New Report Shines Much-Needed Light On Shadow Libraries Around The World

from the another-reason-to-defend-privacy-and-anonymity-online dept

Techdirt readers with long memories may recall a post back in 2011 about a 440-page report entitled "Media Piracy in Emerging Economies." As Mike wrote then, this detailed study effectively debunked the entire foundation of US attempts to impose maximalist copyright regimes on other countries. That report was edited by Joe Karaganis, who has put together another collection of articles, called "Shadow Libraries: Access to Knowledge in Global Higher Education", that are also likely to be of interest to Techdirt readers. As Karaganis writes in his introduction:

To a large extent, our work on Shadow Libraries started where Media Piracy ended, with the confirmation that the main factors underlying high rates of piracy in the developing world were the obvious ones: high prices for legal media, low incomes, and the continued diffusion of cheap copying technologies.

Unsurprisingly, Karaganis takes Sci-Hub as the emblematic "shadow library":

As everyone from [Sci-Hub's creator] Elbakyan to Elsevier knew, however, Sci-Hub's importance was not its permanence as a service but its status as a proof of concept. Its core archive of fifty million articles was freely available and its basic search and archive features easily replicated.

...

If Elbakyan's story has struck a chord, it is in part because it brings this contradiction in the academic project into sharp relief -- universalist in principle and unequal in practice. Shadow Libraries is a study of that tension in the digital era.

The rest of the 321 pages explores how that tension -- between striving for free and frictionless access to all human knowledge and the copyright industry's attempts to turn learning into a luxury product -- is playing out in eight different countries. Techdirt has covered many of the stories -- for example, those in Russia, India and Argentina. But the report fleshes out the bare facts previously reported here, and provides far more context and analysis. The detailed history of Library Genesis, a precursor to Sci-Hub in Russia, is particularly fascinating. For other countries such as South Africa, Poland, Brazil and Uruguay, the new studies offer insights into regions rarely discussed in the West, and provide good starting points for deeper understanding of those countries. As Karaganis notes, the new study is a transitional one:

catching the moment of widespread digitization of materials and related infrastructure but not yet the digitization of the wider teaching, learning, and research ecosystem, and not the stabilization of legal models and frameworks that can keep pace with the growth of higher education and the global scale of emerging knowledge communities.

Importantly, though, the underlying dynamics of sharing knowledge are the same as those driving the unauthorized distribution of media materials, discussed in the 2011 study:

this informal copy culture is shaped by high prices, low incomes, and cheap technology -- and only in very limited ways by copyright enforcement. As long as the Internet remains "open" in the sense of affording privacy and anonymity, shadow libraries, large and small, will remain powerful facts of educational life. As in the case of music and movies, we think the language of crisis serves this discussion poorly. This is an era of radical abundance of scholarship, instructional materials, and educational opportunity. The rest is politics.

Those are points we've made here on Techdirt many times before. We are enjoying an era of unprecedented digital abundance, which the copyright industries are fighting to shut down in order to preserve their outdated business models based on scarcity. One way they try to do that is to attack the Internet's openness by striving to weaken privacy and anonymity online, regardless of the collateral harm this causes. The importance of shadow libraries in global higher education is another reason to resist that.

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Filed Under: academic research, access to knowledge, copyright, culture, joe karaganis, shadow libraries

DMCA's Notice And Takedown Procedure Is A Total Mess, And It's Mainly Because Of Bogus Automated Takedowns

from the needs-real-punishment dept

Both Congress and the Copyright Office continue to explore possible ways to reform copyright laws, and one area of interest to a lot of people is reforming the whole "notice and takedown" process in the DMCA. The legacy players have been pushing for a ridiculously stupid concept they're calling "notice and staydown" in which they argue that once there's a notice for a particular piece of content, a platform needs to proactively block any copies of that content from ever being uploaded again. This is dumb and dangerous for a variety of reasons, starting with the fact that it would place tremendous burdens on smaller players, while locking in the more dominant large platforms that can build or buy systems to handle this. But, even more importantly, copyright infringement is extremely context dependent. The same content may be infringing in one context, while protected fair use in another. But a notice and staydown process would completely wipe out the fair use possibilities, and potentially violate the First Amendment (remember, the Supreme Court itself has declared fair use to be the "safety valve" that allows copyright law to fit with the First Amendment).

