Prince’s record label NPG records has filed a DMCA copyright complaint with Twitter over a series of videos containing Prince’s content that were posted to Vine, Twitter’s newest video platform, as The Next Web first reported.

The complaint asks Twitter to remove the eight video clips from Vine that contain Prince’s material. Twitter has not yet responded with any comment.

“These are unauthorized recordings and are unauthorized synchronizations. As such, I have a good faith belief that use of the copyrighted work described above is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law. I hereby confirm that I believe the tracks identified in this email infringe my copyright.

We hereby request that you immediately remove our content 8 video clips from the vine.co platform, as accessible via the above links, as well as all other occurrences on the vine.co platform.”

While it’s unclear how much of an effect six-second videos might have on Prince’s music career, it’s somewhat of a validation for Twitter that serious musicians and celebrities would consider Vine a threat in terms of how media is distributed online. Twitter launched Vine back in January, allowing users to share short video clips and tweet them to the network, and you can now embed Vine videos on the web. It’s still uncertain how many users are sharing videos through Vine or how the startup will fit within Twitter’s ecosystem.

But it’s fair to say that if Prince has concerns about Vine, the rest of us should keep an eye on it too.

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The NASCAR crash followed much the same pattern so many news events do now, in the age of real-time and social media: moments after the crash occurred, there were multiple eyewitness photos and videos of the incident, including one particularly horrific one captured by university sophomore Tyler Andersen, who was sitting just to the left of the section that was hit by the debris — including a tire that flew off the race car in question. Soon, a link to the video on YouTube was racing through Twitter and other channels.

In this case, Google decided to over-rule NASCAR

Suddenly, however, the video was no longer available, and in its place was a standard YouTube message about the content being removed because of a copyright claim by NASCAR. This raised a host of questions for those who were trying to access it, including: How could the racing entity remove the video so quickly? Why didn’t YouTube protest that it should be protected by the principle of fair use, since it was a news event? And how could NASCAR claim that it had copyright over a video that was created by a fan?

When debris hits the crowd, NASCAR's precious video rights should be superseded by the right of the crowd to tell their story.

—
Cory Bergman (@corybe) February 23, 2013

The latter question was answered hours later when YouTube reinstated the video and released a statement saying that partners such as NASCAR are only allowed to remove content that breaches their copyright, and the content in question didn’t pass that test (even though NASCAR asserts in the fine print when you buy a ticket that it owns everything fans produce while at an event). Said the YouTube statement:

“Our partners and users do not have the right to take down videos from YouTube unless they contain content which is copyright infringing, which is why we have reinstated the videos.”

The other two questions people had are even easier to answer. In a nutshell, Google provides its YouTube partners with an easy way to have content removed almost immediately: it’s a tool called Content ID, and it’s essentially a back-door to the YouTube content-management system. When a company like CNN or NBC or some other partner sees their TV shows or news clips being shared on YouTube without permission, they can submit a form and have it pulled down.

Copyright claims favor the owner, not the uploader

One of the main reasons why Google does this — and why it doesn’t bother (except in extreme cases) to protest or demand an explanation for takedown requests — is that the Digital Millennium Copyright Act or DMCA only gives services like YouTube “safe harbor” from copyright-infringement charges so long as the company acts quickly when it receives a takedown notice. In effect, there is virtually no leeway for protests or attempts to get a provider to defend their demands.

Prime example of DMCA abuse (which i lectured on today) mobile.theverge.com/2013/2/23/4022…

—
Jillian C. York (@jilliancyork) February 24, 2013

As a number of observers — including Jillian York of the Electronic Frontier Foundation — noted during the NASCAR incident, this is just one of the many ways in which the DMCA actually fosters bad behavior, or at least behavior that seems bad if you believe in free speech and freedom of the press. The fact that Google acted quickly to put the content back up is admirable, but it shouldn’t have to do this, and there are no doubt many other important cases in which it hasn’t that don’t involve something as attention-getting as a race-car crash.

And as Jason Pontin of MIT’s Technology Review pointed out in a recent essay on free speech in a digital era, our speech is to a large degree controlled by private corporations like Google and Twitter and Apple, and in many ways we are still coming to grips with what that means for us as a society.

