When the Digital Millennium Copyright Act (DMCA) was introduced in 1998, few people could of imagined the online developments of the next two decades. Nevertheless, the law remains in place today and at times, according to some, struggles to keep up with whatever technology throws at it.

The DMCA is a complex beast but some of its key goals are to outlaw the production and distribution of tools and services designed to circumvent DRM systems controlling access to copyright works (Section 1201 anti-circumvention) and limit the liability of online service providers for the actions of their users (Section 512). Particularly in respect of the latter, many copyright holders believe that changes are long overdue.

With the U.S. Copyright Office already conducting its own study into the DMCA, Senator Thom Tillis has launched a new initiative in the Senate Judiciary Subcommittee on Intellectual Property to find ways to modernize the DMCA to better tackle the drastic changes of the past 22 years. Supported by written testimony from a number of copyright experts, the first hearing took place yesterday.

Even at this early stage, it seems clear that while Section 1201 isn’t considered perfect and has its detractors, it is Section 512 that will likely prove the most controversial to address, particularly in respect of notice-and-takedown and related service provider safe harbor provisions. In his testimony, Steven J. Metalitz, who helped to draft the DMCA more than two decades ago, provided his assessment of why the law no longer works as intended.

Metalitz references three ‘V’s as major issues faced by rightsholders today – the volume of infringement; the velocity of infringing activity; and the importance of voluntary arrangements, including licensing and technological collaboration.

“Section 512 in general, and the notice-and-takedown system in particular, implicitly assume a model in which the volume of infringing activity is sufficiently low that human decision making can feasibly be applied on virtually a case-by case basis to decisions about whether to file a notice of infringement, how such notices are to be processed, and what action should be taken in response to them,” Metalitz testified.

“If that model was ever a realistic approach, the huge volume of online infringement soon outstripped it. It was not long before the entire notice-and-takedown process became fully automated on both sides: robots talking to robots to decide the fate of particular disputed postings or links, which themselves had been generated through automated processes.”

Addressing the current velocity of online infringements, Metalitz said the question of how quickly a service provider must act to deal with an infringement complaint to maintain safe harbor is now an issue.

Drafters of the DMCA may not have envisioned a situation where infringing content is not only made instantly available to an audience of millions, but can instantly reappear even following a successful takedown notice, rendering the system pointless, Metalitz said.

“In reviewing section 512, the subcommittee should consider what changes are needed to respond to this vast acceleration in the velocity of online infringement, as well as the ease with which Internet users with even limited tech savvy can carry it out,” he added.

To help address some of these issues, Metalitz hopes that the subcommittee will look at the role of voluntary arrangements between copyright holders and service providers, such as licensing and other mechanisms, that can help to mitigate and manage online infringement, perhaps underpinned by changes in the law.

Given her position as Director of Copyright Research and Policy at the Center For Protection of Intellectual Property, the testimony of Sandra Aistars demonstrated a clear determination towards a tightening of the law, with suggestions on the notice-and-takedown/service provider front proving of particular interest.

“I do not advocate doing away with the protections safe harbors have afforded internet companies, because along with the negative, they have also done much to spur positive developments and creativity on the internet. Nevertheless, I believe that the last twenty two years of applying the DMCA to everyday practice have demonstrated that the marketplace and the courts have eroded the original intent of Congress,” Aistars testified.

“In considering legislation, it will be important to focus on how best to restore those elements of the DMCA intended to foster cooperation between stakeholders. One clear area of legislative reform would be to restore/clarify the original meaning of red flag knowledge.

“Similarly, elements of the DMCA which have received little or no attention — such as the concept of sending notice of infringements by means of representative lists, rather than link by link, and the requirement to accommodate standard technical measures, should be revisited and incorporated more effectively into any new legislation,” she added.

That brings Aistars to the conclusion that notice-and-takedown is for the past and something more permanent should be considered for the future. Legislation that provides incentives for service providers to develop technologies or policies to achieve notice-and-staydown regimes would be favorable, she argued, especially since Europe is moving towards that with Article 17 of the Copyright Directive.

“Some progress has already been made on this in the European Union Digital Single Market Directive, demonstrating not only that this is an achievable goal, but that internet services operating in the EU will already be required to meet such standards,” Aistars added.

But while Aistars suggests that the DMCA needs significant work to be effective in today’s environment, others believe that it is still delivering on its goal to encourage innovation. Any significant change, perhaps in line with the EU’s plans, could hinder that, some suggest.

