EU Commission Says Social Media Companies Must Take Down 'Terrorist Content' Within One Hour

from the plus-more-internet-hobbling-guidelines dept

Once social media companies and websites began acquiescing to EU Commission demands for content takedown, the end result was obvious. Whatever was already in place would continually be ratcheted up. And every time companies failed to do the impossible, the EU Commission would appear on their virtual doorsteps, demanding they be faster and more proactive.

Facebook, Twitter, Google, and Microsoft all agreed to remove hate speech and other targeted content within 24 hours, following a long bitching session from EU regulators about how long it took these companies to comply with takedown orders. As Tim Geigner pointed out late last year, the only thing tech companies gained from this acquiescence was a reason to engage in proactive censorship.

Because if a week or so, often less, isn't enough, what will be? You can bet that if these sites got it down to 3 days, the EU would demand it be done in 2. If 2, then 1. If 1? Well, then perhaps internet companies should become proficient in censoring speech the EU doesn't like before it ever appears.

Even proactive censorship isn't enough for the EU Commission. It has released a new set of recommendations [PDF] for social media companies that sharply increases mandated response time. The Commission believes so-called "terrorist" content should be so easy to spot, companies will have no problem staying in compliance.

Given that terrorist content is typically most harmful in the first hour of its appearance online and given the specific expertise and responsibilities of competent authorities and Europol, referrals should be assessed and, where appropriate, acted upon within one hour, as a general rule.

Yes, the EU Commission wants terrorist content vanished in under an hour and proclaims, without citing authorities, that the expertise of government agencies will make compliance un-impossible. The Commission also says it should be easy to keep removed content from popping up somewhere else, because it's compiled a "Database of Hashes."

Another bad idea that cropped up a few years ago makes a return in this Commission report. The EU wants to create intermediary liability for platforms under the concept of "duty of care." It would hold platforms directly responsible for not preventing the dissemination of harmful content. This would subject social media platforms to a higher standard than that imposed on European law enforcement agencies involved in policing social media content.

In order to benefit from that liability exemption, hosting service providers are to act expeditiously to remove or disable access to illegal information that they store upon obtaining actual knowledge thereof and, as regards claims for damages, awareness of facts or circumstances from which the illegal activity or information is apparent. They can obtain such knowledge and awareness, inter alia, through notices submitted to them. As such, Directive 2000/31/EC constitutes the basis for the development of procedures for removing and disabling access to illegal information. That Directive also allows for the possibility for Member States of requiring the service providers concerned to apply a duty of care in respect of illegal content which they might store.

This would apply to any illegal content, from hate speech to pirated content to child porn. All of it is treated equally under certain portions of the Commission's rules, even when there are clearly different levels of severity in the punishments applied to violators.

In accordance with the horizontal approach underlying the liability exemption laid down in Article 14 of Directive 2000/31/EC, this Recommendation should be applied to any type of content which is not in compliance with Union law or with the law of Member States, irrespective of the precise subject matter or nature of those laws...

The EU Commission not only demands the impossible with its one-hour takedowns, but holds social media companies to a standard they cannot possibly meet. On one hand, the Commission is clearly pushing for proactive removal of content. On the other hand, it wants tech companies to shoulder as much of the blame as possible when things go wrong.

Given that fast removal of or disabling of access to illegal content is often essential in order to limit wider dissemination and harm, those responsibilities imply inter alia that the service providers concerned should be able to take swift decisions as regards possible actions with respect to illegal content online. Those responsibilities also imply that they should put in place effective and appropriate safeguards, in particular with a view to ensuring that they act in a diligent and proportionate manner and to preventing [sic] the unintended removal of content which is not illegal.

The Commission follows this by saying over-censoring of content can be combated by allowing those targeted to object to a takedown by filing a counter-notice. It then undercuts this by suggesting certain government agency requests should never be questioned, but rather complied with immediately.

[G]iven the nature of the content at issue, the aim of such a counter-notice procedure and the additional burden it entails for hosting service providers, there is no justification for recommending to provide such information about that decision and that possibility to contest the decision where it is manifest that the content in question is illegal content and relates to serious criminal offences involving a threat to the life or safety of persons, such as offences specified in Directive (EU) 2017/541 and Directive 2011/93/EU. In addition, in certain cases, reasons of public policy and public security, and in particular reasons related to the prevention, investigation, detection and prosecution of criminal offences, may justify not directly providing that information to the content provider concerned. Therefore, hosting service providers should not do so where a competent authority has made a request to that effect, based on reasons of public policy and public security, for as long as that authority requested in light of those reasons.

