Tag: Featured

Site Blocking Is Effective Worldwide Says New Report by IP House and DCA

site-blocking

Overseas and Out of Reach:  International Video Piracy and U.S. Options to Combat It, released today by IP House and Digital Citizens Alliance (DCA) is one more reason the U.S. Congress should adopt site-blocking legislation to protect American creators and consumers.

Thirteen years ago this coming January, Congress shelved bipartisan legislation that was designed to restrict foreign-based criminal enterprises from access to American consumers. Generally referred to as “site-blocking,” the focus was (and remains) combatting media piracy operators who illegally distribute or perform motion pictures, music, publications, etc.—most of which are produced in the United States. In 2011/12, Silicon Valley funded a multi-lateral disinformation campaign that frightened people into believing that site-blocking would chill speech, sidestep due process, and “break the internet.”

None of those allegations were true then, and if Congress revisits site-blocking, which it should, lawmakers can rely on the new IP House report showing that more than 50 countries have implemented some form of this piracy mitigation strategy without any of the negative consequences foretold by Big Tech and its network of hacktivists. Unsurprisingly, the report reveals that speech rights, due process, and functioning internet services persist in nations that have had site-blocking in force for about a decade or more.

Contrary to those who predicted that more access to more media would reduce piracy, Americans have more access today than they have time to consume, and yet piracy grew by 36 percent between 2021 and 2022, during which time, 13.5 billion visits to film and TV piracy sites originated in the U.S. Meanwhile, to those who claimed that site-blocking was too risky because piracy cannot be restrained, the report demonstrates that site-blocking measures have resulted in increased traffic to legal platforms for media entertainment.

Three separate studies—focused on the United Kingdom, Portugal, and Australia—found that when sites were blocked, traffic decreased to those sites. The decrease was substantial; traffic decreased by 89 percent in the United Kingdom, 70 percent in Portugal, and 69 percent in Australia.

Even if skeptics choose to doubt that, say, Russia is a reliable speech-right and due-process country, fair enough; but Australia, Canada, the UK, France, Germany, and Sweden are among the nations with site-blocking measures in force while reporting no harm to protected speech, the functioning of the internet, or the kind of indiscriminate over-blocking that Big Tech and its “digital rights” allies insisted would be inevitable. Of course, much of that hyperbole has ebbed amid a more sober understanding that the internet is not the boon to democracy Google et al. proclaimed. So now, perhaps, we can have a sober discussion about the rationale for site-blocking and how it is implemented.

How Site-Blocking Works

As the new report describes in detail, most sophisticated pirate platforms operate between the shadows of online anonymity, in physical jurisdictions beyond the reach of U.S. law enforcement, and “in concert with other criminal entities.” As a $2bn+ industry, these enterprises have the resources to build nimble, complex systems, and so, shutting down one of the major operations and/or convicting the owners is nearly impossible—even with cooperation among friendly nations. For instance, the infamous Megaupload founder Kim Schmitz (Kim Dotcom) was arrested in New Zealand in 2012, but it was only this past August when that government agreed to extradite him to the U.S. to stand trial.

In response to the challenge of stopping “out of reach” criminals, site-blocking prevents, or at least limits, foreign illegal platforms’ capacity to reach consumers in the target nation. To implement a block, a complainant party (e.g., a major owner of IP being infringed) bears a high burden of proof to show (in the U.S. it would be a federal court) that a particular site is dedicated, or substantially dedicated, to mass piracy. If the court orders a block, the major ISPs in that nation are then instructed to restrict access through various means like DNS blocking, blacklisting URLs, etc., depending on the nature and structure of the pirate operator.

Piracy is About Harm to Creators and Consumers

Nearly 80 percent of piracy sites delivered malware-ridden ads to their users….More than half of the $121 million generated ($68.3 million) from malvertising came from U.S. visits to these sites.[1]

Even if site-blocking were solely about mass theft of creative works, it is absurd that the U.S., as the world’s largest and most diverse producer of such works, lags so far behind other nations in adopting this commonsense strategy to mitigate harm to American businesses. But in addition to the new report’s evidence that site-blocking has been effective without significant negative consequences, Congress must also recognize that both media piracy and cybercrime in general have become more sophisticated in the last decade.

