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Industry Piracy Uncategorized

There will never be a legal ‘celestial jukebox’ to compete with piracy

For more than twenty years and counting, media piracy apologists have repeated some variation of the argument which says, “People are willing to pay for content as long as it is made conveniently available at a fair price.” And while that may sound reasonable in a Tweet or a sound bite, what it actually implies is something quite unreasonable—namely, that the legal streaming paradigm should compete with pirate services by offering most if not all the world’s media fare on one platform at a “low” all-you-can-view price.

Even if that goal is not quite what people think they mean when they repeat the “willing to pay if…” trope, it is the only logical extension of the argument because that would be the only way in which a legal model could possibly mimic a pirate model. But it’s not going to happen. The “Celestial Jukebox” is untenable in a legal framework, especially for filmed entertainment on a global scale.

A single-stream distribution model that would function like one of the pirate subscription services is not economically viable; it would not be achievable without overturning antitrust laws globally; and it would not be desirable because such a monolithic regime would only stifle the diversity of material being produced.

Many viewers perhaps fail to appreciate that we are currently enjoying a golden age in motion picture entertainment. In fact, there has never been a period offering a more diverse range of material for our many screens.

The multi-platform producer/distributor phenomenon enabled by streaming technology obviated the demand to satisfy median viewer tastes where access was limited to a handful of linear, broadcast TV networks. Instead, models like Netflix and Prime have fostered new opportunities to take creative risks in both style and substance, and by contrast, the desire for a single source “jukebox” is culturally regressive because it would render all that experimentation economically untenable. Even if it were legal.

Antitrust laws would prohibit, for instance, the Hollywood studios from collaborating on a single-platform distribution system. And that’s a good thing because, in case anyone hasn’t noticed, network effects in online markets produce monopolies. And it is folly to wish for more consolidation across all media industries.

Shifting the competition paradigm from a network subscription model to one in which each title competes for a share of a combined subscription pool would lead to greater reliance on data by the largest entities to the detriment of smaller producers.

This is not to ignore or underestimate the existing power of the major producers (including Netflix and Prime) relative to independent creators, but a shift toward distribution consolidation and greater reliance on data processing would only amplify those disparities.

In 2018, indie music distributor John Svanberg wrote the following about data-driven perspectives in the Spotify model: “With tireless data mining, the streaming services and major labels become more risk averse. The major labels use streams and social media clout as hard currency in their scouting process in order to make as safe bets as possible, which arguably leads to more innovative music being overlooked due to its out-of-comfort-zone nature.”

Yet, paradoxically, some consumers and pundits suggest that content and network diversity itself is a reason to choose piracy as an alternative. As Michael Beausoleil wrote in a February 2021 blog describing consumer trends:

Too many options leads to frustration. Too much frustration leads to piracy. Yes, the number of streaming options is allowing piracy to gain in popularity. A recent study found that 70% of people believe there are too many streaming options and over 85% feel streaming is getting too expensive. Stealing content certainly isn’t too expensive, unless you get hit with a hefty fine.

Beausoleil does not advocate piracy per se, and his portrayal of consumer frustration, often referred to as “subscription fatigue,” does hit a nerve. I have several subscriptions myself and not nearly enough time to watch everything of potential interest. So, why not get one of those cheap TV boxes, download an app, and pay a lower monthly subscription fee to a pirate operation? I could access all the programming I currently get, plus quite a bit more, while paying less every year.

So, why not do it? For me, the answers to that question are myriad—even without the risk of fines—but it is clear that piracy is still perceived by millions of consumers around the world as a harmless option.

To date, studies indicate that many viewers are not deterred from piracy by the fact that they have a 30% chance of infecting their networks with malware. Neither are they put off by the consideration that media piracy supports an array of other criminal enterprises including identity theft, privacy invasions, and even acts of terrorism. And few consumers have ever been persuaded by evidence that piracy really does cause financial harm to many creators of works.

Further, it is notable that even though legal music streaming comes close to providing an all-in-one “jukebox” experience, these services have not yielded a consistent reduction in pirate habits among consumers.

Rolling Stone reported that during the COVID-19 shutdowns, there was a spike in “old school” download piracy of music, and Music Business Worldwide reported that in pre-COVID years between 2016 and 2019, the UK saw stream ripping of music increase by 1390%.

So, whatever rationales explain the ebb and flow of traffic to pirate alternatives, it seems clear that the existence of the “jukebox” itself is not sufficient to maintain constant ebb.

Understandably, when the consumer views streaming technology in isolation, the idea of a single platform seems attainable. The legal producer/distributors could, as a purely technical matter, approximate what the pirates are doing. But even if the financial model could sustain anything close to the spectrum of material we currently have available, a pirate model could never be replicated in a free market—let alone among competing markets worldwide—without extraordinary levels of regulatory overreach.

A subscription-based pirate streaming app accesses stolen material which is stored on servers operating illegally around the world, and it distributes that content without paying fees to any producers of the work.[1]

Thus, to imitate pirate-like access in a system that actually pays the people who make movies and TV shows would require sweeping government mandates and international agreements that overturn a constellation of legal regimes, including abrogating antitrust laws, for the sole purpose of bringing all motion picture distribution into a monolithic, worldwide streaming system.

Even if that were to happen (and it will not), there is no reason to assume that such a radical approach would provide viewers with a better experience offering the same scope and quality of programming that is available today. On the contrary, homogenized, state-regulated models tend to produce homogenized, state-regulated products. And still, piracy would persist because the pirate who pays zero for the content it distributes can still turn a profit, even if the new “jukebox” were to cut into some margin of its market share.

In terms of overall convenience, interfaces like Prime and AppleTV come pretty close to providing a single source experience because they enable search across all titles on all the networks available through those portals. In that vein, we may see new bundling options offered through ISPs et al in coming years, but it is unrealistic to expect that we will eventually pay one fee into a single, legal, worldwide streaming service.

