Author: Joe Karaganis

Notice and Takedown in Everyday Practice

Authors:  Jennifer M. Urban, Joe Karaganis, and Brianna L. Schofield Abstract: It has been nearly twenty years since section 512 of the Digital Millennium Copyright Act established the so-called notice and takedown process. Despite its importance to copyright holders, online service providers, and Internet speakers, very little empirical research has been done on how effective section 512 is for addressing copyright infringement, spurring online service provider development, or providing due process for notice targets. This report includes three studies that draw back the curtain on notice and takedown: using detailed surveys and interviews with more than three dozen respondents, the first study gathers information on how online service providers and rightsholders experience and practice notice and takedown on a day-to-day basis; the second study examines a random sample from over 100 million notices generated during a six-month period to see who is sending notices, why, and whether they are valid takedown requests; and the third study looks specifically at a subset of those notices that were sent to Google Image Search. The findings suggest that whether notice and takedown “works” is highly dependent on who is using it and how it is practiced, though all respondents agreed that the Section 512 safe harbors remain fundamental to the online ecosystem. Perhaps surprisingly in light of large-scale online infringement, a large portion of OSPs still receive relatively few notices and process...

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The Rise of the Robo Notice

Jennifer Urban and I just published a short version of our work on notice and takedown in the Communications of the ACM (currently paywalled but accessible through most universities).  Here’s the general argument: As automated systems became common, the number of takedown requests increased dramatically. For some online services, the numbers of complaints went from dozens or hundreds per year to hundreds of thousands or millions. In 2009, Google’s search service received less than 100 takedown requests. In 2014, it received 345 million requests. Although Google is the extreme outlier, other services—especially those in the copyright ‘hot zones’ around search, storage, and social media—saw order-of-magnitude increases. Many others—through luck, obscurity, or low exposure to copyright conflicts—remained within the “DMCA Classic” world of low-volume notice and takedown. This split in the application of the law undermined the rough industry consensus about what services did to keep their safe harbor protection. As automated notices overwhelmed small legal teams, targeted services lost the ability to fully vet the complaints they received. Because companies exposed themselves to high statutory penalties if they ignored valid complaints, the safest path afforded by the DMCA was to remove all targeted material. Some companies did so. Some responded by developing automated triage procedures that prioritized high-risk notices for human review (most commonly, those sent by individuals). Others began to move beyond the statutory requirements in an effort...

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A Note on TERA’s “The Economic Contribution of the Creative Industries to EU GDP and Employment”

TERA Associates has released a follow up to their 2010 study on the impact of “piracy” on creative industries in the European Union.  The new study, entitled “The Economic Contribution of the Creative Industries to EU GDP and Employment,” makes three arguments: 1)     That the creative industries include 8.3 million “core” creative jobs and 5.7 million “interdependent” and “non-dedicated support” jobs, totaling 14% of the EU27 workforce and contributing 6.8% of GDP (€ 860 billion). 2)     That between 2008 and 2011, piracy “destroyed” € 27.1 – 39.7 billion in economic value, resulting in a loss of between 64,089 and 955,125 jobs.  According to TERA’s forecast, these numbers are likely to climb to € 166-240 billion by 2015, with 600,000 to 1.2 million jobs lost. 3)     That although economic depression and other factors may play a role in some sectoral changes, (such as retail), these job and economic losses are attributable to the failure of EU member states to adopt stronger IP enforcement measures. As a researcher responsible for several studies of the impact of piracy on creative economies, I was asked by consumers’ and citizens’ rights groups in 2011 to provide an independent review of the first TERA study.[1]  In those comments, I argued that the report offered a selective account of the economics of infringement that overstated the impact of piracy.  Since the new report doubles down on...

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The Global Congress Research Survey: Research Priorities, Part 5, Methods, Communication, and Social Movements

Still more recommendations from the 2013 Global Congress Research Survey, focusing on methodology, communications, and social movement issues.  This is Part 5 of 5 (for now). If you’d like to submit a couple paragraphs about research priorities, you can do so here.   We’d be happy to publish Part 6, 7, etc..  A last thanks to all who played. More research ideas here, here, here, and here.  Alek Tarkowski, Centrum Cyfrowe/ Creative Commons Polska / Communia, Poland   Strengthening economic research and tying it to social and cultural studies is an effort that is, in my opinion, crucial – and could for instance be addressed by a workshop-type interdisciplinary conference. Existing economic studies are useful and important (albeit nondecisive about key economic effects of either informal circulations or free / open content) – but it rarely attempts to become engaged with social and cultural research. Access to data is obviously a challenge – in Poland a treasure-trove of data on informal practices is held by administrators of the “Chomikuj” file locker service – who will never make it available, as from a different perspective this might constitute proof in court… Finally, as with any internet studies, methodologies still need to be developed, to provide in-depth understandings of use of content. Copyright, just like digital technologies, is a difficult matter, and thus not easily related by respondents in interviews, and even...

