Tag: DMCA

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Copyright Copyright Licensing Copyright Theory Infringement International Law Internet Legislation Uncategorized WIPO

European Union Draws a Line on Infringing Hyperlinks

Cross-posted from the Mister Copyright blog.

a gavel lying on a table in front of booksLast week, the European Court of Justice—the judicial authority of the European Union—issued an anticipated decision in the Sanoma hyperlinking case, declaring that commercial linking with knowledge of unauthorized content constitutes copyright infringement. The opinion comes after years of similar cases in Europe stirred debate over whether linking to pirated works was a ‘communication to the public’ and therefore infringing, and provides a sensible test that protects the works of authors and creators while ensuring the internet remains a bastion of free speech.

Sanoma involved the popular Dutch news and gossip site GeenStijl, which ran an article in 2011 that included links to an Australian website where copyrighted Playboy magazine photos were made available. The photos were published on the Australian website without the consent of Sanoma, Playboy’s editor and copyright owner of the photos at issues, but taken down after the site was notified of their infringing nature. Despite similar notifications, GeenStijl refused to remove the hyperlinks and actually provided links to another website hosting the unauthorized photos after the Australian website took them down.

Sanoma brought a copyright infringement claim against GS Media, which operates the GeenStijl website, and the Supreme Court of the Netherlands sought a preliminary ruling from the European Court of Justice on whether hyperlinks represent the communication of a work to the public. According to an earlier EU directive, any communication to the public of works protected by copyright must be authorized by the copyright owner. Due to the ubiquity of links and hyperlinks on the Internet, a ruling classifying them as communications to the public would have major ramifications for anyone linking to unauthorized content.

In its judgment, the European Court of Justice found that the concept of ‘communication to the public’ requires individual assessment and laid out the following three factors that must be considered when determining whether a link or hyperlink qualifies.

1) The deliberate nature of the intervention – According to the Court, “the user makes an act of communication when it intervenes, in full knowledge of the consequences of its actions, in order to give access to a protected work to its customers.”
2) The concept of the ‘public’ covers an indeterminate number of potential viewers and implies a large number of people.
3) The profit-making nature of a communication to the public – The Court explains that when hyperlinks are posted for profit, “it may be expected that the person who posted such a link should carry out the checks necessary to ensure that the work concerned is not illegally published.”

Applying these criteria to Sanoma, the Court found that because GS Media runs a commercial website that makes money from advertising, it is undisputed that they posted the hyperlinks for profit, and that it is also undisputed that Sanoma had not authorized the publication of the photos. It also found that because they were notified by Sanoma and continued to repost links after the original source website took down the content, GS Media was aware of the infringing nature of the photos and “cannot, therefore, rebut the presumption that it posted those links in full knowledge of the illegal nature of that publication.” The Court concluded that by posting the links, GS Media therefor effected a ‘communication to the public.’

The Court goes on to detail its desire to maintain a fair balance between the interest of copyright owners and authors and the protection of the interests and fundamental rights of Internet users, “in particular their freedom of expression and of information, as well as the general interest.” After providing the criteria for assessing whether a link qualifies as a communication to the public, the opinion emphasizes the important role hyperlinks play in the exchange and free flow of information over the internet, and clarifies that linking—even to unauthorized content—is not a communication to the public if there is no profit motive or knowledge of the infringing nature of the linked-to works. Even so, it’s important to note that not-for-profit hyperlinking may still be considered a communication to the public if the person posting the link knew or should have reasonably known that the content was posted without authorization.

Perhaps most surprising about the Court’s decree is the relative approval by both copyright owners and supporters of the rights of those posting links. While it speaks to the reasonable approach the Court has taken in determining what qualifies as a communication to the public, it may also represent a hesitation to condemn or praise the order due to a significant ambiguity. It’s not entirely clear who carries the evidentiary burden of proving whether an individual knew or should have reasonably known certain content was posted on the Internet without authorization. If copyright owners and authors are forced to prove a user knew or should have known content was unauthorized every time they attempt to remove links that can appear online incessantly, it could render the new directives ineffectual in protecting creative works.

Regardless of the uncertainly surrounding this burden of proof, the current test seems to strike a balance that holds commercial websites more accountable, while allowing for some flexibility for the general public. With debates over the effectiveness of notice and takedown intensifying in the United States, the EU’s decision on communications to the public should be recognized as workable approach to dealing with infringing hyperlinks. As the United States Copyright Office admits in its 2016 study on the making available right, jurisprudence in the US regarding offering access to content hosted elsewhere on the Internet through hyperlinking is less developed as some foreign jurisdictions. But the study acknowledges the progress made in the EU, and emphasizes the need to include ‘offers of access’ in the crucial making available right.

Despite semantic differences, the EU and the US are both moving towards systems that will impose greater accountability for posting links to unauthorized works. The EU’s directive makes clear that commercial hyperlinking to unauthorized content is indeed a communication to the public and therefor copyright infringement, while ensuring that the free flow of information through general public linking will not be threatened and the Internet will remain unbroken. It’s an approach that represents the greater goals of copyright law around the world, and other jurisdictions should follow the lead of the EU when crafting copyright policies that address the intricacies of the Internet.

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Copyright Copyright Licensing Copyright Theory Infringement Intellectual Property Theory Internet Reasonable Royalty Uncategorized

Despite What You Hear, Notice and Takedown is Failing Creators and Copyright Owners

cameraIn a recent op-ed in the LA Times, Professors Chris Sprigman and Mark Lemley praise the notice and takedown provisions of the Digital Millennium Copyright Act (DMCA) as “a bit of copyright law worth saving.” They argue that Section 512 of the DMCA continues to serve its purpose of balancing the rights of copyright owners and creators with those of Internet service providers (ISPs), while leaving both sides only “slightly disappointed.” Satisfying these two groups is indeed a difficult charge, but it’s simply disingenuous to suggest that creators and copyright owners are satisfied with a system so clearly in need of an overhaul.

