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Bittorrent, the RIAA and DMCA Takedowns Explained

Google and the RIAA piracy

The Recording Industry Association of America (RIAA) has reached its 25 millionth takedown notice on Google.  With their 20 millionth takedown happening in May, the RIAA is set to double the number of  takedown requests in the next six months.  Given the time and money spent on these request, one has to wonder to what extent these tactics are working.  There is no clear answer but for us to even consider the question, we would first need to know what is actually being taken down, and how the takedown process works..  So I thought I would write a little Google Anti-Piracy Primer for your enjoyment.

What does the RIAA actually want taken down?  One of the biggest culprits are torrent pages indexed by Google.  So let’s begin this Primer with a discussion on the inner workings of torrents. A torrent is a pointer file that points to a particular file, be it a movie, music, book, or anything else that can be hosted on a computer.  A torrent client (software program) looks for that pointer file and then uses the information to talk to other torrent clients and coordinates receiving the file from those computers that have it.  The torrent client can download or upload pieces of the file in any order and then reassemble them in the proper order once all the pieces have been received.  Let me illustrate what happens.

A user who wishes to share a file with the world, makes a pointer file and uploads it to a torrent directory.  The pointer file is basically points to a serial number or “hash tag” embedded in the file.  A torrent client looks for these hash tags.  User #2 want the file User #1 just pointed to, so the client #2 asks client #1 for that file.  client #1  upploads it to client #2 which is called “seeding”.  Downloading is called “leeching”.  Now, User #3 also sees that pointer file in the directory and his client #3 asks for it.  But now, client #3 can get the file from client #1 and  client #2, even if User #2 hasn’t finished receiving all the pieces.  And if client #3 gets a piece of the file from client #1 that is needed by client #2, client #2 doesn’t have to wait for client #1, but can get it from client #3, and so on.  So the more people that leech or seed at any given time, the faster the process.  All those computers leeching and seeding are together called a “swarm.“ The swarms all talk to each other and prioritize the pieces based on various criteria.  Here are some of the advantages to the torrent system:

  1. Torrents enforce 99% quality control by filtering out corrupted and dummy files, ensuring that downloads contain only what they claim to contain.
  2. You can limit the amount of upload speed allowed, but the Torrents actively encourage users to seed their complete files, while simultaneously penalizing users who leech. So the more you seed, the faster you can leech. 
  3. Torrents can achieve download speeds over 1.5 megabits per second.
  4. Torrent code is open-source, advertising-free, and adware/spyware-free. This means that no single person profits from torrent success.

 ( http://netforbeginners.about.com/od/peersharing/a/torrenthandbook.html  

OK, so lets say someone want to pirate the new Black Sabbath album.  They go to one of the hundreds of directories like the Pirate Bay, and search for the file. They are brought to a page with the torrent link (pointer file) as well as information on the file posted by original uploader. Also, there are user posted comments such as the actual quality of the material, whether the original uploader was lying about the contents of the file, or any other help users may require for using the file.  All they do is hit the torrent button and the torrent will start.  However, the downside is, unless they have some way of masking their address, the RIAA will know they are downloading the file and can ask their Internet Service Provider (ISP) to serve them a warning.  Too many of those and they will be in real trouble.

Finally, once a file is downloaded from one directory, other users or directories themselves will start adding the pointer to those torrent directories. So, every album, song, movie, audiobook etc. being pirated has a page in many torrent directories; all with the same pointer file.

Enter Google.  Google indexes pages on the web, including torrent directory pages.  Look for “Black Sabbath torrent” in Google search and Google will spit out all the pages for all the versions of the album around the web as part of its search results.  So even if your favorite torrent directory doesn’t have it, other directories might and you can find them with Google.  To stop that from happening, the RIAA or any other content owner can ask Google to takedown the link, using the procedures implemented in the Digital Millennium Copyright Act (DMCA).

Despite what most people believe, a cover song video posted on YouTube needs permission from the song’s copyright owner.  The fact that it is just a kid playing the song in his bedroom, who receives no monetary reward for the work, doesn’t matter.  Even a video that has a song playing on the stereo in the background is technically an infringement and unfortunately, has often been the target of a takedown.

Given the vast numbers of unlicensed infringing cover songs on YouTube, I can see why people would think that this practice was ok.  It happens so often; people assume it must be legal.  Which sets up the proverbial catch-22 scenariothere are so many illegal songs on YouTube that people think it is a legal practice, so they upload their own illegal material which reinforces this misunderstanding of the law, and round and round it goes.  So it is no wonder that the Recording Industry Association of America (RIAA) has had to make 25 million takedown requests with Google, owner of YouTube.

But why doesn’t Google get in trouble for hosting all of this illegal material?  Well, they get a free passcourtesy of the Digital Millennium Copyright Act (DMCA) which provides a “Safe Harbor” for content hosting companies.  The key here is that Google isn’t creating or uploading any of the material.  They are just hosts.  The infringer is the uploader.

Chilling effects explains the DMCA procedures this way:

Under the DMCA, a copyright owner who believes that their work is being infringed notifies the entity hosting the material. Here, YouTube. In order to take advantage of the DMCA’s “Safe Harbor”, YouTube must take the material down. Critically, no evaluation of the legal validity of the claim by YouTube takes place.

Next, if the poster of the allegedly infringing material disagrees, and thinks that the material in question does not infringe, they may submit a counternotice to YouTube. Upon receipt of a counternotice, YouTube replaces the material in question, after waiting a statutorily required 10 days. . . . .

At that point, ”a content owner has two options: release the claim or file a formal DMCA notification” If the claim is released, the video goes back up. If not, matters proceed to the DMCA procedure which . . .  exposes individuals making bad faith copyright claims to possible monetary damages.

Some say that with all the videos uploaded to sites like YouTube or the countless others smaller sites not on people’s radar, that these companies are providing a vehicle for infringement with only procedures for removing material but no real responsibility to prevent infringement? Well, Congress gave the free pass because it didn’t want to stifle the ability for sites like YouTube to exist.  If YouTube had to worry about being sued all the time, then it might not be worth offer the service.  We don’t want to have a chilling effect on free expression, especially since the majority of content made available is unique. Plus, it does make the ability to takedown infringing material far easier than if a copyright owner was required to take legal action each time they discovered an infringement. Notably, the safe harbor does not apply to torrent sites like the Pirate Bay, which merely link to content without hosting it.  As well, unlike YouTube, the vast majority of content on the Pirate Bay is piracy, as the name implies.

If you are an artist and wish to use these takedown procedures for your material, looks for the specific procedures for any site in their posted terms and conditions.  You should register your copyright first, before asking for a takedown, which by statute is prima facie evidence that you own the work.  Some of these takedowns do end up in court.  If you wait to register until after the infringement, you won’t receive statutory damages or the payment of your attorney fees.

Should you have any questions on this topic or ,need help with registrations or work being used without permission, just contact me via the form, here. Thanks for reading and please use the share button on the left if you enjoyed this article.

If you like this article, please share it with your friends on social media. And if you have any comments of questions, fill them out in the comment section below. 

 

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at steve@orangenius.com. His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

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