Dear Madame Register of Copyrights: Please Support Take Down-Stay Down

Stephen Carlisle March 18, 2016

This blog post will be a tune up of sorts to my filing comments with the Register of Copyrights regarding the continued efficacy of Section 512 of the Copyright Act, more popularly known as the “Take Down” provisions of the DMCA.

The notice from the Register of Copyrights as to the questions it seeks answers for is located here: https://www.gpo.gov/fdsys/pkg/FR-2015-12-31/pdf/2015-32973.pdf.

I would remind my blog subscribers and faithful readers that the deadline for submitting comments is April 1, 2016. ¹ If you wish your voice to be heard on this important point, it is essential that you file comments by the deadline. You can bet Google will.

The form for submitting comments can be found here: http://copyright.gov/policy/section512/comment-submission/.

What is Take Down-Stay Down and Why Do We Need It?

Section 512 of the U.S. Copyright Act provides that the copyright owner has the ability to demand that a service provider, or one who provides information location tools, “take down” material that the copyright owner claims is infringing. The elements required to be in the notice are clearly laid out by the section. ² This notice is served on a designated agent whose job it is to receive takedown notices. If the notice meets the requirements of the statute, the service provider must “respond expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.” ³ In return, the service provider is granted immunity for copyright infringement, most often referred to as “safe harbor.” If the person whose material is removed thinks the takedown notice was filed in bad faith, or incorrect, it has the ability to file a “counter-notice.” ⁴ If the counter-notice is compliant, the material must be reposted within 10-14 business days, unless the service provider is notified that the copyright owner has filed suit. ⁵

The catch is that the counter-notice requires you to personally identify yourself, provide your true name and address, and a consent to be sued in the U.S. District Court where you live. ⁶ People who post infringing material, particularly on “pirate sites” whose primary purpose is hosting infringing material, like “The Pirate Bay,” do not want to let people know who they are and where they are located, especially if they are exposing themselves to a potential Federal Court lawsuit. So they simply repost the material to the same site after it is taken down, often within days, sometime within hours. This leads to another notice being sent to the same website for the same file. The site takes it down, and the same material gets reposted again. And so on, and so on, and so on. This is the problem content creators know as copyright “whack-a-mole.”

What take down-stay down proposes is to end “whack-a-mole.” This means that when a Section 512 takedown notice is filed, and is not the subject of a legitimate counter-notice, then it becomes the responsibility of the web site to prevent the same or largely the same file from being reposted to the same web site. This removes the need for the content creator to send endless notices for the same file to the same site. Draconian? Hardly. Even the Electronic Frontier Foundation has previously stated support such a system. They said:

“The use of “filtering” technology should not be used to automatically remove, prevent the uploading of, or block access to content unless the filtering mechanism is able to verify that the content has previously been removed pursuant to an undisputed DMCA takedown notice or that there are “three strikes” against it:

• the video track matches the video track of a copyrighted work submitted by a content owner;
• the audio track matches the audio track of that same copyrighted work; and
• nearly the entirety (e.g, 90% or more) of the challenged content is comprised of a single copyrighted work (i.e., a “ratio test”).” ⁷

Now, in a perverse about face, the EFF opposes what they previously voiced support for. ⁸ This is made extra curious in that not once in this opposition article does the EFF mention the entire “whack-a mole” problem, much less suggest a solution for it. Such a position is utterly worthless if the EFF won’t even admit there is a whack-a-mole problem.

The True Cost of Whack-a-Mole

As noted above, whack-a-mole is the term for endless stream of notices being sent to the same website for the same material, only to have it re-posted. Here are some real life examples, from real people, that bring home how devastating this problem is, in a way that mere statistics do not do justice:

• “ALL of the films I’ve directed have been pirated with a loss in residuals to myself that is likely in the hundreds of thousands of dollars. For each one of them you can find hundreds if not thousands of illegal links with a simple Google search of the title. Shortly after Paul Walker’s death, a guy named Brandon Donovan uploaded “Running Scared” (a film that I wrote and directed, which also starred Paul Walker) in its entirety on YouTube in HD quality… [b]y the time I became aware of it, the film had been viewed over 200,000 times (with another copy having been viewed 260,000 times and being up on YouTube for more than a year). I identified myself as the writer and director of “Running Scared,” to Brandon and politely asked him to take down the film. His response was that “[I] should go f*** [my]self.”… I had to waste a whole lot of time tracking down someone in Warner’s legal department to get YouTube to take action. And when they finally did remove the film, another copy took its place within days. Let’s also keep in mind that the entire time the film was illegally available on YouTube, Google was monetizing it through advertising. I don’t believe Warner Bros. or anyone involved in the making and financing of the film saw any of that money.” ⁹
• “Just about a year after hiring two part time people, to do nothing else but issue DMCA takedown notices we’ve crossed the 50,000 notice milestone. The division of labor requires one person just to monitor YouTube, and another handles all DMCA compliant sites such as CyberLockers, Torrent Search Engines, etc….Most of the take downs are for the same title, at the same site, the same day. Day after day during the initial release period of the album (generally the first 60-90 days) it is a constant game of whack-a-mole….each time we issue a notice it takes 24 to 48 hours to remove. But, once it’s removed it is generally back on the site within a few hours.” ¹⁰
• “My film’s producers and I were filled with optimism when the date of our film’s release arrived. Imagine, then, our horror when within 24 hours of the film appearing on iTunes, Amazon, Direct TV, and a host of other platforms, we discovered that it was also available on YouTube. One click and the film almost instantly streamed in perfect high definition for free. We reported the crime to our distributor who immediately reported it to Google. But no sooner would a link come down and then two more would appear…By the end of two weeks, there were half a dozen sites streaming it for free…However, we eventually just surrendered. We were fighting a losing battle. The only way to combat the anxiety and pain of our little film losing thousands and thousands of badly needed dollars was to stop checking YouTube altogether.” ¹¹
• “In 2013, I was the executive producer on Dallas Buyers Club, a critically-acclaimed film that had strong Oscar® buzz. Even with this popularity surrounding our film, I was amazed to see the millions of illegal transactions from all over the world pour in. People all over the world downloaded or streamed my movie illegally without paying a dime…I felt helpless – but I simply had to chase them. And I did, but in the end, after years of running after them, I threw in the towel. As soon as we celebrate a hard-fought but minor victory, new sources would surface almost instantly, providing new links, new hosting sites, and new avenues for people to watch Dallas Buyers Club without paying the talented people who made it a reality a single cent.” ¹²
• “We had screenings in the US and the film was well-received. But, unfortunately, right when the film was going to be released theatrically in the US, the film was also available, for free, on YouTube…But by the time I could stop it, it was seen thousands of times and several others like it came popping up. I was mortified. YouTube was being difficult. Every time I would take one down, two others would appear. And then YouTube refused to take down the links because the email address from which we were sending the requests was not associated with a website – even though it was the same address we had been using all along! At one point, there were eight separate links!” ¹³
• “I spent thousands of hours and dollars studying film-making, music, and acting. I have been creating my own work since the 80s and for many, many years I was able to make a good living as a filmmaker/musician…This, unfortunately, has dried up in recent years due to piracy. A few years ago, I made the mistake of Googling my bands. To my horror, I was easily able to find dozens of sites giving my songs away or charging for them, selling ads, etc. I had never heard of these companies and they were not sending royalties to me or to my record label. My label went to battle daily to bring these sites down, but every time they cut one head off, two more would grow in its place. It is now impossible for me to continue with my band. The same has happened with my films. I used to make money through distribution on tapes and DVDs, and even a few VOD. But now, as soon as I release a film through an online distributor, or submit it to a film festival, I see links to the film on a YouTube channel. I ask Google to take it down. They do. Two days later, my partner emails in a panic. Three more links for our film have been put up on YouTube. This goes on every week now and we only just finished post production on our most recent feature. The film hasn’t even been screened at a festival yet or considered by a distribution company. My last feature has only made about $100 on a legitimate VOD site because it’s being given away for free all over the internet.” ¹⁴

Hmm. A director being told to “go f**k himself” when complaining about a pirate copy on YouTube. An entire department of a company that does nothing but send out takedown notices. A musician that finds it financially impossible to continue her previously successful band. Google “monetizing” pirated content on YouTube. Total profits from Video On Demand of a mere $100. I could fill several more pages with this, but at this juncture, Madame Register, I hope you get the point.

Take Down, Without Stay Down is an Enormous Waste of Time and Resources

The constant need to send out “whack-a mole” notices is an enormous waste of time and resources for everyone. Way back when, in the early days of this blog, (July 23, 2014 to be precise) I took on the issue of take down and why stay down was a better idea. ¹⁵ At that time, Google received 6,532,393 takedown notices a week. ¹⁶ We can fondly refer to those as the “good old days.” Google processed over 345 million takedown notices in 2014. ¹⁷ In February of 2016, Google received 75 million takedown notices in one month. ¹⁸ That’s 100,000 every hour, or 18.75 million notices a week. This is three times the total less than two years before. And if it keeps going at that rate, Google will get 975 million notices in 2016, or 2 ½ times what they received as recently as 2014.

