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Facebook and YouTube detailed their anti-piracy measures during a Senate Judiciary Subcommittee on Intellectual Property hearing yesterday. To the frustration of lawmakers, Twitter was noticeably absent. The RIAA had little positive to say about the social media platform either, accusing it of doing nothing to stop "industrial-scale" piracy on its network. At the same time, domain registrars were accused of protecting pirates. The US Senate’s Judiciary Subcommittee on Intellectual Property is looking for better ways to tackle the ever-present threat of online piracy. Specifically, it’s working with various stakeholders to see if the DMCA can be improved to better suit today’s online environment. During a hearing yesterday, Senators received input from various stakeholders on the role of voluntary agreements and existing anti-piracy technologies. YouTube, for example, explained its Content-ID system and Facebook showed how its Rights Manager tool helps copyright holders. Twitter Refused to Attend Twitter was also invited to testify but the company refused to attend. This frustrated lawmakers, including Senator Thom Tillis, who repeatedly asked Twitter to join the discussion. When that didn’t happen Tillis sent a series of written questions, but the “non-answers” the company sent back only appear to have made things worse. The lawmakers are not alone in their critique of Twitter. As expected, they were fully supported by the RIAA, which was present to represent the music industry. RIAA chairman and CEO Mitch Glazier specifically mentioned the social media platform in his opening statement. Glazier argued that the current takedown system is highly ineffective and he used Twitter as an example. Over the past year, the RIAA has tried to keep a single music track off Twitter, but despite thousands of notices, it kept reappearing. “As a result, over a 10-month period, RIAA had to send notices for nearly 9,000 infringements of that same track – let me repeat that. We had to send 9,000 notices over a 10-month period for the same exact track. Unfortunately, we must do this all the time for hundreds of tracks on many different services,” Glazier said. Hiding Behind the Safe Harbor The RIAA would like Twitter and other platforms to keep infringing files offline indefinitely. A so-called takedown and staydown policy. In addition, copyright holders should be allowed to effectively monitor and report infringements. However, companies such as Twitter prefer to do very little and hide behind their safe harbor protection, Glazier said. “They could solve the piracy problem voluntarily tomorrow if they had the will and incentive to do so. Unfortunately, the DMCA safe harbors have been interpreted to apply so broadly that platforms do not have the business incentive to participate in a balanced system.” The Twitter-bashing continued during the questioning round. Senator Mazie Hirono stressed that Twitter hasn’t shown to be a “willing partner” for copyright holders and asked Glazier to elaborate. RIAA’s CEO gladly complied and said that the music industry has sent more than three million notices to Twitter over the past two years, identifying 20,000 works. That’s an average of 150 notices per track, and things aren’t improving. Industrial Scale Piracy “This is piracy on an industrial massive scale. This is not some small problem,” Glazier said. “Unlike Facebook and YouTube, they have done nothing to at least try to build tools, or to help prevent what is by its nature a viral system where piracy can spread literally in microseconds.” The takedown efforts are complicated because the RIAA and its members don’t have an effective system to search Twitter for copyright infringements. The social media platform is willing to offer this, but not for free. “They really don’t offer us the ability to search their universe for infringements. We have asked for it many many times and they want to charge us,” Glazier said. “And then when we send them notices it can take anywhere between four hours and four days to take one thing down while we’ve got millions of pieces spreading at the same time. It’s a huge problem,” he adds. Twitter was not the only company to be called out. Senator Mazie Hirono also asked RIAA’s CEO about the role of domain name registrars, which offer services to pirate sites. Again, Glazier said that this is a huge problem. Domain Registrars Protect Pirates “Domain name registrars and their role in allowing piracy to happen through their systems is a huge problem. Very few domain name registrars are doing very little. Both at the registrar and at the registry level.” Glazier notes that there are voluntary agreements with a select group of domain registrars. However, most simply do nothing. They simply keep pirate domains online. And when copyright holders ask them to help identify bad actors, they refuse to cooperate. “When we go to them and say: ‘help us to find the pirates’ so we can go against them directly, they won’t give the name of the pirate. They hide their identity and help them become anonymous and they say that it’s because of privacy laws. That they need to protect the criminals. Which is ridiculous.” “Privacy laws are meant to protect consumers, they are not meant to protect criminals,” Glazier adds. If Not Voluntary, Then… The RIAA would like the law to make it clear that intermediaries, including domain registrars and registries, have to do more. The same is true for services that host content. The current takedown process simply doesn’t cut it, it’s a sham. While the hearing was supposed to be about voluntary and private agreements to help fight piracy, the threat of stricter regulation may be needed. The RIAA applauded the work of Facebook and YouTube but, reading between the lines, Glazier suggests that Twitter and other companies may need a bigger push from lawmakers to come to the table.