Post and thumbnail images courtesy of Flickr user Petteri Sulonen

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Twitter has made a significant shift in how it responds to copyright complaints. In the past, such complaints caused tweets to vanish without a trace but now people can see the place where a tweet once stood — and the reaction to its disappearance.

The new policy, reported in a tweet by a member of Twitter’s legal team, can be explained with an example. Let’s look at the Twitter account of @mikko, an executive with computer security firm F-Secure. This tweet appeared in Mikko’s feed on Saturday:

This Tweet from @mikko has been withheld in response to a report from the copyright holder. Learn more: support.twitter.com/articles/15795…

— Mikko Hypponen (@mikko) November 3, 2012

Mikko’s followers asked what happened:

[Update: As noted above, Mikko did not actually have a tweet removed. His tweet above can be considered an example at best or a hoax at worst. He wrote by email Tuesday morning:  "I read the Twitter support article about their new DMCA policy over the weekend. And just like you, I immediately tried finding an example of such a censored tweet. Since I couldn't find any, I decided to create one. So yes, my tweet was a joke." We apologize to readers.]

For the purpose of this story, Mikko’s prank is unfortunate but should not overshadow the bigger implication of Twitter’s new policy: tweets subject to a copyright notice no longer go down a memory hole. This is important to reporters and scholars who use Twitter as a news source and now have an explanation when a piece of news vanishes due to copyright reasons.

The tweet announcing the policy suggested it was in the name of “#transparency.” This is consistent with other efforts by Twitter to shine light on a copyright process that critics say is susceptible to abuse by content owners. In January, for instance, Twitter published 4,410 DMCA takedown requests it received in the previous year.

The DMCA refers to a law that gives internet companies like Twitter or Google immunity for copyrighted material posted by their users. To preserve this immunity, they have to take down users’ material when they receive a notice from a copyright owner; the target of the notice can then send a counter-notice saying the material should not be taken down.

In an email, a Twitter spokesman explained the change in policy this way:

[W]hen we get a valid DMCA request, we withhold the tweet until such time as we get (if we ever do) a valid counter-response from the user. In this case, if someone with the permalink tries to navigate to the tweet, they’ll see that it is being withheld for copyright reasons. We also send the requests to Chilling Effects for publication. Our prior policy was to delete the Tweet without any language explaining the takedown, then manually repost the Tweet if/when we got a valid counter response.

The new Twitter policy comes as both internet companies and copyright owners are growing frustrated with the existing DMCA regime. On one hand, content creators say it is too much effort to track and send DMCA notices for each infringement. On the other hand, rights owners may be growing trigger happy with notices; Google, for instance, is now receiving more than 1 million copyright requests a month, some of which are not justified and can create a “chilling effect” for users.

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The giant education publisher spotted a teacher’s weblog powered by the Edublogs network had, in 2007, published its copyrighted Beck’s Hopelessness Scale, a questionnaire designed to diagnose pessimism.

Pearson in September served a DMCA takedown notice to Edublogs’ hosting company ServerBeach, which responded by freezing not just the individual blog in question but Edublogs’ entire network of 1.45 million teaching blogs.

The team behind WordPress-powered Edublogs, which also provides premium WordPress services and multi-blog support, has kicked up a stink. And now Pearson has provided paidContent with this statement:

“Pearson apologizes for any inconvenience caused to users and readers of blogs hosted by Edublogs this week.

 

“As a learning and information company, Pearson values the open and free exchange of ideas.

“However, we needed to address one post and one sensitive issue: the publication online of one of Pearson’s clinical tests. This particular test is used by clinical psychologists to assess people who may be at risk of suicide. Publication and any subsequent misuse of the test questions can compromise the integrity of the test results, and in turn the recommendations made by the qualified professionals.

“It is a matter of deep regret that, in responding to our request to address this single item, a server hosting company took much broader action.”

Amongst that contrition, Pearson appears to blame the hosting company for overreacting to its takedown request.