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The Global Congress Research Survey: Research Priorities, Part 4, Creative Economies and Practices

Another installment from the 2013 Global Congress Research Survey, focused on research priorities around creative industries, incentives, and changing cultural practices. Part 1 provides an explanation of the survey and the first collection of comments. Part 2 focuses mostly on copyright reform and enforcement. Part 3 focuses on trade, patents, and health. As always, if you’d like to submit a couple paragraphs about research priorities, you can do so here. Mirek Filiciak, University of Social Sciences and Humanities/Centrum Cyfrowe, Poland  The main problem we identify is combining cultural/sociological perspectives with economist perspectives. There is a wide array of problems that need to be described and understood, starting with the sustainability of new business models. Also the need to build a new theoretical framework that would prove that open production models and a belief that “culture is not just a commodity” defend themselves also in economic terms. We’d love to do it by ourselves, but we have had a hard time finding smart economists to work with, and companies which could share their economic / financial data. Last but not least – there’s a need to establish some global database for the exchange of data by people interested in the topics we’re focused on. It’s probably much more complicated than it sounds, but it eventually would make our research better and more cost-efficient. Two narrower suggestions: First, a small qualitative...

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The Global Congress Research Survey: Research Priorities, Part 3, Patents, Medicines, and Trade

Welcome to part three of our series on ‘research priorities,’ drawn from the 2013 Global Congress Research Survey.  This section focuses mostly on patents, health, and trade issues. Part 1 provides an explanation of the survey and the first collection of comments. Part 2 focuses mostly on copyright reform and enforcement. As before, if you’d like to submit a couple paragraphs about research priorities for the field, here’s the place to do so.  We’ll publish them back out. Amy Kapczynski, Yale Law School, USA  I think we need more serious conceptualization of the commons and of public alternatives to the market.   Studies of actual existing innovation schemes — in the commons, or public — that work and that conceptualize why sharing is important are high priorities, as well as work that explores how to deal w/ the flaws of these modes (insularity, waste, political interference).  Also, there needs to be more work on local IP law, and implementation of international agreements locally.  We are better at the international scale because it’s easier to access. Jorge Contreras, American University, USA   There is a need for good empirical work that quantifies the impact of patenting structures on innovation and welfare across different jurisdictions.  Do more or fewer patents fuel innovation?  What is the impact of patent litigation on innovators?  Are there migrations of talent, capital or funding across borders based on...

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The Global Congress Research Survey: Research Priorities, Part 2, Copyright, Users’ Rights, and Enforcement

This is the second set of comments reported out from the research survey.  Here the comments focus primarily on research priorities around copyright reform, users’ rights, and enforcement. More research ideas here, here, here, and here. As before, if you want to submit a couple paragraphs about research priorities for the field, here’s the place to do so.  Send in and we’ll publish back out.  Thanks again to all who participated. Pedro Paranagua, FGV, Brazil; Duke Law; House of Representatives, Brazil Reframing exceptions and limitations to copyright as users’ rights should be the top target globally. The Marrakesh VIP Treaty is a good starting point. Among other issues, I’d also highlight net neutrality and Internet governance, for we are about to lose the Internet to the telcos, which would represent the end of the Arab Spring, and of a much freer society globally. Network collaboration is essential. The greater collaboration between academics, NGOs and government officials since the passage of TRIPs has substantially increased the capacity of all players to learn and influence policy, both nationally and globally. I strongly suggest that these networks continue to be strengthened via regional and global conferences, and also via collaborative research projects, aimed at influencing public policy nationally and globally. Carolina Botero, Karisma Foundation, Colombia   The Colombian debate on freedom of expression on the Internet is in its infancy, characterized by a...

