Saturday, June 9, 2012

Corporate Interests, and 14 Years of DMCA Abuse

In 2005, Google submitted to the government of New Zealand a brief discussing that government's proposed copyright law. In that brief, Google noted that since the enactment of the Digital Millennium Copyright Act (DMCA) of 1998, 57% of all take-down requests were issued by corporations with competing products, and 37% of all requests were flat out not valid. Since that time those numbers have certainly only increased. In May of this year, Google began publishing it's DMCA take-down data in an act of transparency, with staggering results. Google responds to over 1.2 million requests a month, astounding numbers to say the least, but what should concern you is that more than half of those are invalid claims filed by competitors and more than a third are simply false claims. If we do the math on that, about 684,000 take-down requests each month are invalid because a company is trying to undermine another companies competing product and 444,000 take-down requests are completely false outright, having no valid copyright claim to begin with. These numbers of course are based entirely on the 2005 report issued by Google, although seven years later, those numbers will have surely increased, as all indications is that they would.

Putting piracy aside for the moment let's talk a little bit about the DMCA. The DMCA is a law that was enacted by Congress and signed into law on October 28, 1998 by then President, Bill Clinton. The law is simply the enactment of two treaties that were created in 1996 called the World Intellectual Property Organization (WIPO) Copyright Treaty of 1996 and the WIPO Performances and Phonograms Treaty of 1996. Those treaties basically outlined the protection of computer information and digitally created works as copyrighted works and made them subject to copyright laws and protections.

At the time, corporations like the Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA) lobbied Congress to enact laws to protect their digital works from being copied and shared on the Internet. Their argument was that this law would be required to stop piracy and only by making such things a crime, could they have the protection they needed to survive as a business model. Let's face it, the RIAA does almost nothing. If you want to show an example of a company that abuses the laws, steals from it's clients and cries wolf, this would be the one, but I digress.

Critics of the DMCA launched a campaign to try and stop it from being enacted into law. Many law professors came out against it saying that it would enact a law that stifled free speech and free expression. Companies who made their money through web technologies also came out against the law, stating that such laws would only stifle creativity, innovation, and competition. Programmers and cryptography experts argued that this law would create a stranglehold on technological research involving cryptography and create a blockade that would prevent certain technologies from ever being developed.

Of particular note was the fact that a line could easily be drawn in the sand and on each side those who were for the act and those against the act could line up. What was apparent pretty quickly is that all those companies in favor of the act, were those who benefited from it. Corporations who's business models were based on closed-source intellectual property, anti-competition and stifling free expression, were quick to come out in favor of the act, and those corporations who favored open-source, freedom, and competition were against.

The only problem with that was that those corporations who lobbied heavily in favor of the DMCA did so using their wallets, and bribing Congress is a sure fire way to get your law passed. The heavy hitters like the RIAA, MPAA, and Microsoft all made their money through unfair business practices, destroying their competition, and closing their technologies off from the public. They profited heavily on the consumer and were now pushing Congress to ensure those profits continued to rise.

Now in the 14 years since the law was enacted, if those corporations were correct, we should see a definitive correlation between the enactment of this law and the decline of piracy. Instead what we find is no such correlation exists. In fact, every year piracy increases. But if this law was meant to stop piracy, why doesn't it work? Answer: It was never really meant to stop piracy.

Although where you would expect to see the correlation of a decrease in piracy to follow along as more and more such laws are enacted, instead you find the opposite. Instead this increase is most likely attributed with the increase in individuals who are now connected to the Internet. An increase in availability and widespread adoption of broadband technologies has both given consumers more access to content but has also with that given consumers an ability to get just about anything quickly and easily.

So if the DMCA was never meant to stop piracy why was it enacted in the first place? Well to answer that let's take a closer look at the provisions that are included in the DMCA.