As the Copyright Office embarks on its review of the DMCA, supporters and critics of the nearly twenty-year-old doctrine are weighing in on its effectiveness in addressing online infringement. Sprigman and Lemley claim that the “process has worked well for years,” and that the result of shifting more enforcement burden to ISPs “could be a broken Internet.” But for those creators and copyright owners who have their works resurface online just minutes after they are taken down, the Internet is already “broken.” The fact that piracy continues to intensify, despite incredible efforts to have infringing content taken down, shows that notice and takedown is largely ineffective.

As CPIP Senior Scholar Sean O’Connor testified before Congress, the notice and takedown system is not working for any of its intended beneficiaries. The constant game of whack-a-mole renders the system essentially futile for copyright owners and creators, and it creates significant burdens for ISPs that want to comply—especially small to mid-level companies that can’t afford compliance staff. Worse still, by shielding service providers from liability, the DMCA creates perverse incentives where there’s little downside to ignoring infringing content. In fact, reviewing content could lead to an ISP having knowledge of infringement and losing its safe harbor.

Now that the Copyright Office’s review is underway, it’s somewhat strange to see some supporters claim that all is well. But has anything actually changed since the Office announced its study?  Of course not. The whack-a-mole problem remains, and the knowledge standards are still interpreted broadly to disproportionately favor ISPs. When one side says the system is working and the other side says it’s broken, the truth is that the system is not working well for everyone. Sprigman and Lemley can claim that the DMCA is “worth saving” only by downplaying the true plight of creators and copyright owners.

A concrete example of this struggle comes from the comments filed by Universal Music Group (UMG) as part of the Copyright Office’s study. UMG describes the painstaking efforts devoted to protect just one artist’s creative work. In October of 2014, UMG and Big Machine Records launched a joint offensive to protect Taylor Swift’s “1989.” A staff of UMG employees dedicated 100% of their time and resources to manually search for infringements on YouTube, SoundCloud, and Tumblr, and through March of 2016, they had sent over 66,000 DMCA takedown notices. Despite their considerable efforts, over 500,000 links to the album were identified, and “1989” was illegally downloaded nearly 1.4 million times from torrent sites.

Of course, this type of effort would be impossible to replicate for any works other than those that attract such massive attention. For most artists, the burden of monitoring the Internet and sending takedown notices would fall entirely on their shoulders, with no guarantee of putting a stop to the theft of their works. Sprigman and Lemley ignore these problems, instead claiming that since copyright owners sent “more than 500 million takedown requests just to Google last year,” we know that the “system is a powerful tool against pirated content.” That would be great, if true, but the reality is that those notices barely made a dent.

Sprigman and Lemley claim that the “genius of the DMCA” is that it “enables entertainment companies to turn piracy into legitimate revenue.” They give the example of “YouTube’s Content ID system,” which “gives copyright owners the opportunity to ‘claim’ their work and share in any advertising revenue rather than pull it off the site.” From the perspective of creators and copyright owners, the only “genius” of this system is that YouTube can legally present them with an unfair choice—suffer infringement and get nothing or monetize and get next to nothing.

While Sprigman and Lemley praise the “more than $1 billion” paid out by YouTube, the real question is how much more copyright owners and creators would have been paid in a properly functioning market. YouTube is consistently teeming with infringing videos—one recent report revealed that over 180 million infringing videos had been removed in 2014 alone. And the artists that YouTube’s largess supposedly benefits are loudly complaining about their exploitation. If Content ID is so great, why are so many creators and copyright owners upset with the arrangement? The monetization Google offers to copyright owners and artists is less than half of the royalties paid out by streaming services like Pandora, an amount that artists have denounced as already inequitable.

In her excellent piece on the fictions of the Content ID system, Grammy-winning artist Maria Schneider exposes Content ID as a way for Google to cash in by actually legitimizing and perpetuating piracy. She explains that a majority of creators that opt for monetization realize miserable percentages of ad revenue, and the continued illegal uploading of their music and content drives billions of users to YouTube’s platform. YouTube has turned the weakness of the DMCA into a system that exploits artists while offering embarrassingly lower royalty rates than what would be negotiated in a free market.

The current situation is untenable, and if change means “breaking” the Internet, then we should pull out the pickaxes and get to work. A system of notice and staydown, rather than just takedown, would help alleviate the constant and seemingly ineffectual vigilance required by the current system. By removing all copies of a protected work and blocking inevitable re-postings, ISPs would honor the original purpose of the DMCA while actually doing their part to earn the protection of the safe harbor provisions. Only by ensuring that targeted works do not resurface will ISPs respect the rights of those without whose content they would cease to exist.

How anyone can honestly say that the current notice and takedown system is working for copyright owners and creators is mystifying given the constant calls for reform from creators and the numerous critical comments filed with the Copyright Office. The incredible magnitude of takedown notices sent and the seemingly unstoppable reappearance of infringing works online are a clear signal that the system is completely failing those it was meant to protect. Creators and copyright owners deserve a better chance at protecting the fruits of their labors, and the DMCA needs to be changed so that it truly is a system “worth saving.”

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Copyright Internet Uncategorized

CloudFlare’s Desperate New Strategy to Protect Pirate Sites

a gavel lying on a table in front of booksSan Francisco-based CloudFlare has earned a somewhat dubious reputation in the online world. Website owners can set up CloudFlare in just a few minutes, gaining the performance, security, and privacy benefits the service provides. Traffic routed through CloudFlare’s global content delivery network is cached for faster delivery times and protected from numerous online threats. Pirate sites have flocked to the service because it hides their true identities from copyright owners by default. And it probably doesn’t hurt that CloudFlare CEO Matthew Prince thinks that “censoring the Internet” is “creepy,” even “under a court order.”