So, if the consumers currently pirating are waiting for the Celestial Jukebox before they are willing to abandon piracy, then it is fair to say that those consumers are not going to abandon piracy. As such, efforts to mitigate piracy through law enforcement should come as no surprise to anyone.

This article was originally published on Content Café.

Categories
Copyright Industry Intellectual Property Media Piracy

IPRMENTLAW WEEKLY HIGHLIGHTS (September 21st to September 26th)

Twitter appoints personnel in compliance of with new IT Rules

Twitter has appointed Chief Compliance Officer, Nodal Contact Person and Resident Grievance Officer in compliance of IT Rules, 2021. Twitter has appointed these individuals as employees and not ‘contingent workers’ and has also provided names of the said appointed personnel and their respective positions.

This development comes in a petition filed by Amit Acharya stating that Twitter being a ‘significant social media intermediary’ as laid down under the IT Rules, 2021, must ensure compliance with statutory duties imposed upon it by the provision of these rules.

The matter is now fixed for hearing on October 5, 2021.

Bengaluru e-gaming companies plan to challenge ban decision

An amendment to the Karnataka Police Act shall outlaw online gambling and ‘games of chance’. The key concern of various governments with regards to gaming comes through the apprehension that it promotes gambling, however, in the past, there have been judgements that approve ‘skill based gaming’ against ‘chance based games’.

The ban will affect approximately 100 gaming companies operating from Bengaluru.

ASCI dismisses advertisement plagiarism complaint by Amul

A complaint was lodged by Amul Macho alleging that the Lux Cozi advertisement starring Varun Dhawan was a ‘complete copy’ of Amul’s advertisement released in 2007. Amul sought immediate action against Lux on the grounds that the advertisement unfairly took advantage of the brand equity, reputation and goodwill generated by Amul Macho brand.

In response, Lux contended that the complaint seemed to have been initiated with an intention to malign Lux’s reputation in the eyes of public and waste the time of the Consumer Complaints Council (CCC), adjudicatory body of the ASCI. It also pointed out a list of dissimilarities to show how the concept, theme and expression of both advertisements were in complete contrast to each other and hence, there can be no scope of similarity whatsoever.

Lux also informed the CCC that Amul’s advertisement had been a subject of controversy soon after it was released in 2007 on account of its “objectionable and indecent content”, and was banned by the Ministry of Information & Broadcast across all mediums.

Observing that both advertisements barely had any similarities between them, the CCC held that Lux’s advertisement was not in contravention of the ASCI code and rejected Amul’s complaint.

Google moves Delhi High Court against confidential report leak

A writ petition was filed by Google before the Delhi High Court alleging leak of an interim fact finding report relating to an ongoing investigation into Google’s Android smartphone agreements.

The report does not reflect the final decision of the CCI.

Marvel sues to keep rights to Avengers character from copyright termination

Under the termination provisions of copyright law, authors or their heirs can reclaim rights once granted to publishers after waiting a statutory set period of time.

The litigation figures to focus on the “Marvel Method,” a loose collaborative working atmosphere where initial ideas were briefly discussed with artists responsible for taking care of the details. The Marvel Method has been the subject of prior litigation, almost a decade ago, in August 2013, the 2nd Circuit Court of Appeals affirmed a lower court’s ruling that determined Kirby’s heirs couldn’t wrest back his share of rights to the characters because the former Marvel freelancer had contributed his materials as a work made for hire.

The Kirby case was then petitioned up to the Supreme Court, with the late Ruth Bader Ginsburg signaling some interest in taking up the case. Marvel at the time fought hard against any high court review, and before the justices decided, the case was settled.

If the plaintiffs win, Disney expects to at least hold on to at least a share of character rights as co-owners. The studio would have to share profits with the others. Additionally, the termination provisions of copyright law only apply in the United States, allowing Disney to continue to control and profit from foreign exploitation.

Criminal complaint filed against Javed Akhtar

The complaint is against Javed Akhtar’s statement linking RSS to Taliban. Joshi, the Mumbai lawyer, heard Akhtar on a talk show and felt that the alleged statement were meant to defame and vilify the Hindu community.

Joshi’s statement read, “Statements made by the accused is well planned, thought and calculated defamatory statements to defame RSS and discourage, disparage and misguide the people who have joined RSS or who would like to join the RSS and belittle the RSS in the eyes of common public. There was a well planned motive of the accused to defame RSS.”

Joshi has even prayed for investigation for offences of defamation which are punishable under the IPC Sections 499 and 500. The complaint will be heard on October 30.

Plagiarism claim against song titled ‘Teri Mitti’

Writer Manoj Muntashir has refuted all allegations of him having copied the Teri Mitti song from ‘Kesari’ from a Pakistani song.

Muntashir claims that issues have cropped up against him due to a video made by him on the Mughals where he has used strong words against them, referring to them as glorified dacoits.

Plea moved in Delhi High Court seeking withholding of ‘The Conversion’ release

The Petitioner body has submitted that it had sent a representation to the Ministry of Information and Broadcasting and also to YouTube complaining about the biased and communal content shown in the trailer of the film and had also requested to remove the trailer and withhold the release of the of the film, but it didn’t receive any response.

The matter was heard today by a Bench of Chief Justice DN Patel and Justice Jyoti Singh however, it was adjourned as the counsel for Petitioner, appearing through video conference, was inaudible.

The Court has now adjourned the matter for hearing on October 1, 2021.

De Minimis Defense Doesn’t Protect Minimal Use of Concededly Infringing Material

Richard Bell took a photo of the Indianapolis skyline and published it on various websites. Eleven years later, he registered the photo with the US Copyright Office. Bell later conducted an online reverse image search of his photo to identify potential infringers and subsequently filed more than 100 copyright infringement lawsuits.

