It’s no secret that the Electronic Frontier Foundation is no friend of copyright. What is more brazen is their operation of a website that actively assists people in finding infringing copies of copyrighted works. That website is chillingeffects.org, which the EFF operates in conjunction with Harvard University’s Berkman Center for Internet & Society. 1
Supposedly, Chilling Effects
“…is an independent 3rd party research project studying cease and desist letters concerning online content. We collect and analyze complaints about online activity, especially requests to remove content from online. Our goals are to educate the public, to facilitate research about the different kinds of complaints and requests for removal–both legitimate and questionable–that are being sent to Internet publishers and service providers, and to provide as much transparency as possible about the “ecology” of such notices, in terms of who is sending them and why, and to what effect.” 2
What it really constitutes is the world’s largest database on where to find pirated material. Here’s how easy it is.
I went to the Chilling Effects website and did a search for “Avengers Age of Ultron.” This is a movie which is currently still in theaters and has not been released on DVD anywhere in the world. Any copy which appears online is a pirated copy. Chilling Effects immediately spit this page back.
Chilling Effects just gave me a handy list of the 2.8 million places where you can find a copy of Avengers: Age of Ultron. So I picked one from the top of the list, copied and pasted it into my browser and the link took me here, the notorious pirate site Kick-Ass Torrents.
What could be easier? Simply put, Chilling Effects is actively aiding copyright piracy under the pretense of “research.” They could, of course redact the URLs so as not to provide a direct link to the pirated material, but they don’t. As I have written before on this blog, Chilling Effects’ listing of the entire URL index provides a handy tool for pirates to keep themselves in business. 3
What’s more is Chilling Effects seems to be operating under the assumption that its activities are protected by the DMCA. I think this position is seriously in doubt.
Under Section 512(c), a website only has safe harbor immunity is if the material is posted “at the direction of a user.” Chilling Effects does not qualify in this regard, because Chilling Effects is the party responsible for posting the material to its website. Under Section 512(d) there is a similar exemption for those who are “referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link.” Yet, to use this exemption would require that Chilling Effects
(A) does not have actual knowledge that the material or activity is infringing;
(B) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(C) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
Chilling Effects absolutely fails these requirements.
Let’s go back to my search for Avengers: Age of Ultron. Copies of this movie are not commercially available anywhere in the world. Yet Chilling Effects happily points you to a location where you can download an illegal copy. This is actual knowledge, since they clearly state that they “analyze complaints about online activity, especially requests to remove content from online.” Any quick analysis, as simple as copying and pasting the URL into your browser, would show Chilling Effects that what it has posted is a link to pirated material.
What’s more is Chilling Effects is reposting a legitimate takedown notice sent to Google by the Walt Disney Company, which Google has acted favorably upon. Since the very purpose of the takedown notice is to remove links to infringing activity, Chilling Effects is also “aware of facts or circumstances from which infringing activity is apparent,” and has constructive knowledge as well.
Lastly, despite having actual and constructive knowledge, Chilling Effects fails to “[act] expeditiously to remove, or disable access to, the material” as they are required to do.
So what happens when you send a takedown notice to Chilling Effects? The results are truly surreal.
I have written about indie filmmaker Ellen Siedler before and her well chronicled attempts to stop piracy of her LBGT indie film And Then Came Lola. She decided to send a takedown notice to Chilling Effects, and blogged about her experience. 4 Firstly, Chilling Effects, even though it is required under the DMCA to have a registered agent to receive takedown notices, makes it incredibly difficult to figure out who this person is. Ellen found that the “Chilling Effects menu does not provide a direct link to info about its DMCA agent or takedown requests.” 5
“Prior to sending my DMCA notice to the good people at Chilling Effects, I attempted to search the site for an email address to send the notice to. When I couldn’t find one even after searching Google using the terms –‘chilling effects DMCA agent’— I resorted to sending my notice to the only email listed on the site’s About page, email@example.com.” 6
“[A]fter receiving no response to my original notice, I forwarded a copy to the Berkman Center for Internet & Society. Shortly thereafter, I received an email with a link to Chilling Effects’ legal policies page. (URL omitted) Of course, that was not the end of my journey. In order to get the actual email for CE’s acting DMCA agent I had to click another link (URL omitted) and visit yet another website–this one a copyright infringement page hosted by Harvard University at Harvard.edu.” 7
So how did Chilling Effects respond? They sent themselves a counter-notice. 8 You read that right, Chilling Effects sent a counter-notice to themselves. The notice is purportedly from the Berkman Center for Internet and Society, the same people who help run Chilling Effects. The notice says, quite unbelievably, that the material was removed by “mistake or misidentification.” 9 The defects in this notice are as follows:
- Chilling Effects does not have safe harbor because the material is not posted by 3rd parties and it has actual and constructive knowledge of the infringing materials, and is not entitled to send a counter-notice.
- Unless the notice has been redacted by Ms. Seidler, the letter is not “signed” either directly or electronically, and is thus legally insufficient.
- The notice is not from a “subscriber” to a “service provider” as required by Section 512(g)(3). It is from a website operator to itself.
In essence, Chilling Effects does not have standing to send the notice. First of all, as described above, it is not entitled to safe harbor and has no ability to send a counter notice. Secondly, the person(s) with standing to send a counter notice are the people or entities behind the pirate URL which was the subject of the takedown notice, not Chilling Effects.
To add insult to injury, there is no “mistake or misidentification.” Ms. Seidler personally identified the infringing link, and has posted a video backing her up. 10 As Ms. Seidler pointedly observes:
“Just to be clear, here’s a video documenting how the page in question at Chilling Effects links directly to an infringing stream of our film. I guess my eyes deceive me eh?” 11
Sadly, they do not.
This is probably the end of the story, as Harvard is a very wealthy university and the EFF (who is partially funded by Google), have much more monetary resources to litigate the issue than an indie filmmaker.
For everyone else (perhaps the Walt Disney Company or Marvel Studios?), it certainly would be a very interesting case to watch, which looks to my eyes like a very clear case of contributory copyright infringement.