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The European Commission has published another ‘Counterfeit And Piracy Watch List’, which is basically a European version of the longer established notorious markets report in the US that summarises all the digital platforms that are causing the most bother to copyright owners at the moment. From a music industry perspective, the most bothersome platforms are the good old fashioned file-sharing set-ups like The Pirate Bay and those pesky stream-ripping sites like Y2mate and Flvto, all of which get name-checked in the EC’s report. Though the unlicensed download service Music Bazaar is also included, proving that – even though the legit download market has been in steep decline for years – illegal download stores are still getting some business. All that said, more interesting in these reports are the legit internet businesses that get called out for their role in facilitating the copyright infringement of others. These days that usually includes internet services business Cloudflare. However, it no longer appears on the EC’s watch list. Cloudflare is often criticised by the music industry for providing services to piracy platforms and in particular helping said platforms mask their IP addresses, making piracy operators harder to track down. Music companies would also like Cloudflare to pass on contact information about copyright infringers among its customer base, though the net firm resists such calls except when instructed to do so by a court of law. However, when preparing this report, EC officials seem to have been happy with Cloudflare’s responses to its critics. “Cloudflare has reported that making generally available certain sensitive information about host IP addresses would jeopardise the protection of their clients’ websites from threats or cyberattacks”, the report notes. “Cloudflare has also reported”, it adds, “that it takes appropriate steps, through robust abuse reporting system and a ‘trusted reporter’ programme, to ensure that rights-holders have the necessary information to pursue complaints of alleged infringements with the hosting providers and website operators able to act on those complaints”. However, that’s not to say there are no legit platforms on the watch list accused of enabling piracy. There’s a new section for social media and messaging platforms, and both vKontakte and Telegram are listed in it. The former used to top the music industry’s piracy gripe list before it reached a settlement with the major record labels and launched a legit music service that is now a key player in the Russian digital music market. However, the movie industry still has plenty of VK gripes. Meanwhile, music companies have been increasingly critical of Telegram of late, reckoning it doesn’t do enough to remove copyright-infringing material. Confirming that, the boss of the International Federation Of The Phonographic Industry, Frances Moore, specifically mentioned the addition of Telegram to the watch list when welcoming the new EC piracy report. “In addition to the many ways that music benefits our lives culturally and emotionally, it contributes €81.9 billion annually to the EU economy and supports two million jobs. This contribution is jeopardised by the digital platforms identified by the Commission”, she said yesterday. “This year, in addition to identifying several music stream-ripping sites, we are encouraged to see that the report recognises social media platforms as a new category, and that it highlights that companies in this category, such as Telegram, simply must do more to put in place effective measures to prevent large scale copyright infringements on their services”, she added. “We hope that the watch list will raise awareness of these problematic activities and practices and encourage enforcement action and action by intermediaries to prevent misuse of their services. Such steps are vital to protect content for the benefit of our members, artists and their fans”.

