Now That Amazon Has Bought MGM, Will It Turn Against The Internet?

from the hopefully-not dept

As you may have heard, Amazon recently reached a deal to buy MGM Studios for $8.5 billion, expanding its in-house content studio, which is already quite massive, given its efforts to build up its Prime Video streaming service. For a variety of reasons (notably, everything Amazon has done with Prime, as well as increasing video streaming competition from Disney, NBC Universal, Warner Media/Discovery, etc.), the deal isn't that surprising.

I do wonder, however, if this deal brings Amazon a step closer to turning its back on the open internet. I mean, we already had Netflix join the MPA and start overreacting to piracy after being a good internet steward for many years. At this point, it seems like it may only be a matter of time until Amazon goes down that path as well -- though I'd hope they think better of it.

That said, it is notable that MGM is not a member of the MPA. It somewhat famously left in 2005. So maybe that helps keep Amazon on a path of actually supporting the open internet, and remembering the rest of its business (and how much it relies on an open internet). Still, watching how much the internet and the entertainment business has converged over the past decade or so suggests that we might finally get a realignment on these issues. It would be nice if that came with Hollywood finally recognizing the open internet is not the enemy, rather than the new tech players turning their backs on the open internet... but I'm not at all confident that's how this will play out.

Filed Under: content, copyright, internet
Companies: amazon, mgm, mpa, mpaa, netflix

The Oscars Ends DVD Screeners For Reasons Other Than Piracy, Which Will Of Course Continue

from the screenshot dept

Oscars DVD screeners, the DVDs that get sent out to judges that are up for an award, have been an on again, off again topic for years at Techdirt. These screeners were at one time a very prevalent source for pirated films that showed up on the internet. There was once some irony in the MPAA and film industry insisting that piracy could be solved by tech companies if only they would nerd hard enough, yet here are these screeners going out the doors that supposedly were secure and turned out not to be. It was all bad enough that the MPAA wanted to ban screeners entirely, which pissed off filmmakers enough that the lobbying group ended up having to back down.

It turns out that technology actually could solve the film industry's screener DVD piracy problem. With better quality film rips showing up on pirate sites, ripping relatively low-res DVDs became not a thing. Perhaps because of that, alongside the stated desire to be more sustainable, there will be no more Oscars DVD screeners moving forward.

This year, plenty of discs will be shipped too but, after the upcoming Oscars ceremony, that will be a thing of the past. The Academy of Motion Picture Arts and Sciences announced this week that physical screeners will no longer be allowed in 2021.

“[T]he 93rd Awards season will be the final year DVD screeners will be allowed to be distributed; these mailings will be discontinued starting in 2021 for the 94th Academy Awards,” the Academy writes. Whether piracy was considered as a factor at all remains a guess. Some insiders believe that digital screeners are easier to protect and therefore more secure, but that is up for debate.

If it's a debate, it's not much of one. Already dedicated pirate groups have indicated that there are plenty of opportunities to leak digital screeners and that they have already been successful in ripping them. In other words, the screener DVDs may end, but the pirating will continue.

“We had access to digital screeners and they are indeed easy to leak. The DRM on it is a joke. We had an account last year with three screeners on it and they were pretty much MP4 ready to encode,” the EVO team informed us at the time.

Whether streaming or physical screeners are more secure ultimately depends on the type of protection measures that are implemented for each. The safest conclusion, for now, is that piracy will likely remain a problem no matter what the distribution platform is.

As it seems will always be the case. I'm somewhat encouraged that the announcement of the end of Oscars screener DVDs didn't carry with it complaints about piracy. Perhaps the industry is in some small way learning to live with piracy rather than fighting it at every turn.

Filed Under: academy awards, dvds, movies, oscars, piracy, screeners
Companies: mpaa

US Government Threatening To Kill Free Trade With South Africa After Hollywood Complained It Was Adopting American Fair Use Principles

from the what-the-actual-fuck? dept

Hollywood hates fair use. Even though Hollywood frequently relies on fair use, it seems to go out of its way to fight against fair use being used anywhere else. The International Intellectual Property Alliance (IIPA) (which is a mega trade group of intellectual property maximalist trade groups, including the MPAA, the RIAA, ESA, IFTA and AAP) has freaked out any time any other country in the world has sought to have American-style fair use. Over a decade ago IIPA flipped out when Israel's fair use rules matched the US's. The group and other surrogates have also fought American-style fair use in the UK and Australia after both of those countries explored implementing American-style fair use.

The IIPA has a playbook all set for any country (outside of the US) that is thinking about adopting US style fair use policies: it claims that because fair use relies heavily on judicial common law, no other country but the US can possibly have it, because it will lead to lots of litigation until the courts set the boundaries. Of course, this seems pretty silly, as there are easy ways around this (indeed, it's why fair use kinda works fine in Israel). The latest country to explore implementing an American-style fair use is, as we reported last year, South Africa. Its copyright reform seemed quite smart and well-thought out.

