Tag: Ellen Seidler

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Copyright

Scalia Law Students and CPIP Scholars Make an Impact in Copyright Office Section 512 Study

the word "copyright" written on a typewriterThe U.S. Copyright Office released its long-awaited report on Section 512 of Title 17 late last week. The Report is the culmination of more than four years of study by the Office of the safe harbor provisions for online service provider (OSP) liability in the Digital Millennium Copyright Act of 1998 (DMCA). Fortuitously, the study period coincided with the launch of Scalia Law’s Arts and Entertainment Advocacy Clinic. Clinic students were able to participate in all phases of the study, including filing comments on behalf of artists and CPIP scholars, testifying at roundtable proceedings on both coasts, and conducting a study of how OSPs respond to takedown notices filed on behalf of different types of artists. The Office cites the filings and comments of Scalia Law students numerous times and ultimately adopts the legal interpretation of the law advocated by the CPIP scholars.

The Office began the study in December 2015 by publishing a notice of inquiry in the Federal Register seeking public input on the impact and effectiveness of the safe harbor provisions in Section 512. Citing testimony by CPIP’s Sean O’Connor to the House Judiciary Committee that the notice-and-takedown system is unsustainable given the millions of takedown notices sent each month, the Office launched a multi-pronged inquiry to determine whether Section 512 was operating as intended by Congress.

Scalia Law’s Arts and Entertainment Advocacy Clinic drafted two sets of comments in response to this initial inquiry. Terrica Carrington and Rebecca Cusey submitted comments to the Office on behalf of middle class artists and advocates, including Blake Morgan, Yunghi Kim, Ellen Seidler, David Newhoff, and William Buckley, arguing that the notice-and-takedown regime under Section 512 is “ineffective, inefficient, and unfairly burdensome on artists.” The students pointed out that middle class artists encounter intimidation and personal danger when reporting infringements to OSPs. Artists filing takedown notices must include personal information, such as their name, address, and telephone number, which is provided to the alleged infringer or otherwise made public. Artists often experience harassment and retaliation for sending notices. The artists, by contrast, obtain no information about the identity of the alleged infringer from the OSP. The Office’s Report cited these problems as a detriment for middle class artists and “a major motivator” of its study.

A second response to the notice of inquiry was filed by a group of CPIP scholars, including Sandra Aistars, Matthew Barblan, Devlin Hartline, Kevin Madigan, Adam Mossoff, Sean O’Connor, Eric Priest, and Mark Schultz. These comments focused solely on the issue of how judicial interpretations of the “actual” and “red flag” knowledge standards affect Section 512. The scholars urged that the courts have interpreted the red flag knowledge standard incorrectly, thus disrupting the incentives that Congress intended for copyright owners and OSPs to detect and deal with online infringement. Several courts have interpreted red flag knowledge to require specific knowledge of particular infringing activity; however, the scholars argued that Congress intended for obvious indicia of general infringing activity to suffice.

The Office closely analyzed and ultimately adopted the scholars’ red flag knowledge argument in the Report:

Public comments submitted by a group of copyright law scholars in the Study make a point closely related to the rightsholders’ argument above, focusing on the different language Congress chose for actual and red flag knowledge. They note that the statute’s standard for actual knowledge is met when the OSP has “knowledge that the material or an activity using the material on the system or network is infringing” or “knowledge that the material or activity is infringing,” while the red flag knowledge standard is met when the OSP is “aware of facts or circumstances from which infringing activity is apparent.” This difference, the copyright law scholars argue, is crucial to understanding the two standards: while the statute uses a definite article—“the”—to refer to material or activity that would provide actual knowledge, it drops “the” to speak more generally about facts or circumstances that would create red flag knowledge. “In Congress’s view,” the comment concludes, “the critical distinction between the two knowledge standards was this: Actual knowledge turns on specifics, while red flag knowledge turns on generalities.”

 

The Office went on to state that “a standard that requires an OSP to have knowledge of a specific infringement in order to be charged with red flag knowledge has created outcomes that Congress likely did not anticipate.” And since “courts have set too high a bar for red flag knowledge,” the Office concluded, Congress’ intent for OSPs to act upon information of infringement has been subverted. This echoed the scholars’ conclusion that the courts have disrupted the balance of responsibilities that Congress sought to create with Section 512 by narrowly interpreting the red flag knowledge standard.

