Transparency Report Update: January – June 2017

The time has come for the bi-annual update to our transparency report, covering January 1 to June 30, 2017. As usual, we’ve shared updated data about national security requests, government requests for user information, government demands for removal of content, as well as notices of copyright and trademark infringement. We’ve included some of the most interesting highlights below.

Intellectual Property

We received the highest number of DMCA takedown notifications in a single six-month reporting period. From the 5,006 we received between July-December 2016 to 9,273 this period, we saw an 85% increase.

The bulk of this increase comes down to just two complainants, both of which submitted over 2,000 reports each, accounting for 47% of the 9,273 total takedowns received. To truly appreciate the top two complainants’ volume, you should note that the third highest complainant submitted 371 reports.

We often received multiple copies of the same DMCA notice (sometimes days apart!), and often these duplicate notices target material that had already been removed or was hosted elsewhere. This highlights the problem with automated takedown systems that have no element of human review. We’ve written about the issues involved with DMCA takedown bots before, and the figures in this report suggest that the problem isn’t going away. The high volume of thoughtless takedown places a big burden on the small team we have, who are charged with carefully reviewing and processing our notices, to ensure the rights of copyright holders and our users are protected.

Due to the high volume of bot generated deficient takedown notices, we removed content in response to only 22% of the DMCA notices we received in this period, compared with our average of approximately 60% across the past six reporting periods.

Meanwhile, we can count on one hand the number of counter notices we received from our site owners, and it’s the fewest we’ve seen in a reporting period to date: 5. As we’ve mentioned, the counter notice process is intimidating and can lead to a user being sued in federal court, which means spending a tremendous amount in legal fees defending their case, even if the court determines the user’s material isn’t infringing.

Government Demands

We receive a steadily increasing number of takedown demands from governments around the world, with a 61% increase this reporting period compared to last’s.

Takedown demands from certain countries are particularly concerning. While Russia is sending us the greatest volume, we’re seeing especially problematic demands from the Turkish government, which actively censors content that criticizes the Turkish government, officials, and/or army. In hopes of defending the rights of our users to speak about their government, we have filed objections to 13 of the most egregious court orders. Unfortunately we have not seen much success. Eleven of our appeals have been rejected, and two are pending. Additionally, we do what we can to partner with our affected users in filing our objections — Turkish citizens who are blogging about their government. However this is very fraught territory, especially when filing an objection would be made in a user’s name. One of our users said it best: to appeal, and reveal their identity, would be “suicide.”

Further, after consulting with additional experts on Turkish law, we’ve learned that not only are the users who bring the case at risk, even the lawyers and judges in cases involving national security (for example, content that criticized military involvement and suggested military misconduct) can be charged for assisting terrorist organizations.

We will continue to fight for freedom of expression and our users in Turkey, which includes being as transparent as we can about the situation, the demands we receive, and our response to them.

National Security

We recently shared some information about the process we followed to lift the nondisclosure restrictions associated with five NSLs received in previous years and provide copies of our correspondence with the government. We hope this information will be useful to other companies who may wish to take advantage of the legal options that are currently available to challenge NSL nondisclosure orders.

We’ve also developed a form reciprocal notice request. If your company has received an NSL in the past and you would like the government to review the letter’s nondisclosure requirement, this form may be useful to you.

As always, please take a look through the data, and let us know if you have any questions or other types of data that you’d like to see in future reports!

Hall of Shame: Something Stinks in Abbotsford

For our latest Hall of Shame entry, we turn our gaze towards the City of Abbotsford in Canada. For reference, here’s their logo. Commit it to memory, as you’ll want to remember what it looks like for later:

city of abbotsford.jpg

City officials took issue with a 2013 post written by a homeless blogger that criticized them for reportedly “deliberately spread[ing] chicken manure on a homeless person’s camp” in an effort to deter people from congregating in the area. To demonstrate just how… dirty a move the blogger thought this was, he illustrated his post with a doctored image of the city’s logo, which had been modified to include a large … well, see for yourself:

City of Abbotsford Parody Logo

The accompanying text reads:

“Oh crap! Abbotsford already needs to update their new city logo.”