These recommendations will definitely cause all kinds of collateral damage, mainly through proactive blocking of content that may not violate any EU law. It shifts all of the burden (and the blame) to tech companies with the added bonus of EU fining mechanisms kicking into gear 60 minutes after a takedown request is sent. The report basically says the EU Commission will never be satisfied by social media company moderation efforts. There will always be additional demands, no matter the level of compliance. And this is happening on a flattened playing field where all illegal content is pretty much treated as equally problematic, even if the one-hour response requirement is limited to "terrorist content" only at the moment.

Filed Under: censorship, content filtering, copyright infringement, eu, eu commission, free speech, takedowns, terrorist content

Director Of Thor: Ragnarok Pirated Clips For His Sizzle Reel

from the everyone's-doing-it! dept

With the constant drumbeat of the evils of copyright infringement and internet piracy being issued from those leading the movie industry, you might have been under the impression everyone within the industry held the same beliefs. Between the cries of lost profits, the constant calls for the censorship of websites, and even the requests to roll back safe harbor protections that have helped foster what must be considered a far larger audience for the industry, perhaps you pictured the rank and file of the movie business as white-clad monk-like figures that served as paragons of copyright virtue.

Yet that's often not the case. While many artists, actors, and directors do indeed toe the industry line on matters of piracy, you will occasionally get glimpses of what has to be considered normalcy in how people engage with copyright issues among members of the industry. We should keep in mind our argument that essentially everyone will infringe on intellectual property at some point, often times without knowing or intending it, because engaging in said behavior just seems to make sense. During a radio interview Taiki Waititi did to promote Thor: Ragnarok, which he directed, he admitted to doing it himself.

Speaking with broadcaster Tom Power, Waititi revealed that when putting together his promotional showreel for Thor: Ragnarok, he obtained its source material from illegal sources. Explaining the process used to acquire clips to create his ‘sizzle reel’ (a short video highlighting a director’s vision and tone for a proposed movie), Waititi revealed his less-than-official approach.

“I cut together little clips and shots – I basically illegally torrented and, erm, you know, ripped clips from the Internet,” Waititi said.

“Of a bunch of different things?” Power asked.

“I don’t mind saying that…erm…on the radio,” Waititi added, unconvincingly.

Almost immediately afterwards, Waititi seemed to realize that he was admitting to copyright infringement on a recording and asked for that part of the interview to be cut out, which of course it wasn't.

So what are sizzle reels? When a director pitches a movie to a studio, they will often include a short reel of movie clips that demonstrate what they feel to be their overall vision as a director and tie that in with whatever film is being pitched. Producing a sizzle reel, particularly on short notice, can be a harrowing experience. You have to get the movies from which to pull clips. You have to make sure those movies are in a format easily editable to make the clips. You have to then splice them together in a coherent way to demonstrate your vision and themes for the movie pitch.

Of course, the internet provides an easier avenue for much of that effort, which is why a director like Waititi would naturally go to this massive resource to build his sizzle reel. It's as innocuous a thing as could be. Also, it's definitely copyright infringement.

Now, Waititi almost certainly will face zero repercussions for this confession, but only because he's a protected industry insider with great movies on his resume. But if this were an up and coming director? Or just some kids having fun? It doesn't take much imagination to conjure up images of threat letters demanding settlements, or even protracted legal proceedings over this kind of "piracy."

Whatever this discrepancy says about how copyright is selectively enforced, it should be obvious that nothing in this is promoting the progress of the arts.

Filed Under: copyright infringement, hollywood, piracy, sizzle real, taiki waititi, thor: ragnorak

Marketing Guy: Google Image Search Is A Honeypot Set Up By Aggressive Copyright Litigants

from the I-lost-a-lawsuit-and-all-I-got-is-this-lousy-advice dept

There are a lot of people out there that don't understand intellectual property issues. But perhaps no one misunderstands them quite as badly as internet marketing guru Dan Dasilva. And Dasilva has no excuse. He's been on the losing end of a copyright infringement lawsuit. Despite this, Dasilva continues to express his ignorance -- and proclaim his victimhood -- publicly on his YouTube channel. (h/t Techdirt reader Andy Gural)

Dasilva snagged an image from Google's image search and used it on a website he set up for one of his clients. The photographer who took the picture -- Michael Grecco -- sued Dasilva for infringement, ultimately ending up with $27,000 settlement and $10,000 in legal fees.

Dasilva has seemingly learned nothing from this experience. In fact, it appears the lawsuit may have actually made him stupider.

"The reason I was sued was because I used a picture that I found on Google Images," Dasilva says in his warning to other content creators. But instead of simply warning people about the dangers of infringing on photographers' copyrights, Dasilva decides to warn people about "malicious" people out there who are trying to profit off their copyright.