For instance, two of the more popular modes of media piracy are the video on demand (VOD) and internet protocol TV (IPTV) models whereby operators sell subscriptions to platforms that look like Netflix or Hulu, but which stream and/or enable downloads of media files that are obtained and stored illegally. Many consumers are aware that these sites are piracy-based, but because the platforms look and feel like legit platforms, many consumers may not be aware that they are paying criminal enterprises, making themselves vulnerable to cyber-attacks and/or supporting a broad range of unsavory activity, including extortion, narcotics, human trafficking, and terrorism.

Al-Manar is a Lebanese television outlet operated by the extremist political party Hezbollah and is banned from operating in the United States after the U.S. government labeled it a “Specially Designated Global Terrorist entity. Nevertheless, Al-Manar was offered on at least half of the piracy IPTV services…

Several DCA reports have presented substantial evidence of a nexus linking mass media piracy to organized crime, and as this new report states, “The more profitable piracy is, the more likely organized criminals are or will become involved in it.” Past reports have shown that platforms are major vectors for malware, including ransomware and remote access trojans (RATs) used to slave computers, or that visitors to pirate sites are “disproportionately vulnerable to credit card fraud.”

Meanwhile, it is hard to miss the fact that buying ordinary products online today, even on major ecommerce platforms, requires heightened vigilance to avoid counterfeits that may be faulty or dangerous.  Add to this chaos the potential of AI to amplify a broad range of assaults on American institutions, businesses and consumers, and it is clearly a moment for Congress to fan away the dust of the “Stop SOPA” campaign of 2012 and reaffirm that site-blocking is a practical tool in defense of the public interest. “The lack of evidence of abuse suggests that site-blocking orders are fair, rigorous, and issued only in legitimate cases of large-scale piracy,” the report states. That was predictable more than a decade ago. Time to catch up.

[1] IP House report citing this article.

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Chamber of Progress: Old Rationales for a Brave New World

old rationales

The Chamber of Progress launched an initiative called the “Generate and Create” campaign to “defend fair use” and “promote AI creativity.” I don’t know whether they bought this campaign used from the basement of Fight for The Future or Electronic Frontier Foundation, but the following statement is worn-out rhetoric that sounds even weaker defending AI as a mode of production than it was defending online platforms as a mode of distribution:

To combat the growing legal and policy copyright threats against generative artificial intelligence, Chamber of Progress announced a new campaign, Generate & Create, highlighting the creative benefits of generative artificial intelligence and supporting established fair use protections for AI training and output.

The pro-creator message is a remix of a remix of Lessig’s “remix culture” argument against online copyright enforcement—a narrative which begat the “we’re all creators” argument against copyright rights. Instead of YouTube enables creators to break free of “gatekeepers,” now it’s AI enabling the same emancipation, though as discussed in this post, it’s hard to fathom who the “gatekeepers” are this time.

Meanwhile, the promise to “defend fair use” is code for “we’re funded by Big Tech to tilt at windmills while we lose legal arguments.” One does not “defend fair use” the way one defends a right to read banned books or a right to reproductive healthcare in the same states that like to ban books. There is no legislative agenda to abolish or amend Section 107 of the Copyright Act. Fair use is a balancing test courts apply in certain copyright infringement cases, and on the headline question as to whether machine learning (ML) with copyrighted works is exempted by fair use, there is nothing “established” about that answer despite CoP’s implication to the contrary.

Although fair use cannot be applied generally (i.e., it is a case-by-case consideration), it is true that all the copyright infringement claims against the various AI developers arise from the same general conduct and, therefore, invite similar or identical fair use defenses. Cutting to the final chapter, if Open AI loses to New York Times and Udio loses to UMG et al. in the Second Circuit, those outcomes are likely to be controlling on the fair use question of ML. Even if any of these cases goes to the Supreme Court, the likelihood of a reversal of an opinion out of the Second Circuit—so prolific on fair use case law—is a bet I wouldn’t make.

