With the Senate Subcommittee on Intellectual Property’s Digital Millennium Copyright Act (DMCA) hearings now underway, there’s a lot of information being presented in oral testimonies, written submissions, articles, blogs, infographics, etc. on the global state of piracy and the effectiveness of efforts to combat infringement online. While many witnesses have presented strong evidence that the DMCA has become outdated and ineffective, others claim that the DMCA is working fine, online infringement is in a continual state of decline, and anti-piracy laws have never been a worthwhile way to fight piracy.
Echoing these and other questionable claims is an infographic put out by Re:Create, a coalition (funded in part by Google) of organizations that routinely advocate for the weakening of intellectual property rights presenting a number of proclamations meant to convince us that all is well in cyberspace and the DMCA is working as intended. But a closer look at the assertions reveals their shortcomings, and a clear understanding of the issues is crucial for lawmakers and the public if we hope to address the concerns relating to the effectiveness of the DMCA.
Streaming Piracy is on the Rise
Re:Create’s document, titled Copyright Infringement on the Decline Worldwide, begins with the claim that “online infringement is on the decline despite entertainment industry claims.” For support, it links to a 2018 Google-commissioned report published by the University of Amsterdam’s Institute for Information Law. The report tracks online infringement over a three-year period in 13 countries and seems to present a detailed account of decreasing piracy activity. But what Re:Create fails to recognize is the study’s acknowledgement that “blocking websites and notifications by collective management organisations appear to decrease access to infringing content” and that “[t]here is some empirical evidence that this had a statistically significant negative effect on total online piracy and a positive effect on the use of legal video streaming platforms.”
Moreover, while certain forms of torrent and download-based piracy may be on the decline, that decline is more likely due to a migration to other forms of piracy, such as the shift to streaming technologies which has resulted in easy and low cost of access to unlicensed content. A recent study found that 6.5% of North American households are now accessing subscription television piracy services and that this streaming piracy is costing legitimate operators in Canada and the United States upwards of $5 billion a year. Another study found that while overall piracy numbers remained relatively static over a one-year period from January to December 2016, there were 77.7 billion visits to piracy streaming websites recorded, 34.0% of which were via mobile devices.
It’s also worth noting signs that point to a resurgence in BitTorrent as a preferred means of illegally distributing copyrighted content. A 2018 report by Sandvine shows that after declining significantly between 2011 and 2015, BitTorrent’s traffic share began growing again worldwide. All this is to say that developments in technology and changing user preferences have resulted in shifts in the way people pirate content, and a more nuanced understanding is required before making broad claims about online infringement.
Effective Anti-Piracy Laws Work to Reduce Online Infringement
Re:Create also claims that “anti-piracy laws and regulations had a minimal effect or none at all.” To support this claim, Re:Create again links to the Google-financed Global Online Piracy Study by the Institute for Information Law. Despite the study’s finding that the effectiveness of enforcement measures is “uncertain,” the fact is that some jurisdictions reported on in the study, including the UK and France, have led the way in comprehensive enforcement measures including site-blocking, content removal, and injunctions. Even though it would make sense that increased access to legitimate content when coupled with effective enforcement would lead to the decreases in overall piracy, Re:Create ignores that important connection.
For evidence of how enforcement measures actually get results, look no further than the most recent DMCA hearing on Copyright Law in Foreign Jurisdictions. Professor Michael D. Smith directly addressed the question of whether anti-piracy laws have an effect on copyright infringement, presenting peer-reviewed academic research that proves that not only does piracy continue to harm creators and global creative ecosystems, but that “demand-side and supply-side anti-piracy efforts implemented worldwide have been effective at reversing these harms by increasing the search and transactions costs necessary to locate and consume pirated content online.” While increased access to legitimate streaming services may play a role in deterring piracy, Professor Smith’s research shows that effective enforcement measures that block access to illicit content and services clearly lead to decreases in infringement.