"I never really thought that there are malicious people out there… there are people out there who maliciously put pictures on the Internet," Dasilva states. "They copyright pictures that they take, and what they do is, they'll get a copyright on it, and they'll put it out on the Internet, and it's freely available on the Internet. If you run a Google search their image will appear."

Yes, Dasilva somehow believes copyrighted photos returned in Google image searches are honeypots created by photographers. But that only scratches the surface of Dasilva's ignorance. He also appears to believe photos need to be watermarked clearly with copyright symbols in at least 12 point text so people like him won't fall into the trap of being sued for grabbing images off the internet and treating them as their own.

There are more gems to be found in Dasilva's video, including his assertion he's not going to slow down his infringing use of other people's photos. But then again, what do you expect from a video that leads off with "my lawyer told me not to make this video?"

Dasilva appears to believe he should have been given a warning by Michael Grecco, rather than sued. But given his grasp of the underlying issues (and his plan to continue his infringing acts), it's hard to believe a mere cease-and-desist would have been sufficient. He does suggest viewers search for Creative Commons images, which is a start, but seems to imply it's a last-ditch option for people with a reasonable disinterest in being sued. He also fails to clarify that Creative Commons is not nearly the same thing as public domain. Some CC licenses forbid commercial use.

If Dasilva knew anything about Grecco, he would have known the photographer is an aggressive litigant. He's sued plenty of publishing industry giants for alleged infringement. Grecco's litigation history may appear troll-like, but he's not in the business of suing IP addresses en masse or targeting individuals who may have posted his photos on their personal blogs. Grecco's aggressive litigation stance in no way validates Dasilva's claims he's the real victim here. And it must be noted Grecco has taken a far more progressive stance than many engaged in the business of infringement litigation. When he noticed PDFs of his photography book being shared at filesharing sites, he took it to mean he needed to create an electronic version to serve this underserved market.

If Dasilva finds himself sued again, it's doubtful he'll be able to secure the same representation. Unfortunately, the fallout from his lawsuit means thousands of people looking to him for e-commerce advice have just been made stupider.

Filed Under: copyright, copyright infringement, dan dasilva, google images, michael grecco

Cox Points Out That Rightscorp Is Either A Mass Infringer Itself... Or Admits That Downloading Songs Can Be Fair Use

from the oops dept

Remember Rightscorp? This is the company that is trying to be sort of a "light" copyright trolling operation, sending threatening letters to individuals, but letting them "settle" for lower dollar amounts than the more traditional copyright trolls (in the $10s of dollars rather than in the $1000s). The scheme hasn't been working all that well. Late last year, Righstcorp, along with two music publishing clients, BMG and Round Hill Music, decided to sue broadband ISP Cox, to test the (nutty) theory that the DMCA already requires ISPs to kick users off the internet if they receive multiple takedown notices. The whole lawsuit, beyond the questionable legal theory, appeared to be an attempt to force Cox and others to hand over subscriber info.

Either way, going after Cox may be proving to have been a serious strategic mistake. Both companies have filed motions for summary judgment and the contrast between the two is somewhat stunning. BMG/Round Hill Music's is readable here* and basically focuses on the argument that Cox is somehow unable to make use of the DMCA's safe harbors. While many of the details are redacted, the basic argument is the same as initially filed. That because Cox doesn't kick customers off its service entirely, it fails to meet the requirements of the DMCA's safe harbor:

Cox does not qualify for a safe harbor because, at least since 2010, it has never had nor implemented a policy to terminate repeat infringers in appropriate circumstances. Instead, Cox has created a notification system designed to limit the circumstances in which Cox will learn of infringement on its system. Cox has [REDACTED] more than 95% of the millions of infringement notices sent to it by copyright holders without taking any action.

Of course what it's ignoring is that what Cox was complaining about was that the policies that Rightscorp wanted here included sending blatantly misleading information to end users and sharing information back with Rightscorp. That's not required under the DMCA.

Meanwhile, the motion for summary judgment from Cox is quite a read, with the folks over at TorrentFreak posting an initial summary.

The real kicker: Rightscorp is only working with the publishers, who certainly appear to hold a legitimate copyright interest in the publishing/compositions. But that's different than the copyright in the actual sound recordings. That's held by someone else, who does not appear to be partnered with Rightscorp. And yet, Rightscorp itself claims to have downloaded the various song files to help it find infringers. Yet... if it doesn't have authorization or a license from the copyright holders of the sound recordings, that sounds like Rightscorp just engaged in massive copyright infringement.

That, alone, would be a pretty strong point -- but then Cox's lawyers twist the knife. They point out that the only way in which Rightscorp's own actions would not be infringing is if they were to claim fair use in the downloading of all those song recordings. But if that's the case, then isn't Rightscorp clearly admitting that many of the people its threatening and shaking down would also have a legitimate fair use argument?

