We Stand On The Precipice Of World War III, But, Sure, Let's All Talk About The DMCA And 'Standard Technical Measures'

from the what-are-we-even-doing-here dept

A whole bunch of people wasted Tuesday talking about technical measures. What technical measures, you might ask? The ones vaguely alluded to in the DMCA. Subsection 512(i) conditions the safe harbors on platforms (more formally called "Online Service Providers," or OSPs, for the purposes of the DMCA) "accommodat[ing] and [...] not interfer[ing] with standard technical measures." The statute goes on to describe them in general terms as "technical measures [...] used by copyright owners to identify and protect copyrighted works" that meet a few other criteria, including that they don’t unduly burden OSPs.

In 1998 when the DMCA was passed no technical measures met all the criteria. And, still, today, none do either. So it should have been a very short hearing. But it wasn’t. Instead we spent all day, plus lots of time earlier filing comments, all at the instigation of Senators Tillis and Leahy, having some people point out that no technical measure currently existing can meet this statutory criteria to help police for infringement without massive, unacceptable cost to OSPs and the expression – including copyrightable expression – they facilitate, and having other people instead stamp their feet and hold their breath, pretend up is down, left is right, and the world is flat, in order to declare that some somehow do anyway and that platforms should incur any cost necessary to deploy them.

And as for which technical measures we were talking about… we never really got there. There were references to fingerprinting technologies, like ContentID, the huge, expensive, and perpetually inaccurate system Google uses to identify potentially infringing files. There were references to watermarking systems, which some (like us) noted create significant surveillance concerns as people’s consumption of expression is now especially trackable. And there were references to upload filters as well, like the EU keeps wanting to mandate. But at no point was any specific technology ever identified so we could assess the benefits and harms of even encouraging, much less mandating, its broader use. We just all sort of nodded knowingly at each other, as if we all shared some unspoken knowledge of some technology that could somehow magically work this unprecedented miracle to make all rightsholders perfectly happy while not crushing OSPs’ abilities to continue to facilitate expression, create market opportunities for creators, and connect creators to audiences. Nor outright crush lawful expression itself as so many of these systems are already doing. When, of course, no such technology currently exists, nor is likely to exist any time soon, if ever at all.

Since the Copia Institute participated in this exercise in futility, we used the opportunity to remind everyone – and the record – in our comment and testimony that the entire conversation was happening in the shadow of the Constitution. For instance, while a system of safe harbors for OSPs is not inherently in tension with the First Amendment – indeed, protecting the platforms that facilitate Internet expression is a critical statutory tool for advancing First Amendment interests online – recent interpretations of the statutory language of Section 512 have been increasingly putting this safe harbor system at odds with the constitutional proscription against making a law that would impinge free expression. Any system, be it legal or technical, that causes lawful expression to be removed, or to not be allowed to be expressed at all, deeply offends the First Amendment. Such harm cannot and should not be tolerated in any statute or policy promulgated by the Copyright Office. The regulatory priority therefore ought to be, and must be, to abate this constitutional injury that’s already been occurring and keep it from accruing further. And under no circumstances should any provision of Section 512, including and especially the technical measures provision, be amended or interpreted in a way that increases the frequency or severity of this constitutional harm that the statute has already invited.

Because it also offends the spirit if not letter of the Progress Clause animating copyright law. You cannot foster creative expression by creating a system of censorship that in any way injures the public’s ability to express themselves or to consume others’ expression. So it is critically important to recognize how any technological measure might do that, because it will only hurt the creative expression copyright law is itself supposed to foster, as well as all the public benefit it’s supposed to deliver.

Filed Under: copyright office, dmca, dmca 512, filters, standard technical measures, technical measures, upload filters

ACLU & EFF Step Up To Tell Court You Don't Get To Expose An Anonymous Tweeter With A Sketchy Copyright Claim

from the send-in-the-experts dept

In November, we wrote about a very bizarre case in which someone was using a highly questionable copyright claim to try to identify an anonymous Twitter user with the username @CallMeMoneyBags. The account had made fun of various rich people, including a hedge fund billionaire named Brian Sheth. In some of those tweets, Money Bags posted images that appeared to be standard social media type images of a woman, and the account claimed that she was Sheth's mistress. Some time later, an operation called Bayside Advisory LLC, that has very little other presence in the world, registered the copyright on those images, and sent a DMCA 512(h) subpoena to Twitter, seeking to identify the user.

The obvious suspicion was that Sheth was somehow involved and was seeking to identify his critic, though Bayside's lawyer has fairly strenuously denied Sheth having any involvement.

Either way, Twitter stood up for the user, noting that this seemed to be an abuse of copyright law to identify someone for non-copyright reasons, that the use of the images was almost certainly fair use, and that the 1st Amendment should protect Money Bag's identify from being shared. The judge -- somewhat oddly -- said that the fair use determination couldn't be made with out Money Bags weighing in and ordered Twitter to alert the user. Twitter claims it did its best to do so, but the Money Bags account (which has not tweeted since last October...) did not file anything with the court, leading to a bizarre ruling in which Twitter was ordered to reveal the identify of Money Bags.

We were troubled by all of this, and it appears that so was the ACLU and the EFF, who have teamed up to tell the court it got this very, very wrong. The two organizations have filed a pretty compelling amicus brief saying that you can't use copyright as an end-run around the 1st Amendment's anonymity protections.

The First Amendment protects anonymous speakers from retaliation and other harms by allowing them to separate their identity from the content of their speech to avoid retaliation and other harms. Anonymity is a distinct constitutional right: “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995). It is well-settled that the First Amendment protects anonymity online, as it “facilitates the rich, diverse, and far-ranging exchange of ideas,” Doe v. 2TheMart.com, Inc., 140 F. Supp. 2d 1088, 1092 (W.D. Wash. 2001), and ensures that a speaker can use “one of the vehicles for expressing his views that is most likely to result in those views reaching the intended audience.” Highfields, 385 F. Supp. 2d at 981. It is also well-settled that litigants who do not like the content of Internet speech by anonymous speakers will often misuse “discovery procedures to ascertain the identities of unknown defendants in order to harass, intimidate or silence critics in the public forum opportunities presented by the Internet.” Dendrite Int’l v. Doe No. 3, 775 A.2d 756, 771 (N.J. App. Div. 2001).