And, of course, Hollywood absolutely couldn't let that stand. Earlier this year, the IIPA included South Africa in its usual omnibus submission to the USTR for the Special 301 list, the ridiculous annual process by which big copyright holders tell the USTR what countries aren't implementing the copyright laws they want, and the USTR tries to "shame" those countries into playing by Hollywood's rules. In this year's submission, the IIPA seems positively apoplectic that South Africa might implement American-style fair use. And, of course, it pulls out the bogus "so much litigation!" warning:

Most recently, the National Assembly of South Africa adopted legislation in December 2018 that also features a broad spectrum of vaguely delineated exceptions. On top of a set of extremely broad new exceptions and limitations to copyright protection (and the existing “fair dealing” system), the new law adds a version of the U.S. “fair use” statute that will allow judges to excuse certain uses from licenses. This version of “fair use” can be applied to eight broad and unclear “purposes” of use, such as “scholarship, teaching and education,” and “expanding access for underserved populations.” The proposed “fair use” system lacks the decades of legal precedent that have served to define, refine, and qualify that doctrine in the United States. The effects of this provision, along with overlapping exceptions and limitations, will result in confusion and uncertainty about which uses of copyright works require licenses, and could hinder investment in and the development of new copyright services in South Africa. It will, in particular, imperil the legitimate markets for educational texts, locally distributed works, and online works in general. Taken as a whole, these provisions are inconsistent with South Africa’s international obligations since they far exceed the degree of exceptions and limitations permitted under the WTO TRIPS Agreement (the “three-step test”).

First, kudos to the IIPA for at least admitting outright that South Africa is looking to implement a "version of the U.S. 'fair use' statute," because I wouldn't have put it past them to ignore the fact that this exists in the US and all of the IIPA members' members have used it to build parts of their business.

But the claim that this is inconsistent with international obligations is utter hogwash. As we've discussed in the past, the "three-step test" is often used by Hollywood as a strawman pretending that it blocks users' rights in copyright law. But that's not true. If it was, then the US couldn't even have the fair use system we do. But we do. So, no, the three-step test doesn't prevent it.

Now, here's the really fucked up part in all of this. While any competent US Trade Rep (USTR) would look at this and laugh off Hollywood's usual nonsense and point out that if we have fair use here in the US, it's pretty fucking rich to think that we should attack an ally for implementing the same law, that's not what happened. Instead, just recently the USTR directly announced that because of these very concerns, it's opening an investigation into South Africa's intellectual property processes, and it could lead to the USTR kicking South Africa out of a very favorable free trade agreement (the Generalized System of Preferences (GSP)):

South Africa: USTR is accepting a petition from the International Intellectual Property Alliance based on concerns with South Africa’s compliance with the GSP IP criterion, in the area of copyright protection and enforcement.

This could lead to a huge change in South Africa's access to the American market, potentially putting over $2 billion worth of South African exports at risk.

All because South Africa wants to implement a totally reasonable copyright plan that respects the public's rights in a manner entirely consistent with current US law. And the US (by way of Hollywood lobbyists) wants to punish the country for that. This is a potentially huge and incredible situation which is not getting very much attention at all -- which is just how Hollywood, the IIPA, the MPAA, and the RIAA want it.

Filed Under: copyright, fair use, free trade, south africa
Companies: iipa, mpaa

Top MPAA Lawyer, Mastermind Behind Its Plan To Attack The Internet, Arrested On Blackmail And Sexual Assault Charges

from the how-very-ethical dept

A while back, an MPAA whistleblower sent me a big file of internal MPAA documents. I spent many months going through them and trying to track down any actual story in them, but there really wasn't much there. Most of the documents were quite old and not all that revealing beyond what was already known (or widely assumed) about how the MPAA acted. The only thing that struck me as interesting, was a very old memo, written by lawyer Steven Fabrizio, before he became the MPAA's General Counsel, when he was still at the MPAA's favorite law firm, Jenner & Block. The memo outlined a very long list of potential anti-piracy strategies, and whether or not they were legal. Some of them were... quite surprising in what they were even considering (it included things like taking over a pirate site and using it as a honeypot). Many were what I would personally classify as somewhere between sleazy, dishonest and unethical. I never wrote up any details, because there was no evidence that the MPAA ever actually did any of the proposed programs, and a few people I ran questions by pointed out that, as as corporate lawyer, reviewing crazy ideas by clients and giving a legal opinion on them is standard practice.

The Fabrizio connection struck me as interesting on a few levels, though. Beyond being the MPAA's top legal attack dog for nearly a decade, the Sony Pictures email leak showed that Fabrizio was the mastermind behind Hollywood's Project Goliath to use MPAA/Hollywood Studio funds to pay for having state Attorney's General and news media owned by those studios, to attack Google to try to pressure it into some sort of "deal" with the studios. Fabrizio was also formerly the top litigator at the RIAA, and led its charge against Napster. Fabrizio was deeply involved in key copyright lawsuits, including the fights against Grokster, Hotfile, and Aereo. Basically, much of the history of "anti-piracy" litigation and "anti-piracy" efforts regarding the internet, was somehow touched by Steve Fabrizio.

And, of course, the usual line that people would give in supporting these positions is that it was necessary is because "piracy is illegal" and so on.

