Moderator: Jennifer Stanley, Fenwick & West LLP
Daniel Seng, National University of Singapore/Stanford LawSchool
Studied Chilling Effects data. Looked at every single noticeto Google in the database: a population of more than half a million notices.
Substantial year to year increases. BPI is #1, but also the adult entertainmentindustry is highly ranked. (Thisresearch would be illegal in Singapore!) Music industry is the bulk of takedown notices: 58.5%; then adultentertainment, then movies. If werearranged by reporters, interesting patterns emerge: BPI stays #1, and itdoesn’t use agents. Most other companies use reporting agents. 2012 was the year they started reporting hugenumbers. Also, a lot of reporters whodon’t have names—individual names are redacted by Chilling Effects, so it seemslike a lot of individuals are filing reports.
How have the notices been sent? Mostly web forms: now 98.6%. Email: 0.8% today; mail, fax, and other arealso small. If you want your takedown ofa URL to be accurate, don’t put it on paper. Many notices have multiple requests per notice—1000s at once. Something is right with the process: makes itmore accessible to individuals not just large companies.
Bulk of the notices are directed at search; Blogger is stillreasonably active and targeted by takedown notices.
Compliance with formalities: a substantial (over 8%)percentage are missing required information about the work (or otherrequirements). Sample of NBCUniversal’serroneous takedown requests: almost 122,000. Marketly.com: more than 250,000 Microsoft requests. Robots/software are probably causing simplemistakes like this.
What about hosting sites that closed after Megauploadtakedown? Takedown requests to them areerroneous because they don’t exist/host files. Over time, the numbers didn’t go to zero, but were quite large. Assuming it takes 90 days for caches to bepurged, still getting hundreds and thousands of requests. Spike of takedown requests after they wereclosed, not before. Only a number ofagents made this mistake. BAF, largefiler, did a bunch. Totally avoidableerror, only avoided by 5 of top 24 reporters.
Don’t act on false positives; focus on sites worthtargeting. DMCA doesn’t have any notablepenalties for false positives—if you can shoot a million arrows and have someland on target, you will. Penalties should ensure that agents take theirresponsibilities more seriously. Require reporter to attest to the fact that ittested the URLs before requesting takedown. Other proposals in the paper. (Where is the paper?)
Daphne Keller, Google Inc. (Free expression at Google)
Overwhelming majority of requests we get are valid andappropriate, but abuse is also real. Thereis also error: had a rightsholder ask to take down another company’s SECfiling; another asked for a 19th century translation of the Bible tobe taken down. Also have religious organization claiming copyright to remove avideo critical of that organization. Also the Retraction Watch case—someone created copies of the blog onanother site, then sent DMCA notices to WordPress to get the real blog takendown. Very malicious abuse.
The incentive for an intermediary is to cave. Fortunate towork for a company that dedicates itself to having fast processes for validtakedowns and fighting abuse, but a rational economic actor wouldn’tnecessarily do that—take it down without any legal inquiry. One set of researchers posted the text ofJohn Stuart Mill’s On Liberty onvarious sites, noting its copyright date. The UK site took down the site without a question; a US site asked for apenalty of perjury statement and the researchers weren’t willing to do that, soit stayed up. So DMCA yay. European rule lacks some checks and balancesfor legitimate speech. DMCA tells youwhat counts as notice. Under eCommercedirective, there’s not such procedural clarity. Counternotice and 512(f) arealso very wise.
Elizabeth Valentina, Fox Entertainment Group (managescontent litigation here & in US)
Counternotice does exist, mitigating error. In her personal view, not as excited asprocess as Keller—doesn’t help minimize piracy. The amount and magnitude ofinfringing links and corresponding notices makes error no surprise. Fox hasreceived very few counternotices—1 for 6/7 million notices to Google, and itdid link to infringing material. It’s not good for anyone to send links thatdon’t work. Suspects that Seng’s data covers links that did in fact link toinfringing content when they were pulled, or even if the site had disconnectedaccess the links survived and content was out there—we’ve seen that withLimewire. We have so many infringing links we don’t want to waste resources on blanklinks. NBCUniversal: Google would’vecalled them if there was an anomaly.
What happens in an internet minute? 204 million emails, 639,800 GB of IP data, 30hours of video uploaded to YouTube alone, over 2 million Google searches. Across all areas of the global internet,taking porn out of the equation, 23.76% of internet traffic was estimated byEnvisional (Jan. 2011) to be infringing. Cyberlockers: 40+ million links, P2P:160 million downloads, 76,000 streaming sites. Infringement notices againstcyberlockers: millions sent, only one counternotice. We keep sending noticesand the level of piracy doesn’t go down, it goes up. We can’t stay on top of links, such as linksto Life of Pi on rapidgator anduploaded, which increase over time despite our notifications.