Title one of the DMCA deals specifically with the WIPO treaties. In part of the title one though,  is contained a section that dictates the anti-circumvention provisions. This specific section provides a monopoly by which Macrovision is guaranteed sole proprietary control of technology designed to prevent the redistribution of analog video. This provision includes technologies that are specifically designed to prevent copying of video to digital media through an analog device.

So for anyone keeping score: corporations 1, freedom 0.

The US Government in this one section has given a corporation the exclusive right to produce technology that will prevent anyone from being able to copy video from one source to another on any device that features this technology. Not only that, but the provision requires that all such devices carry this technology. At this time, I will stop and mention that when this law was written this technology was difficult to circumvent, however now this technology is all but useless.

Now if the government was writing a law that simply followed the treaties, they could stop right there and not go further, however more provisions were included.

Title two specifically deals with online copyright infringement liability, often referred to as the “safe harbour” provision of the DMCA. Now at first glance this provision seems like a good one, get a notice of copyright infringement and respond by removing said content and you are not considered liable for the infringement. Just as another note, this provision is nonsense anyway, when are gun manufacturers liable for what people do with the guns they make? Answer: Never.

So knowing that the DMCA isn't really about stopping piracy, what is the purpose of just such a provision? Answer: Content control. With this provision all content on the Internet, under US jurisdiction at least, must be analyzed and determined whether it is safe for consumption. With this one provision all corporations have a say in what you are allowed to say and do on the Internet. If they don't like it, they have been given a way to remove it. And now you have seen what this provision is really about, censorship. Of course censorship isn't always about controlling the content consumers have available to them, sometimes its about stymieing competition.

As I've already stated, more than half of all take-downs by Google are from corporations in direct competition with the product they are claiming violation with. Although these claims are completely false and the corporations know they have no claim, it does not matter. The process of removal is simple and the process for getting the content back, is not. I will talk about this at length, a little further in this article but for right now I will continue with listing the remaining provisions.

So as censorship benefits the corporations: corporations 2, freedom 0.

Title three concerns computer maintenance and has since been updated. As part of the provision it deals specifically with the copying of computer programs for temporary use or repair. This provision was originally intended to allow those who need to repair computers some leeway in that area with respect to copying information to and from the computer. The most significant wording that is found in this title is that although all other such copying is prohibited that copying of computer software for “activation” is allowed.

As if right out of the nomenclature of Microsoft terminology, activation sticks out like a sore thumb. In this title the only time you are allowed to copy a software program is during the process of activating that program to the computer you have purchased. In easier to understand terms, since normal activation requires a purchase, you can copy the software to the computer you own and make the software usable if you have purchased it.

In this provision, the government is stating that copying any software to a computer you do not own is illegal unless you are doing it in the process of repair. So to better help the morons in Washington, this particular provision disallows anyone the right to download anything to their computer if they have no first purchased it and plan on activating it. It says nothing of open or free software, but why should it? It's pretty obvious these laws were designed to inhibit the advancement of open technologies.

Since software activation only benefits a corporation: corporations 3, freedom 0.

Title four is full of miscellaneous provisions that include the exception of copyright restriction in use of collective bargaining. That means if two people who own some kind of intellectual property were to swap information, they are allowed to do so. There is also a provision that allows the exception of copying of video for rebroadcast by news organizations and such.

There are also provisions for libraries and education that allow that some information can be copied to allow the education of people who cannot be in direct contact with said content. So what does all this mean? Well with the exception of the collective bargaining rules, the rest is designed to allow “fair use” and I will talk a bit about that later. For now understand that these provisions were meant to give certain organizations and people an advantage and others a disadvantage. Basically the government is stating that libraries and news organizations can copy stuff but no one else, its that simple.

This one could have been a toss up, after all it deals primarily with fair use rights, but since those rights have been restricted to allow only libraries and news corporations, and understanding that the DMCA take-down notices stifle fair use as you will read further on, I'm giving this one to the corporations. After all, their slick misdirection and unfair business practices allow them to bend the laws in their favor and although libraries are as of yet not corporate entities given enough time, anything is possible.