On the flipside, plenty of folks on the platform side as well as the free speech and civil liberties communities are quite reasonably worried about the widespread abuse of the DMCA takedown process to censor content broadly not for any legitimate reason at all. We've written tons of stories of DMCA takedown abuse for the purpose of censorship, and there remains no real punishment for filing false DMCA notices. The part of the law that covers false notices has been effectively neutered by the courts so far.

As we noted earlier this year, the Copyright Office is asking for public comment on the whole notice and takedown situation, and those comments are due on April 1st. I'm sure we'll see a bunch of submissions be posted publicly around then, but one that has already come in is from ITIF, a DC-based think tank that pretends to be pro-innovation, but has always been incredibly anti-internet on a number of issues. It was the think tank that more or less came up with the ideas that became SOPA. Its somewhat laughable submission claims that abuse of the DMCA takedown process is rare, but does so in a totally misleading way:

While some notable false negatives generate headlines, the occurrence of this type of error is actually quite rare. A study that analyzed the number of section 512 notices sent by the U.S. film industry during six months in 2013, found that of the 25 million notices these companies sent, the relevant online intermediary only received eight counter notices. A more recent review of the notices sent to Twitter shows a similarly low numbers of counter notices. From July to December 2015, Twitter received 35,000 notices, but only 121 counter notices. And during the prior six months, Twitter received 18,000 notices and only 27 counter notices.

But, arguing that the only way to see abuse is by counting counternotices is ridiculous. And it suggests either a deliberate attempt to mislead by the authors of the ITIF submission, or a complete ignorance of the DMCA takedown and counternotice process in reality. In so many cases of false takedowns, people don't file counternotices. The process is made to appear complicated and dangerous. Many platforms make it clear (correctly) that filing a counternotice can lead to you being sued in federal court, where you may face statutory damages awards up to $150,000 per work infringed. But the folks at ITIF are apparently so out of touch that they don't even realize that this might scare off the vast, vast, vast majority of people who are the receiving end of bogus takedown notices. I personally know a bunch of people who have received such notices and have no interest in going the counternotice path. The vast majority of abusive takedown stories that we get sent at Techdirt involve people who don't want to file a counternotice (and often, they hope that press coverage will fix the situation instead). To focus solely on counternotices as a metric for abusive or mistaken takedowns is ludicrous and, once again, should cement ITIF as an organization that has no credibility on this issue.

Even worse, the ITIF submission encourages more automated takedown efforts, saying that such systems are wonderful, and brushing off any concerns about false takedowns:

The best way to minimize the cost of sending and responding to so many notices of infringement is to use automated techniques. In particular, online service providers can use automated filtering systems that check content as it is uploaded to stop a user from reposting infringing content

In short: automated notice-and-staydown. Incredibly, in support of this, they point to a paper from researchers Joe Karaganis and Jennifer Urban entitled The Rise of the Robo Notice, which actually takes issue with such automated takedowns. And, with a bit of perfect timing, Urban and Karaganis, along with Brianna Schofield, have just released a new paper on the effectiveness of notice and takedown under the DMCA, that basically demonstrates how totally ignorant the folks at ITIF are in arguing for such takedowns (and in claiming that it rarely goes wrong).

The research report is long and detailed, and covers a variety of different areas, but on the issue of automated takedowns, they dug deeply into the numbers, and the abusive and faulty nature of automated takedowns is not minimal, as ITIF suggests, but massive and hugely problematic:

One in twenty-five of the takedown requests (4.2%) were fundamentally flawed because they targeted content that clearly did not match the identified infringed work. This extrapolates to approximately 4.5 million requests suffering from this problem across the entire six-month dataset.