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The Global Congress Research Survey: Research Priorities, Part 1

Between July and September, 2013, The American Assembly surveyed members of the ‘Global Congress on IP and the Public Interest’ community to learn more about their research and priorities. We invited responses from anyone who had either been to a Global Congress, been invited, or expressed interest in coming to one–a total of around 600 people.  We received around 90 responses. While the responses aren’t a representative sample of the community’s views on these issues, they make for interesting reading and are well worth a look for those interested in the intersection of research and IP policymaking.  Broadly speaking, they describe a community focused on understanding how innovation systems for science and culture work, from rights and incentives to enforcement and changing cultural practices. Rather than attempt a synthesis of the responses, we’ve decided to present this material in two ways. First, we’re publishing selected, edited, and–in some cases–revised responses that offered relatively detailed accounts of the field or specific recommendations for future research.  The first of 4-5 installments is below. Second, we’ve built a database with the information that respondents shared about their current projects and research plans, sortable by topic and geographical focus. The goal isn’t full representation of the community (however one might define it) or an authoritative list of its priorities, but simply to share back as many of the detailed suggestions and insights as...

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The End of Chinese Cultural Exceptionalism? Part 3 of 3: Forget It, Jack, It’s Chinatown

Cross posted on China Law Blog.  Part 1 is here. Part 2 is here. I won’t pretend any expertise on Hollywood-China film politics, but it does sound like it would make for a fantastic dark comedy.  The story would certainly include the profit-sharing agreements whereby Chinese firms are the overwhelming beneficiaries of Hollywood’s growing popularity.  It would include the endless, conflicted efforts of government distributors and censors to damage the Hollywood golden goose in the name of Chinese culture, by suddenly yanking Hollywood hits out of theaters, releasing them on the same day, or bowdlerizing them into (even more) incoherent messes.  It would include the endless variety of Hollywood efforts to appease these capricious gods, whether by throwing Chinese actors into weird extra scenes for Chinese releases, stripping films of Chinese bad guys, launching joint ventures with Chinese princelings, or—allegedly—paying bribes for valuable exhibition slots, which the SEC is now investigating.  Although some Chinese players probably benefit by keeping Hollywood guessing, one should assume that such privileges will eventually find their price. And they probably already have.  In 2012, the US and China signed an agreement that lifted the cap on Hollywood imports to include 14 more “premium” (i.e. 3D or Imax) films per year and increase Hollywood’s share of the box office from 17.5% to 25% (and 50% for co-productions).  Although the agreement is usually presented as consequence...

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The End of Chinese Cultural Exceptionalism? Part 2 of 3: What Everyone Wants

Again, this is jointly posted with China Law Blog.  Part 1 is here. Although we initially approached piracy an intellectual property issue, we ended up spending a lot of time on the determinants of price and availability in legal markets, and so on questions of media ownership and market structure.  And when we looked at these, it was clear that the structural issue that mattered most was the extent to which legal and cultural barriers sheltered domestic studios and distributors from Hollywood.  Outside India and China, there were very there were few successful domestic film industries.  Once vibrant examples—in Europe of course, but also Mexico, Russia, and Japan—had become marginal in their home markets and inconsequential abroad.  There are many reasons for this decline.  Hollywood’s mastery of widely-accessible spectacle is a big part of it, of course.  But so too is the advantage of operating from a rich home market, with stronger investment infrastructure and the ability to amortize production costs.  So too is its much more effective control of the rest of the system, from saturation advertising, to the control or manipulation of distribution networks, to the capture of legislation, trade negotiations and state subsidy programs, to an ability to capitalize on the economic volatility of developing-world economies, which has periodically decimated local film industries.  The Hollywood studios do all of this better than anyone else.  Whether Transformers...

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The End of Chinese Cultural Exceptionalism? Part 1 of 3: The Ancient History of the DVD

Dan Harris at China Law Blog invited me to write a post about the launch of the Chinese translation of Media Piracy in Emerging Economies.  There is no China chapter in the report, but of course there are numerous China connections and parallels.  Here’s an attempt to explore those connections, in three parts.  Part 1, on media prices, doesn’t offer much new to MPEE aficionados, but Parts 2 and 3 should do better on this front. ….. Our headline finding is pretty simple: developing-world piracy is driven by high media prices, low incomes, and cheap digital technologies—and has not been significantly impacted by scaled-up enforcement.  This is the sort of statement that’s obvious in most developing countries but that is still off limits in most international IP policy conversations, which are driven by the big copyright trade associations—the MPAA, BSA, IFPI, and so on.  As a result, we have a policy debate focused single-mindedly on strengthening enforcement.  But in our view, if you’re really concerned about piracy, you need to ask which of those other things will change: prices, incomes, or cheap tech?  “Income” is a fine long-term answer in some countries but the realistic short-term answer—the one that rights holders can actually do something about—is “prices.”  Let’s take the example of DVD piracy. DVD piracy is waning in 2013, but for most of the 2000s it drove the...