For their slick abuse of fair use: corporations 4, freedom 0.

Title five contains a provision that was included specifically to concern a flaw in copyright law that didn't allow the protection of boat designs, however this provision essentially protects all designs with its wording. It has no purpose being in this law but was likely included as a pork barrel consideration late in the game. Essentially some boating company handed one or more members of Congress some money and said can we add some protection for boats in there and so it was included.

This nonsensical provision only has one victor: corporations 5, freedom 0.

Now although many exemptions have been added since, let's stick to the nonsense as it was written at first. By design this law was meant to protect corporate interests and stifle innovation and competition. The simplest way for a corporation to accomplish this task is to include Digital Rights Management (DRM) with whatever digital product they have released. Under the DMCA such DRM cannot be circumvented, even if the DRM prevents the legal use of the product. I have spoken at length on DRM in a previous article and I suggest you read it if you are interested in my tribulations with DRM.

So now that I have explained the DMCA, it is the safe harbour provision I want to talk a little about right now. Under this law any website who is found to be hosting infringing content must remove said content upon request of the content owner. Failure to do so within a reasonable amount of time, can result in revocation of the safe harbour provision, resulting in the possibility of litigation.

Since the inception of this law corporations like Google have created tools that will allow content owners an easy way to have infringing content removed. For instance on YouTube, Google makes use of several tools for controlling content, one is automated but another is not. I will discuss both of these and try to explain how they work and why they are not a good idea.

The automated tool Google has made available is designed to examine any video that has been uploaded to YouTube for a particular signature either by video or audio fingerprinting. This tool basically examines the content of the video and attempts to match it to content that it has in a database that contains information that is provided by copyright owners.

The way this works is that a copyright owner takes their audio and/or video and digitally fingerprints it. The digital fingerprint is comprised of a string of information contained in the audio or video and applies a mathematical algorithm which results in a unique string. This unique string is then added to the database, and used by the automated tool whenever content is uploaded to YouTube.

When your video is uploaded it is then compared to the database and if the content matches a string in the database a predetermined action is taken. In some cases, the video is removed and the user is informed that it contained infringing content. In some cases the video is allowed to be posted but ads are included that provide income to the copyright owner each time the video is watched.

Because this tool is fully automated it is subject to gross abuse at the hands of anyone and everyone. A prime example of this is a company Rumblefish. Like the patent trolls who registered and buy copyrights for the purpose of suing anyone who uses it, these guys register similar content in the hopes of controlling just about everything that no one would ever consider to be copyrighted.

In a case the CEO of Rumblefish has claimed was a mistake, a man who was sitting out in a field taking video and recording himself, wanted to post his video to YouTube. Upon posting his video to YouTube the man was informed that it violated copyright, and although it was infringing on the copyright of someone else, it would be allowed with ad support. The man immediately questioned the violation and requested that YouTube reinstate the video without ad support, after all he had taken the video himself, and it contained only no copyrighted material. Upon looking at this video, YouTube determined the claim to be valid and reinstated the video.

Whenever this process goes into effect, Google must send the claimant a notice. When Rumblefish received the notice, they examined the video and reinstated their claim of copyright. And so began a dispute that would bring us to the most ludicrous of places. When Google informed the man that his video had been disputed by the copyright holder, he requested a reason for take-down, and it was determined that the sole reason for take-down was the sound of birds singing in the background.

That's right, this man recorded himself but took no notice of the birds that were making noises that flew above him. And although he had violated no copyright that he knew of, he posted his video unaware of the background sounds. You see Rumblefish being the predator corporation it is, has registered the sounds of various seemingly innocuous things with the intent of claiming copyright whenever they are used. In this case, Rumblefish had registered the sounds that birds make when they sing, but other such sounds can be found in their library. Now blaming Rumblefish solely for this would be unreasonable as its not contained to their business model alone. In recent years out of Brazil several companies have popped up registering the sounds of many things you would not even stop to think about in everyday life, but these guys do.