Bell sued Wilmott for copyright infringement in 2018, asserting that Wilmott infringed his right to “display the copyrighted work publicly” by making it accessible to the public on Wilmott’s server. The district court granted summary judgment to Wilmott on the de minimis use defense.

The Ninth Circuit rejected the district court’s finding that Wilmott’s infringement was a “technical violation” because Wilmott did not know the photo was still on its website. The Ninth Circuit also found that there was no place for an inquiry into whether there was de minimis copying because the “degree of copying” was total since the infringing work was an identical copy of the copyrighted photo.

This article was originally published on IPRMENTLAW.

Categories
Piracy

Piracy likened to shooting “fish in a barrel” during the pandemic

Consumers, small businesses and corporations have become more vulnerable to hackers and cyber-pirates during the pandemic, according to Tom Galvin, CEO of Digital Citizens Alliance (DCA),  a consumer-focused group dedicated to raising awareness among the public and policymakers about how to make the Internet safer.

In the Podcast Interview  The Multi-Billion-Dollar Piracy Industry with copyright advocate The Illusion of More’s David Newhoff, Galvin said: “Piracy has long been viewed as an annoyance or a conflict between creators and pirates. But when you get a  criminal enterprise as large as piracy, you get a lot of side effects including malware, click fraud and harm to brands.

“It’s become a much more significant issue during the pandemic with a lot of people and companies working from home. It’s become a bit of [shooting] fish in a barrel for hackers and pirates to be able to target them,” Galvin said. “It even goes so far as click fraud and a previous case we saw where piracy ended up circumventing  a ban on terrorist channels being able to broadcast in the United States via piracy channels.”

Newhoff and Galvin analysed the report Breaking (B)ads: How Advertiser-Supported Piracy Helps Fuel a Booming Multi-Billion Dollar Illegal Market commissioned by the DCA and White Bullet, which estimates the combined advertising and subscription revenue generated by piracy is at least $US2.34 billion annually.

Listen to the podcast here.

This article was originally published on Content Café.

Categories
Industry Piracy

Global sports industry urged to act in concert to defeat growing digital piracy threat

The Olympic motto of “Faster, Higher, Stronger” was introduced by the games founder, Pierre de Coubertin, in 1894 to define excellence in sport. In advance of Tokyo 2020, International Olympic Committee (IOC) members unanimously approved amending the Olympic Charter and changing the motto to “Faster, Higher, Stronger, Together”; also expressed in Latin as “Citius, Altius, Fortius, Communiter”. IOC president Thomas Bach explained the changes: “We can only go faster, we can only aim higher, we can only become stronger by standing together”.

Another pronouncement made by the IOC prior to the Olympics opening ceremony was about the impact of digital piracy on its multi-billion-dollar broadcasting rights revenue stream. Revenue from IOC broadcasting rights is essential for the continued funding of Olympics sports bodies and athletes worldwide.

In today’s digital world, entertainment is at our fingertips, from movies and TV shows to video games and live sports events. However, with the global availability of such premium entertainment we are also seeing digital piracy becoming a true competitor of legitimate services. It is not a competitor that complies with the Olympic value of ‘fair play’.

The use of piracy sites to view live sporting and pay-per-view events is threatening the profitability and sustainability of live event programming. There is plenty of data to support the concern about the impact of piracy:

  • A Synamedia and Ampere Analysis report this year estimated that sports piracy costs rights-holders and streaming services an estimated $28.3bn per year;
  • A Nagra and Digital Citizens Alliance study last year found that an estimated 9 million households in the US subscribe to illegal streaming services.

There are other problems with content piracy too, of course. The pirate sites fund crime groups, are unreliable, and put consumers at risk of malware infection. A study published by cybersecurity firm Webroot this year found that 90 per cent of sports piracy websites contained scams and malware.

What can be done to tackle sports content piracy?

From a government standpoint, existing laws and regulations need to be adapted to specifically address the short-term value of live sports events. Measures must be put in place to ensure the immediate removal of illegal content, in line with effective safeguards.

From an industry standpoint, collaboration is the key. We must assimilate the new Olympic motto and become stronger by standing together.

Collaboration is a key strategy in the fight against digital piracy and one that is finally being recognised by rights-holders and other stakeholders. Sports entities still tend to work individually or with their rights licensees. It is only in the last five or six years that rights-holders and industry associations have begun communicating and sharing information with each other on the problem. And it is only in the last few years that some are working together on joint criminal and civil cases, and recognising the need for economies of scale.

An ideal approach would provide collective protection for the global sports industry – parties involved would benefit from the economies of scale that come with the avoidance of duplicative efforts.

This is where an industry group like the Alliance for Creativity and Entertainment (ACE), which I recently joined, comes in. ACE can provide a coordinated and collaborative approach to addressing piracy, with targeted enforcement that marshals decades of relationships with law enforcement agencies around the world. ACE is the world’s leading coalition dedicated to reducing digital piracy and protecting the legal marketplace for creative content, including sports events.

ACE and its growing global membership of sports bodies, entertainment companies, broadcasters and distributors, is currently tracking more than 200 illegal free-to-consumer websites that have sports content, many of which are dedicated solely to sports. Combined, these websites in a single month generate more than 250 million visits. The top 50 sites alone generate around 175 million visits per month.

ACE’s is not just focused on taking illicit links and live streams down. It is also focused on investigative and enforcement efforts targeting the sources of illegal content, in order to take them down completely and permanently.

Research shows that when sports piracy sites are taken offline or made less attractive, consumers migrate back to legal services.

In 2018, ACE identified more than 1,400 illegal streaming services. It worked with law enforcement agencies and undertook civil actions to close down about one third of these illegal services.

In 2019, ACE achieved a number of significant wins through legal and enforcement action, which included taking down Openload and Streamango, two giant sources of illegal content. These two illicit services operated more than 1,000 servers in Romania, France, and Germany, and generated more traffic than many international sources of legal content.