Prince practices what he preaches, and CloudFlare has been all-too-ready to lend a helping hand to even the most notorious pirates. When The Pirate Bay rose from the ashes in early 2015, CloudFlare provided the site with services that helped manage its massive server loads. CloudFlare’s encryption technology even made it easy for users in the UK to circumvent the High Court’s ban ordering ISPs to block the pirate site. Amazingly, The Pirate Bay is now back in the United States, using its original thepiratebay.org Virginia-based domain and benefiting from CloudFlare’s robust services to make its criminal enterprise run smoothly worldwide.

Of course, the only reason CloudFlare can get away with supporting the world’s most-visited torrent site is because the DMCA is such a mess. Courts have set the bar so high that CloudFlare wouldn’t likely be found to have red flag knowledge of the massive amounts of infringement it certainly knows its service enables for globally-infamous criminal infringers like The Pirate Bay. Rather than taking the high road and refusing to work with obvious pirate sites, CloudFlare lawyers up when pushed and denies the supportive role that its service provides.

We saw this last year in the Grooveshark case. After the original Grooveshark site was found liable for willful infringement and agreed to shut down, copycat sites sprung up at different top-level domains such as grooveshark.io and grooveshark.pw. The plaintiffs obtained a temporary restraining order against the copycats, which registrars Namecheap and Dynadot promptly complied with by disabling some of the domains. But when the plaintiffs asked CloudFlare to stop providing services to some of the other copycats, they were met with firm resistance. The plaintiffs had to turn to the court for an order clarifying that the injunction against the copycat sites prevented CloudFlare from providing them services.

With the backing of the Electronic Frontier Foundation, CloudFlare put up a big fight. It denied that it was in “active concert or participation” with the copycats, which under Rule 65 would have made it bound by their existing injunction. CloudFlare argued that its services were merely passive and that the domains would still remain accessible even if its services were cut off. The district court rejected CloudFlare’s self-serving arguments, noting that it was in fact aiding and abetting the copycat sites by operating their authoritative domain name servers and optimizing their traffic worldwide. Since CloudFlare had actual notice of the injunction and was in “active concert or participation” with the enjoined copycats, it was also bound by their injunction under Rule 65.

Hit with what must have been the eye-opening reality that, under penalty of contempt, it couldn’t knowingly help its enjoined customer engage in the very wrong the court had ordered it to stop committing, one might think that CloudFlare would have become more respectful of court orders involving its customers. However, as recent developments in the MP3Skull case show, CloudFlare has decided to again take the low road in shirking its responsibility to the court. And its argument here as to why it’s beyond the court’s reach is even more desperate than before.

In April of 2015, several record label plaintiffs sued MP3Skull for copyright infringement, easily obtaining a default judgment when the defendants failed to respond to the suit. Earlier this year, the plaintiffs were granted a permanent injunction, which the defendants quickly flouted by setting up shop under several different top-level domains. Naturally, the common denominator of these multiple MP3Skull sites was that they used CloudFlare. The plaintiffs’ lawyers sent a copy of the injunction against the pirate sites to CloudFlare, asking it to honor the injunction and stop supplying services to the enjoined domains. But, as with Grooveshark, CloudFlare again refused to comply.

The record label plaintiffs have now gone back to the district court, filing a motion requesting clarification that CloudFlare is bound by the injunction against the MP3Skull sites. They argue that the “law is clear that CloudFlare’s continued provision of services to Defendants, with full knowledge of this Court’s Order, renders CloudFlare ‘in active concert or participation’ with Defendants,” and they point to the opinion in the Grooveshark case in support. According to the plaintiffs, the only issue is whether CloudFlare is aiding and abetting the enjoined defendants by providing them services.

CloudFlare opposes the motion, though it noticeably doesn’t deny that it’s in “active concert or participation” with the enjoined defendants. Instead, CloudFlare argues that, since this is a copyright case, any injunction against it must comply with the DMCA:

Section 512(j) prescribes specific standards and procedures for injunctions against service providers like CloudFlare in copyright cases. It places strict limits on injunctions against eligible service providers. 17 U.S.C. § 512(j)(1). It specifies criteria that courts “shall consider” when evaluating a request for injunctive relief against a service provider. 17 U.S.C. § 512(j)(2). And it requires that a service provider have notice and an opportunity to appear, before a party may bind it with an injunction. 17 U.S.C. § 512(j)(3). Plaintiffs ignored those requirements entirely.

The gist of CloudFlare’s argument is that Section 512(j) controls injunctions against service providers like itself, notwithstanding the fact that Rule 65 binds those in “active concert or participation” with an enjoined party. In other words, CloudFlare says that the DMCA gives service providers unique immunity from having to obey court-issued injunctions under the Federal Rules—a remarkable claim requiring remarkable proof. And the case law cited to back up this claim? None. Zip. Nada. CloudFlare fails to produce one single cite showing that any injunctive-relief statute, whether copyright or otherwise, has ever been deemed to preempt the longstanding rule that it’s contempt of court to aid and abet an enjoined defendant. The desperation is palpable.

The reason the DMCA doesn’t apply to CloudFlare is obvious. Section 512(j) states that it “shall apply in the case of any application for an injunction under section 502 against a service provider” that qualifies for the safe harbors. CloudFlare goes on for pages about how it’s a service provider that would qualify for the safe harbor defense if given the chance, but all of this misses the point: CloudFlare is not being enjoined. The only service provider being enjoined is MP3Skull—and that injunction was issued under Section 502 without the limitations set forth in Section 512(j) because MP3Skull didn’t even bother to show up and attempt to claim the safe harbors. But the plaintiffs have not sought an injunction against CloudFlare, which they could only do by naming CloudFlare as a party to the suit.