Nevertheless, the argument will be presented, and it goes something like this:  Gen AI breeds new creative works, in part by breaking down “barriers” for would-be creators, and because this productivity is consistent with the purpose of copyright, ML serves a transformative purpose and is, therefore, fair use. Notwithstanding the fact that a defendant can win on the transformative question and still lose on fair use overall, I suspect the AI developers may find their very expensive machines described by the courts’ precedent language as “slightly transformative.”

But AI is revolutionary! you might say. How can it be only “slightly transformative?” Answer:  for the same reason the Internet Archive’s Open Library is “slightly transformative”—because its purpose was a substitute for licensed ebooks. What is different about GAI, of course, is that it is generally a substitute as a mode of production more than as a mode of distribution, and to complicate matters, some professional creators are using AI tools and deriving benefits from those uses. So, if that sounds like the answer is “it depends,” welcome to the fact-intensive nature of the fair use defense, which cannot be broadly “defended” in the sense the CoP proclaims.

CoP et al. will promote the argument that because GAI fosters the production of more “creative works,” this predicted increase in output fulfills the purpose of copyright law. But the reason I put “creative works” in quotes is that for every 100 sound recordings to come out of an AI product like Udio, somewhere between an unknown and zero percent of those sounds will be “creative works” as a matter of law. Copyright only protects human authorship of creative expression, and that doctrine will not—and should not—change. Meanwhile, the question as to what the human creator must do in collaboration with GAI for the human to claim copyright in the resulting work is an evolving doctrine—one that is several years, and several lawsuits, away from becoming guidance.

With a product like Udio or Suno, where the business model depends on consumers generating music with a few simple prompts, it is fair to assume that the vast majority of the music produced will not be “creative expression” as a matter of law. And because “creative works” that are not protected by copyright (i.e., are not human authorship) cannot reasonably be held to serve the purpose of copyright, fair use should be foreclosed as a defense of the generative machine.

In response, we will see CoP and defendants argue that because the product is already being used by professional creators, products like Udio or Suno serve both copyright and non-copyright purposes. While plausible, this defense is where I believe the courts may find the GAI’s purpose to be only “slightly transformative.” This is because the dominant purpose—indeed the only ROI available to the developers—is one that primarily does not fulfill the purpose of copyright and which, in fact, serves as a substitute for works that do serve the purpose of copyright.

Further, the consideration of GAI as a tool for creators in furtherance of copyright’s purpose runs headlong into the nascent doctrine as to how and how much use of GAI results in a protectable work. That question is a case-by-case consideration at a granular level. One musician’s use of Udio may produce a copyrightable composition and/or sound recording, while another’s use of the same product in a slightly different manner may have the opposite result. Considering the uncertainty of these hypotheticals to come, it is hard to imagine how the courts could find today that the product at issue favors a finding of transformativeness strong enough to carry the whole fair use analysis.

Chamber of Progress et al. will flood social media with anecdotal arguments, like disabled persons empowered to create thanks to GAI, or the whimsical notion that “machines learn the way people do.” These and other rationales for GAI’s value deserve specific responses, some of which I shall write. But in general, I predict these stories, like Lessig’s “children of YouTube,” will play well with some segment of the blogosphere but then, as legal arguments, will join the pile of similar fair use defenses lying on the floors of the federal courts.

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No FAKES Act Matched in House Bill to Address Gen AI Replication

no fakes

On Monday, beloved actor James Earl Jones passed away at age 93, but in 2022, he signed an agreement with LucasFilms to allow the voice of Darth Vader to live on through Gen AI replication. Jones’s permission to replicate his voice is a bittersweet prelude to today’s news from Capitol Hill, where the House of Representatives introduced its own No FAKES Act to prohibit the unlicensed replication of any person’s likeness or voice. Sponsored by Reps. Salazar, Dean, Moran, Morelle, and Wittman, the House bill is identical to the Senate No FAKES Act introduced in late July and, so, demonstrates a bicameral, as well as bipartisan, sense of urgency to address misuse of Gen AI for this purpose.