Notice-and-Takedown is Not Working for Creators and Copyright Owners
Next, Re:Create makes the sweeping claim that “[t]he U.S. notice-and-takedown system works to protect rights holders.” What evidence is offered to support this bold generalization? Google’s own report on what a great job Google does in fighting piracy. More of a public relations strategy than study, How Google Fights Piracy lists a number of principles the company follows to fight piracy, including “ejecting rogue sites from our advertising and payment services.” That’s all well and good, but Google continues to list these same rogue sites at the top of their search results, ensuring that anyone interested in accessing infringing works has plenty of options.
With regard to notice-and-takedown, perhaps Re:Create should consider asking creators and copyright owners how the system has been working for them? Testifying at the first DMCA hearing, Professor Sandra Aistars detailed the frustrating experience of independent artists as well as her Arts & Entertainment Advocacy Clinic students as they worked with individual creators to enforce copyright claims. The confusing, time-consuming, and ultimately unsuccessful process described by Professor Aistars and so many others is not evidence of a system working to protect rights owners.
Not long ago, in announcing its (now nearly complete) study on the DMCA, the U.S. Copyright Office noted that “[m]any smaller copyright owners . . . lack access to third-party services and sophisticated tools to monitor for infringing uses, which can be costly, and must instead rely on manual search and notification processes—an effort that has been likened to Ôtrying to empty the ocean with a teaspoon.'”
There is Little Evidence Copyright Owners are Abusing Notice-and-Takedown
Re:Create then claims that even though notice-and-takedown is working to protect copyright owners, all that copyright owners do to show their thanks is abuse the system to get works taken down that are “either fair used, licensed or not subject to copyright law.” Here, Re:Create links to yet another Google-funded study, Notice and Takedown in Everyday Practice.
Professor Devlin Hartline and I revealed the flaws in this report not long ago, noting that the study presents only a narrow and misleading assessment of the notice and takedown process, overstates its findings, and fails to adequately support its broad policy recommendations. The fact is that the bulk of the “flawed” notices the report discusses come from notices that raise “questions about compliance with the statutory requirements” or raise “potential fair use defenses.” There’s no reason to conclude that the notices were sent in bad faith or that the system was abused simply because the notices were inadvertently filled out incorrectly or someone might be able to make a fair use argument.
Copyright Infringement Remains a Problem in the U.S. and Beyond
Re:Create’s infographic suggests that “[i]ncreased access to legitimate content has been proven to drive down infringement, increase revenues for creators and increase choice for consumers.” While access to legitimate content may play a role in decreases in piracy, to support this statement Re:Create curiously links to a 2019 U.S. Chamber of Commerce Global Innovation Policy Center (GIPC) study titled Impacts of Digital Video Piracy on the U.S. Economy, which goes into great detail on the harm that global piracy continues to have on U.S. creative industries. It might not be the best idea for a report trying to downplay the current state of online piracy to link to a comprehensive, data-driven study that “shows that all of the benefits that streaming brings to our economy have been artificially capped by digital piracy.”
Finally, Re:Create claims that America’s copyright system is working fine because “[a] recent analysis indicates that over 99% of problem comes from other countries.” Apparently, this “recent analysis” is the aforementioned Chamber of Commerce study on the tremendous harm piracy continues to inflict on U.S. creative industries and the U.S. economy. The key findings of the Chamber report are that regardless of where it occurs, “digital video piracy conservatively causes lost domestic revenues of at least $29.2 billion and as much as $71.0 billion annually” and “results in losses to the U.S. economy of between 230,000 and 560,000 jobs.” A system that cannot provide meaningful deterrents against infringementÑwhether occurring inside the United States or abroadÑcannot be described as a “balanced” or “effective” framework.
As the U.S. enters a critical time in the development of copyright law and the future of the DMCA, it’s important to be able to separate fact from fiction when examining the state of global piracy. Despite what organizations like Re:Create claim, it’s become categorically evident that online infringement continues to inflict serious harm on creative ecosystems. What’s more, it’s become obvious that notice-and-takedown systems and safe harbor mechanisms of the DMCA have not sufficiently protected the rights of creators and copyright owners. The U.S. Government and stakeholders can work together to try and address this, but it’s difficult to do so long as groups like Re:Create put their own warped “spin” and hide the facts.