Yet Edublogs founder James Farmer has now sweetened on ServerBeach after its general manager contacted him directly to say: “My General Counsel and I are actively working together to revisit the escalation notification policies of our Abuse department in general”.

Edublogs is one of the most popular blog hosting suites powered by the multi-blog software branch formerly known as WordPressMU (“multi-user”).

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The search company says it decided to make the change because it will help users “find legitimate, quality sources of content more easily,” but some critics of the move have a different theory: they figure Google has essentially caved in to pressure from media and content companies — the same kind of pressure that led the U.S. government to push for legislation such as SOPA and PIPA, which would have allowed copyright holders to remove offending websites from the internet completely based on just an allegation of infringement. While Google’s changes won’t do this, being pushed down in the search results of the web’s dominant search player can have a serious impact.

Google’s criteria are completely unknown

As the Electronic Frontier Foundation points out in a blog post criticizing the move, Google’s search algorithms are opaque by design, and so there is no way of knowing what kind of criteria they will be using to decide which sites to penalize and which to leave untouched. What does a “high number of copyright-removal notices” mean? We don’t know. And while Google provides a “counter-notice” process for those whose content has been removed from search altogether, it’s not clear whether there will be any method of appeal if you think your website has been downgraded in search results because of bogus copyright claims. Says the EFF:

“Without details on how Google’s process works, we have no reason to believe they won’t make similar, over-inclusive mistakes, dropping lawful, relevant speech lower in its search results.”

Danny Sullivan of Search Engine Land noted in a post that if the simple number of copyright notices against a site are the defining factor in whether Google drops them lower in results, then YouTube will be in grave danger, since it gets a vast number of them (although the site doesn’t appear in Google’s public list of sites where it has been asked to take down content). And there have been repeated examples of bogus claims that have led to the removal of lawful content from YouTube — including one recent incident in which several different media companies launched claims of ownership over a NASA video involving the Mars landing.

That kind of behavior isn’t likely to fill anyone with confidence in Google’s ability to differentiate between a valid copyright claim and an invalid one. And the company’s response to Sullivan’s post muddies the waters even further: Google said that YouTube — and other user-generated content sites such as Facebook, Tumblr and Twitter — won’t be penalized (or at least not very much) by the new algorithm changes, because of “nuances” in the new algorithm. What kind of nuances? The company isn’t saying. According to Sullivan:

“Google told me today that the new penalty will look beyond just the number of notices. It will also take into account other factors, specifics that Google won’t reveal, but with the end result that YouTube — as well as other popular sites beyond YouTube — aren’t expected to be hit.”

Is Google trying to curry favor with content companies?

Is it just large user-generated content sites that will get some kind of free pass? We don’t know. Is there some kind of white list of protected sites? Unknown. According to Sullivan, the company simply told him that the algorithm “automatically assesses various factors or signals to decide if a site with a high number of copyright infringement notices against it should also face a penalty.” What these various factors and signals are seems to be a secret — just as everything else about the company’s search algorithms is kept secret.

While this is presumably done to prevent people from gaming the system (or competitors from copying features), it makes it a lot harder to determine whether Google is unfairly penalizing websites for bogus copyright notices. And as the EFF points out, “false positives” are a huge problem — not just for Google but for the internet as a whole, with some websites and domains being seized by the government based merely on allegations of copyright infringement. While Google’s search penalty may not be as bad as that, it still feels like the search giant is taking action against websites that should be innocent until proven guilty.

Why would the company decide to do this? For one thing, it is being investigated by the Federal Trade Commission for antitrust activity, and it may see moves like the algorithm change as a way of showing that it is a beneficial force for society. Google is also trying to do more content-related deals with traditional media and entertainment players through YouTube, and that may have increased the pressure to come up with a response to piracy that provides at least a watered-down version of the penalties that those companies were pushing for with SOPA and PIPA.

The bottom line is that Google is essentially asking users to trust it to decide what to do with websites that have been accused of copyright infringement. But we have already seen that Google is prepared to engineer its search results for its own benefit rather than that of its users, with features such as “Search Plus Your World,” which was designed to promote Google’s social network. That kind of thing makes it harder to rely on blind faith in Google’s value judgments, especially when it comes to crucial questions around copyright and freedom of speech.