That seems to make the blogger’s feelings quite clear. Unhappy, however, with this depiction of their logo, a marketing firm purporting to act on behalf of the Abbotsford city council sent us a DMCA takedown notification earlier this January, claiming copyright over the image.

DMCA-Abbotsford.png

It is unclear why the city council decided to go down this particular route in an attempt to have the image removed, or why it took them almost four years to do so. What is clear, however, is that this stinks. Pardon the pun. It was glaringly obvious that the addition of the hilariously large feces was for the purposes of parody, and tied directly to the criticisms laid out in the post. As a result, it seems hard to believe that the city council took fair use considerations into account before firing off their ill-advised notice, and trying to wipe up this mess.

We rejected the complaint, and passed it on to the blogger for his perusal. In response, he updated the logo, just in case there was any doubt that the image was being used for the purposes of commentary or criticism:

City of Abbotsford Parody Logo

Much clearer now.

City of Abbotsford, welcome to the Hall of Shame.

Note: Our use of the Abbotsford city logo in this post is also for the purposes of commentary or criticism, and therefore falls under fair use protections. If anybody on the council happens to be reading, please don’t send us another DMCA takedown. 🙂

Reforming the DMCA

We at Automattic are firm believers in legitimate copyright protection. We are also vigilant about shielding our users from abuse, particularly in cases in which the abuse aims to censor legitimate criticism or ignores fair use of copyrighted materials. As an online service provider, balancing these diverse interests and rights is important to us and requires careful review and diligence. Section 512 of the DMCA was enacted to provide online service providers like Automattic with guidance on handling these issues; however, in the almost 30 years since the law was passed, the Internet landscape has evolved significantly, leaving deficiencies in the safeguards of Section 512.

To help remedy these deficiencies, the US Copyright Office started an initiative last year to study and propose reforms to the DMCA. We were grateful to have an opportunity to submit our feedback and to highlight the issues we commonly experience with the current system—namely, abusive DMCA notices, a deficient counter notice process, and the impact of copyright bots on fair use. As a follow up, the Copyright Office recently solicited empirical data and analyses to help shed light on the effectiveness and impact of the current Section 512 safe harbors – and Automattic was happy to share the data we’ve gathered on the subject in recent years.

Some key findings that we highlighted:

  • With three years of data relating to the copyright infringement notices we receive, it was particularly striking to see how consistent the figures are year after year on subjects such as counter notices, fair use, and procedural mistakes that we reject.
  • 10% of the notices of claimed infringement we receive are directed at clear fair uses or uncopyrightable content, or contain clear misrepresentations regarding copyright ownership. If our experience is representative of other online service providers in the industry, the overall volume of abuse is significant.
  • The number of counter notices we receive is remarkably low, which we believe is not the result of a correspondingly low number of false or mistaken assertions of infringement, but instead results from the concern that sending a counter notice is likely to result in costly litigation, even if that litigation would ultimately turn out to hold that no infringement had occurred.
  • More than a third of the notices we receive simply do not contain the required information—they either include incorrect information, leave out pertinent information, or fail to provide a clear description of the unauthorized material.
  • Automattic has spent a significant amount on legal fees in bringing lawsuits against blatant violators of the DMCA, but has been unable to recover these costs or collect on judgments in our favor because the remedies available under the law are often illusory even in cases of clear abuse.

Our data shows a continuing issue with the current DMCA system, which allows abuse to go unfettered due to a lack of real statutory consequences. Internet users need a more effective remedy than the counter notice to adequately safeguard their legitimate content. Stricter form-of-notice requirements, opportunity for targets to respond before content is removed, and statutory damages for abusive notices are some possible solutions that would provide increased protection for Internet users.

We are hopeful that our feedback and data will help guide reforms toward creating a more equitable environment for Internet users. We look forward to seeing how the law evolves and will continue to work hard to make the DMCA process as fair and balanced as possible.  

For more information about the data we collect, you can view our transparency reports related to section 512 here.