Professor Rebecca Tushnet of the Harvard Law School works with the Organization for Transformative Works, a user-generated content project with a budget of less than $400,000 per year. It receives 1.12 billion page views per month yet receives less than one DMCA notice per month, most of them invalid.

“Empirical research reveals that most of the internet service providers who rely on §512 are like us: receiving relatively low levels of notices and handling them individually. There just aren’t that many entities receiving millions of notices,” her testimony reads.

“While market pressures and business decisions have led a few large sites like YouTube to more filter-based systems, it is important not to treat YouTube as a model for the internet at large—unless the only online service we want to survive is YouTube.”

Tushnet believes that most beneficiaries of Section 512 are not companies like Google or Facebook. Indeed, if Congress targets these kinds of entities with changes to copyright law, it will only help them dominate the market.

“If Congress changes the DMCA to target Google and Facebook, or because of rogue overseas sites that already aren’t complying with the DMCA to begin with, it will ensure that only Facebook, Google and pirate sites survive, making the problem of market concentration even worse without protecting creators,” Tushnet said.

“Most service providers don’t need and can’t get expensive filtering technology. A mandate for that, whether called ‘staydown’ or something else, would destroy the small and medium entities that are vital to innovation, creativity, and competition on the internet.”

Finally and perhaps unsurprisingly, the thorny issue of dealing with so-called ‘repeat infringers’ is set for hot debate, embedded as it is with Section 512, safe harbor, and its potential effect on regular Internet users. It is certainly on Sandra Aistars’ agenda, up to and including taking the most aggressive measures possible against those accused of infringing copyright via their home connections.

Referencing the recent BMG v Cox case, which dealt with the repeat infringements of BitTorrent users and the failure of the ISP to disconnect them, Aistars expressed disappointment at those who submitted amicus briefs arguing that disconnection would be unfavorable if multiple users in a household had access to an Internet connection.

“Apparently these parties believe high speed internet service is more of a basic human necessity than housing or transportation, which can both be seized under federal forfeiture laws regardless if jointly held,” Aistars testimony reads.

“While I do not suggest that the circumstances under which federal forfeiture is permitted are exactly comparable, surely if the seizure of a jointly owned home or automobile is permissible, disabling internet service must also be under appropriate circumstances. Clearly ISPs have no qualms disabling service for nonpayment, for instance.”

Yesterday’s hearing was just the beginning but for those who want all of the details thus far, the testimonies are available here.

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The Pirate Bay is widely known for its refusal to remove content based on copyright infringement claims. Those who tried in the past found themselves mocked instead.

This means that copyright holders have to find other ways to minimize the site’s impact. That includes sending takedown requests to search engines, to lower the site’s presence there.

Most of these takedown notices are sent to Google, which receives requests to remove thousands of Pirate Bay links every day. These quickly add up and have now surpassed five million requests against Thepiratebay.org URLs alone.

Like many other pirate sites, The Pirate Bay has many proxy sites and previously used other domains as well. If we added all of these together, the totals would run into the dozens of millions.

The vast majority of thepiratebay.org URLs were reported since 2016, when the iconic torrent site returned to its original .org domain name, as can be seen in the graph below.

Targeted thepiratebay.org urls

The figures reported in Google’s transparency report count all the URLs that were submitted by copyright holders. This also includes duplicate requests. In other words, it doesn’t mean that five million search results were removed.

Of the 5,047,397 reported URLs, nearly two-thirds (66.5%) resulted in removed links. Little over 10% are duplicates that were sent in before by other copyright holders and 22.2% of the URLs were not indexed by Google in the first place.

It may seem odd that copyright holders ask Google to remove content that isn’t in its search engine. However, the company previously explained that it accepts these requests, which are put on a preemptive blacklist, to ensure that they are not added in the future.

When all of the above is taken into account there is still 0.8% left. These are reported URLs for which Google took no action. This can happen when the takedown request has clear errors, or if the reported URL isn’t copyright infringing.

As we previously reported, rightsholders have repeatedly asked Google to remove thepiratebay.org’s homepage. However, since this doesn’t link to any infringing content, Google keeps this page in its search results.

Google does, however, downgrade The Pirate Bay searches for some content. Because the site is repeatedly targeted, the search engine lowers its ranking in results for movies and other types of media.