Imagine a company who has registered the sounds of clicking keys on your keyboard as you type, the sound of dog barking, or the sound of wind as it blows. You might ask what is the purpose of such a thing? Answer: Money. These companies who exist for no other reason than to claim copyright on something you post on YouTube or another video service, and have ads included in your video that give them money anytime someone watches it. You may think that this sounds ridiculous, but consider this. It costs them nothing to register this claim with YouTube and they have nothing to lose by claiming copyright and only something to gain whenever someone watches one of these videos.

So now I'll talk a little bit about DMCA take-downs that are not done automatically but manually. Now this requires a little know how, but once you have done it once, its like riding a bike. Usually a lawyer drafts a letter and sends it off to Google informing them that there is infringing content, included are any links and a request to have it removed. In almost all cases Google, rather than try to figure out what violates copyright themselves, removes the content as requested. This has resulted in millions of requests and removals over the years and knowing that a staggering number of these claims are false, should give you pause.

In 2002, Google began publishing these letters after a feud between the Church of Scientology and the website went public. The church began to criticize Google over their response to these letters of which they had made many, and in response Google published these letters and made it policy to publish all such requests along with any search results. In this letter the church claimed that was violating its copyright by using photographs that depicted church members and church specific locations.

For reference is a website that seems dedicated to the critique of the religion of Scientology. At first glance this seems like a clear case of fair use, which allows for the use of copyrighted material for use in satire and criticism. Obviously the church disagreed, and filed at that point eight letters to Google requesting they remove this satirical content from search results. Let me make it clear, the church didn't like being made fun of for their beliefs, so rather than take it like every other person out there who has had their feelings hurt, they respond with baseless legal threats.

In a few other instances Microsoft has repeatedly abused the DMCA by requesting that Google remove several sites from its index that have zero infringing content. That's right, Microsoft deliberately sends take-down notices to Google to remove sites that it arbitrarily sees fit to have removed. In one case a site that listed information about what Microsoft programs had been downloaded over bittorrent, but contained no infringing data itself, and no links to any torrents.

In another cases Microsoft has deliberately had sites removed from Google's index which offer open source software, something that is in direct competition with the closed source software that Microsoft makes. In another case Universal sent a take-down notice to Google to have a promotional video removed that contained copyrighted material that included an artist who made the promotional video and gave permission to someone else to distribute it. So basically an artist offered up his services to a company and gave them permission to use the video and Universal had its competition removed from Google.

There are also many cases of movies that have been freely distributed by their creators being removed for copyright violation by members of the MPAA, simply because independent film companies are in direct competition with them. The list goes on and on. If ever there was a law that was designed to be abused, this was it.

So what happens when someone files a false copyright claim and DMCA take-down notice? Answer: Depends on how much money you have. If a corporation does it, nothing happens. However, if you or I do it, it is punishable with hefty fines and possible jail time. When a person files a DMCA take-down they are doing so under penalty of perjury. That means they certify that they are the copyright owner and they have the right to request removal. And in a perfect world that would mean something, but this world is far from perfect.

Fair use is a great concept, but copyright law, like the DMCA, in this country has simply obliterated it. Fair use is suppose to provide an individual the right to use a copyrighted work in certain instances without requiring the permission of the copyright holder. Examples of this include commentary, criticism, news reporting, teaching, and research. Because of fraudulent DMCA take-down notices content that would be considered as fair use and in particular those concerning acts of free speech, are often censored.

I've already talked about the criticism of Scientology as an example of this but it's not the only one. NPR famously used the DMCA to remove a political advertisement that offered a contrary view, Universal Music group issued DMCA take-down letters trying to have a podcast removed that frequently criticized one of its artists, NBC issued a take-down to have an Obama ad that went viral removed, Diebold issued a take-down trying to have a critical review of its e-voting machines removed after this review discussed flaws in the machines, and one of the more famous take-downs, Warner Music issues millions of claims on seemingly random videos that are clearly allowed under fair use, all because they had a dispute with Google over advertising revenue.

