ACTA: Globalizing the DMCA – by “Elie C”

Arrr, YouTube! Where be my videos??

Although the public has been denied access to negotiations (note: RIAA and MPAA don’t count as ‘the public’), drafts of the ACTA’s internet enforcement section leaked online last week, providing a chilling glimpse into the covert negotiations among world leaders and the possible future of global internet policing. Introduced by the US Administration in 2007, the Anti-Counterfeiting Trade Agreement (ACTA) proposes making ISPs liable for content that subscribers transfer using their networks, forcing ISPs to “operate “automatic technical processes” to detect copyright-infringing activities.” While section 512 of the DMCA already establishes third party liability in the US, the ACTA extends the liability of intermediaries beyond notice-and-takedown to possible Deep Packet Inspection (bye bye net neutrality?) to the contentious three-strikes rule (which France passed in 2009, banning three-time accused file-sharers from the internet),  thus exacerbating and spreading shortcomings of the DMCA internationally – namely the E.U., Canada, Mexico, Australia, New Zealand, South Korea, Singapore, Jordan, Morocco and the United Arab Emirates.

The current digital gatekeeping model established by the DMCA promotes a ‘shoot now, ask questions later’ approach to handling allegations of copyright infringement. While the DMCA imposes the burden of proof on copyright holders and outlines the necessary elements to a notification of copyright infringement, the court found in ALS Scan, Inc. v. Remarq Communities, Inc. that copyright owners do not have to identify all infringing material (“imperfect notice”), thus shifting this responsibility to service providers. Although the complaint of infringement does not prove that infringement took place, the DMCA allows ISPs to takedown content without investigating whether the material was truly infringing before taking it down, thereby shifting the burden of proof onto subscribers.

The only recourse that subscribers have is filing a counter-notice of a “good faith belief that the material was removed or disabled as a result of mistake or misidentification…” Intermediaries risk losing their safe harbor if they do not take down infringing works whereas the consequences of wrongful takedowns amount to little more than disgruntled bloggers. In practice, there is no enforcement of fair use considerations prior to takedowns; section 512 of the DMCA explicitly imposes burden of proof on copyright holders, but third party provisions ultimately shifts the burden to subscribers.

Need to brush up on copyright law? Check out this video before it’s taken down…

As the amount of information online far exceeds copyright holders’ ability to monitor the dissemination of their works, they are becoming increasingly reliant on targeting internet hubs managed by intermediaries. In turn, intermediaries like YouTube are going “well above and beyond our legal responsibilities” by turning to automated technologies to keep up with this inundation of user-generated and uploaded content; its ContentID system enables copyright owners to automatically identify their works in YouTube hosted videos, and subsequently monetize, track or block the content. Technology that automatically screens for the presence of copyrighted material inevitably steamrolls over fair uses in favor of ease for copyright holders and intermediaries. As a standard rather than rule, fair use cannot be identified by an algorithm (real lawyers have enough trouble accomplishing that as it is) and technologies such as ContentID will further contribute to mass takedowns, leaving subscribers guilty until they prove themselves innocent.

Gatekeeping is the new Boston strangler – by “Brian W”

In the early 1980s when the MPAA was trying to stop Sony from distributing the VCR, Jack Valenti was quoted saying:

I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.

We all know that if anything, the VCR only helped the movie industry rather than destroy it. Today, it wouldn’t be much of a leap to assume that the MPAA—along with the RIAA, Viacom, et al—would again compare a new technology—YouTube—to the Boston strangler.

Similar to the initial reaction of the VCR, Viacom and other media corporations are pushing against new trends in content creation and distribution which seems to be creating a strange distance between their original intentions—to promote and profit from the media they produce. For instance, the band OK Go—the one that basically became famous when they released this video on YouTube—recently released a new album with a couple videos. However, this time around the record label disabled the ability for users to embed and share the video on other websites. Due to the popularity and viral quality of the first video fans were curious as to why the same feature that practically made the band  famous had now been disabled. Eventually, the band wrote an open letter to the fans explaining the situation, here is an excerpt:

See, here’s the deal. The recordings and the videos we make are owned by a record label, EMI. The label fronts the money for us to make recordings – for this album they paid for us to spend a few months with one of the world’s best producers in a converted barn in Amish country wringing our souls and playing tympani and twiddling knobs – and they put up most of the cash that it takes to distribute and promote our albums, including the costs of pressing CDs, advertising, and making videos. We make our videos ourselves, and we keep them dirt cheap, but still, it all adds up, and it adds up to a great deal more than we have in our bank account, which is why we have a record label in the first place.

Fifteen years ago, when the terms of contracts like ours were dreamt up, a major label could record two cats fighting in a bag and three months later they’d have a hit. No more. People of the world, there has been a revolution. You no longer give a shit what major labels want you to listen to (good job, world!), and you no longer spend money actually buying the music you listen to (perhaps not so good job, world). So the money that used to flow through the music business has slowed to a trickle, and every label, large or small, is scrambling to catch every last drop. You can’t blame them; they need new shoes, just like everybody else. And musicians need them to survive so we can use them as banks. Even bands like us who do most of our own promotion still need them to write checks every once in a while.

It seems odd to me that this would be the label’s solution to the problem. You would think based on the effectiveness of the original video and how widely it was shared the label would embrace this aspect of distribution rather than lock it up. OK Go argues that the reason they do this is because they need to make money via ads which doesn’t happen when the video is embeddable on other websites. However, I would argue that more often than not users watching embedded videos on other websites tend to end up on YouTube at some point within that session anyhow. Furthermore, allowing a video to be embeddable creates an opportunity for exposure via blogs, forums, and other social media. After all, their video for Here it goes again—which was embeddable—had “50 zillion” hits on YouTube so obviously users aren’t abandoning the original source when watching these embedded videos. Ironically, the letter ends with the source code to embed the video through Vimeo which doesn’t make a whole lot of sense to me. Anyone?

In the Viacom v YouTube complaint the main argument is that YouTube was intentionally making it increasingly more difficult for copyright holders to find uploads that infringe on their works because YouTube profits off of the popularity of these works via web advertisements. This claim ultimately led to the implementation of YouTube’s automated ContentID system.

It seems that this system goes completely against Judge Jeremy Fogel ruling that fair use must be considered before take down notices are sent in order to counterbalance misuse. Browsing YouTomb and reviewing Chilling Effects letters from the RIAA shows that these corporations are abusing their power structure to scare users out of what might otherwise be rightfully theirs. Furthermore, I’m curious as to how this algorithm works and how precise it is. What happens when an artist samples a portion of another artist’s song verbatim, legally? Is it possible that this technology would wrongfully take down the artist’s works? This all comes back to the basic principle that these situations are based standards and not rules. Only human beings can assess context and other factors that are less quantitative. Automated processes simply do not work and seem counterproductive to the artists—the group that these laws allegedly protect.