Oh, and one final knife twist: given that courts have held that those issuing DMCA takedowns need to take into account fair use before sending those takedowns, this would act as evidence that Rightscorp failed to do that.

In its work for Plaintiffs Rightscorp downloaded files of thousands of sound recordings over the BitTorrent protocol, evidently to create evidence of infringements over Cox’s network.... But copyrights in sound recordings are separate from copyrights in musical compositions.... Rightscorp either committed massive infringements of the sound recording copyrights or must have relied on the fair use doctrine. If the latter, that fact is an admission that activity over BitTorrent may constitute fair use, but there is no evidence that Rightscorp considered the possibility of fair use in generating millions of notices of claimed infringement. Because fair use is not infringement, Rightscorp’s notices contained fraudulent misrepresentations about detections of infringement. See Lenz.... Thus, because Rightscorp acting as agent for Plaintiffs either was an infringer itself or engaged in misrepresentations, Plaintiffs have unclean hands.

Ouch. It will be fun to see these companies try to twist themselves out of that one. The rest of the filing is worth reading as well, and we may do some followup posts on other aspects included. But, in short, Cox points out that the legal theories here make no sense, that the company abused the DMCA process, there there is no evidence of actual infringement and that the publishers failed to actually mitigate any of the damages. You never know how the courts will eventually rule on these things, but from a first glance, Rightscorp's chances aren't looking too good right now.

* Correction: I originally got confused and posted the wrong document here -- but the right document has now been posted.

Filed Under: bittorrent, copyright, copyright infringement, copyright trolling, fair use, sound recordings
Companies: bmg, cox, righscorp, round hill music

US Court Rules That Kim Dotcom Is A 'Fugitive' And Thus DOJ Can Take His Money

from the um. dept

In the long, convoluted and complex legal battles facing Megaupload founder Kim Dotcom, there was some bizarre stuff that happened late last year. As you may recall, early on, the US government seized basically all of his stuff and money. Dotcom has made efforts to get some of it returned, as it's tough to fight the most powerful government in the world when it's holding onto all of your money. Keep in mind from our previous discussions on asset seizure and forfeiture, the government can basically seize whatever it wants, just by claiming it was somehow related to a crime, but the seizure is only a temporary process. If the government wants to keep it, it then needs to go through a separate process known as civil asset forfeiture, which is effectively the government suing the assets. Back in July, the US government moved to forfeit everything it had seized from Dotcom in a new lawsuit with the catchy name USA v. All Assets Listed In Attachment A, And All Interest, Benefits, And Assets Traceable Thereto. As you may have guessed, Attachment A [pdf] is basically all of Kim Dotcom's money and posessions.

Back in November, the DOJ argued that it should get to keep all of Kim Dotcom's money and stuff because he's a "fugitive", which is a bizarre and ridiculous way to portray Kim Dotcom, who has been going through a long and protracted legal process over his potential extradition from New Zealand (though he's offered to come to the US willingly if the government lets him mount a real defense by releasing his money). Dotcom's lawyers told the court that it's ridiculous to call him a fugitive, but it appears that Judge Liam O'Grady didn't buy it.

In a ruling [pdf] that was just posted a little while ago, O'Grady sided with the government, and gave the DOJ all of Dotcom's things. You can read the full reasoning here and it seems to take on some troubling logic. Dotcom's lawyers pointed out, as many of us have, that there is no secondary copyright infringement under criminal law, but the judge insists that there's enough to show "conspiracy to commit copyright infringement." But the reasoning here is bizarre. Part of it is the fact that Megaupload did remove links to infringing content from its top 100 downloads list. To me, that seems like evidence of the company being a good actor in the space, and not trying to serve up more infringing downloads. To Judge O'Grady and the DOJ, it's somehow evidence of a conspiracy. No joke.

The government has alleged that the conspirators knew that these files were infringing copyrights, as evidenced by their exclusion of infringing files from the "Top 100" list. The "Top 100" list purported to list the most frequently downloaded files on Megaupload.... According to the government, an accurate list would have consisted almost entirely of infringing content, so the claimants "carefully curated" the list to make the site look more legitimate.... Additionally, the claimants regularly told copyright holders, including many U.S.-based organizations, that they would remove infringing content, when in actuality they only removed particular links to the files.... The actual infringing files remained on the Mega-controlled servers and could be accessed from other links.

As for that latter part, there are tons of perfectly legitimate reasons to only remove the links and not the underlying files. If Megaupload was doing deduping, then some version of the same file could be perfectly legitimate. Let's take an example: say that you and I have an MP3 of a Katy Perry song. I upload it to Megaupload to keep as a backup. You upload it to distribute to the world. Megaupload dedupes it, and just has the file stored one time. Your link could be potentially infringing if you distribute unauthorized copies, whereas my copy may be a legitimate personal backup. Given that, Megaupload should only delete the links that are called out as infringing, rather than the underlying files, which -- depending on their use -- may or may not be infringing. But the court just takes the DOJ's version and says "good enough for me."

