Study – Creators Frustrated with DMCA (with Pandas!)

The evidence is increasingly clear: The DMCA needs work.

Also, here to help explain are some panda gifs.

A new study by the Copyright Alliance shows that creators have frustrations with the Digital Millennial Copyright Act (DMCA) system for dealing with copyright infringement on the internet.


The Copyright Alliance surveyed 1,362 creators about their experience with the DMCA. Some of the most interesting results are:

  • 52.2% of creators monitor the internet for infringement in some way.
  • 37.4% do not monitor for infringement.
  • Yet (and this is important) only 2.5% say they do not mind if their work is used online without permission.

There is an obvious gap between 2.5% who are happy to give their work away and 37.4% who may not be happy to give it away but don’t monitor for infringement. The study suggests an explanation: Creators lack information on how the DMCA works or perhaps it’s too difficult and time consuming to merit the time.

There are lots of other interesting findings in the study – you should read it – but the other key finding is that 47.6% of respondents say that the DMCA is ineffective. That’s a pretty high level of dissatisfaction with a system that was supposed to safeguard creators’ rights. Not quite a panda-playing-in-the-snow level of happiness.


This study dovetails with one I worked on with the Arts and Entertainment Advocacy Clinic at my law school, George Mason Law (where I’m a 3L and ready to graduate!). In that study, student lawyers took on the role of monitoring and reporting infringement online for several works.

Probably the most shocking finding of our many hours searching for and responding to infringement is the astounding level of malicious schemes masquerading as sites to download these works. In other words, bad guys dangle the lure of a download to steal personal information, credit cards, or to install malware on computer of the consumer. Many times, in fact, the promised download was not even on the site, something one discovered only after clicking through endless screens and downloading who knows what software.

47% of the sites purporting to offer the work were instead malicious in some way.

It’s a dangerous world out there.


With this added dimension in the mix, we were able to confirm removal of only 16% of infringing content from the internet using the DMCA.

You can read the George Mason Law study here.

The studies show the DMCA is not working as it should, especially for individual creators just trying to make a living off their art. More research is needed, but even more, the DMCA needs updates. The pandas, though, are fine.



Art is the Adventure for Photographer Elli Morris

Elli Morris has journeyed many miles and it all goes into her photography. When she’s home in Richmond, Virginia the photographer and videographer enjoys the usual aspects of a photography business – advertising work for local businesses, portraits of individuals and the like, but she adds an extra twist.

Whenever she can, Elli gets out and does some adventure photography. She likes to get her feet wet in the James River, capturing images of all the fun available in her community’s back yard. The river runs the spectrum from the adrenaline-pumping thrill of whitewater rafting to the peaceful glide of stand up paddle boards.


Elli working in the river. Photo credit: Rich Young

Although she has traveled all over the world, Elli likes her work to show people that they don’t have to save up for an exotic vacation to enjoy the outdoors. They can do it all close to home and enjoy the great outdoors whenever they like.

“If they see how fun it can be out there, if they can get out and have fun, they are more likely to be environmental stewards,” she said.

That’s one reason her work often is licensed by non-profits working with water issues such as clean water initiatives. They occupy the same space she does.

Elli’s love of photography started while she hitchhiked through the Caribbean. She didn’t have a camera on the trip and missed being able to show her family the places she traveled. Her parents bought her a camera after that and the rest is history.

She began self-training herself as she traveled the world, often stopping in tourist spots to buy postcards, and seeing if she could recreate the technique that made each shot so compelling.

So Elli enrolled in a college photography class. “I walked out of class and thought ‘I can see this entire new world open up, ways to see, ways to participate,” she said. She built up a portfolio and kept trying to improve her skills.

One professor said something that stuck with Elli. He called photography a “thinking person’s art.” Something about that way of looking at the world made Elli realize she wanted to pursue photography as a career. She kept going to school and tried to see if she could find a way to make a living at this “thinking woman’s art.”

Her desires were simple. She wanted to take good pictures, she wanted to get paid for them, and she wanted her work to be seen by others. She invested in years of schooling, years of practice, and generations of professional equipment.

Elli Morris Stills and Motion is the result.

Copyright is fundamental to her photography and videography business. She needs to sell licenses to use photographs or videos to make a living. When someone uses her images without permission, she says, “It’s like a theft. It’s the same as if somebody goes to a retail store and takes clothes, or walked into your house and took things. It steals my livelihood, my work, my right to say ‘I made this.'”

Enforcing that right can be frustrating. A few years ago, someone used one of Elli’s photographs on their business website without her permission. Elli did the research and figured out how to use Digital Millennial Copyright Act (DMCA) procedures to request the image be taken down. After a while, the business agreed to take the image down.

