A Hollywood producer has published a furious essay attacking Google and other search engines, claiming they don’t do enough to tackle piracy and that they are “aiding and abetting criminal activity.”
Writing in The Hollywood Reporter, Richard Gladstein — who worked on the highly-pirated Quentin Tarantino movie “The Hateful Eight” — claimed that search engines are “deliberately” obscuring the issue of copyright infringement online.
A Google spokesperson told Business Insider that the company “continue[s]e to invest heavily in copyright tools for content owners and process takedown notices faster than ever,” and its “partnerships and distribution deals with the content industry benefit both creators and users, and generate hundreds of millions of dollars for the industry each year.”
“The Hateful Eight” made headlines for all the wrong reasons in December 2015 — when it was leaked online a week before its cinematic debut on Christmas Day.
A piracy group had got hold of a “screener” copy intended for a Hollywood exec (screeners are sent around to judges ahead of the awards season), and published it online — claiming to have a staggering 40 films to release in the coming weeks.
After potentially identifying information about one of the group’s members was leaked online, it published a bizarre apology — saying it was “sorry for the trouble we caused.”
Remarkably, the group even made the dubious claim that the news about the leak will have given the film free publicity, boosting its sales: “Since everyone is now talking about [The Hateful Eight] we dont think the producers will loose any money at cinedate, and we tell you now why. We actually think this has created a new type of media hype that is more present in the news, radio and in the papers than starwars, and the promotional costs for this were free.”
Despite the apology, the damage was done: More than 1.3 million people pirated “The Hateful Eight” since its leak. And Richard Gladstein isn’t happy.
Google is “ignoring the disease.”
“Our industry is facing a content theft epidemic regarding the viewing and downloading of content in its entirety,” Gladstein writes. “Such activity results in financial losses to many hard-working crew members, actors, and other professionals as they receive less of their rightful share of residuals that fund their pension, health, and welfare benefits. Distributors and financiers also receive less than their rightful share of revenue. This causes fewer and fewer films to be made each year.”
He believes search engines — singling out Google and its video-hosting platform YouTube due to its size — could and should be doing far more than they are now to tackle online piracy. “Google and YouTube have the ability to create a vaccine that could eradicate the disease of content theft. But to the millions of us who watch as our works are stolen over and over and over and over again, millions and millions of times, Google is at best offering us an aspirin, and at worst, ignoring the disease.”
Instead, Gladstein makes the case that Google “deliberately” uses the issue of Fair Use to “obscure” the problem.
A quick recap: Fair Use and DMCA abuse
Fair Use is the principle that you can use a reasonable amount of copyrighted work in certain circumstances, like review, or analysis, or satire. It’s why news channels can show clips of movies, or an online reviewer can show parts of a TV show in their review, without the risk of being sued.
But, many allege, Fair Use isn’t always properly protected online. Google (and YouTube), as a US company, is subject to the Digital Millennium Copyright Act, which dictates how platforms should deal with copyrighted material being shared illegally on their platform.
It says that companies can’t be sued or prosecuted for it — so long as they provide a mechanism for reporting alleged violations, and so long as they respond to the reports in a timely manner. These takedown notices are often referred to as “DMCA takedowns.”
The issue is that some rightsholders over-zealously — or even maliciously — file DMCA takedowns without the proper regard for Fair Use. This means content can end up being taken down, even if the use of the material was fair (in a review, for example).
This is further compounded by platforms’ use of automated software to patrol for infringement. YouTube, for example uses a system called ContentID that scans uploads for copyrighted material and then takes it down or monetises it (according to the original rights-holder’s wishes). Because it’s all automatic, there’s no way to account for Fair Use, and can only be appealed after the fact.
It can even have a chilling effect on free speech, with content creators becoming scared to make certain kinds of (legitimate) videos in case they are targeted and automatically banned — losing their audience and livelihood in the question.
“Aiding and abetting criminal activity”
This puts Google in a difficult position — it wants to protect its users from unfair takedown demands, but also needs to have the proper mechanisms in place so it doesn’t fall foul of the law itself.
In November 2015, Google announced it would be offering support to some users targeted by potentially unreasonable DMCA takedowns. “We are offering legal support to a handful of videos that we believe represent clear fair uses which have been subject to DMCA takedowns,” wrote copyright legal director Fred von Lohmann. “With approval of the video creators, we’ll keep the videos live on YouTube in the U.S., feature them in the YouTube Copyright Center as strong examples of fair use, and cover the cost of any copyright lawsuits brought against them.
He added: “We’re doing this because we recognise that creators can be intimidated by the DMCA’s counter notification process, and the potential for litigation that comes with it. “
It’s this stance that has angered Richard Gladstein. He argues that the Fair Use debate is “an extremely useful tool for those looking to distract from or ignore the real copyright infringement issue: piracy.”
He goes on: There is no way that the uploading of entire programs and movies to YouTube and other video hosting sites falls under ‘Fair Use.’ What Google and other search engines are doing when they direct a user to those files is aiding and abetting criminal activity. Their incessant attempts to argue that there is a ‘Fair Use’ problem is meant to deliberately obscure the real and massive problem of tens of millions of illegal downloads of entire songs, albums, movies, and TV shows.”
Google’s balancing act
Google counters that it’s not like it is ignoring the issue of piracy. “We continue to invest heavily in copyright tools for content owners and process takedown notices faster than ever, removing the vast majority of the URLs flagged to us for removal,” a spokesperson told Business Insider in a statement. “In addition, Google’s growing partnerships and distribution deals with the content industry benefit both creators and users, and generate hundreds of millions of dollars for the industry each year.”
Google says that it takes down material flagged up by rightsholders within six hours, on average — faster than any other search engine. It takes down 4 million infringing search results every week it says, which is less than 1% of everything indexed by the social network.
There’s also only so much Google can do. A lot of pirated material — like “The Hateful Eight” is shared between pirates using torrents. These are totally outside of the search giant’s control: The infamous Pirate Bay, for example, is itself a search engine, and has been playing cat-and-mouse with law enforcement for years.
No matter how closely Google polices its own search listings, it can’t stop these sites existing.
Piracy is clearly a serious issue — and one that affects Gladstein personally. But Fair Use and abuse of the copyright takedown process is a serious issue as well. There are millions of content creators on YouTube, and while they might be less professional than the big Hollywood studios, their livelihoods are just as much on the line.
Google has a duty to look after them too.
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