Thus, although the right to anonymity is not absolute, courts subject discovery requests like the subpoena here to robust First Amendment scrutiny. And in the Ninth Circuit, as the Magistrate implicitly acknowledged, that scrutiny generally follows the Highfields standard when the individual targeted is engaging in free expression. Under Highfields, courts must first determine whether the party seeking the subpoena can demonstrate that its legal claims have merit. Highfields, 385 F. Supp. 2d at 975-76. If so, the court must look beyond the content of the speech at issue to ensure that identifying the speaker is necessary and, on balance, outweighs the harm unmasking may cause.

The filing notes that the magistrate judge who ordered the unmasking apparently seemed to skip a few steps:

The Magistrate further confused matters by suggesting that a fair use analysis could be a proxy for the robust two-step First Amendment analysis Highfields requires. Order at 7. This suggestion follows a decision, in In re DMCA Subpoena, 441 F. Supp. 3d at 882, to resolve a similar case purely on fair use grounds, on the theory that Highfields “is not well-suited for a copyright dispute” and “the First Amendment does not protect anonymous speech that infringed copyright.”...

That theory was legally incorrect. While fair use is a free-speech safety valve that helps reconcile the First Amendment and the Copyright Act with respect to restrictions on expression, anonymity is a distinct First Amendment right.1 Signature Mgmt., 876 F.3d at 839. Moreover, DMCA subpoenas like those at issue here and in In re DMCA Subpoena, concern attempts to unmask internet users who are engaged in commentary. In such cases, as with the blogger in Signature Mgmt., unmasking is likely to chill lawful as well as allegedly infringing speech. They thus raise precisely the same speech concerns identified in Highfields: the use of the discovery process “to impose a considerable price” on a speaker’s anonymity....

ndeed, where a use is likely or even colorably a lawful fair use, allowing a fair use analysis alone to substitute for a full Highfields review gets the question precisely backwards, given the doctrine’s “constitutional significance as a guarantor to access and use for First Amendment purposes.” Suntrust Bank v. Houghton Mifflin, 268 F.3d 1257, 1260 n.3 (11th Cir. 2001). Fair use prevents copyright holders from thwarting well-established speech protections by improperly punishing lawful expression, from critical reviews, to protest videos that happen to capture background music, to documentaries incorporating found footage, and so on. But the existence of one form of speech protection (the right to engage in fair use) should not be used as an excuse to give shorter shrift to another (the right to speak anonymously).

It also calls out the oddity of demanding that Money Bags weigh in, when its Bayside and whoever is behind it that bears the burden of proving that this use was actually infringing:

Bayside incorrectly claims that Twitter (and by implication, its user) bears the burden of demonstrating that the use in question was a lawful fair use. Opposition to Motion to Quash (Dkt. No. 9) at 15. The party seeking discovery normally bears the burden of showing its legal claims have merit. Highfields, 385 F. Supp. 2d at 975-76. In this pre-litigation stage, that burden should not shift to the anonymous speaker, for at least three reasons.

First, constitutional rights, such as the right to anonymity, trump statutory rights such as copyright. Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881, 883-84 (9th Cir. 2005). Moreover, fair use has an additional constitutional dimension because it serves as a First Amendment “safety valve” that helps reconcile the right to speak freely and the right to restrict speech. William F. Patry & Shira Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 Cardozo Arts & Ent. L.J. 667, 668 (1993). Shifting the Highfields burden to the speaker would create a cruel irony: an anonymous speaker would be less able to take advantage of one First Amendment safeguard—the right to anonymity—solely because their speech relies on another—the right to fair use. Notably, the Ninth Circuit has stressed that fair use is not an affirmative defense that merely excuses unlawful conduct; rather, it is an affirmative right that is raised as a defense simply as a matter of procedural posture. Lenz v. Universal, 815 F.3d 1145, 1152 (9th Cir. 2016). Second, Bayside itself was required to assess whether the use in question was fair before it sent its DMCA takedown notices to Twitter; it cannot now complain if the Court asks it to explain that assessment before ordering unmasking. In re DMCA Subpoena, 441 F. Supp. 3d at 886 (citing Lenz., 815 F.3d at 1153: “a copyright holder must consider the existence of fair use before sending a takedown notification under § 512(c)”)

Third, placing the burden on the party seeking to unmask a Doe makes practical sense at this early stage, when many relevant facts lie with the rightsholder. Here, for example, Bayside presumably knows—though it has declined to address—the original purpose of the works. And as the copyright holder, it is best positioned to explain how the use at issue might affect a licensing market. While the copyright holder cannot see into the mind of the user, the user’s purpose is easy to surmise here, and the same is likely to be true in any 512(h) case involving expressive uses. With respect to the nature of the work, any party can adequately address that factor. Indeed, both Bayside and Twitter have done so.

The filing also notes that this is an obvious fair use situation, and the judge can recognize that:

While courts often reserve fair use determinations for summary judgment or trial, in appropriate circumstances it is possible to make the determination based on the use itself. See In re DMCA Section 512(h) Subpoena to YouTube (Google, Inc.), No. 7:18-MC-00268 (NSR), 2022 WL 160270 (S.D.N.Y. Jan. 18, 2022) (rejecting the argument that fair use cannot be determined during a motion to quash proceeding). In Burnett v. Twentieth Century Fox, for example, a federal district court dismissed a copyright claim—without leave to amend—at the pleading stage based on a finding of fair use. 491 F. Supp. 2d 962, 967, 975 (C.D. Cal. 2007); see also Leadsinger v. BMG Music Pub., 512 F.3d 522, 532–33 (9th. Cir. 2008) (affirming motion to dismiss, without leave to amend, fair use allegations where three factors “unequivocally militated” against fair use). See also, e.g., Sedgwick Claims Mgmt. Servs., Inc. v. Delsman, 2009 WL 2157573 at *4 (N.D. Cal. July 17, 2009), aff’d, 422 F. App’x 651 (9th Cir. 2011); Savage v. Council on Am.-Islamic Rels., Inc., 2008 WL 2951281 at *4 (N.D. Cal. July 25, 2008); City of Inglewood v. Teixeira, 2015 WL 5025839 at *12 (C.D. Cal. Aug. 20, 2015); Marano v. Metro. Museum of Art, 472 F. Supp. 3d 76, 82–83, 88 (S.D.N.Y. 2020), aff’d, 844 F. App’x 436 (2d Cir. 2021); Lombardo v. Dr. Seuss Enters., L.P., 279 F. Supp. 3d 497, 504–05 (S.D.N.Y. 2017), aff’d, 729 F. App’x 131 (2d Cir. 2018); Hughes v. Benjamin, 437 F. Supp. 3d 382, 389, 394 (S.D.N.Y. 2020); Denison v. Larkin, 64 F. Supp. 3d 1127, 1135 (N.D. Ill. 2014).