To recap, No FAKES establishes a new property right in the likeness of any person and prohibits unauthorized replication of a likeness, which includes voice. Historically, likeness has only been protected on a limited basis by a patchwork of state Right of Publicity (ROP) laws, typically prohibiting unauthorized use of a celebrity likeness for commercial/advertising purposes. But the unprecedented capability of Gen AI to be used by anyone to replicate the likeness of anyone—and which will exacerbate the reality-bending world of online “information”—has prompted Congress to move swiftly and, in my view, creatively.

It was July 2023 when the idea of a federal ROP law was discussed during a hearing held by the House Judiciary Committee Subcommittee on Intellectual Property. At the time, I imagined this was a prelude to years of haggling on Capitol Hill while Gen AI developers proceeded at internet speed to wreak havoc with tools to produce more advanced “deepfakes.” Instead, the introduction of No FAKES in the Senate just one year later—and now, the same bill in the House less than two months after that—reveals both seriousness and deftness in legislators’ zeal to confront the issue. Rather than approach the matter as one to be remedied by a federal ROP law, Congress, with input from various stakeholders, has responded to the novelty of the challenge with novel legislation, drawing upon principles found in ROP, trademark, and copyright law.

If passed, No FAKES would operate akin to ROP, but it automatically applies to every citizen, and unlawful replication is not limited to commercial/advertising purposes. At the same time, because many misuses of Gen AI replication have both reputational and commercial implications, No FAKES shares a kinship with trademark, which is a creature of the Commerce clause. And finally, the new right is copyright-like as a property right which vests in the individual, may be licensed for various uses, and is descendible to heirs and assigns with certain limits and conditions unique to protecting likeness.

Opposition Is Familiar but the Battlefield Is Different

Many of the usual suspects representing Big Tech, including the newly formed (I can’t believe they called it this) Chamber of Progress, will likely raise constitutional challenges to No FAKES, leaning hard into the refrain that the new likeness right will chill protected speech. As to the merits of that argument, the text of the bill already includes well-crafted, First Amendment-based exceptions; and as a PR message, I believe Big Tech is refreshingly at a disadvantage. Concerns over abuse of Gen AI encompass a broad range of Americans—from professional creators to parents seeing how easily children can be sexually exploited—and in general, people just aren’t buying Big Tech’s “make life better” rhetoric anymore.

Examples of legitimate innovation (e.g., Jones permitting Darth Vader to continue, or Randy Travis overcoming physical voice loss) will entail permission of the person whose likeness or voice is being replicated. Yet, in response to the many harms which may be caused by unlicensed Gen AI replication, AI defenders will promote the overbroad refrain that “innovation” must be allowed to flourish — but of course, “innovation” is Big Tech’s euphemism for “profitability at any cost.” Congress is still playing catch-up to address myriad harms fostered by pre-AI social media and is, therefore, reluctant to repeat the mistakes of the late 1990s by allowing Gen AI “room to grow” without restrictions.

Interestingly, Chamber of Progress appears designed to frame the multi-billion-dollar AI gamble as socially and politically “progressive,” a strategy belied by its advocating broad liability shields for AI developers akin to Section 230 of the CDA and Section 512 of the DMCA. In fact, that view aligns perfectly with Open AI CEO Sam Altman suggesting that it is impossible to develop without free use of copyrighted works, or with investor Marc Andreesen writing a smug and erroneous manifesto as a plea for continued laissez-faire policy in all things tech. If there is anything “progressive” about Gen AI, Chamber of Progress will need to produce more than worn out rhetoric to prove it.

We’ve been here and done this, but No FAKES is a bill with a lot of political momentum. The likelihood that many citizens will oppose a prohibition on the unlicensed use of their own, or their children’s, likenesses seems low to the point of futility. We’ll see what comes, but by my lights, No FAKES is destined to become law.

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