The Prelator

Weblog of Patrick McKay

Posts Tagged ‘protest’

SOPA, Private Copyright Enforcement Systems, and Free Speech

Posted by darklordofdebate on January 19, 2012

Throughout the debate over the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA), there has been one refrain commonly invoked by the pro-copyright, anti-internet crowd. “There is no first amendment right to infringe someone’s copyright.” Or “copyright and free speech do not conflict.” Leaving aside the obvious fact that the Supreme Court has repeatedly stated that there IS in fact a first amendment right to make unauthorized use of copyrighted material under the fair use doctrine, the idea that copyright and free speech do not conflict is demonstrably false.

At its heart, copyright law is a censorship mechanism. It is a way to grant one person or entity a monopoly on certain speech and deny all but those declared to be the “owners” of that speech the right to use it for their own expression. We believe this is justified because it provides financial incentives for speech, and indeed it seems reasonable that people should be entitled to benefit from their creative works. But we must always remember that, at its core, copyright is nothing less than the government dictating who may speak and who may not. Given this, there will ALWAYS be some degree of tension between copyright law and freedom of speech–between the Copyright Clause of the Constitution, and the First Amendment. To say that there is no conflict between copyright and free speech is simply wrong.

The conflict between copyright and free speech can be clearly seen when copyright laws are abused and used to censor speech that does not infringe anyone’s copyright. While the pro-copyright lobby may claim otherwise, the truth is such abuses are both common and widespread. In light of bills like SOPA and PIPA which propose dramatically expanding the powers of both the federal government and private copyright owners to enforce copyrights, it is important to keep in mind the ways in which copyright is abused under existing laws, and the potential for even greater abuses should these bills pass.

Now that outright DNS blocking and the horrible “private right of action” provisions have been removed from SOPA and PIPA, one of the most dangerous remaining provisions is the section granting “immunity” to search engines, payment processors, and ad-serving networks who “voluntarily” decide to cut-off services to websites which they decide “facilitate” copyright infringement. As many people have pointed out, this will most likely result in a process similar to the existing DMCA takedown process, whereby service providers who are notified by copyright claimants that a particular site “facilitates” copyright law will immediately move to cut-off service to that site for the sake of avoiding liability, regardless of whether that site actually violates copyright law in any way.

This is exactly how every content hosting service in existence, from Google to YouTube to Facebook to file hosting sites like Megaupload and Rapidshare (the ostensible targets of SOPA) currently respond to takedown notices under the DMCA. But the “voluntary” blacklists created by private companies under SOPA would have none of the safeguards included in the legally mandated DMCA takedown process, such as the opportunity for accused infringers to file counter-notices and get their content restored. Under SOPA, while companies are encouraged to cut-off service to sites which are accused of piracy, they have no corresponding obligation to restore service if the allegation turns out to be false. The result will be the establishment of private copyright enforcement regimes administered by corporations with no accountability, no safeguards against abuse, and no mechanism for appeal.

How do I know this? Because this is exactly what has happened on YouTube, which currently runs the largest private copyright enforcement regime in existence under the guise of its “Content ID” program. As a YouTube video creator who frequently employs fair use in order to make unauthorized use of copyrighted content in YouTube videos, and because of my work advocating for a fairer copyright enforcement system on YouTube through my website,, I have been in a position to see just how often such private copyright enforcement systems are abused.

Under YouTube’s Content ID system, every video that is uploaded is automatically scanned against a vast database of copyrighted works contributed by YouTube’s Content ID partners. If either the video or audio content matches the digital fingerprint of a sample in YouTube’s database, the system applies the copyright owner’s preselected policy to either block the video outright, allow it to remain up but track its view statistics, or “monetize the video” by taking a cut of the revenue from ads embedded in the video page. While on the surface this seems like a great way for YouTube to allow users to upload videos which use copyrighted content while allowing copyright owners to still make money from their otherwise unauthorized use, the system has two fatal flaws: (1) Content ID matches are notoriously inaccurate and wide-open to abuse, and (2) there is no effective way to appeal mistaken identifications or even blatantly false and fraudulent claims.