This year has seen continuing enforcement action, including partnering with the Premier League and LaLiga, and working closely with Europol and the Spanish Police, to arrest the operators behind the Mobdro application. This was a major sports piracy streaming network that had over 100 million application downloads and had generated profits in excess of €5m.

Sports piracy will continue to play on an uneven playing field, where rules are ignored and adjudicators are in short supply.  But we can still compete and win by standing together: “Citius, Altius, Fortius, Communiter”.

This article was originally published on Sports Business.

Categories
Blog Industry Piracy

Much ado about nothing: have concerns over site blocking materialised?

Having worked as both a filmmaker and a copyright lawyer, the issue of online piracy is one that is close to my heart. The copyright protection of an artist’s work is essential, firstly, to making a living but, secondly, to enable the funding of new works. Simply, it is a way of recognising an artist’s work.

Australia, however, is commonly identified as a country with high levels of online piracy. Incredibly, for example, when Season 5 of Game of Thrones was released in Australia, despite the season premiere being available on Foxtel, 32% of all Australians who watched it downloaded it illegally.

For all the internet’s wonders and the freedom to access information, and although some may see it as lawless, the internet is not a digital equivalent of Deadwood. The law of copyright applies to the internet in the same way as it would to any other setting where we get our films, TV shows and music.

Not only are individual internet users affected by copyright law, so too are intermediaries. An ‘intermediary’ is a service that stands between an internet-user and an online work and, without whom, a transmission such a download may not happen. Well-known intermediaries include carriage services providers (sometimes referred to as ISPs) such as Telstra, and search engine providers such as Google.

Given the role that intermediaries play in the downloading or streaming of audio-visual works, the Australian Government, as a means of reducing piracy, introduced a ‘no fault’ website-blocking regime in 2015. The scheme enables the Court, upon an application by a copyright owner, to make orders against ISPs and search engines (without any finding of liability) requiring them to block access to overseas websites that have the primary purpose or effect of facilitating online copyright infringement. Other countries such as the United Kingdom and Singapore have successfully introduced similar no-fault schemes.

At the time the scheme was proposed (and again when there was a proposal to amend it) it was subject to significant criticism that it would amount to a form of censorship and a restriction on the freedom to access information, particularly in relation to sites which host both legitimate and infringing material such as Pinterest and YouTube.

With the above in mind, I researched and wrote a paper titled The Inevitable Actors: an Analysis of Australia’s Recent Anti-Piracy Website Blocking Laws, their Balancing of Rights and Overall Effectiveness, published in the latest edition of the Australian Intellectual Property Journal (AIPJ).  The paper examines the Australian scheme in detail (including cases where blocking orders have been made) and concludes that the criticisms of the regime are unfounded.

Rather, Australia’s site-blocking regime has not curtailed freedom of speech or the right to access information, and it is unlikely to.

This is borne out in a number of ways including, firstly, the types of sites that have been targets of blocking orders which, without exception, have all facilitated large-scale copyright infringement with little or no evidence of legitimate material also being available. And secondly, where competing interests have arisen, these have been considered in light of a list of discretionary factors to be taken into account by the Court (as set out in the Copyright Act). These include, for example, the impact of any person likely to be affected by the orders, whether they are in the ‘public interest’, and whether they are ‘proportionate’ in the circumstances.

Importantly, the paper concludes that the regime is effective in helping to reduce online piracy and, further, that there is room for it to be expanded to include other intermediaries that are inevitable actors in the streaming or downloading process.

These include, for example, Alternative DNS providers such as Google DNS and reverse proxy services such as Cloudflare. These services sit between a user and an audio-visual work and can make a copyright infringing transmission possible. Certain website operators, for example, use Reverse Proxy services to hide their true internet address, whilst Alternative DNS services simply allow internet users to circumvent DNS based blocking orders. Given Australia’s high levels of piracy, it will come as no surprise that Australians are also prevalent users of Alternative DNS services.

The Australian Government has signalled that it intends to conduct a further review of its site-blocking regime, during which, it is hoped that the Government considers whether there is in fact room to expand the regime.

This article was originally published on Content Cafe.

Categories
Industry Piracy

Surprise! Canadians Like to Pirate NHL Games–But Dynamic Site Blocking Orders May Soon Put a Stop to the Free Rides

Following the dismissal in May of the appeal against Canada’s first site blocking order (the GoldTV case) by the Federal Court, much to the chagrin of the one lone ISP (TekSavvy) that opposed the court’s order, Bell Media, Rogers Communications and other broadcasters have applied for a dynamic site blocking order to protect their broadcast rights for National Hockey League (NHL) games in Canada. What could be more Canadian than the pirating of hockey broadcasts, eh? It’s like Spaniards pirating broadcasts of bull fights. In neither case is it justified but it reflects how “pirate priorities” reflect the national psyche.

The “dynamic injunction” requested is not targeted at a specific site or streaming service. Instead, its goal is to block the unauthorized broadcast of NHL games, no matter the source. This is similar to injunctions issued in the UK to block infringing streaming of English Premier League (soccer) games. Because of the dynamic nature of piracy where the pirates duck and weave to avoid detection by shifting IP addresses regularly, sometimes even during a game, the response also has to be dynamic. The injunctions, if granted, will require Canadian ISPs to block a list of IP addresses being updated in real time.

The story of the fight for the broadcast rights for ice hockey in Canada goes back a few years. Back in 2014 Rogers shook up the world of sports broadcasting by offering $5.2 billion to win TV broadcast rights for NHL hockey in Canada for a twelve year period, 2014-2026, taking the franchise away from the government broadcaster CBC which had held the television rights for 55 years, and the radio rights for many years before that. “Hockey Night in Canada” (Saturday night) is the country’s most popular TV broadcast with at times up to 18 million viewers, half the national population.