Anyway, that's why it's a bit shocking to discover that Fabrizio has now been arrested in DC (and fired by the MPAA) for alleged sexual assault and blackmail. Variety's story on the charges is really quite incredible:

According to a police affidavit, Fabrizio is accused of threatening a woman he met on a “sugar daddy” dating site. The police allege that Fabrizio and the woman had consensual sex once on Aug. 19, after which he paid her $400. After that, she did not want to see him again. According to the affidavit, Fabrizio sent numerous texts insisting on a second meeting, and threatening to expose her if she did not comply.

“I know where you live,” he allegedly wrote. “I know where you work. Don’t think — Hospital would be happy to know that it’s young nurses are having sexual for money / Same for your landlord.”

Fabrizio allegedly used those threats to coerce her into having sex again, according to the affidavit. The police allege that he then sent additional texts threatening to tell her parents if she did not continue to have sex with him a couple times a month. The woman called the police. After arranging for another meeting, Fabrizio was arrested outside the woman’s apartment on Friday morning, according to the document.

That is beyond horrifying -- especially given that part of Project Goliath was to try to get various state Attorneys General to argue that Google helped enable sex trafficking and other such things. Apparently, Fabrizio decided to "investigate" things a bit more directly.

Filed Under: arrest, blackmail, sexual assault, steve fabrizio
Companies: mpaa

Is There A Conspiracy Among Legacy Media Companies To Push A False Narrative About Big Tech?

from the well,-there's-some-smoke... dept

Over the last few months we've witnessed a veritable flood of misleading to simply false articles about internet companies showing up in mainstream sources. There were misleading articles in Vox and the Washington Post. And then, just recently, we saw not one but two NY Times pieces that went out of their way to misrepresent the law. And, then of course, there's the Wall Street Journal that has been misrepresenting Section 230 for ages. To date, the only one of these publications to run a serious correction (and to continue to help debunking misrepresentations) is the smallest of those listed above: Vox, who did some research and published a big mea culpa.

This has gotten many in the tech industry to begin to wonder. It's one thing for (cross aisle) grandstanding politicians like Ted Cruz, Josh Hawley, Nancy Pelosi, and Richard Blumenthal to totally misrepresent the law. But when the mainstream media is doing so on a regular basis -- it's causing a lot of talk behind the scenes about whether this is a coordinated hit. Some, like the excellent reporter Anna Wiener, recently more or less dismissed this theory as being "mostly... a facile argument," though I think she mixes up two separate issues. First, it is absolutely true that many startup founders don't know how to deal with the press well, and get personally offended by bad press coverage. And, for those entrepreneurs: fuck 'em. They should grow up and learn what the press actually does, when done right -- which includes researching and debunking nonsense (and there's a ton of nonsense in Silicon Valley).

But, that's a separate issue from whether or not there's a coordinated campaign to undermine the foundations of the internet by a few larger, legacy industries who have failed to adapt to a changing time. Indeed, we saw significant evidence of Hollywood's top lobbyists working behind the scenes (though, it occasionally slipped out publicly) to push for FOSTA, the first bill that significantly undermined Section 230.

And there's plenty more evidence of legacy industries -- mainly legacy media and entertainment companies -- plotting to take down internet companies by making use of the news. Remember, during the Sony Pictures hack, that MPAA emails were leaked, revealing "Project Goliath," which was specifically a plan to damage Google through any means necessary -- and that included using a smear campaign placed in the Wall Street Journal and on the Today Show. In an email sent to an official in Mississippi Attorney General Jim Hood's office by then MPAA "director of external state government affairs" official (and former ICE official) Brian Cohen, Cohen admits the "proposed plan" is to place an anti-Google smear campaign:

If that image is not showing up, the text comes from a larger strategic plan between the MPAA and various state Attorneys' General, and includes this:

Media: We want to make sure that the media is at the NAAG meeting. We propose working with MPAA (Vans), Comcast, and NewsCorp (Bill Guidera) to see about working with a PR firm to create an attack on Google (and others who are resisting AG efforts to address online piracy). This PR firm can be funded through a nonprofit dedicated to IP issues. The "live buys" should be available for the media to see, followed by a segment the next day on the Today Show (David green can help with this). After the Today Show segment, you want to have a large investor of Google (George can help us determine that) come forward and say that Google needs to change its behavior/demand reform. Next, you want NewsCorp to develop and place an editorial in the WSJ emphasizing that Google's stock will lose value in the face of a sustained attack by AGs and noting some of the possible causes of action we have developed.

So, sure, while it may seem "facile" for some to argue that legacy media firms are out to get big internet companies with trumped up claims in their own media properties, there's very real evidence of a conspiracy to do literally that. Not so facile.

And there's more where that comes from. In Wired's giant profile last year of the "troubles" inside Facebook, it is made clear that Rupert Murdoch used his ability to damage the company via the editorial pages of the WSJ as part of a negotiating strategy:

Zuckerberg traveled to Sun Valley, Idaho, for an annual conference hosted by billionaire Herb Allen, where moguls in short sleeves and sunglasses cavort and make plans to buy each other’s companies. But Rupert Murdoch broke the mood in a meeting that took place inside his villa. According to numerous accounts of the conversation, Murdoch and Robert Thomson, the CEO of News Corp, explained to Zuckerberg that they had long been unhappy with Facebook and Google. The two tech giants had taken nearly the entire digital ad market and become an existential threat to serious journalism. According to people familiar with the conversation, the two News Corp leaders accused Facebook of making dramatic changes to its core algorithm without adequately consulting its media partners, wreaking havoc according to Zuckerberg’s whims. If Facebook didn’t start offering a better deal to the publishing industry, Thomson and Murdoch conveyed in stark terms, Zuckerberg could expect News Corp executives to become much more public in their denunciations and much more open in their lobbying. They had helped to make things very hard for Google in Europe. And they could do the same for Facebook in the US.