However, a few years later, the same business did it again. They used an image without her permission. This time when she sent a request through the DMCA, the business owner “hemmed and hawed” and never took the image down. Not only did the image remain on the site, but the business used her work in brochures and huge twelve-foot banners in a convention booth.

Elli feels stymied. Her only recourse is to go to court. She knows that the licensing fee she might recover is dwarfed by the cost of litigation.

Financially, it doesn’t make sense to go to court, but emotionally, the violation rankles, as do the hours she spent trying to rectify it.

“Not only did they steal my work,” she said, “but they stole my time. That’s my work. You don’t get to do that. It’s not right.”

You can follow Elli on Twitter @ellimorrisphoto or view her work at Images used with permission from Elli Morris Stills and Motion.

IMG_4988About the Author: Rebecca Cusey is a writer and law student. She writes about movies and other things as a Senior Contributor for The Federalist and as a Policy Fellow at the American Conservative Union. She studies law at Antonin Scalia Law School at George Mason as a third-year student focusing on Intellectual Property. She lives near Washington, DC with her adorable husband and dashing children. 

Follow Rebecca on Twitter: @Rebecca_Cusey

Katherine Lents Finds Her Creativity Spark – Creator Profile

Sometimes a big risk is necessary to find the spark in life.

That’s what Texas filmmaker and entrepreneur Katherine Lents found when she left a stable and steady job in the pharmaceutical industry. She liked the work, but it didn’t feed her passion. So she founded ShowUp Media, a new web platform which aims to be a secure showcase for video content. Hosting  web series, short films, and TV pilots, ShowUp connects filmmakers with viewers directly, creating a better experience for both consumers of shows and the filmmakers who make them.

In addition to creating a platform featuring the work of other filmmakers, Lents seized the opportunity to produce work of her own, a process she embraces.

“I love the collaborative nature of filmmaking,” she told me, “It starts with something as simple as a script but takes the interpretation of your director, actors, crew, everyone right down to the production assistant.”

“It’s something that feeds that creativity spark.”

Lents hopes that attention to creativity and to the filmmakers who channel it will set ShowUp Media apart from its enormous competitor, YouTube. The huge platform poses a couple of problems for filmmakers. First, she says, viewers have to wade through an endless stream of cat videos and fractured content to get to things they want to watch. Creators end up losing the opportunity to build their brand with so much static in the way.

Secondly, it’s relatively easy for users to pull down the video content using readily available software and repost it at will. This piracy erodes both the filmmaker’s brand and revenue.

Combatting piracy is a huge motivating factor for ShowUp. Together with a tech company called Notion Theory, Lents has developed a platform that takes into account piracy concerns. Constantly adapting as piracy software emerges, ShowUp will ensure that the filmmakers get the benefit of users’ views, not some infringer in Russia. She hopes that creating a secure site will allow filmmakers to focus on what is most important: Creating their art and finding an audience for it.

Preserving copyright is extremely important in this context. A space where filmmakers feel confident will draw good content. If they control and profit from their work rather than being at the mercy of a world of infringers, Lents hopes the site will thrive. As filmmakers present quality product and viewers find content they like, the effect will multiply. Protecting copyright directly effects ShowUp’s bottom line.

She hopes to host content exclusively and have the site operate not only as a platform for consumer viewing but as a broker for larger deals and bigger distribution.

But that’s not the only goal. Ultimately, Lents wants the copyright and business to fade into the background so that the art can shine.

“The goal is to get viewers and filmmakers to work together,” says Lents. To that end, viewers can up vote videos they like and even weigh in on what pilots they think should be made into full series.

In a full-circle kind of happening, content from ShowUp may find its way back to the small screen. Lents is in talks with local cable companies to broadcast ShowUp’s content to TVs in the Austin area. This would get even more eyeballs on the filmmakers’ work and more oomph for their brands.

Katherine’s big leap is just one way that innovation and free market competition works in conjunction with copyright to serve everyone – both the creators and viewers win. Good luck!

You can follow Lents on Twitter @KatherineLents (she loves lamp) and ShowUp @ShowUpMedia

IMG_4988About the Author: Rebecca Cusey is a writer and law student. She writes about movies and other things as a Senior Contributor for The Federalist and as a Policy Fellow at the American Conservative Union. She studies law at Antonin Scalia Law School at George Mason as a third-year student focusing on Intellectual Property. She lives near Washington, DC with her adorable husband and dashing children. 

Follow Rebecca on Twitter: @Rebecca_Cusey

Warner Bros DMCAs its Own Site and Everyone Misses The Point

TorrentFreak, which apparently spends valuable time combing through the Lumen database of DMCA notices, caught an error recently.