These ruling are possible because many fair uses are obvious. A court does not need to consult a user to determine that the use of an excerpt in a book review, the use of a thumbnail photograph in an academic article commenting on the photographer’s work, or the inclusion of an image in a protest sign are lawful uses. There is no need to seek a declaration from a journalist when they quote a series of social media posts while reporting on real-time events.

And the uses by Money Bags were pretty obviously fair use:

First, the tweets appear to be noncommercial, transformative, critical commentary—classic fair uses. The tweets present photographs of a woman, identified as “the new Mrs. Brian Sheth” as part of commentary on Mr. Sheth, the clear implication being that Mr. Sheth has used his wealth to “invest” in a new, young, wife. As the holder of rights in the photographs, Bayside could have explained the original purpose of the photographs; it has chosen not to do so. In any event, it seems unlikely that Bayside’s original purpose was to illustrate criticism and commentary regarding a billionaire investor. Hence, the user “used the [works] to express ‘something new, with a further purpose or different character, altering the first with new expression, meaning, or message.’” In re DMCA Subpoena to Reddit, Inc., 441 F. Supp. 3d at 883 (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)). While undoubtedly crass, the user’s purpose is transformative and, Bayside’s speculation notwithstanding, there is nothing to suggest it was commercial.

The filing also calls out the magistrate judge's unwillingness to consider Twitter's own arguments:

Of course, there was a party in court able and willing to offer evidence and argument on fair use: Twitter. The Magistrate’s refusal to credit Twitter’s own evidence, Order at 7-8, sends a dangerous message to online speakers: either show up and fully litigate their anonymity—risking their right to remain anonymous in the process—or face summary loss of their anonymity when they do not appear. Order at 7. That outcome inevitably “impose[s] a considerable price” on internet users’ ability to exercise their rights to speak anonymously. Highfields, 385 F. Supp. 2d at 980-81. And “when word gets out that the price tag of effective sardonic speech is this high, that speech will likely disappear.”

Hopefully the court reconsiders the original ruling...

Filed Under: 1st amendment, anonymity, brian sheth, callmemoneybags, copyright, dmca 512, fair use, subpoena
Companies: aclu, bayside advisory, eff, twitter

The Curious Case Of Billionaire Brian Sheth, An Anonymous Tweeter, Copyright Law, Twitter, And Some Company That Barely Seems To Exist

from the wtf-is-going-on-here? dept

Techdirt regular John Roddy highlighted a truly bizarre fight happening in a California court that may or may not involve billionaire Brian Sheth. Sheth was a cofounder of the high-flying Vista Equity Partners, and left it a year ago in a high profile exit, after the firm's other cofounder, Robert Smith, entered into a non-prosecution agreement with the DOJ and agreed to pay $139 million and "abandon" $182 million in deductions, related to charges of tax fraud. In the Forbes link above, Sheth claims he sought to have Smith leave Vista following this revelation, but "Smith prevailed" and so Sheth left. Nothing in that article makes Sheth look particularly bad.

However... an anonymous Twitter user @CallMeMoneyBags has been tweeting criticism of lots of folks involved in the private equity space, including Brian Sheth. A year ago, just about the same time that Sheth left Vista, MoneyBags tweeted a bunch of tweets referring to Sheth, and including snapshots of women who were sometimes scantily clad. The text of the tweets wasn't particularly bad. One of them just says "Brian Sheth is the King of Private Equity" with some hashtags:

Some of the tweets could be read obliquely to suggest infidelity:

You'll notice that the screenshots of those tweets show the media disabled over a copyright claim, and that's the next stage of this mystery. An entity called "Bayside Advisory LLC," which barely seems to exist, sent Twitter a copyright infringement notice for the images in those tweets, and then immediately filed a DMCA 512(h) subpoena to Twitter demanding that it identify the person behind @CallMeMoneyBags.

Twitter, properly moved to quash the subpoena, noting that this was all highly sketchy, and that the standard to force the disclosure of an anonymous poster is quite high, and it was not met here. Twitter rightfully noted that it was also somewhat perplexed by who the hell Bayside Advisory LLC was, and whether it had any connection to Sheth:

None of the Tweets mention Bayside.... Twitter’s counsel has attempted to learn the connection between Bayside and Sheth or the images at issue but has been unsuccessful.... Bayside does not appear to be registered to conduct business in California, and public searches of Bayside reveal only an Ohio real estate holdings company with no apparent connection to Sheth and no specialization in creating or acquiring copyrights of candid photographs.

There's been a fair bit of back and forth, but to summarize, Twitter argues (correctly) that the 1st Amendment protects anonymity. "Bayside" (whoever that is) argues back (misleadingly) that copyright infringement is not protected by the 1st Amendment. Twitter argues (correctly) that fair use is not infringement, and Bayside argues that it's not fair use. Twitter then argues again that (1) it is fair use, and (2) even if it's not fair use, Bayside doesn't meet the very high bar to expose an anonymous social media user.