.... Inside Facebook, executives believed Murdoch might use his papers and TV stations to amplify critiques of the company. News Corp says that was not at all the case; the company threatened to deploy executives, but not its journalists.

Zuckerberg had reason to take the meeting especially seriously, according to a former Facebook executive, because he had firsthand knowledge of Murdoch’s skill in the dark arts. Back in 2007, Facebook had come under criticism from 49 state attorneys general for failing to protect young Facebook users from sexual predators and inappropriate content. Concerned parents had written to Connecticut attorney general Richard Blumenthal, who opened an investigation, and to The New York Times, which published a story. But according to a former Facebook executive in a position to know, the company believed that many of the Facebook accounts and the predatory behavior the letters referenced were fakes, traceable to News Corp lawyers or others working for Murdoch, who owned Facebook’s biggest competitor, MySpace. “We traced the creation of the Facebook accounts to IP addresses at the Apple store a block away from the MySpace offices in Santa Monica,” the executive says. “Facebook then traced interactions with those accounts to News Corp lawyers. When it comes to Facebook, Murdoch has been playing every angle he can for a long time.” (Both News Corp and its spinoff 21st Century Fox declined to comment.)

Got that? Facebook actually traced fake accounts, that were handed to long-grandstanding anti-internet crusader Richard Blumenthal (then a state AG, now a Senator) back to News Corp. And Murdoch strongly implied to Facebook execs that he needed to get a better deal from them or his publications, such as the WSJ, would put out hit pieces.

So, yes, there are legitimate points of concern to raise about big internet companies. I'm not one to normally believe in cynical conspiracy theories, but it's not at all crazy to think that the recent onslaught in major media properties may not be coming from the most ethically sound place. After all, if Hollywood has plotted in the past to do exactly that, why would anyone expect them to have given up those underhanded games?

Filed Under: attacks, behind the scenes, conspiracy, hit pieces, journalism, lobbying, media, misrepresentations, section 230
Companies: comcast, mpaa, news corp.

Netflix, Which Has Previously Touted Its Ability To Compete With Piracy, Joins Australian Antipiracy Efforts

from the about-face dept

We have for some time been covering the rapid expansion of antipiracy and site-blocking efforts in Australia. Between the movie and music spaces, these efforts have been spearheaded by a couple of local entertainment groups, such as Village Roadshow and Music Rights Australia, and the typical suspects from the US, such as the MPAA, RIAA, and various movie and music studios. The ramping up of those efforts continues to date, with recently updated copyright laws being used by those groups to request massive site-blocking for torrent and streaming sites, with the courts generally rubber-stamping all of them.

To date, a glaring non-combatant in all of this has been Netflix. And that hasn't been some huge surprise, either, given that Netflix has long had a history of touting its own ability to both compete with piracy and make use of its cultural effects, and the rest of the entertainment industry painting Netflix as some kind of problem for the industry itself. And, while Netflix's tone on piracy has certainly begun to change, that made it somewhat jarring to learn that the company was suddenly diving into the Australia anti-piracy fray with both feet.

Over the past two years, many of the world’s largest torrent and streaming sites have already been blocked, but the work is far from done. A new application recently submitted at the Federal Court of Australia requests ISPs to block dozens of websites.

The complaint comes from Village Roadshow as well as several other prominent movie companies such as Disney Enterprises and Universal City Studios. For the first time, Netflix Studios has joined in as well, as Computerworld notes.

As stated, Netflix is now a part of the MPAA, which perhaps explains why it is now in on these enforcement efforts. This appears to be something of a move of solidarity with the industry, as the focus of this particular complaint is pretty heavy on sites accused of distributing Asian content.

Interestingly, the court order has a strong focus on Asian content. Several of the targeted sites, such as BTBTT and 123kubo.org, are predominantly popular in Asian countries. In addition, the list also includes many anime sites such as Animeultima.to and Ryuanime.com.

The latter is likely due to the fact that the Australian distribution group Madman Anime Group is listed as one of the applicants as well.

So, again, there's something of a all-for-one and one-for-all flavor to all of this. Still, being a member of the MPAA doesn't require Netflix to join in on these legal efforts at site-blocking. As is typical in these complaints, the torrent and streaming sites are painted as having only one purpose: to commit copyright infringement. On that basis, the complaint seeks the blocking of 86 websites.

But the new part of this is Netflix's involvement. Why it suddenly feels the need to join the ranks of those seeking site-blocking is an open question, particularly when it has built a business model out of being more convenient and reasonable an option than piracy itself.