The role that search plays: Life of Pi: autosuggest “free online,” which leads to severalpirate sites. Lincoln: search resultfor torrenz.eu comes up, and they’ve received half a million notices per monthper Google’s transparency report. How manyreports should be enough? Search for Argo reveals adjudicated infringerPirate Bay and adjudicated infringer isoHunt. We don’t see any appreciabledifference in the placement of the sites even though Google says it’s takingnumber of notices into account in ordering search results.
Stanley: the DMCA is a dream for some, not working so wellfor others. Google and content ownershave sympathetic positions/challenges. What to do about the whackamole problem?
Keller: Often webmasters don’t know that there’s been atakedown of their search results; you see very different counternotificationpatterns on YouTube when people know about the removals and have a less scaryway through our Content ID system. Counternotice puts the burden on therecipient to act. Best case on this:CCBill, which talks about the difficulty of getting disjoined pieces of paperand trying to add them up to a DMCA notice and not being sure what thecomplainant is after. If the complainant asks the intermediary to do the workof figuring out what’s infringing, that’s shifting the burden wrongly to theintermediary. The reason this is a big deal is that it’s a lot of work forwhoever has to do it—harder for us, who doesn’t know their movies, to identifytheir movies. We’ve put work into Content ID and Trusted Content Removal onsearch, which is the source of the increased takedowns over the past year—swiftand efficient processing of lots of URLs all at once. Took us from 450,000 total removals beforethe program to removing almost that many every single day. But the personcapable of identifying the infringement remains the rightsholder.
The role of search in leading to copyright infringement: weare doing a lot through our DMCA process, but most people looking closely seethat search isn’t really the problem these days. Look at the Pirate Bay: only15% of traffic comes from any searchengine. People who want that know how to get it. They’ll continue to be out there regardlessof where search fits into the picture: so target that, stop the flow of moneyto them, develop alternate services for legal content—Spotify decreased illegalsources by 25% when it arrived in Sweden.
Stanley: what about filtering?
Valentine: Absolutely it helps. We work with companies toimprove identification and filtering. There are a number of different spheresin which we’re working, and we aren’t saying any one party is responsible forthe entire problem, but we are trying to ID some responsibility. Even if it’s20% to the Pirate Bay, it’s going to a site you know is infringing andoperators have been convicted by Sweden’s highest court and it’s a top searchresult. There should be responsibility there. Europe: rightsowners can obtaininjunctive relief requiring intermediaries to mitigate infringement without afinding of liability. That process might encourage more cooperation, as it hasbetween rights owners and ISPs in Europe. If Google continues to crawl thePirate Bay every 3 hours, you keep getting those links. If you got 270,000notices on torrentz.eu, should you go back to crawl that again? Cooperate w/us to minimize that role. Filtering has been one place where thathappens; it’s not perfect, and lots of claims require review and others aremissed, but we’re working on it. Filtering is a good model.
Keller: has heard 3 different ideas of what filtering wouldmean: searching on “I do not own” and blocking every single result. Second result “I do not own a cellphone.” That illustrates overbreadth of keywordfiltering. Then there’s the idea that you could block an individual site. The issue is that if you look at theTransparency Report, even sites with bad reputations, you see at most 5% oftheir pages targeted/accused. To say that we should assume that the rest of thesite is infringing and silence it raises complicated policy issues. If US lawwere to send the signal that it’s ok to suppress unknown content based oncopyright, that sends a signal to countries that would like to do that on othergrounds around the world. More interesting filtering: Europe/SABAN cases,efforts to make intermediaries use AudibleMagic or other contentdetection. (Valentine: access provider.Keller: and host in another case.) Inthree different cases, about SABAN and eBay, the ECJ said those filters weren’tpermissible because of interference with people’s right to receive informationand privacy concerns.
Stanley: millions of arrows: a tough problem.
Valentine: it is a lot of work; DMCA imposes duty toterminate repeat infringers; that works and could work here. In the UK we’vebeen very successful with having ISPs block access to certain pirate sites, andnothing happened to the internet. Pirate content can go to another site. It’s ano-fault procedure for the ISP and whether the relief requested isproportionate.
Keller: we can all agree that there’s tremendousvolume. Rightsholders/agents resort toalgorithms. Is it/should it be legal forthe DMCA notice and the oath and the signature to issue when only a machine hasidentified infringement.
Valentine: we put great stock in your algorithm that’sautomated and like technology; it would be ironic if we should reject thedevelopment of tech in this area and have a human being review millions ofpieces of content. (She says she isn’tsaying there isn’t human review now—or that there is.) Google has automated filtering now, withmatching process. If there’s any dispute/concern/non-Fox content, these are theparameters that are determined and negotiated with whoever’s implementing thefilter (not, that is, with the user posting her remix). Tech makes the firstmatch, and potential disputes go into a queue for review, and she expects mostpeople review those manually.