First, once an entity is accepted as a partner in YouTube’s Content ID program,YouTube apparently does not require copyright claimants to submit any proof that they own the copyright to works which they upload as reference files. There have been numerous reported cases of unscrupulous companies submitting works that are either in the public domain or are simply not owned by them into the Content ID database.  This allows them to claim ownership of, block, and/or receive ad revenue from, videos which they do not own any copyright interest in whatsoever. Even when there is a legitimate copyright involved, the Content ID system is often unable to tell a copyrighted work from a non-copyrighted one. This problem is especially severe with regard to recordings of classical music, where the music itself is in the public domain, but specific recordings may be subject to copyright. The Content ID system cannot tell one recording of the same classical song from another, and thus people who have legally used recordings of classical symphonies that were either in the public domain or that they have legally licensed from a third-party music library (and in some cases even performed themselves) have found their videos misidentified as containing a copyrighted recording owned by someone else.

Misidentification or even fraudulent copyright claims would not be so bad if there was a means to appeal such false-positives and punish users who abuse the system. But in fact there is not. While YouTube maintains a nominal mechanism for “disputing” false or mistaken Content ID matches, this dispute system is a joke. This is because the person who gets to decide whether to accept the user’s dispute is none other than the copyright claimant himself.

When a user files a dispute, the Content ID claimant is given three options: (1) release the claim, (2) have the video taken down via a formal DMCA claim, and (3) reinstate the Content ID claim. While the first option removes the false claim entirely and the second invokes the formal DMCA takedown process under the law (allowing the user to send a DMCA counter-notice and get their video restored that way), the third option reinstates the Content ID match, allowing the claimant to either block or receive all the ad revenue from a video, with no further opportunity for the uploader to appeal. Instead, the user is greeted merely with a message that the copyright owner has “confirmed their claim” to the content. If the user attempts to contact YouTube to further appeal a false claim, they are told that their only option at this point is to convince the claimant to retract their claim.

Through this process, YouTube gives copyright claimants the ability to essentially be the judge in their own cases–giving them sole discretion whether or not to accept a dispute against their copyright claim. As experience has shown, Content ID claimants almost universally choose to “reinstate” their claims (likely through an automated process or merely clicking “select all” in the list of disputes). As a result, the Content ID dispute process is next to useless, and those who attempt to dispute a mistaken identification or claim fair use, will most likely find their video re-blocked through Content ID in a matter of days after they file their dispute, with no further recourse or opportunity for appeal.

It is important to note at this point, that everything YouTube has done is perfectly legal under current law. Nothing today prevents companies from establishing their own private systems of copyright enforcement which go far beyond the process prescribed in the DMCA, and which contain none of its safeguards against abuse. In YouTube’s case, Content ID exists alongside the DMCA process, as the DMCA provides an alternate means by which videos can be removed for copyright infringement. But while YouTube originally intended Content ID to serve as a kind of front-end buffer to the DMCA process, allowing users to have recourse to the DMCA counter-notice process in the event a Content ID dispute was rejected, that option no longer exists. Instead, Content ID has almost completely supplanted the DMCA process as the primary means of copyright enforcement on YouTube, and users who have videos permanently blocked by Content ID have no recourse to DMCA counter-notices.

It is under this context that, when last month Universal Music used the Content ID system to have an original commercial by Megaupload taken down without having any legitimate copyright claim against it, Universal could plausibly claim in court that they could use YouTube’s private system to block the video without being subject to any of the penalties for fraudulent copyright claims under the DMCA. It is this system that has allowed unscrupulous companies like GoDigital to illegally hijack ad-revenue from hundreds of original videos using legally licensed royalty-free tracks from third-party music libraries. And it is this system that has allowed others to claim a monopoly on royalty-free music loops and samples provided with popular software such as iMovie and GarageBand, effectively preventing anyone else from using them in YouTube videos. All of these are documented cases of flagrant abuse, with dozens of complaints on YouTube’s help forums that the company has systematically ignored and failed to act upon. (To read more about these specific cases, click here.)