Vobile, a company that enforces copyright online for copyright owners, sent to Google on behalf of Warner Brothers a notice to take down links to infringing content under the rules of the DMCA. Vobile mistakenly included links to, Amazon, Sky, and IMDB, sites that presumably have permission to sell Warner Brothers movies or other legitimate reasons to post content.

Vobile uses automated methods to find and report infringement. This is proprietary so I’m just going to assume little Oompa Loompas comb the internet, find the infringement, and sing rhyming tunes as they fill out DMCA notices.

Google apparently caught the error and did not remove links to the legitimate sites. I like to think Google and Warner Brothers had a good laugh over a beer or two. And that would have been the end of it except TorrentFreak used the incident to argue that DMCA notices are all too often inaccurate. (TorrentFreak also reported that Google was still “investigating” the Warner Brothers link. I wonder how they knew that. Update: Please see note below.) A few blogs picked up the story and now it’s a thing.

So, like a good reporter, I went and reviewed the DMCA notice that Vobile sent for Warner Brothers. You can view it for yourself here.

The first thing to notice is that those Oompa Loompas found a lot of links to infringing content. In this one notice to Google alone, there are 363 links to content regarding 5 movies.

Since TorrentFreak raised the issue of inaccurate reports, I decided to investigate the links themselves. I took the first batch of links that were reported to Google, 36 links to infringement of the 2006 movie “300.” (THIS IS SPARTA!) I visited each site to see what I would find, an experiment I don’t recommend for the faint of heart.


  • Of 36 sites, all but five linked directly to sites that were actively purporting to make available the movie “300,” immediately, for free. Usually by both download or streaming.
  • Several sites had the movie available to stream immediately with no further action required.
  • At least 18 sites purported to have the movie available, but when you clicked to watch it, required you to download software. I have no way of knowing what this software was of if it was malware intended to damage my computer.
  • Three sites looked like sites where you could in the past download or stream “300,” but either the link was broken or the file was unavailable. I could not tell if this was because the content had been removed as a result of a DMCA request, for some other reason, or just a glitch.
  • One site looked like it was possible it could be licensed content. It was hard to tell without being privy to licensing agreements. Also without speaking Portuguese. But it was the only reported link in which there was any possibility at all in the universe that the content was licensed.
  • Two sites were so aggressive about forcing me to download a file they locked up my computer unless I clicked ok and I had to perform a hard reboot to (hopefully) avoid it.
  • At least one site seemed to start an auto download of files to my computer.
  • All the sites had ads, including one for gogiberry juice which I found odd in the context of “300.”
  • At least five had ads for pornography or pornographic games.

After soaking my computer and my eyeballs in bleach, I did the math. Merely checking these sites for possible infringement took me an hour and fifteen minutes (including time to reboot my computer multiple times but not including all the virus screens I’ll have to perform). That was without the time it would take to copy the link to a DMCA notice to Google asking them to remove the link. And that’s just to remove the links from Google searches. If I wanted to remove the links from other search engines or send DMCA notices to the sites themselves and their hosting ISPs, that is easily double the time. Probably triple. Maybe more.

For 36 links. Out of 363 on the takedown notice. For five movies. That day.

Of the 36 reported links I checked, 97% linked to current or previously infringing content or sites that purport to provide infringing content. 50% attempted to install software on my computer that, for all I know, may be malware.

The point here is not that automated reporting sometimes, but rarely, returns errors. (And, as an aside, if errors such as this were common and if TorrentFreak constantly monitors Lumen for them as they apparently do, we’d hear about it all the time.)

Finally, I did a search on Google to watch “300” online for free. As will shock no one, least of all the oompa loompas, there were scores and scores of results that I would bet my peanut butter sandwich lead to infringing content.

There are two takeaways from this exercise.

First, a human being, even a department of human beings, cannot physically find all the infringing content even for an old movie that everyone has already seen, send takedown notices for that content, and monitor to see if it has been taken down or reposted. The man-hours in doing this, well, manually, are astronomical. For a company like Warner Brothers it’s bad enough. For an individual indie filmmaker, prohibitive and overwhelming. Automation is absolutely essential if there is any hope of protecting copyright at all.

Secondly, even automated systems barely make a dent in the infringing content that is out there. Google still returns links to infringing content. Of course mistakes will happen when the infringement is so pervasive.

After an hour finding infringement, you start to feel like King Leonidas facing Xerxes’s army. Tonight, we dine in (DMCA) hell.


UPDATE 9/13/2016 6:00 EST – I heard from TorrentFreak’s Ernesto van der Saar, who seems like a professional and reasonable guy. He pointed me to Google’s Transparency Report, which clearly states the Warner Brothers link removal request is still pending. I did not know how to check that and I appreciate Ernesto taking valuable time to point it out to me. Also, clearly that is where TorrentFreak got the information I was questioning. Thank you, Ernesto!