Scalia Law students and CPIP scholars likewise participated in roundtable hearings on each coast to provide further input for the Copyright Office’s study of Section 512. The first roundtable was held on May 2-3, 2016, in New York, New York, at the Thurgood Marshall United States Courthouse, where the Second Circuit and Southern District of New York hear cases. The roundtable was attended by CPIP’s Sandra Aistars and Matthew Barblan. They discussed the notice-and-takedown process, the scope and impact of the safe harbors, and the future of Section 512. The second roundtable was held in San Francisco, California, at the James R. Browning Courthouse, where the Ninth Circuit hears cases. Scalia Law student Rebecca Cusey joined CPIP’s Sean O’Connor and Devlin Hartline to discuss the notice-and-takedown process, applicable legal standards, the scope and impact of the safe harbors, voluntary measures and industry agreements, and the future of Section 512. Several of the comments made by the CPIP scholars at the roundtables ended up in the Office’s Report.

In November 2016, the Office published another notice of inquiry in the Federal Register seeking additional comments on the impact and effectiveness of Section 512. The notice itself included citations to the comments submitted by Scalia Law students and the comments of the CPIP scholars. Under the guidance of Prof. Aistars, the students from Scalia Law’s Arts and Entertainment Advocacy Clinic again filed comments with the Office. Clinic students Rebecca Cusey, Stephanie Semler, Patricia Udhnani, Rebecca Eubank, Tyler Del Rosario, Mandi Hart, and Alexander Summerton all contributed to the comments, which discussed their work in helping individuals and small businesses enforce their copyright claims by submitting takedown notices pursuant to Section 512. The students reported on the practical barriers to the effective use of the notice-and-takedown process at particular OSPs. Two problems identified by the students were cited by the Copyright Office as examples of how OSPs make it unnecessarily difficult to submit a takedown notice. Accordingly, the Office called on Congress to update the relevant provisions of Section 512.

Two years after the additional written comments were submitted, the Office announced a third and final roundtable to be held on April 8, 2019, at the Library of Congress in Washington, D.C. The purpose of this meeting was to discuss any relevant domestic or international developments that had occurred during the two prior years. CPIP’s Devlin Hartline attended this third roundtable to discuss recent case law related to Section 512, thus ensuring that CPIP scholars were represented at all three of the Office’s roundtables.

CPIP congratulates and thanks the students of Scalia Law’s Arts and Entertainment Advocacy Clinic for their skillful advocacy on behalf of artists who otherwise would not be heard in these debates.

Categories
Copyright Infringement Internet Uncategorized

Advertiser Pledge Sets Example of Accountability in the Fight Against Piracy

Cross-posted from the Mister Copyright blog.

cameraIt should come as no surprise that popular websites make money by hosting advertisements. Anyone surfing the web has undoubtedly been bombarded with ads when visiting certain sites, and for websites that offer free services or user experiences, advertisements are often the only way to generate revenue. Unfortunately, websites that promote and distribute pirated material also attract advertisers to help fund their illicit enterprises, and despite a recent push for awareness and response to these sites, legitimate advertisers, search engines, and domain name registrars continue to enable them to profit from flagrant copyright infringement.

A 2014 study by the Digital Citizens Alliance found that ad-sponsored content theft is a big and growing business. Even after a year that saw the shutdown of some of the most notorious file-sharing websites, an examination of 589 illicit websites found aggregate annual advertising revenues of $209 million. Premium brand advertising also rose from 89 observed brands in 2013 to 132 to in 2014.

The transition from downloading to streaming as the preferred method of consuming entertainment has led to content thieves taking advantage of higher advertising rates, as the cost of advertising during a video stream is far greater than a traditional display ad. Additionally, the Digital Citizens Alliance stresses that websites are easily able to ditch a domain name targeted by authorities and set up shop under a new one, contributing to the never-ending whack-a-mole nature of online piracy:

The content theft industry’s low barriers to entry and the ability of operators to switch domains quickly make it easy for new sites to fill the void left by those that do get shut down, and to evade enforcement.

The presence of recognizable brand advertisements on websites involved in illegal activity does damage far beyond lining the pockets of those distributing the unauthorized works. When users visit a website in search of music, a television show, or movie, and they see the creative work (or links to the work) displayed alongside professional, recognizable advertisements, the advertisements lend legitimacy to the website. This can be especially dangerous for younger or less-informed users who have no idea that downloading or streaming the creative works through one of these websites is copyright infringement that will ultimately harm creators and artists.