The court also has no problem with the fact that most of the assets aren't in the US, noting that since some of the "conspiracy" took place in the US, that's good enough. It more or less brushes off the concerns raised by Dotcom and the other defendants that this appears to violate existing treaties between New Zealand and the US -- basically saying that because Dotcom refuses to come to the US, it's not "punitive." Huh? On top of that, the judge says that taking all of Dotcom's assets shouldn't interfere with the legal process in New Zealand, because the New Zealand courts could (yeah right) reject the DOJ's request after this ruling to hand over Dotcom's assets.

Then we get to the whole "fugitive" bit. Judge O'Grady notes that the statute does allow him to call anyone who "declines to enter" the United States a fugitive, and argues that Dotcom fits that description. Furthermore, he actually argues that Dotcom's offer to the DOJ to come willingly to the US if the money is freed for his defense actually works against Dotcom, and gives weight to the fugitive claim:

As demonstrated, Dotcom need not have previously visited the United States in order to meet the prerequisites of § 2466. The statute is satisfied where the government shows that the claimant is on notice of the criminal charges against him and refuses to "enter or reenter" the country with the intent to avoid criminal prosecution. Because the court assesses intent under the totality of the circumstances, it is certainly relevant that Dotcom has never been to the United States and that he has lived in New Zealand since 2011, where he resides with his family. This tends to show that he has other reasons for remaining in New Zealand besides avoiding criminal prosecution. However, the existence of other motivations does not preclude a finding that he also has a specific intent to avoid criminal prosecution. Dotcom's statements, made publicly and conveyed by his attorneys to the government, indicate that he is only willing to face prosecution in this country on his own terms. See Technodyne, 753 F.3d at 386 (2d Cir. 2014) ("The district court was easily entitled to view those [requests for bail], evincing the [claimants'] desire to face prosecution only on their own terms, as a hallmark indicator that at least one reason the [claimants] declined to return in the absence of an opportunity for bail was to avoid prosecution"). Dotcom has indicated through his statements that he wishes to defend against the government's criminal charges and litigate his rights in the forfeiture action. If it is truly his intent to do so, then he may submit to the jurisdiction of the United States.

In short, damned if you do, damned if you don't. This is the justice system, ladies and gentlemen. The DOJ gets to seize and keep all your money, and merely asking for access to it to fight to show your innocence is used as a reason to allow the DOJ to keep it. So he comes to the US and has to fight criminal charges without his own money, or he stays in New Zealand and the government uses it as an excuse to keep all the money. How is any of this even remotely fair? Where is the "due process" in totally handicapping Dotcom from presenting a defense?

Again, it is entirely possible that Dotcom and the others broke the law -- though the case certainly does look pretty weak to me. But what's really astounding is how far the DOJ appears to want to go to make it absolutely impossible for Dotcom to present a full defense of his case.

Filed Under: asset forfeiture, conspiracy, copyright, copyright infringement, criminal copyright infringement, doj, fugitive, kim dotcom
Companies: megaupload

Chilling Effects On Chilling Effects As DMCA Archive Deletes Self From Google

from the transparency-never dept

Over the weekend, TorrentFreak noted that the website Chilling Effects had apparently removed itself from Google's search index after too many people complained.

This week, however, we were no longer able to do so. The Chilling Effects team decided to remove its entire domain from all search engines, including its homepage and other informational and educational resources.

TorrentFreak asked the site about it and was told it was done in search of "better balance."

“After much internal discussion the Chilling Effects project recently made the decision to remove the site’s notice pages from search engines,” Berkman Center project coordinator Adam Holland informs TF.

“Our recent relaunch of the site has brought it a lot more attention, and as a result, we’re currently thinking through ways to better balance making this information available for valuable study, research, and journalism, while still addressing the concerns of people whose information appears in the database.”

[....]

“As a project, we’ve always worked to strike that balance, for example by removing personally identifying information. Removing notice pages from search engine results is the latest step in that balancing process,” Holland tells us.

“It may or may not prove to be permanent, but for now it’s the step that makes the most sense as we continue to think things through,” he adds.

Meanwhile, Chilling Effects founder, Wendy Seltzer, seems to insist that this was an implementation mistake and that the team never meant to remove the whole domain: So it's a little unclear what happened here. You'd think the folks at the Berkman Center and associated with Chilling Effects know how to properly set up a robots.txt file if they want to just exclude certain pages.