Since CloudFlare itself isn’t being enjoined under Section 502, Section 512(j) provides it no limitations. The issue is simply whether, under the Federal Rules, CloudFlare is bound by the injunction that has already been issued against the MP3Skull sites. Perhaps not wanting to get bench-slapped again on the aiding and abetting question under Rule 65, CloudFlare is taking an even lower road with this desperate new argument that it’s magically immune to court orders against its customers under the Federal Rules. The district court has yet to rule on the plaintiffs’ motion, but my guess is that it will make short work in reminding CloudFlare of the court’s true power to hold aiders and abettors in contempt.

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Copyright Infringement Internet Uncategorized

Three Years Later, DMCA Still Just as Broken

By Matthew Barblan & Kevin Madigan

cameraIn 2013, CPIP published a policy brief by Professor Bruce Boyden exposing the DMCA notice and takedown system as outdated and in need of reform. The Failure of the DMCA Notice and Takedown System explained that while Section 512 of the DMCA was intended as a way for copyright owners and service providers to work together to fight infringement in the digital age, the notice and takedown system has been largely ineffective in managing the ever-increasing amount of piracy.

Three years later, the DMCA is still just as broken. Since we published the brief, courts have further diminished service providers’ responsibility to cooperate with copyright owners to detect and deter infringement, rendering the DMCA even more fruitless and desperately in need of retooling.

Boyden explained the fundamental problems with the system at the time, beginning with the fact that “despite all the notice, there is precious little takedown to show for it. Unless a site employs some sort of content filtering technology, the same content typically re-appears within hours after it is removed.” The notice and takedown system is particularly unsuited for the twenty-first century, where “infringement is persistent, ubiquitous, and gargantuan in scale. It is a problem that needs to be policed” with more than just takedown notices that don’t give copyright owners “a single day when the content is not available on the most heavily trafficked sites.”

Boyden noted that “even for the largest media companies with the most resources at their disposal, attempting to purge a site of even a fraction of the highest-value content is like trying to bail out an oil tanker with a thimble.” And Boyden pointed out that the courts hadn’t made the situation any better: “The DMCA’s unsuitability as a tool to manage chronic, persistent, and pervasive infringement is particularly apparent after recent decisions from the Second and Ninth Circuit that construed the duty of website owners very narrowly under Section 512.”

To further illustrate his point, Boyden collected data on takedown notices sent by MPAA companies and counter-notices received. Between March and August of 2013, MPAA companies sent takedown notices for over 25 million infringing URLs and received only 8 counter-notices in response. That’s a counter-notice rate of 0.000032%, suggesting that the astronomical volume of notices represents a likewise astronomical volume of infringement rather than overly-aggressive notice-sending.

Grand Totals. Infringing URLs: 25,235,151. URLs Sent to Websites: 13,238,860. URLs Sent to Search Engines: 11,996,291. Counter-Notices Received: 8.

Boyden concluded:

The impossibility of keeping up with new [infringing] uploads means that an online service provider can create a site aimed at and dedicated to hosting infringing copyrighted works, comply with every takedown notice, and still benefit from the safe harbor, as long as its intent remains hidden. If the site has enough users, any popular content removed will be supplanted by new copies almost immediately.

Sadly, three years later the “chronic, persistent, and pervasive” infringement that Boyden described continues, with stolen copyrighted works popping up on sites almost immediately after being taken down. Google Search—one product of one company—has receive nearly 90 million takedown notices this month alone. The situation has gotten so bad that last week a long list of artists, including Paul McCartney and Taylor Swift, signed a digital petition to bring attention to a broken DMCA system that allows companies like YouTube to benefit from infringement at the expense of songwriters and artists.

The artists’ main message: “The existing laws threaten the continued viability of songwriters and recording artists to survive from the creation of music.” They note that “the tech companies who benefit from the DMCA today were not the intended protectorate when it was signed into law nearly two decades ago,” and they ask Congress to “enact sensible reform that balances the interests of creators with the interests of the companies who exploit music for their financial enrichment.”

Recognizing the growing frustration with the DMCA, the U.S. Copyright Office initiated a study earlier this year to examine whether the statute is fulfilling its purpose. We submitted comments to the Copyright Office on behalf of a group of copyright law scholars, noting that courts have disrupted the balance Congress sought to create when it enacted the DMCA. In particular, courts have eliminated any incentive for service providers to work with copyright owners to develop policies and procedures to prevent or curb piracy online. In just one example of how deeply courts have distorted congressional intent, under courts’ current interpretation of the DMCA, search engines can continue to index even obviously infringing sites like The Pirate Bay with no fear of potential of liability.

Adding insult to injury, courts have recently shifted the balance of power even further away from artists and towards service providers, making it easier than ever for companies to enable and profit from infringement while turning a blind eye—or even encouraging—piracy on their sites. In this month’s Capitol Records v. Vimeo decision, for example, the Second Circuit extended the DMCA safe harbor to Vimeo despite smoking-gun evidence that Vimeo employees encouraged users to post stolen works on their site and had viewed the illicit videos at issue in the suit. In a jaw-dropping opinion, the court let Vimeo off the hook simply because the evidence of Vimeo employees encouraging infringement wasn’t directly tied to the specific infringing videos that plaintiffs included in their suit.

CPIP’s Devlin Hartline explains:

After Capitol Records v. Vimeo: A service provider can encourage its users to infringe on a massive scale, and so long as the infringement it encourages isn’t the specific infringement it gets sued for, it wins on the safe harbor defense at summary judgment. This is so even if there’s copious evidence that its employees viewed and interacted with the specific infringing material at issue. No jury will ever get to weigh all of the evidence and decide whether the infringement is obvious. At the same time, any proactive steps taken by the service provider will potentially open it up to liability for having actual knowledge, so the incentive is to do as little as possible to proactively “detect and deal” with piracy. This is not at all what Congress intended. It lets bad faith service providers trample the rights of copyright owners with impunity.