Throughout all of this Bayside keeps insisting that it has no connection to Sheth at all and is merely a concerned copyright holder trying to police infringement. This seems exceedingly difficult to believe. However, the company filed a disclosure insisting that there were no other parties of interest in this case, and says that Twitter is wrong in implying that Sheth or someone connected to him are trying to expose MoneyBags:

Twitter falsely claims that Bayside is attempting to unmask a Twitter user (“MoneyBags”) for commenting on a newsworthy billionaire, thereby chilling MoneyBags’ First Amendment speech. (Dkt. 13 at 5). Bayside is not. As was clear in its opposition to the motion to quash (Dkt. 9), Bayside seeks the identity of a copyright infringer pursuant to the DMCA. The First Amendment does not afford protection for copyright infringement, nor are copyright infringer identities protected from disclosure by the First Amendment. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985); Arista Records, LLC v. Doe 3, 604 F.3d 110, 118 (2d Cir. 2010). Bayside has never requested MoneyBags’ tweets be removed. The commentary in those tweets remained after Bayside’s DMCA notice, and their textual comment is of no concern to Bayside. What is of great concern to Bayside is the unauthorized use of several of its copyrighted Photographs simply as an illustrative aid to those tweets, which does not constitute fair use.

Elsewhere, Bayside is even more emphatic that it has nothing to do with Sheth:

“the photos are exclusively and solely owned and controlled by our client Bayside Advisory LLC, the photos are registered with the United States Copyright Office reflecting that Bayside is the sole owner, Mr. Sheth never had any ownership or control interest in the photos and that Mr. Sheth does not own or control any interest in Bayside.”

For what it's worth, it does appear that Bayside Advisory LLC, using a US Postal Service postal box based in Menlo Park, California, did in fact file a copyright registration for six photos after MoneyBags posted the tweets. The registration claims that two of the photos (registered as a "group") were "published" in 2017 and the four others (also registered together as a group) were "published" in July of 2020. In those registrations, Bayside names Brenda Diaz as the photographer of all six photos. Notably, Bayside insists that protecting copyright is part of what it does:

Contrary to Twitter’s baseless conjecture, Bayside is a communications and strategic advisory firm that, among other things, advises and partners with creators, artists, and entrepreneurs to protect, promote, and champion creative expression. Bayside owns a catalog of photographs (the Photographs are only a small part of the catalog) to exploit for those purposes. What Twitter is attempting to do with its motion to quash is diminish the rights of copyright holders by forcing them to navigate the court system and fight diligently, and at great cost and expense, to get basic information about those who infringe their copyrights.

That would be a hell of a lot more compelling if... the two registrations at issue here weren't the only two registrations for published works that Bayside Advisory has. Earlier this summer (many, many months later) Bayside Advisory did register two more groups of unpublished photographs, but the idea that these photos are "only a small part of its catalog" is, at the very least, not clearly seen in its copyright registration practices.

Now, many months later, the judge has finally issued an order... which only punts the matter for the time being. Basically, the judge says it doesn't have enough info about @CallMeMoneyBags' use of the photos to determine whether or not they are protected by fair use, because MoneyBags is not a party here and hasn't filed anything on his (or her) behalf. So the court says that it has to hear from MoneyBags in order to get the full record and make a fair use determination, and whether or not MoneyBags' anonymity should also be protected:

To the extent the court must reach the issue of whether @CallMeMoneyBags’s use of the photos constitutes fair use, it lacks a well-developed record on which to base any ruling. ... In this case, Twitter states that “[i]t appears the anonymous Twitter user here posted those candid photographs for the purpose of criticizing or satirizing Sheth.” Mot. to Quash 12. Twitter speculates. The purpose and meaning of the tweets is not clear. They include hashtag references which are not obvious. Evidence regarding the user’s purpose and intended meaning is likely available only from the individual(s) who posted the tweets. ... The facts relevant to the first factor may also impact the third, which examines “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.”... As the Supreme Court has explained, when examining the third factor, “the enquiry will harken back to the first of the statutory factors” because “the extent of permissible copying varies with the purpose and character of the use.”

Additionally, to the extent the court determines it is necessary and appropriate to “balance ‘the magnitude of the harms that would be caused to the competing interest by a ruling in favor of [Bayside] and by a ruling in favor of [Twitter and the user of the @CallMeMoneyBags account],’” the court lacks sufficient information to do so.... As noted, Twitter contends that unmasking @CallMeMoneyBags “may invite social ostracism, expose them to harassment, or prevent future employment opportunities,” but this too is speculative.

Accordingly, the court shall give the user(s) of the @CallMeMoneyBags account an opportunity to provide information supporting the foregoing inquiries, including evidence regarding any claim of fair use of the photos and the harms that could result if the court rules in favor of Bayside on the motions to quash and to compel. Twitter shall immediately serve a copy of this order along with the complete briefing on Twitter’s motion to quash and Bayside’s motion to compel on the email address associated with the @CallMeMoneyBags account, and file a declaration attesting to the same by November 10, 2021. By no later than December 10, 2021, the user(s) of the @CallMeMoneyBags account may specially appear and file evidence regarding fair use and/or the harms that may result if the court denies the motion to quash and grants the motion to compel. The user(s) may appear anonymously for the purpose of submitting such evidence. The court will take the matter under submission after December 10, 2021.

Twitter has since told the court that it has sent this ruling to @CallMeMoneyBags, and one hopes that MoneyBags can find himself (or herself) a decent lawyer who understands both fair use and anonymity...

And, of course, there's a lot that's perplexing here. The most obvious candidate for wanting to identify MoneyBags would be Sheth, but Bayside is emphatic (in its court filings) that it's not Sheth, but it's not at all clear who is actually behind Bayside or what Bayside actually does. But if it's not Sheth, then who would be so insistent on finding out who is behind the account, and spending what appears to be significant amount on a lawyer who used to run legal affairs for Universal Music Publishing Group? That's not how most people react to random snapshots being placed on Twitter. It's possible that it's somehow connected to the photographer, Diaz, but, if so, why did she hand over just those six images to Bayside to register and fight this fight? It's all... very perplexing.

Either way, kudos to Twitter for (1) fighting for the right to post anonymously, to criticize people while doing so, and (2) fighting for fair use.