The reason for that is simple. The current law simply provides no incentive for companies like YouTube to protect their users against false and abusive copyright claims. YouTube would much rather placate major copyright holders like Viacom and Universal Music and avoid expensive lawsuits than stand up for users’ rights by forcing copyright claimants to prove a valid copyright interest in videos alleged to be infringing, or in the very least provide an effective means to appeal false copyright claims.

While Google was one of the most vocal parties involved in yesterday’s protest against SOPA, their own system which they have built on YouTube provides a clear example of exactly what we can expect if SOPA passes. When private service providers are deputized to become enforcers of copyright law with no incentive to defend individual users, they will invariably sacrifice the free speech rights of their users for the sake of avoiding expensive lawsuits. YouTube has shown us that nothing good can come of privatizing copyright enforcement, which only serves to harm freedom of speech online.

Imagine how much worse it would be, if instead of specific content being subject to such arbitrary blocking as YouTube currently employs, entire websites could be cut-off from all financial services and revenue sources by the mere accusations of big media companies. What would happen if, instead of individual YouTube videos getting blocked, YouTube itself was de-listed from search engines and denied its life’s blood in ad revenue, with no opportunity for appeal? That is what would happen under SOPA. Let us take warning from YouTube’s own practices, before YouTube itself finds itself in the cross-hairs.


Posted in Copyright, Law, Technology Law | Tagged: , , , , , , , , , , , , , , , , , , | Leave a Comment »

Sheets of Shame

Posted by darklordofdebate on August 28, 2008

This is the most incredible story that I had to share. It is the story of a few brave students with a message. A message that the world needed to hear, and which they proclaimed in such a unique way that the world took notice. So this Tuesday, Denver awoke to see that message emblazoned on a hillside in a manner that could not be ignored.

While the media covered the facts, I’d like to share the full story of the largest protest sign ever in the words of someone who helped create it. The guy who wrote this is a Colorado NCFCAer who I remember judging at a tournament last spring, and it’s clear he and others are already putting their creativity to good use for the pro-life cause. And I know that if I had been back home in Denver this week instead of at school in Virginia, I would have given anything to be there to see this. Enjoy!

The following was posted by Josh Craddock on Facebook on August 26, 2008. Reprinted with permission:

Sheets of Shame, by Josh Craddock
If you didn’t know, I’ve spent the last month working on a top-secret project for American Right to Life to Welcome the Democratic National Convention to Denver. This morning, our project was revealed and it received local and national media attention.

Yesterday, I met at 5am to mark the coordinates on the mountain. I slept a little that afternoon, but I didn’t go to bed last night. Instead, I went straight over to Maranatha where we were staging everything. I spent about an hour and a half doing logistics work and getting all the packs lined up to go out the door. At 1am, me and three other guys took the four segments that make up the capital “D”, and were driven in a van to our drop-off point. We silently jumped the fence and hiked up to the trail (which is about 50-75′ below the bottom of the sign). We hiked along the trail for a while, and when we thought we had gone about the right distance, we started heading up the hill.