Either way it seems like a massive blow for transparency, and in many ways is a "chilling effect" of its own. It's no secret that many legacy copyright system supporters absolutely hate Chilling Effects and the transparency it brings. Sandra Aistars, of the Copyright Alliance, referred to the site as "repugnant" in Congressional testimony just a few months ago. Yes, providing transparency on censorship is "repugnant." Says a lot about the Copyright Alliance, doesn't it?

Others have made similar statements in the past. A few years ago, a lawyer tried to block Google from forwarding DMCA takedown notices to Chilling Effects, arguing that passing along those notices makes Google "potentially liable for the infringement" in passing on the notices. Others have argued that the takedown notices themselves are subject to copyright and have tried to block them from appearing on Chilling Effects.

The concern, they claim, is twofold: First, the details in the takedown notice often demonstrate where infringing content actually is. That's especially true for notices to Google or Twitter (two of the bigger suppliers of notices to Chilling Effects) who are not hosting the content, but are merely linking to it (i.e. they are "information location tools.") In those cases, the links may get removed from the services in question, but remain on the internet itself. The second concern, as put forth by Aistars, is that people issuing DMCA takedown notices are sensitive little flowers, and publishing the fact that they're trying to take down content opens them up to harassment and abuse.

Neither of these arguments survives much scrutiny. The idea that anyone is trawling through Chilling Effects seeking unauthorized content is fairly unlikely. And, really, if people are, those aren't exactly the kind of people who are then going to turn around and start willfully forking over cash to the legacy entertainment industry for that same content. The Chilling Effects haters, no doubt, would argue that this is why it's important to remove Chilling Effects itself from Google, because people searching on Google might not find the originals, but would then find the takedown notices with links back to the originals. Except, that seems unlikely. First, as has been detailed many times, people looking for unauthorized copies of works tend not to use Google that much, since it's not very good for that purpose, and other tools tend to be much more effective. Second, the kinds of information in a takedown notice itself aren't likely to trigger a high result for someone looking for an unauthorized download. Terms like "free" and "download" are unlikely to be found on such documents.

The other argument -- that being exposed for sending takedowns leads to harassment -- also seems bogus. We've seen little indication that people get that upset about legitimate takedowns. It's the excessive, abusive and censorious takedowns that really seem to concern people. And those are the ones that need transparency the most.

Hopefully, the folks at Chilling Effects rethink this decision and stick by their own stated philosophy of working "to provide as much transparency as possible" about DMCA takedown notices. It would seem that blocking a key search tool from accessing the data goes directly against that principle.

Filed Under: chilling effects, copyright, copyright infringement, dmca, indexing, robots.txt, search, takedowns
Companies: chilling effects, google

BREIN Loses Again As Dutch Court Rejects Criminal Prosecution For Copyright Infringement

from the not-so-invincible dept

Once upon a time, the Dutch "anti-piracy" group BREIN seemed invincible, winning a number of copyright infringement cases. But recently, its winning streak has come to an end. Last week we reported on how BREIN's attempt to block access to The Pirate Bay had been thrown out, and now we have the following case, as reported by TorrentFreak:

A Dutch man who admitted uploading more than 5,000 e-books to The Pirate Bay has had his case dismissed on appeal. The court ruled that the man can't be prosecuted criminally as copyright infringement cases belong in a civil court. Anti-piracy group BREIN is disappointed, but still has the option to pursue the uploader in a civil action.

Even if BREIN wins that action, the appeal court's decision is a serious defeat for the organization. It means BREIN has failed in its attempt to extend the use of criminal courts to cases that do not involve a criminal organization and where the infringements are not carried out as business activities. Had BREIN been successful, that widening of scope would have had a major impact on the Dutch copyright enforcement landscape.

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Filed Under: copyright infringement, criminal, netherlands
Companies: brein

UK Police Target Advertising On Infringing Sites, Opens Door For Scammers And Malware Purveyors

from the replacing-bad-ads-with-foul-software dept

No good deed by government agencies goes unpunished it seems, although it appears the average citizen bears the brunt of these punishments nearly every time. The UK's long-running battle with porn and infringement recently combined to the detriment of computer users across the country.

City of London Police are claiming credit for the suspension of 40 ad-funded websites that provided unauthorised access to copyright-protected content – but may have caused a rise in the number of web ads carrying malware or promoting pornography.

Operation Creative has resulted in the suspension of 40 national and international websites by domain name registrars during a three month pilot. The campaign was led by the new Police Intellectual Property Crime Unit (PIPCU) in collaboration with the creative industry, as represented by FACT (Federation Against Copyright Theft), the BPI (British Phonographic Industry), IFPI (International Federation of the Phonographic Industry) and The Publishers Association.