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America Says: Go Gently on Porn Pirate

So another case has come along to illustrate the excesses of the US system of statutory penalties for copyright infringement–here, a $1.5 million judgement against a guy for sharing 10 porn films on BitTorrent.   Previous infringement cases suggest that there will be ample room to bat this around on appeal.  The $1.5 million penalty may not stick.  But what a waste of time and money that will be.  What if we could start with a rationale outcome? Fortunately, we can rely on the wisdom of the American people to lead the way.  In addition to the legal reasons for treating such penalties as excessive and disproportionate, we can, for our part, throw in popular opinion.  As we noted a couple posts ago, penalties for infringement attract only 51% support among adults (in our recent survey of 2303 Americans).  Nearly all of this group supports the use of fines for infringement.  Another 7% will consider the circumstances.  So let’s look at fines.   It’s worth noting that this chart refers to downloading not uploading.  This is a mostly meaningless distinction for BitTorrent users, where downloading and uploading happens simultaneously, but it’s relevant in other contexts and still plays a role in organizing public opinion.  For reasons that remain unclear but which may include Fishers role in ‘seeding’ the files on the network and failing to appear in court, the judge...

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Copy Culture by Race and Ethnicity

We’ve looked at the difference age makes to copying and downloading (a lot), and gender (not much), and politics (not much).  How about race/ethnicity? Well, it makes some. Here is our sequence of questions about attitudes toward sharing music…. Hispanics respondents were more tolerant than other groups of sharing in all forms, including through personal networks (friends) and larger online networks (posting links and uploading files).  Black and white respondent attitudes are very similar–in all but one case within the margin of error. What about acquisition practices–our core ‘copy culture’ metrics?   Black and Hispanic responses run pretty consistently–though not dramatically–ahead of white responses.  Copying and downloading for free are, by all appearances, more common in these two communities. What about narrower practices of P2P use and sharing (which correlate with large collections of copied materials in our study)?  Black and Hispanic respondents show somewhat higher use of P2P services, but there are no differences with respect to more engaged practices (e.g., membership in private file sharing communities). Income was not a significant differentiator within the groups.  High  and low income blacks, whites, and Hispanics have similar copy copying and downloading profiles.  But age did make a difference.  Here we found something unexpected: age separation emerged among older respondents, not younger ones. In other words,  black, white, and Hispanic 18- to 29-year-olds have very similar rates of  participation in...

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Pirates are the Best Customers: Anatomy of a Ridiculous Controversy

Some weeks ago, we published a lengthy blog post called Where do Music Collections Come From?  which discussed findings from our Copy Culture survey. Some of the data demonstrated that P2P file sharers (who own digital music files) buy more music than their non-P2P using peers (who also own digital music files).  Here’s the chart again: To me, this was a fairly innocuous finding, well in line with other studies.  For my money, the more important findings were that personal sharing ‘between friends’ is about as prevalent and as significant in music acquisition as ‘downloading for free’, and that together they are outweighed by legal acquisition. But the public spoke and the P2P finding went viral: the biggest pirates are the best customers.   Headlines like this generated pushback from record industry groups RIAA and IFPI—mostly centered around the work of NPD, their survey firm in the US.  The exchange, I think, is an interesting window on the state of the empirical debate around file sharing. Here’s the chronology: Oct.15: We argue that P2P users are the biggest buyers of recorded music.  The story jumps from TorrentFreak to Gizmodo to many many other sites. Oct.16: Russ Crupnick, Senior VP at NPD tells NBC News’ tech blog: We hear this argument all the time and it makes no sense…. Peer-to-peer users tend to be younger and more Internet-savvy, so the...

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Male Copiers are from Mars. Female Copiers are also from Mars

Continuing our march through the demographics of Copy Culture in the US and Germany, let’s look at gender.  Would you bet that file sharing is mostly the province of young men?  If you did, you would lose. Using our broadest definitions, we find minimal gender differences in participation in copy culture.  Men and women copy and download for free in very similar numbers.  Similar numbers ‘acquire most or all of a collection this way’  and also ‘most or all of a large collection this way’ (large means >5000 songs).  Charts ahead. In the US, this parity holds up for narrower practices related to P2P use and sharing, such as belonging to private P2P communities. In Germany, in contrast, there are significant gender differences in what gets shared, and how, and how much.   German men are more likely to use P2P services and appear much much more likely to share TV and movies (small sample size warning on this last part).  Why?  Casual copying in Germany is very widespread and comparable to the US.  But heavy copying and sharing of the kind correlated with P2P use is much more concentrated among young men. And again, why is this the case?  Our data consistently shows lower rates of adoption of digital media in Germany, from streaming services to music file purchases to device ownership.  This is matched by slower or...