While five million targeted URLs is significant, it is by no means a record. Several other sites including 4shared.com, Rapidgator.net, and Chomikuj.pl have been reported dozens of millions of times.

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In the United States, several companies are actively filing large volumes of lawsuits against alleged movie pirates, many of whom are said to have downloaded pornographic material.

However, there is a growing trend of companies connected to mainstream movies aggressively enforcing their rights with a view to obtaining settlements against regular file-sharers, torrent site operators, and even app developers.

Two companies involved in this area are Rambo V Productions, Inc. (Rambo: Last Blood) and Fallen Productions, Inc. (Angel Has Fallen). While mostly active in the United States, two lawsuits filed in Canada’s Federal Court of Toronto in recent days show that their litigation and cash settlement program is beginning to spread.

Filed closely together on February 7, the two statements of claim are almost identical, differing only in respect of movie titles and IP addresses, plus dates and times when the infringing behavior allegedly took place. The Rambo V Productions claim targets 1,218 Doe Defendants, with Angel Has Fallen targeting 2,130.

In common with all related complaints, the claims detail how BitTorrent technology works and how individuals participate in concert with other users in order to download and share movies online, without obtaining permission from the copyright holders.

“Each Doe Defendant has unlawfully, and without the Plaintiff’s authorization or consent, utilized the BitTorrent peer-to-peer network to download and/or unlawfully offer to upload the Work thus infringing the Plaintiff’s copyright in the Work,” the claims read.

In similar cases filed in other jurisdictions, it is common for each defendant to be referenced by a single IP address alongside an alleged date and time of infringement. In these cases, however, all defendants have two dates and times of supposed infringement logged against them, which are spaced several days apart. The reason for this becomes apparent in the following paragraph.

“In accordance with the provisions of s. 41.25 and s. 41.26 of the Copyright Act each Defendant was notified of his or her Unlawful Acts by Notice,” the claims read.

This is a reference to the provisions (1,2) in Canadian law that allow copyright holders to send warning notices to alleged infringers via their service providers. According to the plaintiffs in both cases, each Doe Defendant was sent such a notice but failed to take remedial action.

“The First Notice informed each Defendant that they had been detected by forensic software as offering for upload the Work, and indicated that if the Work was taken down that there would be no action taken as against such Defendant. Each Defendant failed to respond, or refused to respond, to the First Notice and continued his or her Unlawful Acts,” they add.

When no action was taken in response to the first notice, the plaintiffs claim that their counsel sent a second notice to the Doe Defendants, informing them that the copyrighted work was still being made available and that legal action could follow.

“This Second Notice indicated that the work had not been removed and that legal action may be taken as against such Defendant. The Defendant failed or refused to respond to the Second Notice and has continued his or her Unlawful Acts,” the claims note.

While one person is usually named as the customer of an ISP (the person who pays the bill) it is common for other people in a particular household to have access to the same Internet connection via a router. This means that the bill payer may or indeed may not be the person (the Doe Defendant) who committed any of the alleged infringements.

The claims for both Rambo: Last Blood and Angel Has Fallen attempt to cover all bases by stating that even if the bill payer isn’t the direct infringer, he or she is ultimately responsible.

“In that case, the customer should have, and ought to have, the knowledge of who was using the customer’s internet account at the specifically identified date and time,” the claims add. But the responsibility doesn’t end there.

While acknowledging that some of the defendants may not be ‘direct infringers’, the plaintiffs state that through “negligence or wilful blindness” they “authorized others” to infringe after failing to exercise sufficient control over the use of their Internet connections when they knew that infringement was taking place.

“Each Defendant was provided with prior notice (the First Notice) that such Defendant’s internet account was being used in a way that infringed the Plaintiff’s copyright, and yet such Defendant did nothing to prevent or cease the infringement. Each Defendant therefore knew or should have known that their internet account was being used contrary to s. 27(1) and s.27(2) of the Copyright Act,” both claims add.

While the statements of claim state that defendants can be served in either Canada or the United States, both indicate that the listed IP addresses are believed to be located in Canada and that damages and injunctions will be sought as part of the action.

Excess Copyright‘s Howard Knopf believes that the plaintiffs will now attempt to obtain “Norwich Orders” to force the ISPs to hand over the identities of the individuals behind the listed IP addresses. At this stage it’s unclear whether any or all will fight back.

The claims filed by Rambo V Productions and Fallen Productions can be found here and here

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In this episode, we meet Andy Greenberg, senior writer at Wired Magazine and author of Sandworm, A New Era of Cyberwar and the Hunt for the Kremlin’s Most Dangerous Hacker.