You can read our full comments here: Section 512 Comments

Transparency Report Update: July–December 2016. Consistency is Key.

Today we launch our seventh bi-annual transparency report, covering the period between July 1 and December 31, 2016.

As usual, we detail the number of takedown demands and requests for information received from governments, as well as the intellectual property (IP) takedown notices we have received.

Having published these reports for a number of years now, something that is particularly striking is just how consistent the intellectual property figures are from one period to the next. To demonstrate this point, here are the percentages for the number of DMCA takedown requests we have rejected for each period, on the basis of being incomplete or abusive. The graphs include the total overall number of requests to provide some more context:

Looking just at the percentage of abusive notices received per reporting period, we see an even tighter range:

We believe that these numbers demonstrate a persistent and ongoing issue with the current copyright takedown system, which allows abuse to go unchecked due to a lack of real statutory consequences. Ten percent of notices on a single platform may not appear like much of a concern, but if our experience is representative of other similar hosts in the industry, the overall volume of abuse would amount to a huge number.

The same consistency seen in the IP numbers is not reflected in the percentage of government takedown demands that result in some or all content being removed as a result. Rather, these figures show a marked increase. This is partly due to a steadily climbing number of demands from countries such as Turkey and Russia, and also to a shift in our approach to handling these.

We encourage you to spend time looking through the data that we have collected, and dig in for yourselves. We’d also call on all hosts — big or small — to publish their own figures, and add their voice to the conversation.

The full transparency report is available here.

More Transparent Content Removal

Every day we receive a significant number of requests to have content removed from sites hosted on WordPress.com. Many of these involve alleged copyright violations making use of the DMCA takedown process, or the publication of sensitive private information. We review every single one by hand to ensure that the processes are not being abused for the purposes of censorship, and are constantly looking to improve how they are handled.

Content Removal Image

Before now, whenever content was removed from sites in these situations, there was no visual indication to explain why things may not be displaying correctly, with visitors confronted with a 404 page not found error instead. This was far from an ideal situation, and as part of our commitment to increased transparency, we are proud to be able to say that this is no longer the case.

From today, when content is removed from a WordPress.com site as the result of a DMCA takedown, or a private information complaint, a notice will be placed on the site in question to explain exactly what content has been removed, when, and why. In the case of images, a placeholder will be displayed. We hope this will help ensure that on those occasions where we are required to intervene, that the reasons for doing so are as clear as possible.

Read more about our DMCA policy here.

Read more about our private information policy here.

In addition to implementing this new process, we have also updated our documentation with new pages on how we approach the DMCA in general. You can find this at the following links:

https://en.support.wordpress.com/our-dmca-process/

https://en.support.wordpress.com/copyright-and-the-dmca/

When Bots go Bad: Automated DMCA Takedown Problems

In the past, we’ve not been shy about highlighting a number of the issues that exist with the DMCA, and recently fought back against its abuse in court. However, it remains true that tackling repeated instances of copyright infringement online can be repetitive work, and it’s no surprise that some people opt to outsource this task to third parties who have an army of specially programmed bots at their command.

These kind of automated systems scour the web, firing off takedown notifications where unauthorized uses of material are found – so humans don’t have to. Sounds great in theory, but it doesn’t always work out as smoothly in practice. Much akin to some nightmare scenario from the Terminator, sometimes the bots turn on their creators.

Be Afraid

Be afraid

We saw this happen fairly recently on WordPress.com, in an it-would-be-funny-if-it-wasn’t-so-serious kind of scenario. Attributor.com sent in a formally valid takedown notification on behalf of an academic, demanding that we disable access to a PDF that infringed upon his copyright. Following the statutory requirements, we did so, and notified the user, with instructions on how to submit a counter notification if they wished to challenge the removal.

Within a few days we heard back from the (understandably unhappy) site owner, who explained that they were in fact the copyright holder. The takedown notification was issued by an agency working on his behalf, and their bot had mistakenly targeted the original author’s site.

Ouch.

The confusion was eventually sorted out after the agency retracted the original takedown notice, and we restored access – but not before it was unavailable for almost five full days.