Filed Under: australia, copyright, piracy, site blocking
Companies: mpaa, netflix, village roadshow

Hollywood Asks EU To Drop Article 13 Entirely, Because It Might Possibly Have A Tiny Compromise For The Internet

from the going-for-broke dept

Earlier today, we had a post detailing the completely ridiculous "defense" of Articles 11 and 13 in the EU Copyright Directive that the EU Parliament's JURI Committee released. It was so full of misleading statements, outright lies, and contradictory arguments that it would have been hilarious, if it wasn't trying to justify changing the entire internet for the worse. However, those of us who think that the EU should drop Article 13 (and Article 11) entirely now have a very unlikely ally: the legacy entertainment industries, who were the ones lobbying heavily for Article 13 in the first place.

Really.

As we had noted last month, as the negotiations moved forward on Article 13, the TV, sports and film industries -- calling themselves the "creative sectors" -- have been suddenly freaking out and asking the negotiators to hit the brakes, or at least carve them out of Article 13. They were doing this for all the wrong reasons of course. Specifically, negotiators had begun to consider a very, very limited (and ridiculously weak) safe harbor for internet platforms, that if they followed a few key steps, they'd be able to avoid having massive liability foist upon them if they let any users sneak through an upload of infringing content (they'd still have to pull it down quickly after it was uploaded, but they wouldn't be facing billions in fines).

And, now with Article 13 just about finalized and it looking absolutely terrible in almost every single way... Hollywood is going for broke and now calling for negotiations on Article 13 to be suspended entirely. Again, they're doing this for totally the wrong reasons, but considering that absolutely no one wants Article 13 at this point, shouldn't EU negotiators just drop it?

We understand the eagerness to bring the negotiations to a close within the current mandate. However, rather than rushing the highly controversial Art. 13 and seeking conclusion of this provision, no matter the jeopardy to the European copyright framework and no matter the prejudice and damage to the creative sectors before the end of this legislative period, we urge EU co-legislators to suspend negotiations with respect to this article.

We agree. Negotiators should drop Article 13 entirely (Article 11 as well, but we'll discuss that another time).

This letter is signed by a bunch of legacy copyright interests, with the main one being the MPA (the MPAA's international arm). And their reasoning, as before, is that they actually think that they're going to get a better deal (i.e., no safe harbors for internet services at all) in the EU Courts:

One of the main justifications for Article 13 articulated in the Commission’s original impact assessment back in 2016 was the absence of a CJEU referral that could bring clarity to the question of whether an uploaded content service is responsible for acts of communication to the public and/or can benefit from the hosting provider status under the E-Commerce Directive. Since that assessment the situation has now fundamentally changed. In the meantime, such a referral has been launched by a recent decision of 13 September 2018. The German Federal Court of Justice (Bundesgerichtshof) referred a case to the CJEU involving YouTube/Google and certain rightholders, for clarification of this very issue (case C-682/18 Google e.a.).

Basically, Hollywood and its friends pushed for Article 13 when they thought that courts had read the law (correctly) to mean that the safe harbors already existing in the E-Commerce Directive applied to internet platforms hosting user generated uploads of content. However, at least one German court has mucked that up, and that case is being reviewed by the EU Court of Justice... and Hollywood is hoping that the CJEU will just declare that these safe harbors don't apply for platforms hosting content. Basically, Hollywood is going for broke. It truly wants to make the internet change massively, such that there is no more "user generated content" platforms unless those platforms first agree to throw money at Hollywood not to sue them. It's pretty close to an outright extortion scam.

Either way, we're happy that Hollywood has now properly recognized that EU negotiators have no business moving forward with Article 13, and we're happy to agree that it should be dropped.

Filed Under: article 13, copyright, eu, eu copyright directive, intermediary liability, safe harbors
Companies: mpa, mpaa

Millions Upon Millions Of 'Takedown' Notices To Google... For Links That Aren't Even In Google

from the meaningless-fodder dept

For years, the RIAA and MPAA have pointed to the millions upon millions of takedown notices sent to Google as "evidence" that the DMCA notice-and-takedown process doesn't work. You can find lots of examples of this, but here's an MPAA VP making this exact point:

“The large volume of removal requests cited in Google’s Transparency Report clearly illustrates the magnitude of the piracy problem and the ineffectiveness of the ‘notice and take down’ system,” said Chris Ortman, MPAA VP of corporate communications. “If this system were working, the numbers would be going down — not up.”

But here's the thing about that quote: it's almost entirely bullshit. First off, the numbers have started going down, but you don't suddenly hear Chris Ortman and the MPAA saying "look, the notice and takedown system is now working!" Because Ortman wasn't being honest when he made the original statement.

But, the larger point, is that takedown requests, by themselves, don't mean a damn thing about how much infringement there actually is. The requests may be bogus. Indeed, millions of the requests to Google turn out to... not even be in Google's index. Torrentfreak had a recent story pointing out that the top 3 copyright owners alone sent Google over a billion takedown requests. That article further shows just how top heavy the requests are, with the top 16 copyright owners reporting more than 50% of all the takedown requests to Google. In other words, a very small group of organizations very much have their fingers on the scales of how many takedown requests Google receives. So, for those very same organizations to whine that more takedown requests proves anything... is questionable, at best.