Filed Under: 512(h), anonymity, brenda diaz, brian sheth, callmemoneybags, copyright, criticism, dmca 512, first amendment, identity, social media, subpoenas
Companies: bayside advisory, twitter

Gasp! YouTube Shutters Account For Person Committing DMCA Takedown Fraud!

from the praise-be dept

It should come as no surprise to regular Techdirt readers that the DMCA takedown process is not only wide open to fraud and abuse, but that those avenues are regularly used in real life for just those purposes. Takedowns to silence criticism, takedowns to try to steal traffic from others, or takedowns or monetization claims just to get some paltry amounts of streaming revenue: the point is that this shit happens all the time. What absolutely does not happen with any frequency is the folks behind these bogus actions getting punished in any way for their behavior.

And so when it does happen, it's worth highlighting it, putting it on a podium, and trying to have it become the norm rather than the exception. To that end, let's highlight YouTube actually banning an account that appeared to be sending fraudulent DMCA notices.

Yesterday, the owner of the “Musical Creator” channel complained that their channel had been terminated after submitting a copyright takedown request. The operator of the channel doesn’t appear to be a native English speaker as the comment below shows, but it’s clear that they disagree with this decision.

“My youtube channel MUSICAL CREATOR has been terminated due to inlegal information copyright infringement. But I not violating any policy of youtube, I don’t know how my channel is terminated I filled out all the information legal. I want to get back my channel again,” the operator writes.

Now, a couple of things to say here. First, the channel's name is "MUSICAL CREATOR"? Hmm, okay, totally doesn't sound like the kind of thing you would create just to send DMCA notices and try to monetize others' content. And we don't have any details from YouTube as to what specifically was the issue with whatever takedown notice MUSICAL CREATOR sent. Instead, all we have is this from YouTube's notice directly.

“We are concerned that some of the information within this legal request may be fraudulent,” YouTube’s response reads. “Please understand that YouTube receives a large number of fraudulent copyright takedown requests, and we take abuse of that process very seriously.”

While that doesn't tell us much or let us vet out whether fraud was actually committed or not, it's worth keeping in mind again that YouTube takes very little action on this sort of thing generally speaking. By which I mean that the fact it took action in this case leads me to believe YouTube thinks it's on very, very solid footing here.

As a result, the MUSICAL CREATOR account is down. Anyone going to its page is simply told that the account is offline due to "a violation of YouTube's Terms of Service."

Again, it's hard to be completely assured that YouTube's actions in this case are appropriate... but I suspect they are. And, purely as a matter of percentage cases, the fact is that YouTube and other platforms have historically been so vastly on the side of those issuing DMCA notices instead of the potential victims of fraud that it makes stories like this unique.

Even though they shouldn't be.

Filed Under: censorship, copyfraud, copyright, dmca, dmca 512, notice and takedown, takedown fraud, youtube
Companies: youtube

Two Years Later, Judge Finally Realizes That A CDN Provider Is Not Liable For Copyright Infringement On Websites

from the this-is-why-procedural-outs-are-important dept

More than two years ago we wrote about a truly bizarre ruling in a truly bizarre copyright lawsuit against Cloudflare. As you (perhaps?) know, Cloudflare is a popular CDN provider, helping websites (including Techdirt) provide better access to users while helping to mitigate things like denial of service attacks. In this case, the plaintiffs, Mon Cheri Bridals -- a maker of bridal dresses -- sued Cloudflare because websites out there were selling counterfeit dresses. If you know anything about copyright (and counterfeiting) law, you should be scratching your head. Counterfeiting is not about copyright. It's about trademark. But the dress company (for reasons I still don't understand), made the stretchiest of stretchy arguments to say that (1) the counterfeit sellers were posting images of the dresses, and (2) those images were protected by a copyright held by the dress maker, and (3) because the counterfeiting sites posting the allegedly copyright infringing photos used Cloudflare for CDN (not hosting) services, that somehow makes them contributory liable for the copyright infringement.

Even worse, the complaint itself was extremely confused about the DMCA and how it works with regards to the DMCA 512 safe harbors. Different companies are treated differently under 512, and Section (b) companies for "system caching" (which is what CDNs do) are treated differently under the law than Section (c) hosting companies. However, the whole "notice and takedown" aspect of the law only applies to Section (c) type companies. But the lawsuit simply ignored that and assumed that Cloudflare should be a (c) company, rather than a (b).

And, astoundingly, as we wrote about two years ago, the judge refused to dismiss the case, but let it move forward past the motion to dismiss stage -- meaning that it went through some very expensive discovery and other efforts before finally getting to the summary judgment stage, and now more than two years later, the judge granted dismissal on summary judgment. And, kinda like his refusal to dismiss, the opinion is kinda short and doesn't get into much in the way of detail. But at least this time it gets it right.

The plaintiffs have not presented evidence from which a jury could conclude that Cloudflare’s performance-improvement services materially contribute to copyright infringement. The plaintiffs’ only evidence of the effects of these services is promotional material from Cloudflare’s website touting the benefits of its services. These general statements do not speak to the effects of Cloudflare on the direct infringement at issue here. For example, the plaintiffs have not offered any evidence that faster load times (assuming they were faster) would be likely to lead to significantly more infringement than would occur without Cloudflare. Without such evidence, no reasonable jury could find that Cloudflare “significantly magnif[ies]” the underlying infringement. Amazon.com, Inc., 508 F.3d at 1172. Nor are Cloudflare’s services an “essential step in the infringement process.” Louis Vuitton Malletier, 658 F.3d at 944. If Cloudflare were to remove the infringing material from its cache, the copyrighted image would still be visible to the user; removing material from a cache without removing it from the hosting server would not prevent the direct infringement from occurring.

Cloudflare’s security services also do not materially contribute to infringement. From the perspective of a user accessing the infringing websites, these services make no difference. Cloudflare’s security services do impact the ability of third parties to identify a website’s hosting provider and the IP address of the server on which it resides. If Cloudflare’s provision of these services made it more difficult for a third party to report incidents of infringement to the web host as part of an effort to get the underlying content taken down, perhaps it could be liable for contributory infringement. But here, the parties agree that Cloudflare informs complainants of the identity of the host in response to receiving a copyright complaint, in addition to forwarding the complaint along to the host provider.