The DMCA notification and takedown process is a powerful weapon in the battle against copyright infringement, but it can also cause severe harm to freedom of speech when used inappropriately. As a result, it is something that should be deployed carefully, and with respect. All too often, overly broad takedown notifications are sent to online service providers in a scatter gun approach, with the financial interests of third party agents (who are routinely paid by instance of successful takedown) placed above the accuracy of the reports.

There is no question that there are a lot of issues involved in choosing to use bots to enforce copyright, but having them turn against you has got to be one of the worst.

Open Sourcing Our DMCA Process

At Automattic, we are firm believers in the power of open source: the release of code (or other works) into the public domain to be used, modified, and shared freely.

One of the challenges faced by online service providers is how to implement an effective policy for dealing with the DMCA takedown process – especially in cases where the system is being abused. We strive to protect users’ freedom of speech, and would love to see others do the same. However, the possible scenarios and requirements can be confusing; the language intimidating… especially for websites run by individuals or small organisations.

As a result, we are pleased to announce that today we are open sourcing our DMCA process docs on GitHub – under the Creative Commons Attribution-ShareAlike 3.0 license.

Included in the release is our already publicly available pages for details on how to submit a DMCA takedown and counter notice:

http://automattic.com/dmca/

http://automattic.com/dmca-counter-notice/

In addition, there is also a comprehensive set of detailed ‘predefined replies’ that we use when corresponding with both users and complainants in specific situations.

Some examples are:

  • Informing a user that a DMCA notice against their site has been received, the material disabled, and instructions for what to do next if they wish to challenge the removal.
  • Notification to a claimant that we are rejecting their claim on fair use grounds.
  • A response to an incomplete DMCA takedown, outlining which elements render the notice invalid, and instructions on how to make the necessary corrections.

We hope that this will help demystify some of the issues surrounding the DMCA process, and help others to implement their own.

The updated repo is available here, with the relevant docs filed under ‘DMCA’:

https://github.com/Automattic/legalmattic

Sorry Ms. Jackson…

Janet Jackson is a fine recording artist, but seems to have employed some overly aggressive lawyers, bent on removing or controlling all references to her name on WordPress.com. Here are a couple of examples of the improper takedown demands we’ve received:

  • Trademark infringement: The mention of Janet Jackson in a post about dinner conversation topic “What would your WWE Smackdown name be?”

“Picture Sacha Baron Cohen in, what else? his movie The Dictator. Elaborate General’s outfit, hat, etc. He walks in flanked by half a dozen sexy female soldiers inspired by the Janet Jackson Rhythm Nation video.”

(Here’s what our user thinks.)

  • Copyright infringement: An image of Ms. Jackson used in a Tim Howard meme:

janet-jackson-tim-howard

We rejected both of these complaints on the grounds of obvious fair use. Though we rejected their demands, we wanted to make sure they got at least a little promotion for their client, so we tried to use as many Janet Jackson song titles as possible (hopefully this doesn’t draw another takedown demand from them…) in our response:

“It seems like you believe the use of the trademark “Janet Jackson” is reserved all for you, but we were hoping you’d be open to some feedback because your attempt to control every use of the mark is pretty nasty. If you read up on nominative use, you’ll discover that it doesn’t really matter that “Janet Jackson” is used on this site. If you believe there are any other alleged infringements, would you mind submitting a notice again via our trademark form?

http://automattic.com/trademark-policy/

So excited to work with you going forward.”

 

Bikram: (Not So) Hot Yoga

Over the years, founder of Bikram Yoga, Bikram Choudhury, has been under considerable public scrutiny for alleged sexual harassment. In what we believe was an attempt to censor critical speech, several different individuals (supposedly) submitted five DMCA notices against a single blog post that touched on these accusations. After we rejected the first four DMCA notices because we had good reason to believe that they were not the rightful authors of the content,  the fifth was submitted by a lawyer claiming to represent Bikram Choudhury. In his notice, he alleged that Mr. Choudhury’s name and photo were used in violation of his copyrights and the law. We rejected the final notice because his name is not copyrightable and we believed that the photo fell under fair use.