Why can’t everyone see that section 512 is an abysmal failure? If take down worked, the number of notices should go down. Instead the number of takedown notices sent increases exponentially every year. This is an enormous waste of time and resources for everyone involved. The sheer volume of takedown notices insures that there are full time staff in numerous companies who are devoted to nothing but sending out notices on the one end and processing the notices on the other end. To cope with the crushing amount of volume, it is inevitable that automation and technology will carry the bulk of the load of issuing and processing these requests, with the end result that mistakes will be made. These mistakes are of course gleefully pounced upon as a phony “crisis” ¹⁹ by those who would like to do everything in their power to prevent copyright holders from enforcing their constitutional right to a copyright. If the amount of takedown requests that needed to be sent were drastically reduced, as would happen if take down-stay down were implemented, we would see a great reduction in the numbers of notices that need to be sent and processed with a great savings to everyone. As a side effect, the number of errors that result in faulty takedowns would also drop. Further, the real number of truly “abusive” takedowns is miniscule and easily corrected.

Abusive Takedowns Are Statistically Insignificant

Remember that a takedown notice is not a death sentence for your post no matter what others may try to make you believe. You always have the ability to file a counter-notice under the DMCA to re-enable the posted material. ²⁰ This is the remedy for an abusive counter-notice. But the funny thing is, hardly anybody does this.

This study that found that out of all the takedown notices filed there were 68 counter-notices reported in 2011 and 82 counter-notices in 2012. No counter-notices at all were reported between 2008 and 2010. ²¹

“To recap, in 2011, 71,798 takedown notices were reported against 68 counter-notices, making the rate of bad takedown requests 0.001% of all notices filed. In 2012, 448,138 takedown notices were reported against 82 counter-notices, making the rate of bad takedown requests 0.0002%. So, the number of takedown requests went up six times the previous year’s number and the rate of bad takedowns dropped.” ²²

So, where are all the so called “abusive” takedowns? Google’s own transparency numbers, as recent as 2011, indicated that 97% of all takedown notices are processed as being compliant and valid. ²³

Or consider Twitter. In the second half of 2015 it received 35,004 takedown notices across all of its platforms. ²⁴ To those takedowns, 121 counter-notices were filed which led to the re-posting of the material, and to which the copyright owner did not file suit. ²⁵ This is 0.0035% of all takedowns filed.

Again, where are all the “abusive” takedowns?

Take Down-Stay Down Will Eliminate Future “Groovesharks” and “Megauploads”

No one hid behind the DMCA take down provisions more successfully than Grooveshark. ²⁶ Grooveshark claimed to be ““one of the largest on-demand music services on the Internet” with more than 30 million users sharing over 15 million files.” ²⁷ But Grooveshark was never in compliance with the DMCA. They had actual knowledge from the inception of the business, that there were over one hundred thousand infringing files that were illegally uploaded to their website. To counter-act DMCA takedown notices, they operated a “digital Pez dispenser.” As the Court hearing the infringement case recounted:

““Grooveshark’s site organizes multiple files containing the same song together, but only the “Primary File” can be streamed by Grooveshark users. (citation omitted) When Escape receives a DMCA takedown notice for files that infringe a copyrighted work, only the Primary File linked to a song is removed, and, if there are Non–Primary Files associated with that same song, the song remains available to Grooveshark users because a new Primary File will be selected automatically from the Non–Primary Files the next time the song is selected for streaming. (citation omitted) As aptly described by EMI’s expert, the system acts as a technological Pez dispenser: Each time a Primary File for a song is removed due to a DMCA takedown notice, a Non–Primary File is slotted in to take its place.” ²⁸

The now shuttered notorious pirate haven Megaupload used a similar strategy to keep infringing content available. According to this article at PC Magazine’s web site, the U.S department of Justice was quoted as saying “when notified by a rights holder that a file contained infringing content, the indictment alleges that [Megaupload] would disable only a single link to the file, deliberately and deceptively leaving the infringing content in place to make it seamlessly available to millions of users to access through any one of the many duplicate links available for that file.” ²⁹

Take down and stay down would eliminate these sleight of hand practices.

Take Down-Stay Down Will Work

Google contends that take down-stay down “won’t work.” Google counsel Cedric Manara claims:

“Take down stay down doesn’t understand an authorized user, so it can have an overreaching effect and go too far…Additionally, stay down is forever, whereas copyright has a term.” ³⁰

This reasoning is so incredibly shallow it defies belief.

