Tag: Featured

DCA Reports High Incidence of Credit Card Fraud on Pirate Sites

Digital Citizens Alliance (DCA) released a new report yesterday with the eye-popping statistic that 72% of Americans who subscribe to pirate media sites experience incidences of credit card fraud compared to 18% prevalence of credit card fraud among those who do not subscribe to pirate sites. These data are based on a survey of 2,030 Americans, of which 1 in 3 reported watching some pirated content in the last year, and 1 in 10 reported subscribing to a pirate streaming service. The report titled Giving Pirate Site Operators Credit states …

… piracy was once primarily a headache for content creators, users of these sites now face significant risks. Piracy subscription services make an estimated $1 billion a year providing services to at least nine million U.S. households.

DCA’s findings indicate that around 6.5 million Americans who choose to access movies, TV shows, and games in this black market, have been targeted for credit card fraud as a direct result of their subscriptions. And although I say the stat is “eye-popping,” given the environment we’re talking about, perhaps the real surprise is that the rate of unauthorized credit card charges in this network isn’t closer to 100%. After all, it’s one thing when hackers steal credit card data from legit retailers et al., but subscribing to a pirate site is cutting out the middleman and giving credit card info directly to a network of hackers.

The shift to high-quality streaming a little over ten years ago created an opportunity for pirates to launch new platforms offering low-price subscriptions to “everything” because, of course, none of the material they’re streaming is legally obtained but is stored on pirate servers around the world. Just as other DCA reports have shown that among the hidden costs of this all-you-can-eat offer is a high probability of infection with life-altering malware, the likelihood of unauthorized charges to a credit card is apparently even greater. “Combined with our previous research highlighting the risks associated with free piracy apps and services, the situation becomes even clearer. The pursuit of pirated content is an inherently risky behavior that threatens the devices, wallets, and privacy of consumers,” says DCA executive director Tom Galvin in a press release accompanying the new study.

DCA Research Subscriptions Trigger Fraud Within Eleven Days

Prior to conducting its survey of American consumers, DCA researchers subscribed to 20 pirate sites using a new credit card obtained for the experiment. In less than two weeks, the fraudulent charges began to appear from China, Singapore, Hong Kong, and Lithuania, and within three-months, DCA’s card was targeted with $1,495 in executed and attempted unauthorized transactions. The largest attempted transaction was $850, which was stopped by fraud protection, and the largest approved charge was $244.78. Given the implied cost to credit card services to provide protection against such transactions, DCA’s first recommended remedy—that the payment processors terminate relationships with known pirate sites—seems like a no-brainer.

DCA also recommends that the Federal Trade Commission “take piracy more seriously” and prioritize warning Americans about the risks associated with pirate sites; it recommends more consumer protection group outreach on this issue; and it recommends that law enforcement more aggressively investigate pirate site operators, now armed with the 2020 amendment to the U.S. Copyright Act which elevated large-scale piracy by means of streaming from a misdemeanor to a felony. “Given that the piracy ecosystem is now a $2 billion industry, the Department of Justice should use that authority to target piracy operators,” the report states.

Personally, I would be curious to know something about the thinking of 9 million Americans who want cheap media streaming so badly that they’re willing to tolerate the high risk of credit card fraud and/or a dangerous malware attack. Of course, to DCA’s point, perhaps the majority of these subscribers don’t know how risky accessing these sites can be.

Photo source by: Wichayada57844

Podcast: On Being Among the Banned with Author J. J. Austrian

Pride month is more than celebratory in a time when book bans are on the rise in the United States, and 26% of the titles banned “have LGBTQ+ characters or themes,” according to PEN America. With politicians like Ron DeSantis determined to make “anti-wokeness” part of the Republican brand, this neologism for hate-speech has taken the form of book and media censorship in school and public libraries around the country. One of these banned books, entitled Worm Loves Worm, was written by a close friend named J. J. Austrian, who joins me for this episode of the podcast. Illustrated by Mike Curato and published by Harper Collins in 2016, Worm Loves Worm is a story for young children about two earthworms getting married and trying to figure out which is the bride and which is the groom while navigating the not-so-helpful advice and opinions of the other bugs and critters in attendance.

Show Contents

  • 01:22 – How does it feel to be among the banned?
  • 03:42 –  The creation of Worm Loves Worm.
  • 08:12 – What children get from Worm Loves Worm.
  • 09:36 – It’s not about sex. Indoctrination to what?
  • 12:23 – Attacks on the transgender community.
  • 15:03 – Did you expect the backlash when the book first came out?
  • 18:34 -Is it hard not to look at the negative comments?
  • 20:19 – The “shotgun wedding.”
  • 21:50 – Increase in attacks since it was first published.
  • 24:10 – More worried about middle grade and young adult readers.
  • 28:10 – Ever criticized for writing about a subject that’s not your subject? (outside your lane)
  • 34:45 – Do you have Woke Mind Virus?
  • 37:15 – A conversation about satire.
  • 44:33 – How banning can affect the author.
  • 47:44 – The victim’s narrative.
  • 50:15 – Hope for the future?
  • 52:44 – The Printing Press and the Internet
  • 57:05 – Love is love.