As courts continue to gut the DMCA, making it harder than ever for artists to protect their property and livelihoods, Congress would be wise to heed Bruce Boyden’s advice from three years ago: “It is long past time for a retooling of the notice and takedown regime.”

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Copyright Infringement Internet Uncategorized

Second Circuit Deepens Red Flag Knowledge Circuit Split in Vimeo

a gavel lying on a table in front of booksThe Second Circuit’s recent opinion in Capitol Records v. Vimeo is, to put it mildly, pretty bad. From its convoluted reasoning that copyrights under state law for pre-1972 sound recordings are limited by the DMCA safe harbors, despite the explicit statement in Section 301(c) that “rights or remedies” under state law “shall not be annulled or limited” by the Copyright Act, to its gutting of red flag knowledge by limiting it to the nearly-impossible situation where a service provider actually knows that a specific use of an entire copyrighted work is neither fair nor licensed yet somehow doesn’t also surmise that it’s infringing, it’s hard to see how either result is compelled by the statutes, much less how it was intended by Congress. On the latter point, the Second Circuit in essence has written red flag knowledge out of the statute, reducing the DMCA to a mere notice-and-takedown regime. The reality is that Congress expected red flag knowledge to do far more work, incentivizing service providers to take action in the face of a red flag—even without a notice.

If there’s any good to come from Vimeo, it might only be that the Second Circuit has now deepened the circuit split with the Ninth Circuit in Columbia Pictures v. Fung on two issues related to red flag knowledge. Under the statute, red flag knowledge exists when a service provider is “aware of facts or circumstances from which infringing activity is apparent.” The two circuits are already split on the issue of whether red flag knowledge must pertain to the particular works that are being sued over in the suit. And now with Vimeo, the circuits are split on the issue of whether a service provider can gain red flag knowledge just by looking at an infringing work. The deeper the circuit split, the greater the chance an appeal will make it to the Supreme Court, which would hopefully clean up the current red flag knowledge mess.

In Fung, the defendant, Gary Fung, operated several piracy havens, including isoHunt, TorrentBox, Podtropolis, and eDonkey. The district court found Fung liable for inducement under MGM v. Grokster and denied him safe harbor protection under the DMCA. The district court’s decision came in 2009, two years before the Ninth Circuit first held in UMG v. Shelter Capital that red flag knowledge requires “specific knowledge of particular infringing activity.” It also came two-and-a-half years before the Second Circuit held in Viacom v. YouTube that red flag knowledge is only relevant if it pertains to the works-in-suit. Regardless, since the vast majority of content available on Fung’s sites was copyrighted, including specific content that he himself had downloaded, the district court held that Fung hadn’t even raised a triable issue of fact as to whether he had red flag knowledge. The fact that none of the works he had been sued over were the same as the ones he had been found to have red flag knowledge of was irrelevant.

On appeal, the Ninth Circuit affirmed the district court’s holding that Fung had red flag knowledge as a matter of law. The opinion came out just one week after the same panel of judges issued a superseding opinion in UMG v. Shelter Capital reiterating that red flag knowledge requires “specific knowledge of particular infringing activity.” Importantly, in applying that standard to Fung, the Ninth Circuit did not say that the specific knowledge had to be of the particular works-in-suit. For whatever reason, Fung had failed to argue otherwise. Google even filed an amicus brief supporting the plaintiffs but nonetheless arguing that “the DMCA’s knowledge standards are specific and focus on the particular material that the plaintiff is suing about.” Apparently unaware that this actually helped his case, Fung filed a supplemental brief calling Google’s argument “fallacious.”

In the Ninth Circuit’s opinion, even though red flag knowledge had to relate to particular infringing activity, that activity did not have to involve the particular works-in-suit. Moreover, the Ninth Circuit held that the “material in question was sufficiently current and well-known that it would have been objectively obvious to a reasonable person” that it was “both copyrighted and not licensed to random members of the public.” Since Fung failed to expeditiously remove the particular material of which he had red flag knowledge, he lost his safe harbor protection across the board. Thus, the Ninth Circuit in Fung held that: (1) red flag knowledge that strips a service provider of its entire safe harbor protection does not have to pertain to the particular works-in-suit, and (2) material can be so “current and well-known” that its infringing nature would be “objectively obvious to a reasonable person.”

The Second Circuit in Vimeo parted ways with the Ninth Circuit on these two holdings. Since the “evidence was not shown to relate to any of the videos at issue in this suit,” the Second Circuit held that it was “insufficient to justify a finding of red flag knowledge . . . as to those specific videos.” The Second Circuit thus applied the red flag knowledge standard on a work-by-work basis, in direct contrast to the Ninth Circuit in Fung. Also, the Second Circuit held that “the mere fact that a video contains all or substantially all of a piece of recognizable, or even famous, copyrighted music” and was “viewed in its entirety” by an “employee of a service provider” was not enough “to sustain the copyright owner’s burden of showing red flag knowledge.” The court added that even “an employee who was a copyright expert cannot be expected to know when use of a copyrighted song has been licensed.” So while the Ninth Circuit said it would have been objectively obvious to Fung that particular works were infringing, the Second Circuit in Vimeo set the bar far higher.

Curiously, the Second Circuit in Vimeo didn’t even mention Fung, despite the fact that it was deepening the circuit split with the Ninth Circuit. One wonders whether the omission was intentional. Either way, the circuit split has only gotten deeper. While in the Ninth Circuit an infringement can be so obvious that a court can find that a service provider had red flag knowledge without even sending it to a jury, the Second Circuit says that courts can’t let a jury decide whether a service provider had red flag knowledge even with the most obvious of infringements. And while in the Ninth Circuit a service provider loses its entire safe harbor for failing to remove an obvious infringement that it hasn’t been sued over, the Second Circuit says that red flag knowledge has to be determined on a work-by-work basis for only the works-in-suit. Given this growing divide between the Second and Ninth Circuits, it seems like only a matter of time before the Supreme Court will weigh in on the red flag knowledge standard. And if the Court does finally weigh in, one hopes it will put common sense back into the DMCA.