Nearly a third of takedown requests (28.4%) had characteristics that raised clear questions about their validity, based solely on the facial review and comparisons we were able to conduct. Some had multiple potential issues. While these requests cannot be described as categorically invalid without further investigation, they suggest that a very substantial number of requests in the six-month dataset—approximately 30.1 million—would benefit from human review.

This “questionable” set included requests that raised questions about compliance with the statutory requirements (15.4%), potential fair use defenses (7.3%), and subject matter inappropriate for DMCA takedown (2.3%), along with a small handful of other issues.

In other words, problems with automated takedown systems are not a tiny issue. It's an epidemic that impacts millions upon millions of pieces of content, many of which may be protected speech that gets shut down due to abuse of the law. Later in the report, they show in graphical form the types of errors they saw in going through the Lumen Database (formerly the Chilling Effects database): Notice that these are not small numbers we're talking about, but millions of faulty notices. So much for ITIF's claims that it's a barely noticeable issue. As the report notes: "the notice and takedown process, as practiced in our cohort of notices, imposes a high burden on those mistaken targets."

The report then condemns the use of automated systems, completely contradicting ITIF's recommendations (which, amusingly, were based on a misrepresentation of the same authors' work):

The rise of mass notice sending via automated systems raises immediate questions of accuracy and due process. Human scrutiny of underlying claims necessarily decreases when by-hand infringement detection, noticing, and review are replaced by automated systems. Understanding how this may affect the accuracy of takedowns was a major question in our research.

We found reason to be concerned when human review is replaced with a high degree of automation. The automated notices we examined in Study 2 were, in the main, sent by sophisticated rightsholders (or their agents) with a strong knowledge of copyright law, yet nearly a third of the notices raised questions about their validity, and one in twenty-five apparently targeted the wrong material entirely.

They also note that the lack of any consequences for those who send bogus notices means that there is no check on such notices and they're only likely to increase over time.

Furthermore, the authors note that the due process concerns raised by this system are very serious. In fact, they point out that (contrary to ITIF's silly interpretation) the lack of counternotices is a sign that the system is broken:

As a procedural matter, material that is targeted by a takedown request is often removed before the target is given the opportunity to respond; this was confirmed in interviews with OSPs and rightsholders. Yet all available evidence suggests that counter notices are simply not used. It is indicative of the problem that the most memorable uses of counter notices for our rightsholder respondents were a few bad-faith, bogus counter notices from overseas pirates. Given the high numbers of apparently unchallenged takedown mistakes that showed up in our quantitative studies, we would expect to see higher numbers of appropriate, good-faith counter notices if the process were working as intended.

Unfortunately, under current practice, there seems to be little chance of this changing. Study 1 OSPs described hesitating to encourage targeted users to send counter notices, even when it seemed appropriate, for fear of creating liability risk for targets and themselves. Unbalanced liability standards—fear of suit by copyright holders but not users—creates incentives for OSPs to take down material. Moreover, some of the main targets of large-scale requests—search services—have no service relationship with targets or any duty to inform them that links are being removed, making it highly unlikely that the target would know to send a counter notice. Further, as we discuss in recommendations, section 512 currently leaves unclear whether search engines are protected for putback like hosting entities, exacerbating the challenge. Overall, the counter-notice process’s procedural features make it difficult for OSPs to use it as intended.

The report also includes some fairly minor modifcations to the law -- including a stronger "under penalty of perjury" requirement (right now it really only applies to misrepresenting if you hold the rights to the copyright in question, rather than the rest of the notice), allowing service providers to put content back up immediately after receipt of a counternotice, and (most importantly) giving some teeth to the part of the law, 512(f), that covers bogus notices. They also suggest serious statutory damages reform, so that people issuing counternotices aren't scared off by that stupid $150,000 statutory damages number that always gets thrown around.

There's a lot more in the report, and it's well worth reading. Hopefully the Copyright Office (and Congress!) pay attention as they consider what to do about the notice and takedown process.