This is the correct ruling, but it should have come two years ago at the motion to dismiss stage.

Indeed, despite not being a Section 230 case, this is yet another example of why Section 230's procedural benefits are so important. Perhaps one reason why people don't get this is that they don't understand just how much more expensive a lawsuit gets after a motion to dismiss, but it's a massive shift. A motion to dismiss may run in the 100s of thousands dollars range (depending on a variety of factors). But if you get past that and have to go to discovery, you're now talking in the millions before you get a ruling on summary judgment. It's a big difference and a massive cost for companies (especially smaller ones). A cost that can completely destroy smaller companies -- for a lawsuit that had no chance at all from the beginning.

Filed Under: cdn, copyright, counterfeiting, dmca, dmca 512, safe harbors, summary judgment
Companies: cloudflare, mon cheri bridals

Hollywood Is Betting On Filtering Mandates, But Working Copyright Algorithms Simply Don't Exist

from the hello-1st-amendment dept

Facebook whistleblower Frances Haugen may not have mentioned copyright in her Congressional testimony or television interviews, but her focus on artificial intelligence (“AI”) and content moderation have a lot of implications for online copyright issues. 

For the last decade, Hollywood, the music industry and others have been pushing for more technical solutions for online copyright infringement. One of the biggest asks is for Internet companies to “nerd harder” and figure out algorithms that can identify and remove infringing content. They claim content filters are the solution, and they want the law to force that onto companies.

And they have been successful in parts of the world so far. For example, the recent European Union Copyright Directive placed a filtering mandate on internet platforms. Hollywood and the record labels are pushing the U.S. to follow suit and make platforms liable for copyright infringement by users. They want NIST to develop standards for filtering software, and they are using the power of Congress and the U.S. Copyright Office to push for legislation and/or voluntary agreements to create more filters. 

There is one huge problem with all of this: the technology does not exist to do this accurately. What the Facebook whistleblower made clear is that even the most sophisticated AI-based algorithms cannot accurately moderate content. They make tons of mistakes. Haugen even suggested that a huge part of the challenge is the belief that “nerding harder” will work. She blamed Facebook’s mantra to solve problems through technology as the main reason they are struggling with content moderation. 

Copyright presents a unique context challenge to algorithms. It’s not easy to automatically determine what is copyright infringement and what is not. Even under today’s existing systems, about a third of takedown requests are potentially problematic, requiring further analysis. Most of these erroneous takedowns are done by algorithms. This analysis can be extremely complicated even for the American judicial system – so much so that the Supreme Court recently had to clarify how to apply the four-part fair use test. In court, each fair use case gets a very individual, fact-based analysis. Current AI-based algorithms are not close to being able to do the needed analysis to determine copyright infringement in fair use cases. 

So why is there a big push from Hollywood, the movie industry and others on this? They are smart enough to know that algorithmic solutions are not close and may never be able to handle filtering for infringement accurately. 

The reason is they do not want filtering technologies to be accurate. They want filtering technologies to over-correct and take anything that might be infringing off the internet. Congress cannot directly legislate such an overcorrection, because it is a clear violation of the First Amendment. But they might be able to introduce legislation that creates a de facto mandatory filtering requirement. Mandatory filtering legislation imposed via changing the Digital Millennium Copyright Act Section 512’s platform liability regime would lead companies to “voluntarily” implement over-correcting filtering solutions — or otherwise face a constant barrage of losing lawsuits and legal bills for any and all alleged infringement by users. And this could create an end run around the first amendment if a court decided that the company was “voluntarily” implementing. 

At this point it is important to recognize the types of activity that we are talking about here: transformative works of creativity, pop-art, criticism and parody. This includes teens sharing lip sync TikToks and videos of your little kids dancing to a song. But fair use doesn’t apply to just the creative arts. It also includes collaborative efforts on an internet platform to develop cybersecurity solutions that require reverse engineering and allows teachers to share materials with students on online education platforms. Documentarians depend heavily on fair use, and efforts to distribute documentaries online would face stiff challenges. 

All of these important capabilities would be severely at risk if we forced filtering requirements onto internet platforms via threat of liability. If we let Hollywood and music industry elites and the Members of Congress who do their bidding get their way, the rest of America will lose out.

Josh Lamel is the Executive Director of the Re:Create Coalition. This article was originally posted to the Re:Create Coalition blog.

Filed Under: ai, copyright, dmca, dmca 512, filters, hollywood, mandates

Mystery Over Fake Section 1201 Takedown Claims Sent By 'Video Industry Association of America' Deepens

from the no-such-agency dept

It was only a week or so ago that we discussed the latest example of the type of fake DMCA notices that Google gets to delist certain URLs from search results. In this instance, a couple of factors made these DMCA notices even more problematic than usual. For starters, they claim to be coming from the U.S. Copyright Office, which very much does not send in DMCA notices like this. On top of that, the notices claim they are being sent by the U.S. Copyright Office on behalf of the Video Industry Association of America which, as I noted in my original post, doesn't seem to actually exist. Finally, and perhaps most importantly, these are notices for Section 1201 claims, which deal with anti-circumvention aspects of copyright law, that target mostly stream-ripping sites and sites that cover or guide legit uses of those sites. Notably, Google does not have an appeal process for 1201 notices, leaving anyone who got delisted basically screwed.

Well, now the mystery somewhat deepens. The Section 1201 DMCA notices have continued to flood Google, but now they are being supposedly sent directly by the Video Industry Association of America, with whoever is sending these dropping the pretense that they're coming from the US Copyright Office. But that isn't actually clearing much up other than to highlight, again, that the organization doesn't actually exist and is coming from Russia.

A mysterious group called the 'Video Industry Association of America' is trying to wipe the homepages of dozens of reputable sites from Google search. The targets, which stand accused of violating the DMCA's anti-circumvention policy, include Verizon, Pinterest, and Engadget. Google says that it's aware of these fraudulent notices but, thus far, they are not without damage.