Unfortunately, it was completely dark, so we had a hard time figuring out where exactly we were. We hiked up the hill about 300′, through cactus, boulders, and sliding rock with 70-80 lbs packs on our backs, while doing our best not to fall and roll down the mountain. When we got to the area where we thought we were supposed to be, we dropped our packs and began to talk to the next group of four which had been dropped off at the trailhead 45 min after we were… Apparently, a neighbor called the police, so a cruiser came out and began spotlighting around the houses, looking for people. The second group didn’t see them, and the cop car spotlighted them as they were hiking along the trail at 2am. You’re not allowed to be on the trail before sunrise or after sunset, so they could’ve been in trouble, and if they would have been caught it would have ruined the entire plan. They just pretended to hike on towards the South, and as soon as the spotlight was off them, they dashed up the hill, took cover, and waited. Since we were about 300′ above them, we could follow the cruiser and tell them where he was going so they could avoid him. So he searched for them for a while, and after about a half hour, left. About a half hour later, two police cars arrived, on both sides of the trail, search-lighting the area. Luckily, by this time, the second group of four had taken cover by the single tree on the mountain. So they weren’t discovered and the police left. Because the police had been there, we couldn’t stick to our original plan which had been to go down and carry up more packs.

So we had to wait up at our location until sunrise, when we realized we were in the wrong spot! We were approximately 4 football fields North of where we needed to be. So we hiked horizontally across the mountain, over a ravine and other obstacles to get to our drop points. By this time, the rest of the 47 hikers had arrived with their packs, and they were hiking along the trail below us as we were hiking on deer trails high above them. When we found our drop points, we dropped our packs and began to unwrap the letter segments. I was at the top of the D so I was the first to unravel the segment on the entire mountain. Soon the letters and words began to form on the mountain, and the police again arrived on the scene, but instead of coming up, they just watched us from the neigborhood below.

The “Sheets of Shame” Guiness World Record Sign
We completed the sign within about 45 minutes, but the sun was out and most of us didn’t have water with us. (I hadn’t had any since 1am, since I had planned to go back to the van after dropping my pack.) We had vans full of water, but the police refused to allow the water to be taken up to us. The police at the bottom were extremely non-cooperative with us, and refused water even though we had several among us who were dehydrated and going into heat exhaustion and stroke. Two police officers finally ascended the hill towards us and began to negotiate the removal of the sign and the water for the hikers. They agreed to give us whatever water we wanted and denied that the lower cops had ever prevented us from obtaining water.

Anyways, we got water and an ambulance up there and finally negotiated that we would be allowed to go down to 64th Ave and have lunch and come back to take the sign down by noon. We had wanted to take it down anyways (in fact, we made it known that we planned on taking it down in our press release) because we don’t want to litter, and we’re more than happy to clean up our own mess. We got down to the road and the lower police stopped us and said we couldn’t go any further and wouldn’t let the vans come up to pick us up. So we had to renegotiate a solution. They FINALLY allowed us to get water and food, under the condition that we stayed right there and didn’t leave at all, even though it was in the sun and everyone was still having problems.

Luckily, the neighbor living just next to the trailhead happened to be a strong pro-life activist who loved what we were doing. So she invited all 55 of us to come outside her house, sit in the shade and enjoy water, food, and restrooms. It was absolutely amazing. God certainly blessed us with that woman. So we rested there for about an hour, and finally we got some food up there (my mom went to subway and they gave us extra food because they had heard about the sign and loved what we were doing).

Then about 2 to 2 1/2 hours after we had put it up, we agreed to peacefully go up and take it down, as well as cleaning the mountain to leave it better than we had found it. So we began to go up there and take down the sheets when this college-student pro-abort ran up there and started to rip apart the sheet segments. Now, normally we wouldn’t have cared, but we had considered putting the sign up again over by DIA on some friends’ of ours’ property. So I sprinted up the hill after him and threw myself between him and the sheets. He started screaming profanities at me and I started yelling at him “SIR, THESE SHEETS ARE PRIVATE PROPERTY! DO NOT TOUCH THEM AGAIN OR I WILL CALL THE POLICE!” At which point he physically began to assault me and push me to the ground. I continued to pull the sheets away from him and stand between him and the sheets, as an Associated Press photographer documented his assault on me. He kept screaming at me that unborn babies aren’t alive so they don’t have a right to life and that the sheets are just sheets they’re no one’s property. So I started yelling at him about how he obviously didn’t believe in rights, and why that was the danger in lacking a moral foundation and standard. I chased him ALL the way up the hill, and finally called the police after he shoved me to the ground again. My mom sent the police up right away, and I put him under citizen’s arrest and walked with him back down to the police. He wasn’t exactly cooperative about it. He was like “CAN YOU F***ING DO THAT?!?!” I was like “YES I CAN! I AM A CITIZEN OF THE UNITED STATES OF AMERICA AND IT IS MY RIGHT AND PREROGATIVE TO PUT YOU UNDER CITIZEN’S ARREST!” (I actually have no idea if I had the right to do that, but it sounded cool at the time.)