Post and thumbnail images courtesy of Flickr user Stefan

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The decision is probably the right one given the language of the law but this case should serve as a sign that something’s wrong in how we prioritize online content. Why does the entertainment industry get a stick with which to beat web sites while child prostitutes are left empty-handed?

Laws should encourage free speech online

Whether we’re talking about classified ads, obscene material or copyright, the arguments on both sides are generally the same. Those who propose laws typically see a criminal enterprise and claim it’s time to regulate the platforms that enable these crimes to take place. Opponents say the bills will have unduly burdensome effects on providers by forcing them to monitor every piece of content that hits their servers. Alternatively, they say, such bills will chill free speech by encouraging providers to limit drastically the types of content they host in order to avoid the burden of monitoring.

The last time a proposed law — the Stop Online Piracy Act — tried to force web sites and service providers to monitor content proactively, the companies and web users it would have affected reacted fiercely. They were so outraged they blacked out parts of the web and launched crowdsourced movements to write new internet constitutions and influence internet policy. Fair enough.

Due to the nature of how the internet and web operate, it’s easy to side with those wanting to protect providers and web sites. Unless they’re actively encouraging the criminal behavior that laws want to regulate, it’s difficult to hold sites and services accountable for the activity (and complaints) of potentially millions of users.

Hence Section 230 of the Communications Decency Act, which generally exempts service providers from liability for user-provided content, even when providers are notified such content might be obscene or otherwise illegal. This is the statute on which the judge in the aforementioned case — brought by Backpage.com and the Internet Archive — centered his to decision to suspend implementation enforcement of Washington’s anti-child-prosititution law. (For a good explanation of the extent of this immunity from liability, and a lengthy hypothetical application to Wikipedia content, check out this 2006 article from the Harvard Law Review.)

Unless we’re talking about copyright

However, as anyone even casually aware of the Digital Millenium Copyright Act might be aware, not all content is created equal. That act’s widely cited “safe harbor provision” actually restricts a great deal of the immunity the CDA would normally provide sites like YouTube against claims of copyright infringement. In fact, the CDA expressly excludes intellectual property law from the scope of its coverage.

Under the DMCA, when service providers receive notice of allegedly infringing content, they must either undertake the effort to determine whether it’s legally infringing or just take the content down until/if the user who posted it rebuts the purported content-holder’s claim. This process can be terribly burdensome on service providers that don’t simply want to act as a rubber stamp for censorship by removing whatever content is contested. Indeed — as Google has showed time and time again — there are a lot of false, or at least questionable, claims filed under the DMCA.

If it works for copyright, why not prostitution?

It’s difficult to comprehend why it’s acceptable to impose burdens on service providers and potentially chill free speech in the name of preventing copyright infringement, but not in the name of preventing prostitution. Why should Facebook, for example, be forced to act upon a claim about someone posting a video without permission but not about someone trying to sell a minor for sex?

To be clear, the proposed law in Washington might be a bit extreme in all but requiring service providers to attempt to verify in person the ages of the advertised escorts. For a variety of reasons — including the global nature of the web and questions about jurisdiction — this is probably infeasible. The Washington law is also far too broad, potentially covering everyone from Backpage.com (the lead plaintiff in the case) to co-plaintiff and intervenor the Internet Archive.

It might not be infeasible, however, to require sites and service providers to examine somehow claims of child prostitution like they do copyright claims. (I suspect many already do in some cases, and almost all web site terms of service grant them the permission to remove objectionable content.) And if laws were rewritten to cover only sections on sites that advertise “escort services” or other clear euphemisms for prostitution, that’s certainly less burdensome than imposing requirements across every piece of content on the web.

Regulating content on the internet is a complex issue and attempts to do so in a meaningful manner often skirt the bounds of what’s constitutional. It’s unclear what methods for fighting a problem such as child prostitution would be both effective and legal. But it’s also debatable that the DMCA is a fair or effective law. If Congress thinks it’s alright to suspend concerns about free speech when it comes to the background song in a YouTube video, maybe doing so for allegations of child abuse isn’t such a crazy idea.

