Tag: Keith Kupferschmid

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Copyright Legislation

Senate IP Subcommittee Considers the Role of Private Agreements and Existing Technology in Curbing Online Piracy

The following post comes from Liz Velander, a recent graduate of Scalia Law and a Research Assistant at CPIP.

U.S. Capitol buildingBy Liz Velander

In mid-December, the Senate Intellectual Property Subcommittee, led by its Chairman, Senator Thom Tillis (R-NC), held a hearing entitled “The Role of Private Agreements and Existing Technology in Curbing Online Piracy.” The hearing came ahead of Sen. Tillis’s release of his first discussion draft of legislation to reform the Digital Millennium Copyright Act (DMCA). In his opening remarks, Sen. Tillis stated that reforming the DMCA is one of his top priorities in the 117th Congress, but it may take his entire second term to get a DMCA reform bill across the finish line. The purpose of the hearing was to identify voluntary steps that copyright owners and tech companies can take now to curb online infringement.

The hearing consisted of two panels. Panel I included: Ruth Vitale, CEO, CreativeFuture; Probir Mehta, Head of Global Intellectual Property and Trade Policy, Facebook, Inc.; Mitch Glazier, Chairman and CEO, Recording Industry Association of America (RIAA); and Joshua Lamel, Executive Director, Re:Create. Panel II included: Katherine Oyama, Global Director of Business Public Policy, YouTube; Keith Kupferschmid, CEO, Copyright Alliance; Noah Becker, President and Co-Founder, AdRev; and Dean Marks, Executive Director and Legal Counsel, Coalition for Online Accountability.

Sen. Tillis began the hearing by voicing his opinion on the matter, informed by a year-long series of hearings and months of feedback from creators, user groups, and technology companies. “There is absolutely more big tech can and should do to stop online piracy,” Sen. Tillis said. “Unfortunately, it seems that some in big tech aren’t serious about stopping online piracy, and I don’t know why that is. Maybe it isn’t a priority—or maybe some companies are actually profiting off the piracy on their site. It is clear as day to me that many multi-national, multi-billion-dollar companies simply aren’t using all the tools they have to stop theft from small creators. And that’s wrong.”

Mitch Glazier, Chairman and CEO of RIAA, stated that the problem is that big tech companies aren’t properly incentivized to take steps in combatting online piracy. Keith Kupferschmid, CEO of the Copyright Alliance, explained that Section 512 of the DMCA has been so misinterpreted by the courts that most service providers know that they have little risk of liability and need only do the absolute minimum required under the DMCA to avoid liability.

Mr. Glazier said that one of the most important things Congress can do is to provide the right incentives to encourage voluntary private agreements. He explained that there are two types of private agreements. First, there are individual agreements entered into by copyright owners and technology providers. These can be nimble and evolve with technology. Second, there are standards developed in the marketplace that eventually achieve broad enough consensus and use that they become required. In Mr. Glazier’s view, that is what the DMCA contemplated—a multi-stakeholder standard technical measure (STM) process where there was enough consensus and use that it would be unfair for outliers to compete without using them. Mr. Glazier said that a voluntary system only works if there exist the right incentives, which the DMCA does not currently provide.

The panelists disagreed as to whether Congress needs to reform the DMCA in order to incentivize voluntary agreements. The panelists representing big tech companies asserted that the process is working as the DMCA intended, pointing to the policies and procedures of their platforms and existing content protection technology. Probir Mehta, Head of Global IP and Trade Policy at Facebook, touted Facebook’s content management tool, Rights Manager. Katherine Oyama, Global Director of Business Public Policy at YouTube, pointed to Youtube’s Copyright Management Tools, which include a webform, Content ID, and Copyright Match. These panelists emphasized the significant amount of work their companies undertook to create these technologies, which they view as going above and beyond the requirements of the DMCA.

Members of the IP Subcommittee were very interested to hear how these tools work in practice. Ruth Vitale, CEO of CreativeFuture, testified that most individual creators are not given access to YouTube’s Content ID, nor are they given an explanation for why they are denied. Ms. Oyama stated that while Content ID has eligibility requirements, YouTube built an entirely new tool for smaller creators, Copyright Match, which runs on Content ID itself. She claimed that Content ID is such a powerful tool that, if used improperly, will erroneously take down content that is noninfringing.

Ranking Member Senator Chris Coons (D-DE) wanted to know what the panelists viewed as the path forward. Mr. Kupferschmid said that while voluntary agreements have a role, they cannot address everything. He emphasized that legislative action is appropriate in this circumstance because service providers are not being cooperative. Noah Becker, President and Co-Founder of AdRev, a digital rights management and media technology company, agreed with Mr. Kupferschmid. He explained his business’ revenue-sharing proposition is a better fit for copyright owners that do not want to use YouTube’s monetization tools. In addition to legislation, he explained that there should be some sort of support for the concept of a list of approved vendors, like AdRev, to be able to access copyright APIs on massive platforms. He urged that this would reduce the large cost and technology burden of accessing APIs, making takedowns more affordable for creators.

Sen. Tillis closed the hearing by stating that the parties need to engage with one another in order to avoid a potential legislative overreach. He said that the hearing showed that tech companies must do more to combat online piracy. Sen. Tillis stressed that they have the tools and resources but must find ways to get greater engagement and create voluntary paths to prevent Congress from paving less voluntary ones.

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.