To say that Canadians like hockey is like saying that bears like honey (or Russians like vodka). Hockey is engrained in the national psyche and has become a defining national characteristic, like poutine and the Tim Horton’s “double double”; aka double cream; double sugar. (These two delicacies make me wonder how Canada has been able to achieve life expectancy rates of 80 years for men and 84 for women). The comparable rates in the US are 76 and 81 years.

In Canada, it is irrelevant whether you are a hockey fan or not as you will still need to respond to the inevitable question, “Whadjya think of the game last night?” The correct response is not “what game?” but “yeah, close eh?” (hoping it was, in fact, close) or maybe “yeah, that was quite a fight” (knowing there is always a fight). You have to participate in the national conversation whether or not you know or care who was playing whom. Although most Canadians live in large cities, the national myth still exists of kids skating on outdoor rinks in minus 30 degree (Celsius) weather in northern Saskatchewan or Quebec. Author Roch Carrier’s famous story of “The Hockey Sweater” about a young boy in Quebec whose hero is Maurice “Rocket” Richard of the Montreal Canadiens, and who is shunned by his playmates because his mother inadvertently orders the wrong hockey jersey from the Eaton’s catalogue (yes, he was sent a detested blue jersey from the Toronto Maple Leafs), captures the depth of feeling about hockey in Canada. Mind you, that was all back in the day when there were just six teams, of which two were in Canada. Now the NHL has 31 teams, soon to be 32, with seven teams in Canada. It used to be so simple when it was just the Maple Leafs (English Canada) versus the Canadiens (French Canada), and teams from Florida didn’t win the Stanley Cup.

All this hockey action (each NHL team normally plays 82 games) generates a lot of viewing time, all of which is expensive for broadcasters (and advertisers). Since acquiring the NHL rights for Canada (at twice what NBC paid for the US rights), Rogers has licensed broadcasting and streaming rights to other broadcasters, including Groupe TVA in Quebec, Bell Media and even the CBC, in order to recoup some of its investment. It also broadcasts the games on its own Sportsnet cable channel. Given the role that it plays in Canada’s image of itself, ice hockey is the “killer app” for broadcasters, the content that you have to have in order to sell advertising. The fact that so much money has been laid out for the rights (and for licensing fees for those getting the content from Rogers) helps explain the determination of the rights-holders to plug the holes in the system caused by piracy. The request for the blocking order cites losses of between 583,000 and 974,000 subscribers, according to Torrent Freak.

Those opposed to any form of site blocking such as Teksavvy, the self-appointed defender of “internet freedoms” among the ISPs, along with groups such as the Canadian Internet Policy & Public Interest Clinic (CIPPIC) at the University of Ottawa, who seem unable to differentiate court-ordered, targeted site blocking of pirate sites from “internet censorship”, will continue to push back. Teksavvy opposed Canada’s initial site blocking order granted by the Federal Court (GoldTV), then appealed the court’s decision after the order was granted and is now criticizing that decision as opening the “floodgates” to site blocking injunctions.

I guess you could say that from one perspective, they are correct. From one blocking order we now have two, a 100 percent increase. If further orders are granted that impressive percentage increase will drop. In fact, if the blocking orders succeed in curbing piracy there may be less need to seek them. And if there are a few more, it will be because they are needed to protect the rights of those who invest in content and who, by extension, bring that content to consumers. It may be that eventually the issue of site blocking in Canada will become one more routine measure against piracy, as it is in Australia, where it has proven to be very effective in interrupting access to pirate feeds and thus encouraging viewers to get their content legitimately.

Whatever happens, hockey is not likely to lose its place as the king of content in Canada. The quality of the game is dependent on an entire eco-system, from training and recruitment of junior players through the progressive steps to becoming an NHL player, to maintaining the operation of the league itself. That eco-system has to be funded. And where do the funds come from? Consumers of course, in the form of ticket prices (already exorbitant) and broadcasters, funded by advertisers. The pirating of content undermines this eco-system on which hockey fans depend, so in the end, avoiding payment for access to the game is self-defeating. As I have commented elsewhere, sports fans are only cheating themselves when they stream pirated content. In some countries, a share of broadcast revenues go directly to sports clubs that develop young talent, so starving the development process is like eating your own seed grain.

Today, more than 40 countries have some form of piracy site blocking and the more this measure is used, the less controversial it will become. The EU is also looking at measures to speed up the take down process for sports events. Canadian courts have recognized site blocking as a proportional measure to protect copyrighted content—even when that content involves putting the puck into the net.

This article was originally published on Hugh Stephens Blog.

Categories
Piracy

Criminals reap US$1.34 billion in advertising annually from illegal entertainment websites and apps

Online criminals who offer stolen movies, TV shows, games, and live events through websites and apps are reaping $1.34 billion in annual advertising revenues – including from some of the most iconic global companies, according to new research from the Digital Citizens Alliance and White Bullet.

The report – Breaking (B)ads: How Advertiser-Supported Piracy Helps Fuel a Booming Multi-Billion Dollar Illegal Market – details a year-long investigation into how brands and advertising intermediaries help support the operators of illegal piracy websites and apps through the placement of ads. Amazon, Facebook, and Google are among the most prominent companies found to fund piracy operators, even as these criminals offer risky advertising that exposes consumers to fraud and malware.

The combination of piracy, malware, and fraud poses significant risks to Internet safety. Consumers that say they visit pirate websites and apps are two- to three-times more likely to report an issue with malware than those that don’t visit these illicit websites and apps, according to a new research survey.

“For too long, online piracy has been treated as a nuisance and not the multi-billion dollar industry that baits consumers to expose them to fraud and malware, hurts the reputation of brands and the overall advertising ecosystem, harms creators, and poses new challenges for law enforcement,” said Tom Galvin, executive director of Digital Citizens. “It is time for Fortune 100 companies and the legitimate advertising industry to stop funneling tens of millions of dollars to criminals.”