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The European Commission has just released a draft of its Digital Services Act, which will dictate how online services deal with potentially illegal content. The proposed legislation prohibits monitoring or filtering obligations. In addition, it improves transparency and allows senders of false takedown notices to be suspended. For roughly two decades, major EU copyright rulings have been founded in the E-Commerce Directive. This legislation defines how online services and platforms should handle potentially infringing content if they don’t want to be held liable. Today, the EU proposed the Digital Services Act (DSA), which is the official successor to the E-Commerce Directive. The new package aims to bring EU legislation into line with the current state of the digital age, which has changed dramatically over the past several years. The official text (pdf) has just been released and needs to be properly analyzed but there are some early broad conclusions that we can draw. Since we mostly cover copyright issues, we will focus on that angle specifically, but the full proposal has a much greater scope. The DSA will have far-reaching consequences and applies to all platforms and services that can be accessed in the EU. The rules and regulations for each company differ based on their size and what type of service they provide. There is a strong focus on notice and takedowns and the European Commission summarizes the impact of the new obligations as follows: “The Digital Services Act significantly improves the mechanisms for the removal of illegal content and for the effective protection of users’ fundamental rights online, including the freedom of speech. “It also creates a stronger public oversight of online platforms, in particular for platforms that reach more than 10% of the EU’s population,” the Commission adds. The removal of illegal content includes, but is not limited to, material that infringes copyright law. While there have been some discussions about including “harmful” content as well, these proposals were rejected. So what is the definition of illegal content? What is Illegal Content? The DSA proposal has a rather broad definition of illegal that may cause controversy. It specifically includes “information relating to illegal content”, as the proposal explains. “In particular, that concept should be understood to refer to information, irrespective of its form, that under the applicable law is either itself illegal […] or that relates to activities that are illegal, such as […] the non-authorized use of copyright protected material…” While we don’t expect writing about copyright infringement to be outlawed, people who create specific in-depth tutorials on how to commit copyright infringement (such as how to pirate movies or music, for example) will likely be impacted. No Monitoring Obligation There are also positive notes in the proposal in respect of Internet freedom. For example, the DSA clearly states that there are no monitoring obligations for online services and platforms. In fact, such obligations remain prohibited, as they were in the E-Commerce Directive. “The new Regulation prohibits general monitoring obligations, as they could disproportionately limit users’ freedom of expression and freedom to receive information and could burden service providers excessively,” the proposal reads. Tackling Abuse Both Sides Regular takedown requests remain an option, as expected. There are no ‘staydown’ requirements, as some rightsholders previously requested. However, online platforms must respond to abuse. This applies to both senders and recipients. The DSA notes that there is a need to act against repeat offenders who continue to submit illegal content. However, the same applies to persons or rightsholders who continue to send unfounded takedown requests. “[T]here is a need to put in place appropriate and proportionate safeguards against such misuse,” the proposal reads, noting that it harms the rights of the parties involved. For this reason, and under the right conditions, these abusers should be suspended. “Under certain conditions, online platforms should temporarily suspend their relevant activities in respect of the person engaged in abusive behavior.” Takedown Transparency The DSA proposal also has a strong focus on transparency. For example, if platforms or services work with “trusted flaggers” who have extra rights to remove content, the public has the right to know who these are. Also, if a hosting provider removes content following a takedown notice, users should be informed on what grounds this action was taken, and how he or she can appeal. The DSA clarifies that this transparency is required in light of “the negative consequences that such decisions may have for the recipient, including as regards the exercise of its fundamental right to freedom of expression.” Going Forward The issues we highlighted here are just a small selection of the broader proposal, which is available in full here. This also includes obligations for the largest platforms to allow audits of their algorithms and policies. During the coming weeks and months, all proposals will be carefully analyzed by various experts and stakeholders. The same is true for the proposal Digital Markets Act, which was also released today. Needless to say, the DSA proposal will ignite yet another battle between various stakeholders. Copyright holders, for example, are likely to ask for stricter measures and obligations, while digital rights groups and online services will argue in favor of the opposite.

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