Tag: DMCA

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.

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.

Sarah Jeong Pitches Copyright Conspiracy Thriller

In what sounds like an homage to Tom Clancy, Sarah Jeong, a contributing editor to Motherboard, presents us with a cautionary action thriller in which the Chinese government could theoretically disappear one of the most famous and politically significant photographs ever taken. And all because of American copyright law.  You know the photo. It’s the image that comes immediately to mind when you think of the 1989 Tiananmen Square protest—the still-unidentified young man who stood in front of a column of four Peoples Liberation Army tanks, taken by AP photographer Jeff Widener.

In her recent editorial, Jeong speculates that a Chinese company called Visual China Group may now own the copyright on the iconic image as the result of its purchase of a collection of works that had belonged to Bill Gates.  Jeong states that she does not know if the Widener photo is among the works purchased—there are other “Tank Man” images—and she further mentions that VCG has entered into a licensing partnership with US-based Getty Images.  Nevertheless, Jeong insists that her hypothetical censorship scenario is “not entirely implausible”, citing unpredictability of the Chinese government and proposing a scenario in which the photo may be widely removed from the Internet by means of DMCA takedown procedures.  In asserting that this already multi-hypothetical circumstance would be entirely the fault of American copyright law, the deus ex machina in Jeong’s plot hinges on the following supposition:

“As owners of the copyright to the photo, Visual China Group could easily launch a massive censorship campaign across the internet. The group only needs to send a notice under the DMCA to upstream service providers that host the Tank Man photo—Google, WordPress, Amazon Web Services, Wikimedia, Facebook. If a DMCA notice is valid, a service is required by the law to take down infringing content—or else it can become liable for copyright infringement.”

Of course, nothing she describes reflects an accurate portrayal of how DMCA works, even if Chinese authorities did currently have their hooks into this particular photo.  As rights holders know all too well, an individual notice must be sent in regard to each alleged infringement.  One may not simply send a blanket notice to WordPress and say, “Take this off every WP blog.”  Then, as explained in considerable detail in my last post, the counter notice is still the final word under DMCA provisions, after which the rights holder must litigate in order to pursue removal.  But apparently undaunted by her basic misunderstanding of this aspect of copyright law, Jeong presses on with the following:

“Although fair use could cover use of the photo, thus giving a service provider an excuse not to honor the DMCA notice, that’s by no means a certain defense. See, for example, Fox News’ legal troubles over a copyrighted photograph of firefighters on September 11th—although the news organization cited fair use, a judge denied its motion for summary judgment on the issue, and Fox News ultimately settled the issue out of court.”

It’s a little hard to tell if Ms. Jeong is writing carelessly here or simply doesn’t understand the safe harbor provisions in the DMCA, but nobody should be confused into thinking that it would be the OSPs like Google, WordPress, et al who would be asserting any kind of fair use defense in a theoretical infringement claim of this nature. It’s the individual uploader of the material who is the actual recipient of a takedown request processed through the OSP, and it is he or she who may decide to argue that the use is non-infringing.  The safe harbor shielding OSPs is predicated on the idea that they don’t see nothin’, they don’t know nothin’, and they don’t say nothin’ ‘bout no infringements by its users.

To make matters…worse?  Stranger? Sillier?  I don’t know.  Jeong randomly points to a case in which Fox News’s motion for summary judgment based on a weak fair use claim was appropriately rejected by a district judge; and she cites the example as if this one case is evidence that fair use defenses just don’t work.  Well, tell that to the same Fox News, which has thus far lost to TVEyes on the latter’s somewhat questionable fair use defense.  But as long as Jeong is already wet, she dives all the way into the deep end with this inscrutable speculation:

Journalistic usage of the Tank Man’s photos—which persist in newsworthiness and historical value for the public—should be obviously covered under fair use, but the actual copyright analysis isn’t much different from the Fox News lawsuit. And if that’s the case, perhaps copyright law is broken.

It is possible, of course, that Ms. Jeong doesn’t realize that news networks, photojournalists, reporters, etc. are all copyright holders and that these folks do not make a habit of poaching one another’s intellectual property on the grounds that they are doing the noble work of reporting the news. (This would be rather circular logic for infringement of journalism.)  But for sure, she either did not read—or does not remotely understand—the facts in the Fox News case to which she refers because the network’s fair use defense in that instance hinged on its argument that its use of North Jersey Media Group’s image on its Facebook page was “transformative” simply because it was hosted on a social media platform.

Perhaps one day a court will agree with a TV network or General Motors or Pfizer that its Facebook page is indeed a little haven of fair use, at which point we can ball up the fair use doctrine and toss it in the fire.  But for now, it is nearly impossible to imagine whence Jeong conjures the idea that her tens of thousands of hypothetical conflicts over the Widener image might each resemble the “analysis” applied in this one Fox News case. In fact, I’m not sure the district judge analyzed the fair use argument all that carefully so much as he just summarily called “bullshit” on it.

Naturally, the subplot in this Sino-censorship-via-American-copyright story is the implication that passage of the Trans Pacific Partnership will make matters worse by way of exporting DMCA-like procedures to US trading partners.  But even if Jeong’s censorship concerns were well-founded, what they might have to do with this trade deal is a mystery.  As far as China goes, when that government wants to censor something, I think they just censor it the old fashioned way.  And with regard to the US, nothing in the TPP would make her already exaggerated scenario work any better because the trade deal doesn’t implicate any change to domestic IP law.  But the real irony I just can’t let go is that while Jeong generalizes her concern that the “American government is exporting strict copyright law” to other countries, she may not be aware that it is Google and other major OSPs that have pushed as hard as anyone to export DMCA notice-and-takedown procedures abroad because its safe harbor provisions serve their interests.  To quote from an Internet Association statement on Tumblr,  “The Internet Association continues to push for strong policies such as DMCA to be incorporated explicitly in the TPP treaty itself to ensure a strong, robust Internet ecosystem.”

Finally, I think Ms. Jeong and her readers might want to breathe into a bag for a while before getting too stressed about China making its human rights record disappear into Santayana’s axiom by way of US copyright law.  I remember where I was at that time in 1989; I was watching CNN broadcasting its very dramatic video footage of this brave young man facing down the tanks—footage CNN still owns and that can still be licensed for educational and other uses.  This is to say nothing of the myriad uses of the Widener photo that no entity is likely to stuff back into the bottle—let alone stifle legitimate fair uses.

Above all, this chronic hyperventilating over the prospect that copyright makes things disappear is not only carelessly reasoned but also places way too much value on social media and other ephemeral Web platforms as repositories of important information.  As Jeong herself proves with this particular article, anyone can put anything on the Internet without the burden of even a good faith effort to be accurate.  And this is probably a more effective a way to burn the proverbial history books than anyone’s attempt at censorship.