The ‘American’ organization starts one request off in Russian and finds it hard to construct proper English sentences. In another notice, it complains of sites and apps that circumvent the copyright protection of streaming services, while classifying these as “software cracks.” Things get even more problematic when we look at the URLs that are reported. While these include tools such as DVDFab and YouTube-rippers, which some rightsholders see as problematic, various legitimate sites are targeted as well.

So what's going on here? Well, it seems that whoever is behind these DMCA notices is taking shotgun approach to them. Anything that has to do with providing or informing the public on matters of stream-ripping, legit or otherwise, are being targeted. Plenty of other tech news organizations have been targeted as well, such as Engadget and CNET. Most of the takedown requests have gone ignored by Google, but several have not. Many smaller tech sites have been delisted as a result of all this.

For at least one of the sites, Google has acknowledged that the delist request was not legit, but also said there is no current appeals process.

Fossbytes reported the issue to Google, which informed the site that there is no official counter-notification process for these anti-circumvention takedowns. As such, the URLs remain deindexed for now.

“There is no formal counter notification process available under US law for circumvention, so we have not reinstated these URLs,” Google replied, requesting a detailed explanation from the site.

Meaning the onus is still on the victims of this crap to get themselves re-listed. And, once TorrentFreak got its hands on a copy of the takedown request, it illuminates how blatantly fraudulent all of this is.

This reveals some interesting details that are not available in the Lumen database, including the name, email address, and geolocation of the ‘Video Industry Association of America’ representative.

As can be seen above, the sender is actually located in Russia and identifies itself as “Wolf Fang,” which isn’t a typical name, not even in Russia. The email address, which we won’t publish, comes from Gmail and references another animal’s fangs.

Again, what's going on here? Is this some coordinated Russian effort to delist a bunch of prominent or otherwise American news sites? Not likely. Instead, this is more likely a form of the kind of fraud-based attack we've seen from overseas sites that abuse the DMCA process in order to take down both its competitors and references to competitors wherever possible.

For now, it remains a mystery who’s behind these notices. It wouldn’t surprise us if the “Video Industry Association of America’ is actually a direct competitor of the stream-ripping and DRM circumvention tools that are reported.

This is a strategy we have seen several times in the past. A competitor targets URLs from competing apps and sites, so their own site will end up higher in Google’s search results.

In other words, the only real good these bullshit DMCA notices are doing is to further highlight the wide open avenues for fraud and abuse in our current DMCA takedown process.

Filed Under: copyfraud, dmca, dmca 1201, dmca 512, fake takedowns, russia
Companies: google, video industry association of america

UFC COO Publicly Pushing 'Notice And Stay Down' Reforms To DMCA, Despite That Being Horrible For Almost Everyone

from the fight! dept

In the United States, the DMCA has a "notice and takedown" process. Section 512(c) outlines all of this and provides details on what obligations service providers, such as websites and social media platforms, must meet in order to retain their safe harbor provisions. This summary from Wikipedia is a good primer:

The Online Copyright Infringement Liability Limitation Act, passed into law in 1998 as part of the Digital Millennium Copyright Act provides safe harbour protection to "online service providers" for "online storage" in section 512(c). Section 512(c) applies to online service providers that store copyright infringing material. In addition to the two general requirements that online service providers comply with standard technical measures and remove repeat infringers, section 512(c) also requires that the online service providers: 1) do not receive a financial benefit directly attributable to the infringing activity, 2) are not aware of the presence of infringing material or know any facts or circumstances that would make infringing material apparent, and 3) upon receiving notice from copyright owners or their agents, act expeditiously to remove the allegedly copyright infringing material.

I added the bolded section for emphasis. Why? Well, many in the copyright industries hate the notice and takedown system because it requires them to notify service providers of individual cases for infringement. That requires work, of course. Work that these service providers very much do not want to do. Instead, many propose a notice and stay down system. What that would do would be to allow the copyright holder to essentially notify a service provider of infringing material once, after which it would be up to the service provider to do the policing of that content on their own sites. This was recently exemplified by the UFC's COO, Lawrence Epstein.

The DMCA is a “very reactive type of protocol,” Epstein notes, since the law places the onus on the copyright holder to act. This presents a timing problem for a live sports broadcast. The highest value for that broadcast—especially one distributed through a PPV arrangement—is when the event happens. A notice and takedown can take several minutes, even a half hour. By the time an illegal stream is removed, it could be too late. The Poirier-McGregor match lasted only about five minutes before McGregor suffered a leg injury and Poirier was credited with a TKO victory.

“It’s not an appropriate remedy,” Epstein charges, adding that the “vast majority” of the piracy is taking place on “big platforms like Facebook, YouTube and Twitter.” Epstein also stresses that “we see the same people doing it. There are repeat offenders who aren’t deterred by the process.”

The UFC would like to see the DMCA amended to include a “stay down system” whereby the copyright holder need only notify the service provider of infringing material. It would then become the obligation of the provider to monitor repeat infringers and prevent them from engaging in illegal streaming and other piracy on the provider’s platform. “These big platforms have to take responsibility for what happens on their platforms,” Epstein asserts. “It can’t be reactive.”

For context only, the latest UFC PPV event raked in $125 million. And, to be clear, I can sympathize with Epstein on the concept of how this all works for live-streamed, pay-per-view broadcasts. It's not the same policing a movie on the internet as it is policing infringing live-streams.

But, and this is the key part, that is a business model issue, not an issue requiring the wholesale retrofit of the DMCA. Put another way, if the notice and takedown system is overall beneficial for most of the public interest, altering it is not an appropriate remedy simply because it isn't working for the UFC.

And there are very good reasons why a notice and takedown system is better for nearly everyone than a notice and stay down system. For starters, while Epstein invokes the "big players" like Facebook and the like, those big entities are the ones that at least would stand a chance of operating in a notice and stay down system. They have the money, tools, and people to throw at the problems such a system would create. But what about smaller companies and sites? Startups? How in the world are they going to police other people's content for them? They won't and the liability such a system would create will keep startups from every... you know... starting up.