The Role of Fame in Considering Fair Use

In Justice Kagan’s blistering dissent in AWF v. Goldsmith, she stated the following:

If Warhol had used Goldsmith’s photo to comment on or critique Goldsmith’s photo, he might have availed himself of that factor’s benefit (though why anyone would be interested in that work is mysterious). [Emphasis added]

Kagan’s sweeping view that she could not imagine why there would be interest in a Warhol that comments upon the Goldsmith photo is, I assume, careless editorial—overlooking facts relevant to the instant case and, more broadly, ignoring the significance of commentary at the heart of the fair use doctrine. It is important to keep in mind that, but for this litigation, Goldsmith’s unpublished photo of Prince is not widely known, and it was certainly not known in the 1980s when Warhol made his screens. So, Justice Kagan is right to note that commenting upon a work that nobody had seen would be an absurdity but wrong if she means to imply that the courts should not look for “critical bearing” on the work used when weighing factor one.

You can’t tell a joke about a rabbi, a priest, and a monk walking into a bar if the listener doesn’t know what those three words mean. By this same principle, certain types of comment about protected works are impossible unless the work used has at least some presence in the minds of the intended audience. Parody is futile without the intended audience having an awareness of the work being lampooned, but education, criticism, or news reporting are all paradigmatic purposes under fair use that do not require the intended audience to have any familiarity with the work being used.

All three of those exemplary purposes may be introducing a work to the intended audience for the first time, but in those cases, the comment is likely to be explicit, in written or verbal form to discuss or critique the work being used. In such instances, it is relatively easy to determine, for instance, whether an article or blog post displays an image for illustrative purposes (disfavoring fair use) or displays an image for the purpose of critiquing the image and/or the artist (favoring fair use).

Finding “critical bearing” in a use may be more nuanced when one expressive artist uses another expressive artist’s work—e.g., a visual work commenting upon another visual work—and here, the notoriety of the work used likely plays a more significant role. For instance, in Leibovitz v. Paramount, we have a parody of a visual work made by another visual work. Observers (especially at the time) saw the image of pregnant Leslie Nielsen and were familiar with the iconic image of pregnant Demi Moore that was being lampooned. And to achieve the parody, it was necessary to copy the heart of Annie Leibovitz’s expression.

Left: Demi Moore by Annie Leibovitz. Right: Movie poster by Paramount Pictures.

Of course, notoriety of the work being used entails a balancing act for the follow-on artist. On the one hand, the work used must be at least somewhat well known for the observer to perceive any comment being made about it. At the same time, the more famous the original work, the more the follow-on artist may be found to be riding the coattails of that fame and “avoiding the drudgery of working up something new.” In Dr. Seuss Enterprises v. ComicMix, the follow-on artists were found to have copied a substantial amount of the original expression—both quantitatively and qualitatively—of some of the most famous visual works ever made.

Left: Image from Dr. Seuss’s “The Zax.” Right: Image from ComicMIx’s “Oh, the Places You’ll Boldly Go!”

And although the defendants in ComicMix attempted to argue that there was parody in their mashup book, the asserted commentary was (as in Warhol) about topics or themes unrelated to any “critical bearing” on the works used. As described in other posts about ComicMix, the extensive amount of precise copying militated against fair use because the result was a book that any observer could mistake for a derivative work produced by the rightsholder. Thus, the “riding coattails” consideration weighs heavily against the follow-on creators.

Must All Observers Be “Ordinary”?

In Campbell, Leibovitz, and ComicMix, we have examples of wide-audience fame, but small-audience notoriety should not necessarily disqualify the follow-on artist from a reasonable claim to have expressed “critical bearing” on the work used. I once had a conversation with Professor Lateef Mtima about whether a jazz artist could successfully parody a well-known jazz work. We all might recognize, for instance, “Round Midnight” when we hear it, but if a new artist were to riff on that piece and interject elements that are intended as comment upon the original, it would probably take a very sophisticated listener to perceive the nature of that comment. If it were even possible.

As an exercise, this raises the question as to whether “critical bearing” on the work used must always be reasonably perceived by an “ordinary observer,” or whether the intended audience may be quite narrow. In the fine art world, where Warhol lives, is it necessary that everybody “get it,” if comment is in fact present? If fifty critics and a thousand art afficionados understand the comment being made, is that sufficient to find that factor one favors the use? I would predict that it may be sufficient for factor one, but that the uniqueness of the audience could militate against finding that factor four favors the use, depending on the market for the original.

I assume Justice Kagan’s off-the-cuff remark that she could not imagine interest in a Warhol that comments upon the Goldsmith photo was hyper-focused on the two works at issue—a parenthetical jibe in a snarky dissent, which overlooks the relevance of the photo’s obscurity at the time it was used. As such, Kagan inadvertently advises creators to consider the notoriety (intended audience’s awareness) of the work they propose to use and how that notoriety supports or rejects any claim to “critical bearing” as a result of the new use. Justice Kagan may not imagine such a thing, but artists should, if they want to make fair uses of protected works.