Seng: data shows otherwise. Can’t imagine internet agent making 250,000 mistakes over 4 months whileclaiming that one of its employees owns Microsoft’s copyrights. Not suggestinghuman agent should be present for every notification, but that more care shouldbe taken. We are talking aboutprobabilities—Bayesian searches.
Valentine: it depends on the kind of file. You can matchhashes on bittorrent, which are half our takedowns.
Seng: yes, but they also use keywords, so review sites ofBBC shows get taken down too.
Valentine: even Google says this is the exception. Noquestion that verification varies. But they do more than keyword searches. Nointerest in taking down others’ content. Will do lots of verification.
Seng: certainly, but his data have shown that there areagents and there are agents; quality varies.
Stanley: tech can mitigate (or enhance) erroneous notices.No easy answers.
Q: Isn’t Pirate Bay a repeat infringer? How many notices and why hasn’t beencompletely removed?
Keller: the DMCA speaks of terminating accounts of repeatinfringers; the DMCA doesn’t require us to silence people on the internet.
Q: so your policy is to let this pirate site continue?
Keller: has answered that.
Von Lohman: We’ve worked with Fox on many issues, but someof these claims are misleading. We don’t autocomplete “Argo torrent,” andanyone can look up how the relative frequency of that search has required; theresults for Argo alone don’t appear to be infringing as far as he looked (4pages). Keyword: when you type “Argotorrent,” if the page doesn’t have torrent in it, you will get results thathave those terms in it. So showing thatresult is misleading.
Injunctions against intermediaries without showingwrongdoing in Europe: that was introduced in the US; it was called SOPA, and itwas roundly rejected. If Fox’s position is SOPA is the right solution, don’tpretend that “Europe” is the right solution and say outright that SOPA isright. Also, in Europe, no court has ever ordered a search engine to remove a site,and if it did so that would raise serious concerns.
Valentine: this is her personal view. Google was sued inFrance and voluntarily removed results. (Von Lohman says Google is in litigation in France and didn’t removeresults because of the litigation.) SOPA/PIPA were misunderstood—not to shutanything down but to ban foreign pirate sites from receiving US services thatfacilitated piracy. My reason for showing “Argo torrent” results is that Argoisn’t distributed via torrent. Thus,Google knows that a movie available as a torrent file wouldn’t be a legitimatecopy. Intended to make the precise pointthat you know that Argo torrents are available and could do something aboutthem. (But what? Remove all search results for “Argo torrent,”now including this webpage?)
Q: AudibleMagic requires expensive licensing. Could have impact on the survival of abusiness as well as the innovation of a startup. Not a great thing. Google isn’t necessarily doing startups anyfavors by developing filters that could become standard tech measures thatwould have to be used by others or they’d lose 512 protection. How to think about disadvantage to startups?
Keller: Tremendous disadvantage if required. This was partof the SABAN court’s reasoning; a filtering requirement would be great forentrenched incumbents; YouTube spent $30 million on Content ID. We don’t thinkthat Content ID is a standard tech measure; it’s very YouTube specific and can’tbe used automagically to filter “the internet”; it depends on being hosted onYouTube and being able to notify various parties.
Valentine: Yes, filtering can be expensive. We’ve hadcooperative negotiations with sites on usage rules. If you limit access to asingle account holder/password, that might minimize the amount of content thathas to go through the filter. Filtering is the cost of doing business if youdon’t want to risk infringing/violating the law.
Q: comment on CCI (Center for Copyright Information, 6strikes/alert system) procedures—will this result in a lot of arbitration?
Valentine: Been in place for a while as an educationalprogram—notices of infringement happening with their account, sometimesinforming parents. Mitigation measures are up to the ISPs. This program has been implemented in France,and P2P piracy went down without corresponding increases in other forms ofpiracy, like streaming—we think it’s been a successful educational program,supporting people’s interest in paying for content. We setup an independent review board for assessing a complaint, with due process.Hasn’t been troubling in France; is optimistic here.
Q: is this King Canute trying to hold back the tide?
Stanley: Macbeth said, “I am in blood stepped in so far thatshould I wade no more, Returning were as tedious as go o'er.” There is noturning back. There are ways to disseminate and consume that have changed; 10years from now will be different, and she hopes that it will be a compromise.
Keller: thinks the economics will change so that the legalstuff will be easy to buy (but questioner says that he wanted to know whetherlaw will be enforceable).
Valentine: copyright law will continue to be enforceable.Yes, we are providing consumers different ways to access content in the cloud withUltraviolet.
Seng: looked at comments of people exchanging pirated fileson Usenet. Apparently one internet agentis really good at takedowns on Usenet—20 minutes. We’ll see higher levels of enforcement. Market forces will also give reason to seethat demand is met, but whether this means that prices will go down is unclear.
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