That's the upside. Dozens of infringing sites suspended and pleased industry execs smiling warmly at the results of their latest attempt to drain the web of infringement using a handful of thimbles.

The suspensions and extra public attention resulted in a 12% drop in advertising from major brands. But, when you create a hole on the internet, something will rush in and fill it.

[A]dverts that led users to sites with explicit adult content or exposed them to malware increased by 39 per cent during the same period...

Almost half (46 per cent) of total ads served to the sites were for unknown or unidentified brands which invited users to click through, often to fraudulent scams.

While infringement may have been dented, the rise in fraudulent activity more than made up for it. And what didn't lead to infected computers led to sites the government is actively discouraging people from visiting with its mandatory porn filtering.

This, of course, was pitched by the masters of the inadvertent disasters as a good thing:

Police put a positive spin on this development, arguing that switching to shadier sources of advertising is unsustainable and that "site owners may struggle to maintain their revenue streams when adverts from established brands are removed".

In all reality, relying solely on low quality web ads isn't really a "business model." What the City of London police have done is slow a trickle of income to a halt and allowed those with shadier (but more lucrative) "business models" to fill the void with malware infections and scams.

BPI's statement on the takedowns seems to imply that this activity has made the web safer, despite evidence gathered to the contrary.

Geoff Taylor, chief executive of the BPI, said: “The early results from Operation Creative show that through working with the police and the online advertising industry, we can begin to disrupt the funding that sustains illegal websites. These sites expose consumers to scams and malware, deny creators their living, and harm brands by associating them with illegal and unsafe content."

Right. Except that disrupting the sites has led to even more malware and scammy behavior. This may be a small win for BPI and its cohorts, but the consumers aren't being protected in any way. But I suppose that's a small price (for someone else) to pay when fighting infringement. If someone looking for illicit content ends up with an infected computer, it's no one's fault but their own, right?

I'm not suggesting the rights holders are actively working to make the web less safe, but that seems to be the end result, intended or not. Maybe the City of London police will throw a little of its investigative muscle into shutting those operators down, rather than just running interference for the copyright industry. Or maybe it will just continue to "enforce" the law by skirting ICANN policies as it has in the past with its highly-questionable domain takedowns that were backed with threats to hold registrars responsible for the alleged infringement happening on the disabled sites.

Filed Under: advertising, city of london police, copyright infringement, liability, malware, uk
Companies: bpi

Other Government Agencies Wanted Access To NSA Surveillance Data For Other Investigations... Including Copyright Infringement

from the seriously-now? dept

Going all the way back to 2010, we've talked many times about how much of the "debate" over "cybersecurity" was really a kind of turf war between the Defense Department (really, the NSA) and the Department of Homeland Security, over who would control both the budgets and the information they were collecting. So it should come as little surprise to see the NY Times reporting that this turf war has been playing out behind the scenes with various other government agencies demanding access to all that sweet, sweet data it has on everyone for whatever their personal area of interest was -- including:

...drug trafficking, cyberattacks, money laundering, counterfeiting and even copyright infringement

To its credit (and I can't believe I'm saying that), it appears that the NSA has rejected most of these requests, saying that those other issues are not high enough of a priority and they don't want to violate privacy rights (don't laugh). Still, given how much pressure is coming from other agencies of the government, you have to expect that sooner or later the NSA will be pressured into opening up the data to other parts of the government. In fact, part of the concern about CISPA and other cybsersecurity legislation wasn't just that it would put the NSA in control over such information, but that it also made it clear that government agencies would be free to share that data with each other, for almost any investigative purpose.

And, of course, that brings us to the "copyright infringement" bit. It's no secret that different parts of the government -- including the DOJ and ICE (a part of Homeland Security) have taken it upon themselves to act as if copyright infringement is a huge problem that they, personally, need to stop. The idea that agencies are even seeking access to the NSA's data to deal with copyright infringement claims shows just how incredibly obsessed they are. Copyright shouldn't even involve federal law enforcement in the first place, as it really should only be about civil cases between private parties. It was troubling enough that the government was deputizing itself to be copyright cops -- but to find out that they also wanted to use the data the NSA collects (which is already of questionable legality) in order to further work on their copyright obsession is downright ridiculous.

Filed Under: copyright infringement, dhs, doj, drug war, nsa, nsa surveillance, surveillance data

Google, Microsoft And Other Ad Networks Agree To 'Best Practices' To Stop Ads From Appearing On 'Pirate' Sites

from the the-details-matter dept

This has been rumored for ages, and the White House has certainly been pushing for this almost non-stop for years, but in a similar vein to the ISPs and the RIAA/MPAA coming to a "voluntary agreement" to implement a six strikes policy, the major online ad networks, led by the Internet Advertising Bureau (IAB) along with Google, Microsoft, Yahoo and AOL (and, yes, with the White House) have come to an agreement to stop their ads from appearing on "rogue" sites that are engaged in copyright infringement or selling counterfeit goods via a series of "best practices." The agreement says that the various ad networks who are participating will strive to keep their ads off of sites "that are principally dedicated to selling counterfeit goods or engaging in copyright piracy and have no substantial non-infringing uses."