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Could Pirate Romney Win/Have Won?

With the election around the corner, polls tied, and a slow news week in the US, it’s time to ask the question that’s on everyone’s mind: could Mitt Romney win with some strategic repositioning on copyright policy?  Could the answer be to embrace pirate Romney?  Let’s explore. What do we know about Romney’s  views on intellectual property?  Really just two things.  We know that he joined the roster of anti-SOPA republicans last year when that seemed like the thing to do (“I’m standing for freedom”).  And we know that he worries about China stealing our IP.  And that’s about it.  But it’s more than it seems. One of the striking things about the SOPA debate was that, when the bill failed, it failed along bipartisan lines.  The usual overwhelming bipartisan support for stronger IP enforcement crumbled.  For comparison, 2007′s Pro-IP Act–a major expansion of federal responsibility for IP enforcement–passed the House 411-10.  In the Senate, approval was unanimous.  Similarly, 1998′s Digital Millennium Copyright Act, which established the current take down procedures for infringing content, passed the House by a voice vote (used when not close).  Again, in the Senate, approval was unanimous. So something is going on when such a powerful alignment begins to break apart.  We know part of the story is a shift in the balance of lobbying power, as Internet companies begin to throw their weight...

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Unauthorized File Sharing: Is It Wrong?

We’re kicking off our Copy Culture in the US and Germany pre-release festivities with a fresh(ish) look at an old question: is unauthorized file sharing wrong?  Or more properly: do Americans think it’s wrong? Let’s recall that there are two conventional ways of talking about the ethics of copying copyrighted stuff–both in relation to the theft of material property. First: that copying is not like theft because it is non-rivalrous–making a copy does not deprive the owner of the use of the good.  For short, call this the Paley position–the defense of digital culture, in particular, as a culture of abundance.  Second: that copying is like theft because it deprives the owner of the potential economic benefit from the sale of that good (in the case of downloading, to the copier).  Call that the MPAA position–the defense of culture as a market that depends on the scarcity or controlled distribution of digital goods. Modern copyright law recognizes that copying can look more like one or the other depending on circumstances.  Historically, large-scale copying required a factory, which implied commercial purposes, which made infringement look more like a deprivation of the rightsholder’s potential income.  ‘Commercial-scale’ infringement thus became the most common trigger for the application of criminal law.  Small-scale copying, in contrast, generally involved personal networks and non-commercial intent.  Some of these uses became ‘fair use’ or ‘fair dealing’ in...

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After SOPA → Sign the Washington Declaration on Intellectual Property and the Public Interest

Now that we’re post SOPA/PIPA (for now), it’s important to develop a larger framework for how intellectual property law can best serve the public ends of maximizing innovation and enriching our common culture.  Last August, we helped organize a Global Congress to do just that.  The result was the “Washington Declaration on Intellectual Property and the Public Interest.” What’s in it?  A lot of it is pretty obvious stuff, such as: policymaking shouldn’t be secret!  And, take evidentiary standards seriously!  Some of it is fairly technical, such as defending the first sale principle across borders to facilitate parallel importation.  Not all of it is completely settled or specified–150 people contributed to  this and we tried to do justice to their disagreements as well as agreements. The point is, it’s a very good place to start a larger conversation about how to make intellectual property law serve public ends–in both national and international law.  If that matters to you, please give it a read and consider signing! Here are a few highlights: Respect the rights to due process and a fair trial in the face of rapidly escalating intellectual property enforcement measures. We must insist on the provision of adequate evidentiary thresholds, fair hearings, impartial adjudicators, rights to submit evidence and confront accusers, proportionality in penalties and strict scrutiny of public enforcement responsibilities delegated to private actors. Advocate for a...

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The Link Between Piracy and Organized Crime

Well, McGruff the Crime Dog has been dusted off for the fight against piracy, as part of a new  Department of Justice-led campaign that Nate Anderson accurately calls “Reefer Madness for the digital age.”  Our work on organized crime is getting some renewed attention in this context.  Rather than rehash the  argument or send you to the full report, here are some greatest hits: Does Crime Pay? All the best excerpts on organized crime from the report in 15 pages. Organized Crime: Businessweek Edition.  In which I get annoyed with lazy reporting on this stuff, and consider the case of Mexico. MPEE Mailbag: Career Options.  In which we counsel a former banker to ignore the seductions of the pirate trade. And finally, Sunset Boulevard Terrorists, in which we consider some real terrorist linkages to the movie and DVD trade–the legal...

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