Before you can sue for copyright infringement, you first must allege that you own a valid copyright. If you do not “own a valid copyright” because the work has gone into the public domain, you have no ability to file suit in the first place. When you file suit must you list the copyrights infringed, and you must list the registration numbers. So, if the work has gone into the public domain, this will be readily apparent from the complaint.

If Google or anyone else were to re-post something that was the subject of a valid takedown, but has gone into the public domain, they face no liability because the work cannot be the subject of a suit. Any lawyer who would sue on a work that has obviously gone into the public domain risks (and deserves) monetary sanctions from the Court.

Further, any “authorized user” has the ability to contact the web site to exempt their copy from the take down-stay down notice applied to infringing copies. Just like with Content ID, right Google?

Take Down-Stay-Down is Technologically Possible

Google uses Content ID every day to weed out infringing files that they receive notice of. ³¹ Now note that Google’s implementation of content ID is not completely altruistic. What they really want you to do is agree to monetize the file, for which Google will take a share of the profits. Still, there is no reason why this same technology cannot be used to implement take down-stay down on Google platforms such as YouTube.

Further, Google has a policy of permanently removing from search results containing “revenge porn” after the filing of a complaint by the person involved. ³² They could easily do this for repeat copyright infringers, but for reasons of profit, they do not, as discussed below.

As a further example, Dropbox.com has a take down-stay down system already in place. When a file is placed on DropBox, it is processed and assigned a “hashtag,” a unique identifying series of number and letters. If a DMCA notice is filed on that hashtag, any further public sharing of the file is disabled by DropBox. ³³

Google Can and Does Censor the Internet

The nothing-can-be-further-from-the-truth to Google’s pose is that it “doesn’t want to censor the internet.” In a recent conversation with Hateful 8 producer Richard Gladstein, Google general counsel Fred Von Lohmann (formerly lead counsel with the EFF) repeated the tired claim:

“[Google is] not in a position to decide what is legal and what is illegal online.” ³⁴

Baloney. Of course they are. Google does it all the time. Ask yourself: why is there no porn on YouTube? Because Google tracks it down, and removes it. Consider these rather sobering statistics:

• In 2014 Google removed 180 million videos from YouTube for various “policy violations.” ³⁵

• Google “blacklists” 10,000 web sites a day, for a variety of reasons including “malicious content” ³⁶, “pure spam” ³⁷ and “pornography.” ³⁸
• Google puts certain words in “auto complete” purgatory that when you type them in, auto-complete goes blank, like “babes” “bitch” “clitoris” and “Lolita.” ³⁹
• Google censors search results at the requests of foreign governments such as Turkey and Thailand. ⁴⁰
• As noted above, Google delists “revenge porn” links.

News Corp. Chief Executive Robert Thompson puts it this way:

“The shining vision of Google’s founders has been replaced by a cynical management, which offers advertisers impressively precise data about users and content usage, but has been a platform for piracy and the spread of malicious networks, all while driving more traffic and online advertising dollars to Google. A company that boasts about its ability to track traffic chooses to ignore the unlawful and unsavoury (sic) content that surfaces after the simplest of searches. Google has been remarkably successful in its ability to monetize users, but has not shown the willingness, even though it clearly has the ability, to respect fundamental property rights.” ⁴¹

Google Directs Users to Infringing Content and Profits from It

Google would like to portray itself as a mere “traffic cop,” pointing the way for people to find what they are searching for. This is demonstrably not so. Consider this experiment conducted by Devlin Hartline of George Mason University:

“[I]t’s easy to see how Google Search promotes piracy. Using a fresh installation of Chrome so as not to skew the results, I need only type “watch hat” into Google Search before its auto-complete first suggests I search for “watch hateful 8 online.” After following this suggestion, the first seven results are links to obviously-infringing copies of the film. The first link points to the film at the watchmovie.ms site. A quick glance at that site’s homepage shows that it offers numerous (if not only) films that are still in theaters, including Spectre, Star Wars: The Force Awakens, Creed, and The Hateful Eight. In other words, Google’s first search result from its first suggested search term points me to an illicit copy of the film on a site that’s obviously dedicated to infringement.” ⁴²

Let that sink in. On a fresh install of Google Chrome, “watch hat” becomes auto-completed to “watch hateful 8 online,” and the first seven results are pirated copies. As noted above, Google can and does make certain words disappear from auto-complete. But here, Google auto-completes to infringing material. Google, I think you’ve been caught with your hand in the cookie jar.