So anyways, we finally got down to the police and they took all our information and took both our stories down… they asked us if we wanted to press charges against each other, and we both said no. So they escorted him off the hill, and I continued to take down the sheets. That pretty much shot all the remaining energy I had, and I was completely dead tired.

Channel 7 News interviewed me after the assault, but they didn’t play it. Instead they said it was our “punishment” to take the sign down. How is it a punishment if we had planned to do it in the first place? Ugh. Stupid liberal media. I finished up the day by hauling an 80 lbs sheet segment back down the hill and then just fell into the shade at that lady’s house until it was time to go.

It is a Guiness World Record as the largest protest sign ever. It measured 550′ tall and 670′ long, was created out of 2,400 sheets, was sewn with over 4 miles of seams, and weighed approximately 2,700 lbs. I took the top of the “D” segment up the hill, unfurled it, and then began to help unfurl the rest of the word. Within 45 minutes, the entire sign was unfurled on the mountainside. The sign was legible for eight miles in every direction, and could be seen from I-70, I-25, C-470, and most major streets in the north metro area. In fact, the sign was visible from the hotel windows of delegates staying in Denver for the convention.

UPDATE, 9:45a: Jill Stanek received a call from Steve Curtis, president of ARTL. Jefferson Co. police are now stopping people at the nearby staging area from brining replenishment water to the hikers, who each carried 50# backbacks 1/2 mile up a steep grade to the site.
UPDATE, 10a: Police have just allowed water to be brought in to the hikers.
UPDATE, 10:10a: Reports are that traffic on I70 has slowed 10 miles from the protest sign as drivers come into its view.
UPDATE, 11:45a: ARTL organizers have negotiated with police to keep the sign up until 12pm.

Official press release and sample video:
The Wall Street Journal and other major news outlets picked up this press release as the letters were being unfurled.

Here’s some local news links: (early report)

Here’s the Associated Press article:

Nationally, CNN and FOX News both picked up video coverage, as did Channel 7 news, Channel 4 News, and Fox 31 News. 7 News interviewed me, and I’ll almost certainly be on tonight’s evening news (at least in the background).

The protest went incredibly well and I’m so thankful for God’s hand in this whole project. 😀


I know some may consider what they did foolish, perhaps even illegal. But personally I think their message needed to be heard, and they showed loud and clear exactly what the Democratic Party stands for. No matter how eloquently Barack Obama may speak on any number of subjects from Iraq to healthcare to energy policy, one thing stands out that makes it impossible for any pro-life Christian to support him–his party is the party of death, and his support for abortion makes him the candidate of death. When asked by Rick Warren when life begins, Obama replied that question was “above his paygrade.” His opponent, John McCain, answered simply with no hedging or qualifying, “conception.” Period.

While we conservatives may have our doubts about how firmly McCain will hold to a pro-life stance once in office, I don’t think there is any doubt which candidate in this race is closest to our position, or that Obama must be opposed for this above all other reasons. While I both agree and disagree with both candidates on other points, ultimately that is why I cannot support Obama and why I will whole-heartedly vote for John McCain.

Posted in Abortion, Elections, Politics | Tagged: , , , , , , , , | Leave a Comment »