Circumventing the safe harbor

Plus: New Aussie rules; a new trade deal; and new Brexit worries

Media companies and other copyright owners have long been frustrated with the cumbersome, slow, and only partially effective notice-and-takedown procedure outlined in Section 512 of the Digital Millennium Copyright Act for getting infringing content removed from social media platforms. But as TorrentFreak reports this week, they may have found a new weapon.

Actually, it’s an old weapon: Section 1201 of the DMCA, which makes it illegal to circumvent technical protection measures protecting copyrighted works, and bars trafficking in tools primarily designed for circumventing.

The website reported last month on what it called a “relatively rare” set of notices sent by the RIAA to a group of stream-ripping sites that cited Section 1201:

To our knowledge, the URLs provide access to a service (and/or software) that circumvents YouTube’s rolling cipher, a technical protection measure, that protects our members’ works on YouTube from unauthorized copying/downloading.

The 1201 notices were sent after earlier takedown notices under Section 512 had failed to shut down the sites. But the anti-circumvention notices did the trick.

Moreover, it turns out the 1201 notices weren’t so rare after all. TorrentFreak’s new analysis, using the Berkman-Klein Center’s Lumen database, finds that Google has received 6,281 anti-circumvention notices so far in 2019, up from 2,960 in all of 2018. The notices also often contain dozens or even hundreds of URLs, mostly of stream-rippers.

One reason rights owners may be finding success with the strategy, as TF notes, is that, unlike Section 512, the anti-circumvention provisions have no procedure for counter-notification by which targets can challenge a takedown and at least temporarily restore the content.

Another factor that might appeal to rights owners: Their 1201 track record in court is much better than their 512 record. Rights owners have been trying for years to get courts to limit the scope of the 512 safe harbor, mostly without success. Along the way, they’ve managed to pile up a stack of unfavorable opinions, from the Veoh cases to Viacom v. YouTube.

In the early days of the DMCA, however, when physical media still reigned, 1201 was where most of the legal action happened. And there, rights owners had much greater success getting courts to read the law the way they’d like, starting with Universal Studios v. Reimerdes (the DeCSS case). Even the Copyright Office’s triennial reviews of Section 1201 mandated by the law have by and large followed the courts’ strict reading of the anti-circumvention provision.

That record could make online platforms reluctant to challenge the RIAA’s new 1201 strategy in court, introducing an interesting new dynamic in the long-running battle between rights owners and technology providers.

Watch this space…


Digital thunder Down Under

Speaking of new strategies, the Australian government this week signaled a coming major crackdown on digital platforms.

The government of Prime Minister Scott Morrison announced plans to introduce what it said would be “world-leading” changes to the regulation of the tech giants aimed at curtailing their market power vis-à-vis media companies and other industry players.

The occasion was the government’s formal adoption of many of the recommendations contained in a report issued by the Australian Competition and Consumer Commission (ACCC) in July following a lengthy review.

Among the recommendations endorsed by the government:

  • Establish a special unit in the ACCC to monitor and report on the state of competition and consumer protection in digital platform markets, take enforcement action as necessary, and undertake inquiries as directed by the Treasurer, starting with the supply of online advertising and ad-tech services.

  • Address bargaining power concerns between digital platforms and media businesses by tasking the ACCC to facilitate the development of a voluntary code of conduct.

  • Commence a staged process to reform media regulation towards an end state of a platform-neutral regulatory framework covering both online and offline delivery of media content to Australian consumers.

  • Ensure privacy settings empower consumers, protect their data and best serve the Australian economy by building on our commitment to increase penalties and introduce a binding online privacy code announced in the 2019–20 Budget, through further strengthening of Privacy Act protections, subject to consultation and design of specific measures as well as conducting a review of the Privacy Act.

Another ACCC recommendation not adopted by the government for now was to establish a mandatory take-down code to be managed by the Australian Communications and Media Authority (ACMA).

The Government does not support pursuing a mandatory take-down code managed by the ACMA, noting the concerns of both major copyright owners and users, and the potential unintended effects of a code across a diverse copyright market. To get the settings right, more data and further consultation with a broader range of copyright stakeholders, digital platforms and consumer groups is needed to determine appropriate options for reducing the availability of infringing material on digital platforms.

However, the government said it would continue to review the copyright enforcement reforms introduced in 2018 and could take further action in the future.

The full government report is available here.


From the blog

In the blog this week we take a deep dive into the agreement reached between the White House and Congressional Democrats on new terms for the US-Mexico-Canada trade agreement (USMCA), when tech companies came out decidedly better than in Australia.

USMCA: Safe harbors still safe…for now

The agreement reached this week on a new — and apparently final — version of the U.S.-Mexico-Canada trade agreement (USMCA, née NAFTA 2), is likely to be viewed as a setback by those looking to rein in the influence and market power of Google, Facebook and other U.S. technology giants.

The new agreement retains language mirroring Section 230 of the Communications Decency Act, despite a last-minute push by members of Congress from both sides of the aisle to get it removed.

The provision, which provides digital platforms with immunity from legal liability for content posted by their users, was originally intended to create a safe harbor where online platforms could find their sea legs in the early days of the internet. But it has come to be viewed by many in Congress and elsewhere today as a sop to the now behemoth tech companies, allowing them to profit from the spread of fake news, harassment and other dubious content unconstrained by regulation…(read more).


Notable

Boris Johnson re-elected as British Prime Minister

Boris Johnson’s Conservatives won an apparent landslide victory in the U.K.’s general election Thursday, making a definitive vote in Parliament in leave the EU all but inevitable. But as Variety reports, “Britain’s entertainment industry is overwhelmingly against Brexit and, like other sectors, has been chafing at the uncertainty over what kind of relationship the U.K. will eventually have with the E.U.”

U.S. Register of Copyright Karyn Temple Goes Hollywood

The Hollywood Reporter reports, “The Motion Picture Association has named Karyn A. Temple as its newest global general counsel. She joins Hollywood's top trade organization after spending more than eight years at the U.S. Copyright Office, including most recently as the Register of Copyrights.”

Music Rights Gold Rush

With the likes of Hipgnosis Songs Fund, Ithaca Holdings, Kobalt Capital, Downtown Music Holdings and other buying up song catalogs left and right, Warner Music Group is the first of the Big Three to jump into the game. Music Business Worldwide reports, “private equity firm Providence Equity Partners, which has over $45bn in aggregate capital commitments, is launching a new-music focused acquisitive fund… in tandem with Warner Music Group.”

Obscure No More

Musicologists are emerging from a relatively obscure corner of academia to become the new pop stars. Variety reports that a recent wave of lawsuits over alleged song copying in the wake of the “Blurred Lines” verdict is making courtroom stars of musicology nerds as lawyers try to persuade juries as to differences or similarities between songs.

No Big Deals

Writing in Forbes, media futurist and dealmaker Peter Csathy says the era of mega media-tech deals is over, at least for now.

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