And as noted above, filmmaker Wayne Kramer found Google “monetizing” an infringing copy of his video on YouTube.

In well documented cases, Google partners with the pirate sites by setting up AdSense accounts on the sites. So, by sending people to the pirate sites, and obtaining a share of the ad revenue, Google has a vested interest in seeing that pirated content remain freely available. To quote indie filmmaker Ellen Seidler:

“Even when they are informed (by me and I assume others) of the fact that a particular domain exists merely to offer pirated content, Google does nothing to disable the AdSense account. Google’s seems to prefer to look the other way and hide behind the curtain of “free speech.” ⁴³

The Effects of Piracy Are Real and Tangible

Don’t swallow arguments that piracy “really doesn’t hurt” the creative industries. They do. And who gets hurt the worst? The little guys. The indie filmmaker and the indie songwriter are getting slaughtered to the great god of Google.

• “For the most part, I work in the low budget arena…. [B]udgets have become significantly smaller along with talent fees. This is happening in no small part due to piracy. A film that I directed ten years ago, which had a budget of fifteen million dollars, is expected to be made today for five million and under…The whole thing becomes a downward spiral because budgets have been squeezed so much due to the losses incurred by most lower budget films – and, again, a huge part of this comes back to piracy.” ⁴⁴
• “I am not a huge, greedy studio as the pirates and fans might imagine. I am a small, indie filmmaker creating content with my own pocket money and fan-funding. For the first time in my career, my bills are piling up and I can’t keep up. I have no idea how to monetize my work or continue to afford making my films and music.” ⁴⁵
• “LBGT filmmakers are often forced to self-finance their works because their films are not viewed as ‘box office winners.’ When unlicensed copies of their films become freely available online, filmmakers lose their ability to monetize their works and ‘their investment can disappear in an instant.’ In this environment, fewer filmmakers will invest in producing a second or even first project and these stories…will cease to be told and this ‘Freedom of Speech’ will be compromised.” ⁴⁶
• Since 2000, the number of full-time songwriters in Nashville has fallen by 80 percent, according to the Nashville Songwriters Association International. Album sales plummeted below 4 million in weekly sales in August, which marked a new low point since the industry began tracking data in 1991. ⁴⁷
• “Our investors, whose money was hard earned, are still wondering what happened to their investment. Just recently, I took down a site that had over 55,000 downloads even though the movie was released in 2012! We all worked hard on this film and wanted it to succeed financially so we could make more films. In my opinion, YouTube needs to be held accountable for money lost.” ⁴⁸
•  A recent study concluded that films that leak to the internet before their official release will lose 19% of their box office due to pre-release piracy. ⁴⁹
• In 1995 and 1996, global music sales were close to 40 billion dollars annually. ⁵⁰ In 2013, global music sales limped in at 15 billion, an overall decrease of 62%. ⁵¹
• “[A]recent study by the Digital Citizens Alliance estimates that the top 596 pirate sites raked in $227 million in advertising revenues last year. These sites had a profit margin of between 80 and 94 percent. Content thieves rely on stealing the rights-protected work of others and distributing on low-cost sites. It’s a low-risk, high-reward business.” ⁵²
• “People all over the world downloaded or streamed my movie illegally without paying a dime…This wasn’t the guy filming from the back row of a seedy multiplex. These are millionaires hosting our film on their site as they reap the benefits of ad-revenue from legitimate brands that have no idea where their logo is appearing. This is not a petty thief or your garden-variety shoplifter – this is a well-oiled criminal enterprise putting dollars in their bank accounts that rightfully belonged to our crew, our actors, our distributors, and myself…With the tools we have in place and the lack of help we’re getting from companies like Google, who facilitate the flow of traffic to these pirate hosting sites, we’re fighting a losing battle.” ⁵³
• “With Crazy Bitches we were a Top 10 download our opening weekend with a “box office” trumpeted by my cousin, who called to say we were No. 9 against Fifty Shades of Grey and the chat room buzz was strong – all on torrent sites….Piracy was out there in cyberspace – not in our garage office. Our opening weekend was Valentine’s Day 2015. More than 650 links to illegal copies landed on a range of sites including “legit” ones like YouTube…They all made money – we didn’t…Absent a digital box office return, we cannot make another movie. Our indie voice will go silent. A crew of about 50 will not be paid. A good story won’t reach you.” ⁵⁴

With that, Madame Register, I rest my case.