And back to that point about many requests not even being in Google's index. As Google's Transparency Report shows, many of those top removal requesters keep requesting links that Google doesn't even have. The 2nd largest requester, for example, is APDIF Mexico. It submitted over a quarter of a billion takedowns. But do those mean anything? Well, let's take a look at its most recent batch of requests:

So... look at that last column. A huge percentage of the URLs were not even in the index. Then look at the column to the left of that. Google removed none of the links requested. Obviously, it can't remove the non-indexed ones, but it appears that even when they were in Google's index, they were deemed non-infringing or, in some cases, duplicates to URLs that had already been received in earlier takedowns. In other words, counting up the number of requests is meaningless when organizations can and do submit URLs that aren't even in Google and when they simply repeat URLs that had already been requested. Anyone could simply re-request the same URL a billion times and it wouldn't say a damn thing about whether the notice-and-takedown system is working.

Or, if you think it's unfair to pick on APDIF Mexico -- an organization many of you have never heard of -- why not look at the RIAA? Of all of the latest requests from the RIAA, I noticed that, once again, it shows no removals by Google. Why? Because the RIAA is submitting duplicates of URLs already removed. This is literally the result of their latest request from earlier today according to Google:

If you can't see that, it shows that 99% of the URLs submitted are duplicates, and the other 1% is still "pending" meaning they might also be duplicates. When the RIAA is submitting links that have already been removed, it kinda makes you wonder if the RIAA and groups like it are simply padding their own numbers to later try to make a bullshit point about how many "takedown requests" Google receives. It certainly highlights the fact that the RIAA does not actually check to see if what they're submitting to Google is actually in Google.

Anyway, the next time you hear the likes of the RIAA or MPAA claiming that the DMCA notice-and-takedown safe harbors aren't working because of the number of takedowns, you can safely note that they are being dishonest.

Filed Under: copyright, dmca, dmca 512, piracy, takedowns
Companies: apdif, apdif mexico, google, mpaa, riaa

While Everyone's Busy, Hollywood & Record Labels Suggest Congress Bring Back SOPA

from the guys,-give-it-a-fucking-rest dept

There are a million different things going on these days when it comes to preventing the powers that be from destroying the internet that we know and love. There are dozens of mostly bad ideas for regulating the internet here in the US, and of course, over in Europe, they're doing their best to destroy everything with the poorly thought out GDPR, the new Copyright Directive and the upcoming Terrorist Regulation (more on that soon). With all of that keeping everyone trying to protect the internet busy, it appears that the MPAA and the RIAA have decided that now would be a good time to re-introduce SOPA. No joke.

Every year, the US government's "IP Enforcement Coordinator" -- or IP Czar -- takes comments for its "Joint Strategic Plan for Intellectual Property," which is supposed to lay out the federal government's yearly plan for protecting Hollywood's profits. As questionable as that is already, this year, the comment submissions seemed to go a bit further than usual. The RIAA's submission, the MPAA's submission and the (almost so extreme as to be a parody) Copyright Alliance's submission all seemed to push a pretty consistent theme. Despite the incredible abundance of content creation happening these days, despite the myriad new ways to distribute, to build a fan base, to create new works and to make money from those works... these legacy gatekeepers all insist that the internet is truly a horrible attack on creativity and must be stopped.

And how to stop it? Well, how about widespread censorship in the form of outright site blocking. In short, these legacy gatekeepers want to bring back SOPA, the law that they tried to ram through seven years ago, only to be embarrassed when the internet stood up and said "no fucking way."

Let's start with the RIAA submission, which admits that, hey, the music business is pretty good these days, and almost all of that is because of innovations in technology that the RIAA fought at every freaking step (well, they don't admit that last part), but, my god, there are still some people out there who don't pay every single time they hear a song, and that must be stopped. And thus, they request changes to the law, including this:

With respect to website blocking, as one 2018 article states, “[s]tudies show that blocking regimes that target these large scale piracy sites (not sites that accidentally host pirated material) are an effective tool in reducing piracy and increasing the consumption of legal content and services.” Given the increasing ease for rogue infringing actors to access U.S. audiences while keeping all of their infrastructure off-shore, such as through the use of non-U.S. cctlds for their domain and bullet proof ISPs to host their services, there is a pressing need for additional tools to deter and stop this type of piracy harming U.S. consumers and businesses. As website blocking has had a positive impact in other countries without significant unintended consequences, the U.S. should reconsider adding this to its anti-piracy tool box.

They also suggest making the DMCA even worse, killing off its safe harbors and ramping up the penalties, but let's focus on the above paragraph. Because that is specifically a suggestion to bring back SOPA, whose main provisions were about site blocking. The idea that this is an "effective tool in reducing piracy" is laughable. Multiple studies (including our own have shown no evidence that greater enforcement reduces piracy over the long term (there is a short, but fleeting impact). Instead, focusing on innovation and providing good services is what decreases piracy. Second, the idea that site blocking is "without significant unintended consequences" is fucking laughable.

Let's just remember that this is coming from the very same RIAA who supplied false claims of infringement concerning multiple websites, leading them to be seized and held for many years. In those cases, the RIAA told ICE that these blogs had been posting infringing music, and yet could never provide ICE with any evidence to support it. Of course, ICE still held onto those sites for nearly five years, just because. But the RIAA says there have been no unintended consequences?