Image courtesy of Shutterstock user Rugierro S.

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In the blog post sharing the report’s findings, Jeremy Kessel, Twitter’s legal policy manager, wrote that Twitter has received more government requests in the first half of this year than during the entirety of 2011. With 679 requests targeting 948 accounts — apparently more than the rest of the world combined — the U.S. government led the charge in terms of volume. U.S. officials also top the list with a 75 percent success rate followed by runner-up the Netherlands at 50 percent while many countries are at zero percent.

It’s easy to point the finger at Twitter for turning over so much data to law enforcement but, by and large, it’s just doing what’s required under U.S. laws that were written decades before the web as we know it came into existence. Google also has seen a surge in user-data requests from the U.S. government, totaling 6,321 requests on 12,243 accounts (with a 93 percent hit rate) from July 2011 through December 2011. Google’s statistics for the first half of 2012 should be available soon.

Twitter claims it notifies users of all requests to access their information, and does occasionally deny requests that are too broad or when users challenge the requests in court.

Takedown requests under the DMCA are also much less of an issue for Twitter than for Google. Whereas Twitter received 3,378 requests during the first half of 2012, Google’s real-time trackers counts more than 2 million in the past month.

Image courtesy of Shutterstock user SoulCurry.

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The data arrived today as a new section in Google’s Transparency Report, a set of findings that show how governments — and now private actors — are removing pages from the internet.

Google’s senior copyright counsel, Fred von Lohmann, stressed in an interview that the vast majority of the takedown requests are legitimate and come in response to sites offering unauthorized copies of software, entertainment or pornography.

Here is a screenshot from the Transparency Report that shows who is ordering the take downs and which websites most commonly host  unauthorized content:

The screenshot also shows how the number of copyright requests is growing exponentially. Google did not say whether this spike is the result of an increase in piracy or instead is due to more sophisticated tools that make it easier for rights owners to detect when their content has been misappropriated. Google says it’s processing requests faster than ever and that its average response time to a takedown demand is now 11 hours.

The figures are sure to add grist to the debate about the prevalence and the reasons for online piracy. Content producers have long complained that internet companies don’t do enough to remove infringing material. On the other hand, journalists and civil libertarians have argued that copyright owners have been too aggressive in their enforcement tactics.

In a blog post on the findings, Google cites an example in which ”a major entertainment company” demanded the removal of a search result that linked to a review of a TV show despite the fact no copyright infringement had occurred. When sites are removed, Google places a notice in its search results and also forwards the information to Chilling Effects, a website run by the EFF and major universities that reports on activities that chill free speech.

But von Lohman added that requests like the one by the entertainment company are often simple errors rather than an attempt to repress criticism. He noted that Google complies with 97 percent of all requests using a combination of human and algorithmic reviews, and that the data is a validation of the current DMCA copyright regime in which internet companies are not liable for the actions of bad actors so long as they comply with notices by rights owners.

The new copyright elements of the Transparency Report may also help Google and other technology companies head off fresh attempts by Hollywood to pass legislation like the failed Stop Online Piracy Act (SOPA).

von Lohmann didn’t elaborate on Google’s strategic reasons for releasing the information but did say it will allow policy makers to “consider the data” when evaluating copyright law.

Update: Techdirt reports that Microsoft, which leads the list in takedown requests, did not remove many of the same offending links in its own Bing search engine.

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According to TorrentFreak, Verizon has argued that the request for subscriber information is flawed for several reasons, including that an IP address may lead to a name, but that name may not be the alleged pirate, and that the request seemed like it was designed to harass subscribers rather than achieve any legitimate legal goal. With this argument, Verizon joins others, including judges, that are beginning to view the content industry’s efforts to flush our pirates as a type of extortion designed to get a settlement.

As my colleague Jeff Roberts wrote in November when one of these suits was filed:

The decision to sue “John Does” reflects the fact that John Wiley cannot immediately identify the actual names of the file-sharers. The publisher is therefore using a procedural tactic that permits it to amend the complaint later on in order to add the defendants’ real names which it can obtain from internet service providers.