The confusion these ad placements create is similar to the misperceptions furthered by search engines and domain name registrars that have made little effort to preclude pirate websites from taking advantage of their services. Despite promises to remove them from their search results, Google continues to display links to pirate websites alongside legitimate links in its results, often displaying the illicit links at the very top of the search results.

Filmmaker and artists’ rights activist Ellen Seidler recently exposed Google’s unwillingness to remove links to websites that distribute unauthorized creative works when she ran a simple Google search for her film And Then Came Lola. As she relates, not only was the film’s official website nowhere to be found among the first page of results, the list was made up of many websites offering pirated versions of the film. Sadly, most people searching for Ellen’s movie would not be able to immediately distinguish between legitimate and illicit links and would likely be steered towards a pirate website.

Domain name registrars have also added to the confusion surrounding the legitimacy of certain infamous pirate sites by allowing them to play domain name musical chairs and evade prosecution. The Pirate Bay—one of the most notorious file-sharing websites—has operated using domain names from 14 different countries, jumping from domain to domain name to stay online in the face of prosecution. Copyright Alliance CEO Keith Kupferschmid warns against providing sanctuary to sites like The Pirate Bay, revealing that the website recently returned to its original .org domain run by the U.S.-based Public Interest Registry (PIR):

It is shocking that a domain name registry in the United States – one that is dedicated to “the public interest” – is allowing a blatantly illegal site to have a home on the .org domain. This is especially disturbing given that the operators of The Pirate Bay have been found guilty of criminal copyright infringement, The Pirate Bay domain names have been seized or suspended around the globe, and even its co-founder, Peter Sunde, has walked away from it.

Despite these alarming trends in the facilitation of pirate websites, there have been some recent initiatives to deter companies from doing business with illicit websites. One notable initiative is the Trustworthy Accountability Group (TAG). A joint effort by the Association of National Advertisers (ANA), the American Association of Advertising Agencies (4A’s), and the Interactive Advertising Bureau (IAB), TAG was formed “to create transparency in the business relationships and transactions that undergird the digital ad industry, while continuing to enable innovation.” In 2015, TAG announced the launch of the Brand Integrity Program Against Piracy—an effort to help advertisers and advertising agencies keep their ads off websites that promote or distribute counterfeit goods or pirated content.

TAG’s mission has resonated with both advertisers and ISPs, demonstrated by a recent announcement that dozens of leading ad agencies, as well as Google and GoDaddy, have taken TAG’s Anti-Piracy Pledge. The Pledge includes a vow to curb the placement of digital advertising on websites associated with the unauthorized distribution of materials and lists the following actions that companies can take to ensure compliance:

(i) directly employing the services of validated Digital Advertising Assurance Providers;

(ii) directly employing advertising placement services that carry the TAG logo “Certified Against Piracy”; and/or

(iii) placing online advertisements through Advertising Agencies that do business exclusively with advertising placement services that carry the TAG logo “Certified Against Piracy

TAG created Digital Advertising Assurance Providers (DAAPs) as part of its Brand Integrity Program to help advertisers identify and weed out websites that do not meet their brand standards. The DAAPs are validated technology companies that the advertisers can employ to gauge the level of risk they are comfortable with and then eliminate websites and other properties that do not meet the advertisers’ standards for risk of infringement.

It’s difficult to measure how harmful advertising on illicit websites is to creators and copyright owners, but it’s not a stretch to presume that without ad revenue, many pirate sites would lose their incentive to operate. In her call to action to marketers, Hannibal executive producer Martha De Laurentiis lays out the destructive effect piracy has on the creative community:

It forces companies to either shrink their production budgets or commit to fewer, less risky projects. And ultimately, it harms audiences by limiting the types of stories that creatives can tell.

De Laurentiis explains that these pirate sites bring in millions in advertising dollars a year, and because they don’t pay for distribution rights for the creative works they steal, profit margins are estimated at around 90%. Potential profits of this scale are irresistible to those behind the pirate sites, but with a little vigilance and responsibility these incentives could be eliminated.

The co-chairs of the International Creativity and Theft-Prevention Caucus, Senator Orrin Hatch, Senator Sheldon Whitehouse, Congressman Bob Goodlatte, and Congressman Adam Schiff, recently praised TAG for its promotion of the Anti-Piracy Pledge, and it seems like the movement for more responsibility in digital advertising is gaining traction. But domain name registrars and search engine services need to follow the example set by advertisers and establish accountability and awareness in their sectors. Only when these services refuse to aid websites that distribute stolen copyrighted works will real progress be made in the fight against digital piracy.

Categories
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.