I have some concerns about this, as I'll discuss below, but on the whole it appears that there's actually some good to come out of this. First off, it's worth noting that all of these guys already have terms of service that bar the use of their ads on sites that primarily engage in such things. While various tech industry haters still tend to believe otherwise, the tech industry has been pretty good at keeping their ads directly away from such sites for years. The ads that tend to get on those sites come from tiny third party ad networks that no one has heard of. In fact, some of the "evidence" against Megaupload was that from very early on, Google kicked it out of its ad program.

Another sign that this agreement probably isn't that bad: the MPAA has already put out a statement about how they hate it, saying that it's not enough. Chris Dodd specifically argues that nothing is going to be enough until everyone else does the copyright holders' job for them, and proactively polices the internet. The fact that no one but the copyright holder can know for certain if something is infringing is not even allowed to enter the discussion in the corrupt minds of the MPAA.

In this case, it appears that this new agreement involves something of a more formalized notice and (possible) takedown system. Copyright holders can submit a complaint to each ad network (individually, not to some central authority), and then the ad network gets to decide how it handles the notice -- but, under the best practices, they will strive to keep their ads from appearing on such sites. Since this is just a voluntary agreement, unlike, say, the DMCA, there's no automatic liability shifting in refusing to pull the ads -- and the agreement makes it clear that the best practices themselves do not establish liability, nor do they create a duty to proactively monitor (though, I could see how copyright holders might later try to raise that issue).

The good thing about this program is that it appears those who worked on it clearly recognize that certain copyright holders may be a little over eager in claiming certain sites are "pirate" sites when they might not be. So the program is designed to be more transparent and to include the clear ability for a site to appeal such a decision and get the ad networks to reconsider. In some ways, this is a step forward from the way it was before, in which Google or others might just kick you out of the program with almost no communication and absolutely no right of appeal. In fact, Google is somewhat infamous for its big white monolithic response to kicking people out of its ad network: basically just telling them "you've violated our terms" with no explanation, no way to find out more, and no way to appeal. Adding an actual appeals process is a step up.

That said, there are still two key concerns here. The first is that even with an appeals process and various safeguards, it's quite likely that legitimate sites that have significant non-infringing purposes will still get caught up in this. We've seen too many false takedowns, false attacks and the like for that not to happen. And even with an appeals process, losing your entire ad network for a period of time can completely sink a small business (and, any site making money on these kinds of ad networks is, by definition, a small business -- because none of these ad networks pay out very much to individual sites).

The second concern is a bigger one: which is that if you look at the history of some of the most important innovations that have helped the content industry grow, they almost always start out as what those content industries deemed "principally dedicated to infringing activity." In the early days of radio, cable TV, VCRs, DVRs, mp3 players, YouTube, etc... they were all attacked as being hotbeds of infringement. Yet, as they grew in popularity, business models developed that helped the content industry tremendously. As I've pointed out in the past, it was only four years after Jack Valenti declared that the VCR was the "Boston Strangler" of the movie business that the home video business surpassed the box office in revenue for Hollywood. Yet, if we allow a system where the copyright holders are able to simply starve these new businesses completely before they've had a chance to develop and mature, I worry that we miss the next VCR, the next DVR, the next mp3 player, the next YouTube -- and whatever tool that comes next that allows content creators to do an even better job connecting with fans, creating new works, distributing new works, promoting those works and eventually monetizing those works.

It's easy to simply try to label all new upstarts as "evil" and kill them off, but history has shown that's generally not a very good idea. The reason those upstarts are successful is not that they enable infringement, but rather that they enable something new and useful that people want and like. The real opportunity is in figuring out ways for content creators to use that to their advantage -- and I fear that programs like this make it easier to simply snuff them out too early.

That said, if there needs to be such a program, this one appears to be the least destructive approach. It doesn't create liability or a proactive duty to police the internet. It allows the networks to make the final call on what do with complaints. It gives the accused sites the ability to appeal whatever decisions are made. Either way, I would imagine that the MPAA and the RIAA already have their incredibly long lists of sites ready and are submitting them everywhere they can... and within a few weeks we'll watch them issue statements about how the new program isn't working and how more needs to be done.

Filed Under: ad networks, appeals process, copyright, copyright infringement, counterfeiting, notice and takedown, piracy, white house
Companies: aol, google, iab, microsoft, mpaa, yahoo