The research found that ads for Amazon, Facebook, and Google accounted for 73 percent of all major brands advertising that appeared frequently on piracy apps during the year investigation. However, there is a recent significant decline in Amazon ads showing up on piracy websites and apps. This demonstrates that the issue can be addressed when a brand makes it a priority.

“This report confirms the simple fact that digital advertising funds piracy,” said Peter Szyszko, founder and CEO of White Bullet. “Despite the alarming scale of the problem, today we are fully armed with AI technologies that can both track illegal activity and advance solutions. That underlying data is the evidence needed to drive action and change. We have already stopped millions in ad spend from funding piracy, reducing the profit of Intellectual Property crime, but clearly more has to be done. By connecting rights owners and the advertising industry with real-time data about piracy risk, all parties can take action.”

The report details a lucrative and broad illicit ad-supported piracy industry that also poses malware and fraud risks to consumers, businesses and organizations: –  as well as the major brands themselves:

  • The top websites that offer stolen content generate $1.08 billion in global annual ad revenue. For the major players, it’s big business: the investigation found that the top five of these websites made an average of $18.3 million in revenue from advertising. Many of these websites are in a constant state of churn, meaning they are changing domains and redirecting to avoid enforcement and bypass advertising blocklists.
  • The top apps that offer stolen content generate $259 million in global annual ad revenue. Just as with websites, piracy apps and advertising can be quite lucrative: the top five of these apps made an average of $27.6 million in ad revenue. These apps remain a smaller piece of the piracy pie than websites, but they are growing at a more rapid pace.
  • The brands that place the most digital ads overall, which include many of the Fortune 500 companies (“Major Brands”), are among the key revenue sources for pirate operators. Due in large part to the proliferation of advertising on piracy apps, these Major Brands paid pirate operators roughly $100 million in the last year to advertise on their platforms. One in four ads on piracy apps is from well-known companies.
  • The risks that piracy websites and apps pose to Internet users, businesses and organizations was reinforced by the research. White Bullet reviewed 664 billion ad impressions and found that roughly one in three piracy websites and apps have risky advertising that exposes consumers to fraud and malware.
  • A follow-up research survey also reveals that recognizable companies face reputational risks with piracy. Two out of five Americans reported that they think less of these companies when they see brand advertising appear on piracy websites and apps, according to a July survey of 2,126 respondents.  The research also found that Internet users reported that brand advertising make pirate websites and apps seem more credible. The survey was conducted 7/28-7/29, 2021.

The full report can be found at here.

This article was originally published on Digital Citizens Alliance.

Categories
Blog Piracy

Tackling the growing sports piracy problem prompts call for faster take down regimes

Tackling the Growing Sports Piracy Problem Prompts Call for Faster Take Down Regimes

Two clocks are ticking. A shot clock measures the immediate need for sports broadcasters to adopt more rapid take down/blocking responses to illegal streaming of their events.* Meanwhile, the game clock measures a need to more holistically mitigate the growing sports piracy trend before the market comprises only Millennials and GenXers who are, not surprisingly, more piracy-prone than their parents and grandparents.  

According to a report published by Synamedia, only 16% of international fans polled engage in zero illegal access of sports broadcasts, and as usual, piracy rationales and habits vary according to region and age. Consistent with other piracy studies, Synamedia’s data reveal that most fans mix legal and illegal viewing, often for obvious reasons like inaccessibility due to regional licensing.  

As long as there is a desire to watch an event that is unavailable in a given location, and a technology exists to circumvent the legal routes, broadcast piracy may never be fully eliminated. But at the moment, piracy of sports is increasing, thanks largely to the technology known as Internet Protocol Television (IPTV).

IPTV is accessed via software that looks like a legitimate streaming interface (e.g. Netflix), but which is in fact sourcing both live and recorded material from networks of pirate servers located around the world. So, a viewer in the EU paying perhaps €8 to €12 per month for an illegal IPTV service can watch a hijacked, live broadcast of a sporting event, bypassing subscription to either the licensed broadcasters or the Pay-Per-View fees charged for certain events like major boxing matches. As DigitalTV Europe reported in mid-June, Italian authorities recently shut down 600 pirate football sites and intends to fine end-users who illegally streamed the games €1.032 each.  

Sporting events are typically not a subject of copyright protection, but teams and organizations retain the exclusive right to license the broadcasts of their events. In some countries, the broadcasts (or at least the recordings of same) are protected by copyright, but regardless of the distinctions in regional copyright laws, broadcast licensing of sporting events is integral to the economic ecosystem for any nation with a professional sports industry.   

As with any harm to a system, there is always a tipping point at which the harm will begin to cannibalize sustainability. Usually, we cannot know precisely where that tipping point lies, and the harm being done is often conveniently invisible to those causing it. Much like the piracy of motion pictures, sports fans see well-paid star athletes, coaches, and reporters on the screen and often assume that professional sports broadcasting can afford their intermittent use of pirate access.  

But perhaps less visible to the pirating fan is that, for instance, in markets like Europe and Australia, revenues from sports broadcasts directly support the athletic clubs that develop young talent. As such, unchecked piracy could ultimately damage sport itself.  

Today’s 20-year-old fans could theoretically engage in enough piracy to shrink the variety and quality of the sporting events they’ll get to watch by the time they’re 40-year-old fans.  This symbiosis between the incubator athletic clubs and professional broadcast revenues is just one of several points highlighted in a resolution addressing sports piracy that was introduced by the European Parliament in May.  