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Copyright Infringement Internet Uncategorized

Capitol Records v. Vimeo: Courts Should Stop Coddling Bad Actors in Copyright Cases

Here’s a brief excerpt of my new post that was published on IPWatchdog:

Here’s where we are after Capitol Records v. Vimeo: A service provider can encourage its users to infringe on a massive scale, and so long as the infringement it encourages isn’t the specific infringement it gets sued for, it wins on the safe harbor defense at summary judgment. This is so even if there’s copious evidence that its employees viewed and interacted with the specific infringing material at issue. No jury will ever get to weigh all of the evidence and decide whether the infringement is obvious. At the same time, any proactive steps taken by the service provider will potentially open it up to liability for having actual knowledge, so the incentive is to do as little as possible to proactively “detect and deal” with piracy. This is not at all what Congress intended. It lets bad faith service providers trample the rights of copyright owners with impunity.

To read the rest of this post, please visit IPWatchdog.

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Copyright Internet Legislation Uncategorized

Copyright Policy Should Be Based On Facts, Not Rhetoric

Here’s a brief excerpt of a post by Kevin Madigan & Devlin Hartline that was published on IPWatchdog.

After nearly twenty years with the DMCA, the Copyright Office has launched a new study to examine the impact and effectiveness of this system, and voices on both sides of the debate have filed comments expressing their views. For the most part, frustrated copyright owners report that the DMCA has not successfully stemmed the tide of online infringement, which is completely unsurprising to anyone who spends a few minutes online searching for copyrighted works. Unfortunately, some commentators are also pushing for changes that that would make things even more difficult for copyright owners.

To read the rest of this post, please visit IPWatchdog.

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Copyright Internet Legislation Uncategorized

Separating Fact from Fiction in the Notice and Takedown Debate

By Kevin Madigan & Devlin Hartline

U.S. Capitol buidlingWith the Copyright Office undertaking a new study to evaluate the impact and effectiveness of the Section 512 safe harbor provisions, there’s been much discussion about how well the DMCA’s notice and takedown system is working for copyright owners, service providers, and users. While hearing from a variety of viewpoints can help foster a healthy discussion, it’s important to separate rigorous research efforts from overblown reports that offer incomplete data in support of dubious policy recommendations.

Falling into the latter category is Notice and Takedown in Everyday Practice, a recently-released study claiming to take an in-depth look at how well the notice and takedown system operates after nearly twenty years in practice. The study has garnered numerous headlines that repeat its conclusion that nearly 30% of all takedown requests are “questionable” and that echo its suggestions for statutory reforms that invariably disfavor copyright owners. But what the headlines don’t mention is that the study presents only a narrow and misleading assessment of the notice and takedown process that overstates its findings and fails to adequately support its broad policy recommendations.

Presumably released to coincide with the deadline for submitting comments to the Copyright Office on the state of Section 512, the authors claim to have produced “the broadest empirical analysis of the DMCA notice and takedown” system to date. They make bold pronouncements about how “the notice and takedown system . . . meets the goals it was intended to address” and “continues to provide an efficient method of enforcement in many circumstances.” But the goals identified by the authors are heavily skewed towards service providers and users at the expense of copyright owners, and the authors include no empirical analysis of whether the notice and takedown system is actually effective at combating widespread piracy.

The study reads more like propaganda than robust empiricism. It should be taken for what it is: A policy piece masquerading as an independent study. The authors’ narrow focus on one sliver of the notice and takedown process, with no analysis of the systemic results, leads to conclusions and recommendations that completely ignore the central issue of whether Section 512 fosters an online environment that adequately protects the rights of copyright owners. The authors conveniently ignore this part of the DMCA calculus and instead put forth a series of proposals that would systematically make it harder for copyright owners to protect their property rights.

To its credit, the study acknowledges many of its own limitations. For example, the authors recognize that the “dominance of Google notices in our dataset limits our ability to draw broader conclusions about the notice ecosystem.” Indeed, over 99.992% of the individual requests in the dataset for the takedown study were directed at Google, with 99.8% of that dataset directed at Google Search in particular. Of course, search engines do not include user-generated content—the links Google provides are links that Google itself collects and publishes. There are no third parties to alert about the takedowns since Google is taking down its own content. Likewise, removing links from Google Search does not actually remove the linked-to content from the internet.

The authors correctly admit that “the characteristics of these notices cannot be extrapolated to the entire world of notice sending.” A more thorough quantitative study would include data on sites that host user-generated content, like YouTube and Facebook. As it stands, the study gives us some interesting data on one search engine, but even that data is limited to a sample size of 1,826 requests out of 108 million over a six-month period in mid-2013. And it’s not even clear how these samples were randomized since the authors admittedly created “tranches” to ensure the notices collected were “of great substantive interest,” but they provide no details about how they created these tranches.

Despite explicitly acknowledging that the study’s data is not generalizable, the authors nonetheless rely on it to make numerous policy suggestions that would affect the entire notice and takedown system and that would tilt the deck further in favor of infringement and against copyright owners. They even identify some of their suggestions as explicitly reflecting “Public Knowledge’s suggestion,” which is a far cry from a reasoned academic approach. The authors do note that “any changes should take into account the interests of . . . small- and medium-sized copyright holders,” but this is mere lip service. Their proposals would hurt copyright owners of all shapes and sizes.