Okay, how about the time that Australia, which has site blocking under law, tried to take down one site, but actually took down 250,000. Oops. Or when Homeland Security took down 84,000 sites. Do those "unintended consequences" not exist?

At this point, the RIAA cannot be seen as a credible voice on this particular issue.

How about the MPAA's filing? Well, it's more of the same. It notes, correctly, that we're in the "golden age" of movies and TV -- much of that being driven by technological developments that the MPAA (who, again, once called the VCR "the Boston Strangler") fought at every turn. Then it says something that is laughable: "Respect for Copyright Drives Innovation and Competition." Uh, what? That's... not even close to true, in part because almost no one -- least of all the MPAA -- actually "respects" copyright.

But, when we get to the MPAA's suggestions. It is not as blatant as the RIAA in directly calling for bringing back site blocking, but it does request that DHS and the DOJ get more aggressive about criminal procedures against foreign sites (a la Megaupload) to try to prevent piracy. Why Hollywood expects the federal government to use its law enforcement abilities to stop civil violations is left unsaid. And then, the MPAA demands that basically the entire internet ecosystem be shifted to stop any piracy from ever happening.

The IPEC could do much to promote greater collaboration aimed at reducing these harms by endorsing voluntary initiatives, as it has in the past. For example, more online intermediaries should adopt “trusted notifier” programs, under which they accept referrals from the content community about entities using the intermediaries’ services in the aid of piracy and, after doing their own due diligence, take remedial action. In particular:

Domain name registrars and registry operators should agree to keep WHOIS data public, to the extent permitted by law; to suspend the domain names of referred sites; to freeze the domain name so it becomes unavailable to others; and to disclose the true name and address of pirate site operators, prevent that operator from re-registering, and agree not to challenge third-party application of court orders regarding domain name suspension in cases by rightsholders against pirate sites.

Hosting providers should filter using automated content recognition technology; forward DMCA notices to users, terminate repeat infringers after receipt of a reasonable number of notices, and prevent re-registration by terminated users; implement download bandwidth or frequency limitations to prevent high volume traffic for particular files; agree not to challenge third party application of court orders regarding suspension of hosting services in cases by rightsholders against pirate sites; remove files expeditiously; and block referral traffic from known piracy sites.

Reverse proxy servers should disclose the true hosting location of pirate sites upon referral; terminate identified pirate sites, and prevent these sites from re-registering; and agree not to challenge third party application of court orders regarding suspension of reverse proxy services in cases by rightsholders against pirate sites.

ISPs should forward Digital Millennium Copyright Act notices to users; terminate repeat infringers after receipt of a reasonable number of notices and prevent re-registration by infringers; expeditiously comply with document subpoenas for user information; and block sites subject to court order in the applicable jurisdiction.

Social media should remove ads, links, and pages dedicated to the promotion of piracy devices and terminate repeat infringers.

Got that? Basically every other company in the world should be required to police the internet for the MPAA so that a few stray infringements don't get through. Hilariously, the MPAA admits that some may be worried about the impact of such demands on free speech, but then proceeds to brush away such concerns as if combating infringement caused by the MPAA's own unwillingness to adapt its business model... is the same as stopping cybersecurity attacks.

Some argue there is tension between curbing illegal activity online and free expression. The argument is made far too broadly. Combating unlawful conduct like identity theft, unauthorized distribution of entire copyrighted works, cyberattacks, and illicit sale of opioids is no more a threat to free expression on the internet than it is in the physical world. In fact, curbing illegal activity promotes free expression by creating a safer environment where individuals feel comfortable to communicate and engage in commerce, and to create and lawfully access content

It is truly awe-inspiring how the MPAA turns its own industry's failures to adapt to innovation into a public crisis in which everyone else must change... while simultaneously raving about how it's a "golden age" for its own industry.

And, finally, we come to the Copyright Alliance's submission. This one focuses on supporting copyright trolling via a small claims copyright board, which is of questionable constitutionality, and which would clearly enable a massive increase in copyright shakedowns. But, then, of course, among the other suggestions there are a bunch focused on having intermediaries take down sites, including full site blocking:

“Over the last decade, at least 42 countries have either adopted and implemented, or are legally obligated to adopt and implement, measures to ensure that ISPs take steps to disable access to copyright infringing websites, including throughout the European Union, the United Kingdom, Australia, and South Korea.” Research shows such measures can have significant effect on shifting users toward legitimate services, with one study finding that “blocking 52 sites in 2014 caused treated users to increase their usage of legal subscription sites by 10% and legal ad-supported streaming sites by 11.5%.” In addition to learning what remedies are effective, much can be learned from other countries in ensuring such remedies are proportionate and do not result in overblocking or other unwanted consequences.

Again, we have already shown how widely site blocking DOES lead to overblocking and unwanted consequences. Furthermore, the evidence that site blocking increases the use of legitimate services is laughable, and not supported by the data at all.

In short, here are the major copyright industry representatives, knowing that everyone's busy off fighting other fires, making quiet inroads towards bringing back SOPA, despite the total clusterfuck it proved to be seven years ago. These guys will never stop in their quest to destroy the internet as we know it, and their push to turn the internet into a broadcast medium controlled by gatekeepers, rather than a communications medium for all of us.