Emphasizing the value of professional sports and sports broadcasting beyond the economic contribution of 2,12% of Union GDP, the resolution states, “…sport plays a key role in the social, cultural and economic prosperity of the Union and promotes common values of solidarity, diversity and social inclusion….” More specifically, the EU resolution recognizes the fact thatpiracy of a sporting event is different from piracy of other material. Unlike a motion picture—or even a music concert—the value of a sports broadcast is concentrated in the fans’ eagerness to see the event live. Or as the EU resolution states:  

… whereas, unlike other sectors, most of the value of a sports event broadcast lies in the fact that it is live and most of that value is lost when the event ends; whereas illegal streaming of sports event broadcasts is at its most harmful in the first thirty minutes of its appearance online; whereas, consequently and only in this context, an immediate reaction is needed to put an end to the illegal transmission online of sports events 

Immediate reaction is exactly what is being proposed due to the fact that existing injunctive and take down procedures are too sluggish to have any meaningful effect on the piracy of sports broadcasts. “Real-time take down should be the objective,” the resolution states, proposing a system whereby “certified trusted flaggers” would be able to notify online intermediaries of illegal live streams early enough that they can be removed almost instantly, ideally within the first thirty minutes of the broadcast.  

At the same time, the resolution emphasizes the importance of distinguishing between illegal streams of whole broadcasts from streams of short segments used by fans and news media for purposes generally protected under copyright law. 

So far, it does not look as though the usual anti-copyright suspects have denounced the EU proposal, but if past is prologue, somebody probably will. Removing illegal streams as rapidly as the May resolution recommends would signal a major leap forward in the take down/disabling paradigm; and if the remedies are successful, we can probably expect other rightsholders to use the same systems and technologies to more efficiently combat piracy of their material. Hence, the EU resolution could mark a very significant development in combatting media piracy overall.  

The shift from download-based illegal distribution to streaming via technologies like IPTV has been advantageous for pirates in several ways, not the least of which is the ability to promote illegal streaming though easy-to-use interfaces that look and function just like legitimate streaming networks. Consequently, if the sports broadcasters prove to be the vanguard in effectively disabling illegal streams in real-time, this could be a substantial blow to many pirates’ ability to earn revenue because they have a shot clock, too.  

In the piracy game, making money often depends on the interval between providing illegal access and that access being blocked or removed. By tightening up the defense and closing that window of opportunity, the profit potential for the pirate decreases, which should result in fewer pirates wanting to play the game in the first place.  

*Shot clocks are used in a few sports and games, but most prominently in basketball. Upon taking possession of the ball, a team has 24 seconds to attempt a shot before automatically losing possession. 

This article was originally published on Content Café.

Categories
Copyright Industry Piracy

Insights from Industry Insiders: Eileen Camilleri

Each month we hear from industry insiders in Australia and abroad to get their take on content piracy. Is content protection improving? How do we stop piracy? How does Australia compare to the rest of the world? These are some of the questions we’ll be exploring with leaders across the content industry.

Eileen is the Chief Executive Officer of the Australian Copyright Council. After practising intellectual property law, Eileen moved in-house to APRA AMCOS. She has since taught and consulted in intellectual property, most recently at the College of Law where she spent 20 years writing, lecturing and working on course design. She was the Assistant Director of Practitioner Education, running the College’s Masters program. A former occasional legal officer at the ACC, Eileen is also a professional actor with a Masters in Fine Arts (QUT). 

Welcome Eileen, please introduce yourself.

Hi. I am Eileen Camilleri and am the CEO of the Australian Copyright Council (the ACC). We are a small, independent, not-for-profit, non-government organisation dedicated to promoting understanding of copyright law and its application. We currently have 26 affiliate members who we work hard for in advocating for appropriate copyright protection and reform.  

We provide free written legal advice to members of our affiliate organisations and Australian creators on copyright related issues. We also conduct training including seminars, webinars and develop customised training for organisations.  

On the Resources section of our website, we have a large range of free copyright fact sheets available and copyright publications 

Does piracy affect your business or that of your stakeholders? How? 

Piracy affects our affiliate members, particularly collecting societies whose role it is to support creators to earn a living through their work. We also advise individual creators on instances of piracy and online infringement through our legal advice service.  

What do you think is the most significant impact of piracy on the creative industry? 

 The biggest impact unfortunately, is a financial one. It is already difficult for creatives to earn a living through their work and piracy makes it that much harder. Less money flowing to creatives means less resources and opportunity for cultural goods which is a net loss to society as a whole.  

It is of course, very difficult for individual creators and small businesses in particular, who don’t necessarily have the means to litigate when their rights have been infringed.  

What is the biggest challenge in the fight against piracy? 

 The biggest challenge in the fight against piracy is enforcement. The internet presents many challenges in this space, such as the anonymity of pirates and infringers, ever changing technology and the massive size of the world wide web. This means that piracy enforcement is often a ‘whack-a-mole’ exercise.  

How do you think Australia is measuring up in tackling piracy? 

In 2018, amendments were made to the Copyright Act 1968 (Cth) which allow copyright owners to apply to the courts for an injunction requiring search engines and internet service providers (ISPs) to block access to sites which facilitate online copyright infringements. These reforms have been and Kickass Torrents 

Further, the recent shift to easily accessible and affordable online streaming models from rights holders has reduced online piracy by allowing consumers convenient access to copyright material, but it is a continuous battle!  

Do you have any personal experiences or anecdotes about piracy? 

 Only that I have a couple of well-schooled children on the problems of piracy!  

What are you watching and recommending to friends at the moment? 

 There’s a lot of fabulous content on free to air and streaming services at the moment.  

I’m savouring the final season ‘Call My Agent’. On the Australian front, ‘Bump’ was terrific.  

What excites you about the future of your industry sector? 

Creative industries are always exciting. I am very lucky to be working in the space – you never know what new cultural shifts are just around the corner! The ACC is honoured to continue supporting creative Australia.  

This interview was originally published in Content Café.

Categories
Piracy

Sniffing Out the Truth in Advertising to Pirates

We can all agree that stealing a car or a computer constitutes a crime – but stealing a movie? Well, as TorrentFreak put it earlier this year, they believe that a creative whose work is being pirated is presented with an “opportunity.”