The authors justify their policy proposals by pointing to the “mistaken and abusive takedown demands” that they allegedly uncover in the study. These so-called “questionable” notices are the supposed proof that the entire notice and takedown system needs fixing. A closer look at these “questionable” notices shows that they’re not nearly so questionable. The authors claim that 4.2% of the notices surveyed (about 77 notices) are “fundamentally flawed because they targeted content that clearly did not match the identified infringed work.” This figure includes obvious mismatches, where the titles aren’t even the same. But it also includes ambiguous notices, such as where the underlying work does not match the title or where the underlying page changes over time.

The bulk of the so-called “questionable” notices comes from those notices that raise “questions about compliance with the statutory requirements” (15.4%, about 281 notices) or raise “potential fair use defenses” (7.3%, about 133 notices). As to the statutory requirements issue, the authors argue that these notices make it difficult for Google to locate the material to take down. This claim is severely undercut by the fact that, as they acknowledge in a footnote, Google complies with 97.5% of takedown notices overall. Moreover, it wades into the murky waters of whether copyright owners can send service providers a “representative list” of infringing works. Turning to the complaint about potential fair uses, the authors argue that copyright owners are not adequately considering “mashups, remixes, or covers.” But none of these uses are inherently fair, and there’s no reason to think that the notices were sent in bad faith just because someone might be able to make a fair use argument.

The authors claim that their “recommendations for statutory reforms are relatively modest,” but that supposed modesty is absent from their broad list of suggestions. Of course, everything they suggest increases the burdens and liabilities of copyright owners while lowering the burdens and liabilities of users, service providers, and infringers. Having overplayed the data on “questionable” notices, the authors reveal their true biases. And it’s important to keep in mind that they make these broad suggestions that would affect everyone in the notice and takedown system after explicitly acknowledging that their data “cannot be extrapolated to the entire world of notice sending.” Indeed, the study contains no empirical data on sites that host user-generated content, so there’s nothing whatsoever to support any changes for such sites.

The study concludes that the increased use of automated systems to identify infringing works online has resulted in the need for better mechanisms to verify the accuracy of takedown requests, including human review. But the data is limited to small surveys with secret questions and a tiny fraction of notices sent to one search engine. The authors offer no analysis of the potential costs of implementing their recommendations, nor do they consider how it might affect the ability of copyright owners to police piracy. Furthermore, data presented later in the study suggests that increased human review might have little effect on the accuracy of takedown notices. Not only do the authors fail to address the larger problem of whether the DMCA adequately addresses online piracy, their suggestions aren’t even likely to address the narrower problem of inaccurate notices that they want to fix.

Worse still, the study almost completely discards the ability of users to contest mistaken or abusive notices by filing counternotices. This is the solution that’s already built into the DMCA, yet the authors inexplicably dismiss it as ineffective and unused. Apart from providing limited answers from a few unidentified survey respondents, the authors offer no data on the frequency or effectiveness of counternotices. The study repeatedly criticizes the counternotice system as failing to offer “due process protection” to users, but that belief is grounded in the notion that a user that fails to send a counternotice has somehow been denied the chance. Moreover, it implies a constitutional right that is not at issue when two parties interact in the absence of government action. The same holds true for the authors’ repeated—and mistaken—invocation of “freedom of expression.”

More fundamentally, the study ignores the fact that the counternotice system is stacked against copyright owners. A user can simply file a counternotice and have the content in question reposted, and most service providers are willing to repost the content following a counternotice because they’re no longer on the hook should the content turn out to be infringing. The copyright owner, by contrast, then faces the choice of allowing the infringement to continue or filing an expensive lawsuit in federal court. The study makes it sound like users are rendered helpless because counternotices are too onerous, but the reality is that the system leaves copyright owners practically powerless to combat bad faith counternotices.

Pretty much everyone agrees that the notice and takedown system needs a tune up. The amount of infringing content available online today is immense. This rampant piracy has resulted in an incredible number of takedown notices being sent to service providers by copyright owners each day. Undoubtedly, the notice and takedown system should be updated to address these realities. And to the extent that some are abusing the system, they should be held accountable. But in considering changes to the entire system, we should not be persuaded by biased studies based on limited (and secret) datasets that provide little to no support for their ultimate conclusions and recommendations. While it may make for evocative headlines, it doesn’t make for good policy.

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Copyright Internet Legislation Uncategorized

Middle Class Artists Want a DMCA System That Works

The following guest post comes from Rebecca Cusey, a second year law student at George Mason University School of Law.

By Rebecca Cusey

Rebecca_Cusey_HeadshotMason Law’s Arts & Entertainment Advocacy Clinic filed comments today with the U.S. Copyright Office detailing the frustrations and futilities experienced by everyday artists as they struggle with the DMCA system to protect their copyrights online.

Terrica Carrington and I wrote the comments on behalf of middle class artists, that group of creative professionals who invests in and lives off their art and yet does not have the kind of revenue stream or corporate backing of more well-known artists. These photographers, filmmakers, musicians, and other artists are squeezed between infringement that directly affects their ability to pay for things like a mortgage or orthodontics bill and the exorbitant cost of using the notice and takedown system to fight infringement.

Terrica and I spoke with four artists: Filmmaker Ellen Seidler, news photographer Yunghi Kim, musician Blake Morgan, audiovisual creator David Newhoff. These artists make works of value and have followings, and thus infringement. They make a profession of their art.

A middle class artist must do it all on her own – find infringement by hours of searching the web, compile lists of infringing posts on each site, navigate each site’s confusing DMCA notification system, and send takedown notification after takedown notification. And that’s all just sending the notifications. Monitoring to see if the infringing content has been removed or if it has simply been uploaded in another spot is a whole other job in itself.

The artists with whom we talked said it was not unusual in the least for a song, photograph, or film to be posted illegally in a thousand places, even tens of thousands of places. Finding infringement and sending notices took hundreds and thousands of hours, hours they could have spent taking photographs, making movies, or writing songs.

