennium Copyright Act, a.k.a. the DMCA, which defines the conditions, responsibilities, and limitations for both ISPs and copyright holders pertaining to various remedies for online copyright infringement.  In order to balance interests and protect free speech online, Section 512 of the DMCA provides the conditions by which ISPs are granted safe harbor, shielding them from liability that might stem from copyright infringements perpetrated by users of their sites or services.  Section 512 also specifies the conditions an ISP must meet in order to maintain safe harbor protection, and among these is the establishment and maintenance of processes for removing infringing material and for canceling the accounts or denying access to repeat infringers.  The former would generally apply to platforms that host User Generated Content (UGC) while the latter would typically apply to an access provider like TimeWarner, Cox, et al.  But as I say, the Web looked very different when the DMCA was written.

As the capabilities and platforms have expanded—for instance from effectively no video in 1998 to YouTube’s stated 300 hours of high-quality video being uploaded to its platform every minute in 2014—it was inevitable that the incidences of repeat infringement and repeat infringers would expand in kind.  And they did. Rights holders presently send out hundreds of millions of DMCA takedown notices each year—just to YouTube alone—and only a small fraction of these (fewer  than 1%*) are either sent in error or are intentionally abusing the takedown system for purposes such as stifling criticism or other forms of non-copyright-related complaints.  Additionally, most wrongful takedowns are remedied by the counter-notice procedure provided for in the DMCA, which restores content that has been removed; and any further action from either party requires legal procedures outside the DMCA, including litigation, which is not all that common relative to the volume of content we’re talking about.

Meanwhile, the safe harbor provisions in Section 512 of DMCA were never intended to provide a blanket shield for ISPs while they profit incidentally from the high volume of infringements committed by users; but that’s more or less what’s been happening.  If at any given moment, there are 100 million infringing videos on YouTube, each generating only one view per video before they are removed by the notice-and takedown-procedure, that’s 100 million ad impressions generated while YouTube complies with the DMCA.  YouTube gets the ad revenue while infringing videos go up and down in a constant ebb and flow, and the safe harbor provisions shield the platform from any liability—or even responsibility—to further mitigate mass infringement.  Safe harbors were not intended to provide an incentive for allowing (if not fostering) mass infringement by users, which is why the Copyright Office announced on December 31 that it will begin a review of Section 512 of the DMCA on the premise that the provisions may well be antiquated relative to the realities of the contemporary Web.  In announcing the review and call for comments, the Copyright Office states:

“While Congress understood that it would be essential to address online infringement as the internet continued to grow, it may have been difficult to anticipate the online world as we now know it, where each day users upload hundreds of millions of photos, videos and other items, and service providers receive over a million notices of alleged infringement. The growth of the internet has highlighted issues concerning section 512 that appear ripe for study.… Among other issues, the Office will consider the costs and burdens of the notice-and-takedown process on large- and small-scale copyright owners, online service providers, and the general public. The Office will also review how successfully section 512 addresses online infringement and protects against improper takedown notices.”

With regard to access providers, the recent BMG v COX case offers insight into the conditions a provider must meet in order to maintain its safe harbor protection, and it also reveals the kind of shenanigans rights holders have been putting up with for years. Cox was successfully sued by BMG for contributory infringement based primarily on the fact that the plaintiff was able to demonstrate very clearly that the defendant did not have a reasonable procedure in place for canceling the accounts of repeat infringers as is mandated by Section 512 of the DMCA.  As I mentioned when I was a guest on the new podcast series Steal This Show, presented by TorrentFreak, pre-trial court documents indicate that Cox had what can best be described as a “13 strikes and you get a really strong warning” procedure for repeat infringers.  And perhaps even more damning, emails entered into evidence suggested that the access provider was effectively resetting the dial on repeat infringers to make them look like first-time offenders.  Naturally, there are more details, but suffice to say, neither the judge nor the jury found these processes to be adequate or reasonable procedures and, thus, Cox’s safe harbor defense was of no avail.

Still, at least some of the reporting and spin on that case will portray its outcome as an “expansion” of DMCA’s power to “stifle,” and it is worth noting that Judge O’Grady rejected amicus briefs from both the EFF and Public Knowledge, stated thus:

ORDER, having reviewed the proposed brief, the Court discerns no potential benefit to be gained from receiving the brief. This is not a situation where defendants lack competent representation. Nor have Public Knowledge and EFF persuaded the Court that they have a sufficiently special interest in the outcome of this litigation to warrant consideration of their viewpoint. Accordingly, the motion 405 for leave to file an amicus curiae brief is DENIED.

Given the amount of virtual ink and PR capital the Internet industry and its network of “activists” have devoted to excoriating the takedown provisions in DMCA, the general public—and even some reporters—can be forgiven for thinking that DMCA is synonymous with chronic and unrestricted removal of content without due process. In fact, it seems that even the reporting that wants to be objective (including the aforementioned TorrentFreak) can fall into the understandable but flawed habit of lumping all things DMCA together as though the law is little more than carte blanche for major rights holders to willfully bulldoze expression from the web.  In reality, of course, the DMCA is a more complex framework of remedies, counter-remedies, and defined boundaries for all parties. In fact, if you go looking for cases of DMCA takedown abuse, you’re far more likely to find smaller rights holders, foreign organizations, or non-copyright-industry parties (e.g. Ashley Madison) committing improper takedowns through DMCA.  Meanwhile, the usual “villains” in the public narrative—the major film studios and music labels, who send out the majority of notices to platforms like YouTube—generally know what they’re doing, which is why the incidence of error in their procedures is extremely low.

But as the Copyright Office proceeds with its review of Section 512 and various interests respond to the call for comments, it’s likely we’re going to see the Internet industry—and the EFF, Public Knowledge, et al—try to portray safe harbor provisions as sacrosanct. (After all, there’s a lot of free money at stake, and who doesn’t like free money?) And these entities can be expected to follow their well-worn playbook of presenting the unalienability of safe harbors as vital to the functioning of the Internet and free speech and the rights of man and the very air that we breathe, and so on.  And to be clear, nobody (me included) would advocate revoking safe harbors. These provisions are an important component of digital-age law and are predicated in part on protecting free speech.  I’m just saying to watch out for the hyperbole when it comes.  The Copyright Office is reviewing Section 512 to potentially recommend tweaking it to fulfill its intent, not to abandon its intent altogether.

In a way, the most frustrating aspect of DMCA for rights holders is that it is reminiscent of another Clinton legacy—that unfortunate absurdist theater called “It depends on what the definition of is is.”  Likewise, the proverbial game of Whack-a-Mole—as everyone describes counter-infringement procedures—is really a game of semantics that ISPs have been playing for more than a decade.  What is an infringement?  Who is a repeat infringer? What is a reasonably implemented policy?  And so on. But then, that’s law—a best attempt to use language to create salubrious policy.  And since Section 512 seems to unintentionally leak mass infringement like a sieve, it’s probably time for a rewrite.

*This estimate is based both on counter-notice data from MPAA takedown requests as well as anecdotal information stated in October 2015 amicus brief seeking new ruling in Rossi v MPAA.