Filed Under: 512f, automated takedowns, brianna schofield, censorship, copyright, dmca, dmca 512, jennifer urban, joe karaganis, notice and takedown
Companies: itif

New Study Shows Majority Of Americans Against SOPA; Believe Extreme Copyright Enforcement Is Unreasonable

from the so-why-are-we-pushing-forward-with-it? dept

One of the talking points we've been hearing about SOPA from the lobbyists pushing to get it approved is that the majority of Americans are in favor of the bill, because they want to "protect" intellectual property or jobs. This has never made much sense, since SOPA doesn't protect jobs at all. It destroys them, by hindering one of the few parts of our economy that has been creating jobs -- new and small businesses, particularly in the tech community. Now, the same folks who brought you that incredibly in-depth study on media piracy in emerging markets, have come out with a new report revealing some of their latest research on infringement among Americans. There are a ton of useful data revealed here, but none more timely and key than the following:

56% of people surveyed oppose government involvement in blocking access to infringing material. This number increases to 64% when the term censor is used.

Furthermore, when asked specifically if ISPs, social media sites and search engines should block access to infringing content if it also meant that some legal content would also get blocked (basically the definition of SOPA -- where even the defenders of the bill admit it will block some legal content), only 36% say that's an acceptable form of copyright enforcement.

In other words, a majority Americans are very opposed to the methods and impact of SOPA.

The study also found that, when compelling legal services are around, it can cause a massive decrease in the amount of content obtained through unauthorized means. This isn't a surprise. We've been pointing this out for a while now. And it again shows why SOPA is the exact wrong approach. Instead of actually decreasing infringement, it will increase the burdens and costs for the new businesses who provide those compelling new services. Separately, the report has a whole bunch of other important factoids as well. We've seen a bunch of disputes in the comments about how "common" infringement is. Part of the problem is that it probably depends on how you define it. What this report shows makes a lot of sense: 46% of adults have "bought, copied or downloaded unauthorized music, TV shows or movies." Look at just the 18 to 29 year old demographic, and that number shoots up to 70%. These are the voters of tomorrow, politicians... In most cases, however, it appears to be personal downloading or sharing with friends and family. 75% of people say it's fine to send music files to family members. 70% say that for movies. 56% of people say it's fine to send music to friends. 54% say that about movies. In other words, an awful lot of the "piracy" that's out there is really just friends and family sharing some content. The really "massive" piracy issue is pretty limited. About 2% of adults have huge collections of unauthorized music, and 1% have huge collections of unauthorized films. Furthermore, a much smaller percentage of people think it's okay to upload content to file sharing services or (of course) to sell copies of unauthorized files:
Given all of this, it shouldn't be a surprise that most people think that enforcement should be pretty limited, and not particularly burdensome. From the report:

• Only a slim majority of Americans (52%) support penalties for downloading copyrighted music and movies -- and limit this support to warnings and fines. Other penalties, such as bandwidth throttling and disconnection, receive much lower levels of support.
• Disconnection from the internet, in particular, is very unpopular, with only 16% in favor and 72% of Americans opposed.
• Among those who support fines, 75% support amounts under $100 per song or movie infringed -- hugely undershooting the current statutory penalties.
• For a majority of Americans (54%), due process in such matters requires a court -- not adjudication by private companies.
• Solid majorities of American internet users oppose copyright enforcement when it is perceived to intrude on personal rights and freedoms. 69% oppose monitoring of their internet activity for the purposes of enforcement. 57% oppose blocking or filtering by commercial intermediaries if those measures also block legal content or activity.

So what is there to make from all of this? It appears that our current laws (especially statutory damages) are way out of line with what the majority of Americans think would be appropriate. Furthermore, a ton of people infringe regularly, and especially think nothing's wrong with sharing among family and friends. On top of that, they seem to agree that enforcement is way out of line with the "problem," and certainly don't approve of the types of changes that SOPA is seeking to put in place.

So why are so many in Congress so out of touch with the American public and so focused on passing a law that goes against the wishes of Americans? This is the question Congress should be answering at tomorrow's hearings. The report's author, Joe Karaganis, should be one of the witnesses testifying, rather than a bevy of industry representatives all trotting out unsubstantiated reasons for moving forward with SOPA.

Filed Under: copyright, joe karaganis, piracy, sopa, survey, us