Filed Under: censorship, copyright, site blocking, sopa, takedowns
Companies: copyright alliance, mpaa, riaa

MPAA: To Save Free Speech, We Must Broadly Censor Free Speech

from the say-again? dept

Earlier this year, we wrote about a thought-provoking article by Zeynep Tufecki discussing how some people were deliberately trying to use the open "marketplace of ideas" to effectively attempt to poison the marketplace of ideas. Also mentioned in that article was an excellent Yale Journal Article called Real Talk About Fake News by Nabiha Syed, which raised similar issues, and wondered if we needed a new framework for thinking about free speech online. We later had Syed on our podcast to discuss this further. Both Tufecki and Syed were raising important, thought-provoking issues that were not at all like the usual attacks on free speech -- because neither was an attack on free speech. Instead, they were attempting to protect free speech by pointing out that the way we often frame these discussions may not be the most effective way of thinking about these issues -- and that might actually lead to the silencing of voices.

This has certainly spurred many more thoughtful discussions on these topics. But... it won't surprise you that some are now looking to exploit this open discussion in their own way. The MPAA recently filed some comments with the NTIA, and what's striking about them, is how they appear to be co-opting the language of Tufecki to attack free speech online, and push for legal changes that would lead to massive censorship. But, in doing so, they claim these changes are necessary to "protect" free speech. The MPAA's VP Neil Fried also put out a somewhat snarky blog post about the filing, in which the MPAA insists that CDA 230 and DMCA 512 must be changed because "the status quo does not seem to be working."

Is that so? CDA 230 became law in 1996. DMCA in 1998. Let's take a look at how movie box office revenue has been over the years since (2018 numbers are projected based on tickets so far):

I don't know, Neil, but it sure looks like Hollywood is doing just fine under these conditions. But, the MPAA has basically invested so much of its identity into the idea that infringement is an existential threat, that it has to keep going with it. Remember, this is the same organization that insisted the VCR was going to be "the Boston Strangler" to the movie industry -- and that was said in Congressional testimony just four years before home video revenue surpassed box office revenue. So, the MPAA does not exactly have a credible track record on claiming that the threat of piracy is a real problem for the industry. But, it just can't let things go.

So now it's trying again with this comment to NTIA. And I find it notable that it appears to be trying to co-opt the framing that Tufecki used in order to argue for a regime that would stamp out free speech online:

Responsible businesses refusing to facilitate such activity are not squelching speech. They are not stifling speakers wishing to communicate ideas, but thwarting culprits engaged in malfeasance. In fact, curbing such illicit activity promotes free expression by creating a safer, virtual forum where individuals feel comfortable to engage and communicate. In this sense, it is leaving lawlessness and bullying unchecked that is chilling free speech.

But, of course, a large part of the problem is that the MPAA's entire framing here is simply incorrect. It claims that platforms have no incentive to clean themselves up -- which is laughable when you consider just how far various internet companies have bent over backwards to try to appease everyone complaining about the crap on their platforms.

Many of the platforms are not living up to that bargain, shielded behind the broadly interpreted limits on liability that ensure few if any consequences, and failing to apply the same innovation to address internet harms that they do to other areas of their business.

This statement has zero basis in reality. Of course all of the major internet platforms regularly moderate content, and these days are under tremendous public pressure from basically all sides, to "do something" about content deemed dangerous. In fact, the worries about over-censorship from this kind of pressure and motivation is already well documented. Hilariously, the MPAA pretends that the platforms don't have much incentive to do anything -- which ignores all of the pressure from their own users, the media, politicians and more.

Bizarrely, later in the filing, the MPAA admits that platforms are, in fact, moderating content heavily (something that it spends pages insisting isn't happening). Yet, when it does so, the reasoning is equally perplexing:

The rebuttal is often that there is a risk that efforts to combat illicit conduct online will be overbroad, and inadvertently chill speech. But the platforms appear increasingly willing to curb things like hate speech. As odious as such speech is, it is quintessentially expressive. Efforts to combat it are fraught with challenges of under- and over-inclusiveness. Such activity is more susceptible to a chilling speech argument than attempts to curtail clearly illicit conduct, which present a brighter line.

So... let's get this straight. The platforms have no incentive to get rid of illegal content on their platforms -- even though all of them do so. And, to prove that there's no problem with overbroad censorship, we'll point to the fact that they do the kind of moderation we previously said they don't... and then admit that that moderation itself is chilling speech. Incredible.

The MPAA seems so wedded to its desire to take away the DMCA safe harbor and the CDA immunity provisions that it really doesn't care that no mainstream platform is eagerly courting "illegal" content. But, in order to undermine the open internet, and push for one in which all things must be licensed, it has to keep up the charade that platforms encourage illegal behavior and refuse to deal with it. And it's adopting the language of those who were trying to have a more serious conversation about dealing with bad actors online. It's the ultimate troll move.

Filed Under: bad behavior, cda 230, censorship, dmca, dmca 512, free speech, incentives, intermediary liability, marketplace of ideas
Companies: mpaa