John Wiley’s goal with the litigation is likely to force the defendants to agree to a settlement rather than go to a full-blown trial. The publisher has considerable leverage because the Copyright Act provides draconian penalties of up to $150,000 per infringement, meaning many defendants could be willing to pay a few thousand dollars to end the matter.

Verizon’s decision to stand up for its users probably has less to do with some chest-thumping love of online freedom, and more to do with its historical reluctance to become an arm of the law when it comes to policing users for illegal downloads. While many of the historical suits of this nature have focused on music and pornography, the publishing industry and others are seeing their chance to take a little back from online pirates.

If they are successful Verizon and other ISPs face a future of flushing out the John Does on their network and handing their names over to the content industry. That costs money and doesn’t exactly make your customers love you. For a sense of Verizon’s dilemma, check out this 2003 article for a reminder of the era when the RIAA was employing similar tactics to drag potential pirates into the bright lights of the courtroom:

[Sarah Deutsch, who was counsel for Verizon] had received dozens of subpoenas from RIAA and other entertainment trade groups, all of them fairly routine requests. But this one was different. Subscriber X wasn’t hosting illegal content on Verizon’s network; he was a Kazaa client that used Verizon for Internet access, and the disputed content was stored on his hard drive. Verizon had no way of verifying RIAA’s allegations. Deutsch refused to give up Subscriber X’s name.

“We’re not going to become the Internet police for RIAA,” Deutsch said. “There’s a delicate balance between copyright holders’ rights and our customers’ rights that needs to be preserved. RIAA crossed over the line.”

Looks like Verizon feels like Wiley is stepping over that line nine years later.

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Updated:

In a complaint filed Friday in Manhattan, Perfect 10 claims Tumblr failed to remove unauthorized photos posted by its users. The company, which sells nude model photographs through a magazine and website, says Tumblr not only turned a blind eye to copyright infringement but that its staff uploaded images themselves to jumpstart the business.

Update: Perfect 10 President Norm Zada claims the company has sent 6 detailed takedown requests to Tumblr but did not receive any response.

“I’m not sure anyone’s checking that email,” said Zada. “Twenty-five other Internet Service Providers have taken down material that Perfect 10 has identified in our DMCA notices, Tumblr did not.”

The case is significant because lawyers have been waiting for a case to test the legality of popular new image sharing sites like Tumblr and Pinterest. It is also important because of the companies involved.

Tumblr is one of the web’s hottest social sites while Perfect 10 has a long history of fighting in court to control its images. The company sued Google in 2004 for using thumbnail images in its search results. In a famous 2006 decision, a court ruled that the search giant’s use of thumbnails was fair use under copyright law.

A similar fair use ruling is unlikely in the Tumblr case because pictures on the site are typically not thumbnails but full size images.

Ordinarily, sites that host user-uploaded content are protected from copyright lawsuits under “safe harbor” laws (these make a user liable but not the site itself).

Perfect 10′s complaint, however, appears crafted to attack a safe harbor defense by Tumblr. Websites can lose the safe harbor protection if they fail to remove infringing material or if they have an active role in hosting unauthorized images:

Upon information and belief, Tumblr employees have posted infringing content to Tumblr servers, to help start the business, including content which infringes upon Perfect 10′s Copyrighted Works [...] Tumblr’s services also permit its subscribers to search for images. An example of the search results of a Tumblr search for model Luba Shumeyko, which includes infringing copies of Perfect 10 Copyrighted Works [...]  Tumblr turns a blind eye to the extensive copyright infringement taking place through its services.

As Tumblr has gained prominence, some have argued that it must shake up its business model to rely less on pornography and unauthorized photos.

Others have directed similar questions at female-dominated Pinterest, another darling of the start-up set. Pinterest doesn’t have a reputation for porn but is being pressured by Getty Images and photographers to pay royalties.

The Tumblr lawsuit and the $1 billion acquisition of Instagram by Facebook are indications of how popular image sharing has become in recent years.

Update: Tumblr spokesman Katherine Barna declined to comment at this time.

Here’s a copy of the lawsuit:

Perfect 10 v Tumblr

Thumbnail image courtesy of Shutterstock user [jwblinn].

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