We discussed how Russia is developing a secret hacking program with the ability to take out national infrastructure across the world — and how, under a new paradigm of ‘total war’, essential elements of our lived environment are increasingly vulnerable to digital attack — from banking to electricity to transport systems and beyond.

Find out why Russia may now be trying to export the ‘controlled instability’ it has produced in Ukraine to the West, and how this could provide the country with an unprecedented ‘asymmetric’ military upper hand.
—

Steal This Show aims to release bi-weekly episodes featuring insiders discussing crypto, privacy, copyright and file-sharing developments. It complements our regular reporting by adding more room for opinion, commentary, and analysis.

Host: Jamie King

Guest: Andy Greenberg

^{If you enjoy this episode, consider becoming a patron and getting involved with the show. Check out Steal This Show’s Patreon campaign: support us and get all kinds of fantastic benefits!}

Produced by Jamie King
Edited & Mixed by Lucas Marston
Original Music by David Triana
Web Production by Eric Barch

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Last November, Canada’s Federal Court approved the first pirate site blockade in the country.

Following a complaint from major media companies Rogers, Bell and TVA, the Court ordered several major ISPs to block access to domains and IP-addresses of the pirate IPTV service GoldTV.

This is the first blocking order of its kind in Canada but could be the start of many. While most of the targeted ISPs stayed quiet and didn’t even acknowledge receipt of our questions, TekSavvy chose to appeal the blocking injunction.

The Internet provider is not the only organization that’s worried about the blocking order. Several others have raised concerns and some have now asked the Federal Court of Appeal if they can intervene in the case. This includes CIRA, the registry that operates the .CA domain name.

The registry, which also provides DNS services for .PT, .SE, and .ES domains, says it didn’t previously intervene because it wasn’t aware of the proceeding. It only learned about the blockades after these were reported in the media.

Among other things, CIRA is concerned that the website blocking injunction will interfere with the open Internet infrastructure. In addition, it will also bypass its authority by pointing Internet users to other locations when they try to access a .CA domain.

“Ordering ISPs to intercept and redirect internet communications could conflict with CIRA’s longstanding commitment to maintain an open and effective internet architecture,” CIRA writes.

“It could jeopardize CIRA’s mission to steward the .CA domain and to provide high quality registry, DNS, and cybersecurity services,” the registry adds.

Ideally, more stakeholders should have been consulted before making such a drastic decision, the registry notes. In CIRA’s view, site blocking is not the answer to address infringing sites. It directly conflicts with the Telecommunications Act while there are better alternatives.

One of the options suggested by CIRA is to identify the site owners through the WHOIS database. The organization says that it can provide such information when it’s compelled to do so by a Canadian court order.

Possible measures could also include involving other third-party intermediaries such as hosting companies and payment intermediaries.

“Any and all of those options are, while still extreme, more consistent with the Telecommunications Act and less intrusive into the technical architecture of the internet than the remedy sought from and granted by the Federal Court,” CIRA writes.

Based on these and other arguments, the registry asks the Federal Court of Appeal to grant its motion to intervene in the case.

Another organization that would like to be heard is the Canadian Internet Policy and Public Interest Clinic (CIPPIC). The group, which is connected to the University of Ottawa, also believes that the site-blocking order should be reversed.

“ISP-based website blocking is an intrusive remedy, incompatible with the right to free expression,” CIPPIC writes, adding that it also raises issues with the Copyright Act and the Telecommunications Act.

Such orders should not be taken lightly and deserve more scrutiny than the Federal Court has offered so far.

CIPPIC raises a variety of issues which it wants to argue in more detail. This also includes possible conflicts with net neutrality.

“ISP-based website blocking orders have a significant potential to disrupt communications networks and interfere with network innovation,” CIPPIC writes.

“Any ISP-based website blocking order must therefore ensure it does not undermine the CRTC’s role, legislatively mandated under section 36 of the Telecommunications Act, for monitoring net neutrality and ISP interference with transmitted content”

Both motions to intervene have yet to be reviewed by the Court and more may still be filed, also from rightsholders.

Given the interest of these parties, it’s clear that the matter has triggered much broader interest than during the initial proceeding.

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A copy of CIRA’s motion to intervene is available here (pdf) and CIPPIC’s motion can be found here (pdf).

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