I believe the most telling part of this is the length that these corporations will go to control this content and the lies they tell when all goes wrong. After all, if no one complains than no one is the wiser to it, but all of these examples have come with public critique and the only response to this seems to be that it was a mistake. Yes, in all these cases these corporations claim that this is being blown out of proportion and they are merely mistakes. To this I say, once is a mistake, twice is negligence, and three times is malice.

 I don't even know what a hundred times, or a thousand times, or ten-thousand times is, but its certainly no mistake. The intent of these corporations is clear and we as free people have a responsibility to fight whenever we can. Now I don't think an individual fighting this fight will have much effect on it, but a company like Google certainly will. Google and companies like it that routinely respond to these DMCA requests should stop responding immediately, and instead require the copyright holder to litigate this matter. The DMCA has never been challenged, for many the risk is simply too great to challenge it and its easier to simply take down the content than to not do so. But what is needed here is a corporation that benefits from Internet technologies like Google to challenge the DMCA, which although I have not talked about, clearly violates the constitution of the United States in at least two ways.

First, it violates the first amendment by stifling free speech, something completely unacceptable in a free society. And second it violates Article I, Section 8, Clause 8 which grants Congress the right to protect created works in a limited fashion by granting the creator a limited monopoly on said works. The broadness of the DMCA and its power to remove content without due process and without consideration as to whether the work is either even copyrighted in the first place, or owned by its creator, violates the constitution in both principle and practical fairness. Only when a corporation with the means to challenge this law steps up, will it ever be removed.

As I see it a few things need to happen to fix the DMCA take-down abuse in the meantime.

  1. Websites like Google must begin charging copyright holders a fee for each take-down notice they file. Only when a fee is imposed of significant cost can this kind of abuse begin to be curbed. A reasonable charge should be around $20 to $30 per request. If this particular violation really is hurting your bottom line, than a $20 fee is nothing in comparison to the money you must truly be losing by allowing this content to stay where it is. (sarcasm!)
  2. All automated tools must be turned off, and all requests must be filed in writing. Now although this would seem to make life harder for copyright holders to file claims, it is both a benefit to the U.S. postal system and the lawyers who are paid to file these letters. After all, its unlikely that these corporations are going to hire a dedicated team of teenagers to write and mail these letters out, and although the frequency of take-downs letters issued would certainly go down, any letter issued in this way would again be of benefit to the postal system which has seen its service go down with the invention of e-mail.
  3. All letters issued by copyright holders must be reviewed before anyone removes anything. That means that fee you are now collecting to process these asshole requests can be used to pay someone to sit at a computer and actually review these supposed infringements.
  4. If it is determined that the copyright holder has filed a false or invalid request, they must pay an additional fee, sort of like a bounced check fee, to make punitive the action of filing said false claim. By doing this, the assholes who are paying all these fees will begin to suffer a monetary loss and understand what it begins to feel like when someone pulls down a file or link that clearly doesn't violate anyone's copyright and ends up costing that person money. Only when it begins to affect these assholes will they understand what it really means.

And finally although I didn't include this as a part of those rules, I believe it should be something considered anyway. Websites that use the safe harbor provision of the DMCA and take down content upon request should make these manual requests conditional. That is, when a request is filed, a person must certify that they are making a valid claim and are responsible if the claim is found to be invalid. In this case, if the claim is found to be invalid it should be the responsibility of the website who followed the request to go after the person making the request for damages, both with the intention of making these actions punitive but also practical by recovering any money that may have been lost as a result of the fraudulent and invalid request.

I do not feel that doing any of this is harmful to anyone but corporations and individuals who believe its easier to stifle free speech and fair use, rather than suffer mild irritation, and frankly those who would willfully try to restrict the free expression of anyone deserve a little harm done to them, at least monetarily where it will matter to them the most.

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