Beyond that, it's not like the "stay down" part works well in practice even when tried. The uploading of content by one person that is infringing does not make the uploading of it by another infringing. Viacom found that out directly by suing Google over a bunch of YouTube videos... that Viacom staff uploaded on purpose. In an effort to stop piracy, Viacom attempted to stop promotion of its own material by its own staff. If the companies responsible for content can't properly police copyright infringement of that content, what hope do service providers have?

And, as one professor explains to Yahoo! Sports, there is all of that plus issues of fraud and censorship that suddenly are opened up by a stay down system.

Ryan Vacca, a copyright law professor at UNH Franklin Pierce School of Law who has represented clients in the sports and entertainment law industries, agrees that placing the burden on copyright owners to police copyrights creates persistent challenges for owners in a world where streaming has become so omnipresent. “Given the enormous amount of copying and performing that occurs online,” Vacca explains, “it’s understandable that content owners want to shift that burden to other actors in the online ecosystem.”

Yet Vacca also sees “countervailing concerns” that could arise ”if the law is changed to make it too easy to have materials taken down.” He cautions that some copyright owners make infringement claims “not to protect their copyright, but to censor legitimate uses of copyrighted materials, such as critical commentary or parody.” Vacca adds that placing the burden on platforms “has the potential to disadvantage startup competitors by imposing additional costs on them that are more difficult to absorb than for established companies such as Facebook, Twitter and YouTube . . . This could have a negative effect on innovation for online platforms.”

So, the open question in summary is: should we really be altering the DMCA that has allowed for so much innovation and flourishing within the online ecosystem just so the UFC can possibly make even more than the $125 million per event it's making now? That feels like a question with an obvious answer.

Filed Under: copyright, dmca, dmca 512, lawrence epstein, notice and staydown, notice and takedown
Companies: ufc

Senator Tillis Releases Massive Unconstitutional Plan To Reshape The Internet In Hollywood's Image

from the bad-ideas dept

Yesterday, Senator Thom Tillis helped ram through a gift for Hollywood: getting the felony streaming copyright bill that he'd only released a week earlier included in the must-pass omnibus funding bill despite literally no discussion or debate about the problems with the bill.

This morning, he really doubled down. As announced last month, Tillis has now released a draft of his DMCA overhaul, which appears to be exactly what he had hinted at last month -- meaning he appears to have ignored the advice and suggestions of many of us who warned Tillis of the dangers of simply buying into Hollywood's vision of copyright reform. I wonder why he would do such a thing?

Of course, it also makes you wonder why he had to hide the felony streaming bill in yesterday's must pass omnibus. Since he was going to be working on a big copyright reform bill, why not put it in there in order to have an actual debate and discussion about it?

Anyway, Tillis notes that this current version is just a discussion draft and he'll release the actual bill next year once the new term begins. He's asking people for their edits. In fact, he (somewhat hilariously) asks YouTubers to send in their own redlines and, well, careful what you ask for:

Senator Tillis is inviting all interested stakeholders - large and small, individuals and companies, YouTubers, and independent creators - to submit redline edits and comments to this discussion draft by close of business on March 5th. Comments should be submitted to Intellectual_Property@tillis.senate.gov.

There is going to be plenty to discuss about this bill. It's 53 pages long. Tillis has put out a summary document of what's in it as well, though I'd argue some of it is misleading. There are certainly a few tiny things in here that would improve the DMCA in very minimal ways. This is so Tillis can say it's a "compromise" bill that "upsets everyone." But that's garbage. Most of this bill is a huge gift to Hollywood.

For this post I'm going to focus in on the most problematic idea in the bill: the notice-and-staydown provision. We'll discuss other problems at a later date. The notice-and-staydown provision has many, many problems. To be fair, Tillis tried to make the notice-and-staydown slightly less problematic by saying it only applies to "complete or near complete cop[ies] of a copyrighted work already identified in a notification of claimed infringement or list of unauthorized works...." It's the complete or near complete part that he thinks makes this less bad. He's wrong. First of all, he undermines this immediately in the next section by also saying that the notice-and-staydown applies to "any portion of a copyrighted work already identified in a notification of claimed infringement... if the service provider derives its commercial value predominantly from short-form media." So it's not just complete, or nearly complete works.

It's difficult to see how a notice-and-staydown regime is even remotely Constitutional. It's basically prior restraint, telling companies that they cannot host certain speech. That's quintessential prior restraint -- especially since other uses may not be infringing.

The basic problem is this: contrary to what Hollywood would like you to believe, content is not infringing. It's the specific use that may be infringing. But notice-and-staydown acts as if it's the content itself that must be infringing. But that's not how you determine whether or not something is infringing. You have to look at how it's used. And notice-and-staydown totally ignores that and assumes that there are no uses that are permitted. That's wrong. And Tillis' "complete or near complete copy" language doesn't fix that either, because courts have said multiple times that a full copy can be fair use even when used in a commercial way.

But a notice-and-staydown provision would ignore that.

Also, for many works such as photographs, memes, etc, most fair uses will involve using the entire work. But the notice-and-staydown ignores all of this.

As we saw in the EU context, this is a recipe for censorship filters. And censorship filters have follow-on effects as well. Beyond the 1st Amendment concerns, they would basically destroy small companies that cannot afford to put in place such filters. YouTube has spent over $100 million to build ContentID and it still sucks. Yet under Tillis' bill, everyone would need to buy or build their own contentID to avoid running afoul of the notice-and-staydown provisions. This would lock in internet giants and destroy the ability for smaller websites to host any 3rd party content at all.

Even the Copyright Office, in its terrible and one-sided review of the DMCA recommended against notice-and-staydown. So what possible reason does Tillis have for putting it in this bill?

Tillis claims that he's open to hearing concerns on this bill -- and I hope that's true. There are many, many problematic aspects to the bill, and notice-and-staydown is a massively dangerous and unconstitutional idea. The fact that Tillis thought it was worth including even in the discussion draft does not bode well for how this process is going to go.

Filed Under: 1st amendment, censorship filters, copyright, copyright reform, dmca, dmca 512, fair use, filters, notice-and-staydown, prior restraint, thom tillis