How could that be? TorrentFreak says that “research repeatedly shows” that the people who watch pirated content “are consumers too,” and that these consumers – who reportedly visited pirate sites 130 billion times in 2020 – have “commercial value” as a group “whose data can be used to target ads to.”

Of course, TorrentFreak is not the first to argue that information about which pirated shows consumers watch makes for “marketing treasure”. We in the film and television industry have been hearing this same spiel for years from an anti-copyright contingent of academics, journalists, and advocacy groups representing Big Tech interests.

As someone with over 30 years in the business of making, acquiring, marketing, and distributing movies, I’m here to tell you that this argument is deceptive. Consider that number – 130 billion visits to pirate sites from the U.S. in one year? That is a staggering total.

No wonder that, by 2022, the U.S. film and television industry – which supports 2.6 million jobs across all 50 states – is expected to lose more than $11.6 billion per year to piracy. And no wonder that the U.S. Chamber reports that such losses are costing the overall economy at least $29.2 billion annually and at least 230,000 jobs.

It should go without saying that a marketing campaign built on pirate viewing data could never offset nearly $12 billion in losses from digital piracy… which represents about 36% percent of 2020 U.S. film and television revenues. No CEO – in any industry – would look at these kinds of losses and say, “but at least we’re spreading awareness of our product, right?”

The creative industry is no different. Those who challenge our entirely understandable efforts to protect our works from piracy consistently, and condescendingly, argue that we suffer from “a failure of imagination” – a stubborn inability to embrace all the purported benefits that rampant stealing brings to our business.

The “piracy-is-marketing” proponents have a persistent notion that pirates who steal our movies will, on balance, end up directly or indirectly injecting money into the creative industry down the road. Perhaps they will ultimately purchase the film they loved that they had earlier decided to pirate. Or perhaps they will tell others how much they loved it, and some of those recommendations will result in purchases by their friends and connections.

In truth, I cannot deny that such scenarios are possible. There is no doubt that spreading awareness of a movie, be it through legal or illegal channels, increases the chances of people spending money on that movie. But when it comes to piracy, any theoretical promotional value gained from the illegal activity cannot outweigh the provable harms from revenue lost.

A 2016 Carnegie Mellon study that tracked data from all major movie releases from 2006 to 2013 (when piracy was not nearly as easy to partake in as it is today) found that box-office revenue would increase by as much as 15% per year if piracy “could be eliminated entirely from the theatrical window”. While the report concedes that “there is a small silver lining to piracy because of its promotional role,” any “word-of-mouth generated by pirated viewers helps to lessen, but does not offset, the negative cannibalization effect of piracy.”

Carnegie Mellon went on to reinforce its research in 2020 – in a joint study with Chapman University that analyzed the aggregated studies on this topic in academic literature. It found that “29 of the 33 peer-reviewed papers studying this question found that digital piracy causes statistically and economically significant harm to creators by cannibalizing sales in legal channels, and… can harm consumers by reducing the economic incentives creators have to invest in high-quality entertainment projects.”

I can already hear the “piracy-is-marketing” movement’s rebuttal here: “But maybe that trend would reverse if you marketed directly to the pirates, Ruth.” That’s what TorrentFreak is ultimately proposing, after all – if we treat these illegal viewers as a marketing demo in and of themselves, and target them with ads like we would any other audience, we will actually make more money for our efforts.

But there are a couple of big problems with this argument. First of all, when we target an audience with one of our assets, such as a trailer or a poster, we have a very specific goal of tracking subsequent engagement. In the modern age, we’re less interested in how many people actually watch the trailer, and are far more interested in what those viewers do next. Do they share the trailer with friends? Do they click on the link to visit the film’s official website or, even better, head on over to the ticketing website? All these secondary actions communicate engagement, and engagement is how we can determine the efficacy of our marketing campaign.

But we can’t measure those outcomes when the platform generating them is operating in bad faith. A website that is illegally offering unlicensed movie and TV streams has no interest in supplying the marketers of those productions with helpful marketing data. So, we’re not only losing the sale when a potential customer visits one of these sites, but we also can’t measure what they do next. And if we can’t measure this “audience” of pirates, we can’t market to it – it’s as simple as that.

But let’s say we could do this thing. Let’s say an offshore commercial streaming piracy operation was interested in supplying a marketer like myself with some of that data, that alleged untapped “marketing treasure.” Well, it’s not all that untapped. In fact, as reported by the anti-piracy firm Marketly, a Google-sponsored study conducted in 2018 with the University of Amsterdam found, “a huge overlap between ‘pirates’ and ‘legal users’”.

In other words, Marketly writes, “it’s no longer accurate to think of ‘pirates’ and ‘legal users’ in two distinct groups. When we talk about ‘pirates’ today, we are no longer talking only about consumers with an active BitTorrent account or spreading links around the dark web. We are talking about average consumers accessing pirated content with a simple Google search.”

That’s right, piracy has become so ubiquitous that the people who pirate content and the people who pay for content are often one and the same. Which raises the ultimate question – how do marketers better target the people making 130 billion piracy visits every year when many of them are the same paying customers we’re… already targeting?

The obvious answer is, we can’t – and what’s more, we shouldn’t have to. Beneath all this theorizing on my part is an emotional plea. Just like the independent creatives and businesses with whom they partner, marketers don’t want to deal with piracy. They don’t want to collect data from criminal pirate site operators and find ways to cater to those people with better outreach. They just want to continue building strong relationships with distribution channels and clients who operate in good faith – you know, like any business does.

It makes my heart hurt that, because we’re part of the creative industries, we are expected to somehow work with the thieves – to simply accept their staggering theft as a given and find a way to incorporate it into our marketing strategy.

I have a better idea. Let’s just stop piracy. Doesn’t that seem a whole lot simpler?

This article was originally published in Creative Future.