After all the time spent fighting infringement online, they felt the task was futile because the content simply reappeared, sometimes in a different place on the same site, other times because of counternotices filed with the ISP hosting the content claiming to have the right to post it.

These artists felt the notice and takedown system mandated by Section 512 of the Copyright Act was both all-consuming and futile, all-consuming because it ate hours upon hours and futile because it yielded little to no results. Ultimately, all of them decided to stop spending time trying to enforce their copyrights under the procedures of Section 512. It simply was not worth it.

Our comments were filed in response to a request by the U.S. Copyright Office for comments on the effectiveness of Section 512 in fighting infringement online. The Copyright Office wanted to know in particular if the provisions of Section 512 balanced the needs of ISPs to host content with the needs of copyright owners to control their work.

Middle class artists feel the balance is off and the scale tipped in favor of ISPs. These artists do not object to bearing some responsibility for protecting their copyrights online. They simply want a system that works.

To read our Section 512 comments, please click here.

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Copyright Internet Legislation Uncategorized

Copyright Scholars: Courts Have Disrupted the DMCA’s Careful Balance of Interests

Washington, D.C. at nightThe U.S. Copyright Office is conducting a study of the safe harbors under Section 512 of the DMCA, and comments are due today. Working with Victor Morales and Danielle Ely from Mason Law’s Arts & Entertainment Advocacy Clinic, we drafted and submitted comments on behalf of several copyright law scholars. In our Section 512 comments, we look at one narrow issue that we believe is the primary reason the DMCA is not working as it should: the courts’ failure to properly apply the red flag knowledge standard. We argue that judicial interpretations of red flag knowledge have disrupted the careful balance of responsibilities Congress intended between copyright owners and service providers. Instead of requiring service providers to take action in the face of red flags, courts have allowed them to turn a blind eye and bury their heads in the sand.

Whether Section 512’s safe harbors are working as intended is a hotly contested issue. On the one hand, hundreds of artists and songwriters are calling for changes “to the antiquated DMCA which forces creators to police the entire internet for instances of theft, placing an undue burden on these artists and unfairly favoring technology companies and rogue pirate sites.” On the other hand, groups like the Internet Association, which includes tech giants such as Google and Facebook, claim that the safe harbors are “working effectively” since they “strike a balance between facilitating free speech and creativity while protecting the interests of copyright holders.” The Internet Association even claims that “the increasing number of notice and takedown requests” shows that the DMCA working.

Of course, it’s utter nonsense to suggest that the more takedown notices sent and processed, the more we know the DMCA is working. The point of the safe harbors, according to the Senate Report on the DMCA, is “to make digital networks safe places to disseminate and exploit copyrighted materials.” The proper metric of success is not the number of takedown notices sent; it’s whether the internet is a safe place for copyright owners to disseminate and exploit their works. The continuing availability of huge amounts of pirated works should tip us off that the safe harbors are not working as intended. If anything, the increasing need for takedown notices suggests that things are getting worse for copyright owners, not better. If the internet were becoming a safer place, the number of takedown notices should be decreasing. It’s not surprising that service providers enjoy the status quo, given that the burden of tracking down and identifying infringement doesn’t fall on them, but this is not the balance that Congress intended to strike.

Our comments to the Copyright Office run through the relevant legislative history to show what Congress really had in mind—and it wasn’t copyright owners doing all of the work in locating and identifying infringement online. Instead, as noted in the Senate Report, Congress sought to “preserve[] strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the digital networked environment.” The red flag knowledge standard was a key leverage point to encourage service providers to participate in the effort to detect and eliminate infringement. Unfortunately, courts thus far have interpreted the standard so narrowly that, beyond acting on takedown notices, service providers have little incentive to work together with copyright owners to prevent piracy. Even in cases with the most crimson of flags, courts have failed to strip service providers of their safe harbor protection. Perversely, the current case law incentivizes service providers to actively avoid doing anything when they see red flags, lest they gain actual knowledge of infringement and jeopardize their safe harbors. This is exactly the opposite of what Congress intended.

The Second and Ninth Circuits have interpreted the red flag knowledge standard to require knowledge of specific infringing material before service providers can lose their safe harbors. While tech giants might think this is great, it’s terrible for authors and artists who need service providers to carry their share of the load in combating online piracy. Creators are left in a miserable position where they bear the entire burden of policing infringement across an immense range of services, effectively making it impossible to prevent the deluge of piracy of their works. The Second and Ninth Circuits believe red flag knowledge should require specificity because otherwise service providers wouldn’t know exactly what material to remove when faced with a red flag. We argue that Congress intended service providers with red flag knowledge of infringing activity in general to then bear the burden of locating and removing the specific infringing material. This is the balance of responsibilities that Congress had in mind when it crafted the red flag knowledge standard and differentiated it from the actual knowledge standard.

But all hope is not lost. The Second and Ninth Circuits are but two appellate courts, and there are many others that have yet to rule on the red flag knowledge issue. Moreover, the Supreme Court has never interpreted the safe harbors of the DMCA. We hope that our comments will help expose the underlying problem that hurts so many creators today who are stuck playing the DMCA’s whack-a-mole game when their very livelihoods are at stake. Congress intended the DMCA to be the cornerstone of a shared-responsibility approach to fighting online piracy. Unfortunately, it has become a shield that allows service providers to enable piracy on a massive scale without making any efforts to prevent it beyond acting on takedown notices. The fact that search engines can still index The Pirate Bay—an emblematic piracy site that even has the word “pirate” in its name—without concern of losing their safe harbor protection is a testament to how the courts have turned Congress’ intent on its head. We hope that the Copyright Office’s study will shed light on this important issue.

To read our Section 512 comments, please click here.