By Ruth Vitale

Stop us if you have heard this one before: a Google-funded organization has cited Google-backed research to spout misleading piracy claims that benefit Google.

This time, the guilty party is Re:Create, a purported coalition of “Innovators, Creators and Consumers United for Balanced Copyright.” 

They started circulating a “fact” sheet titled Copyright Infringement on the Decline Worldwide to Members of Congress and the press in response to the Senate’s ongoing series of hearings reassessing the 22-year-old Digital Millennium Copyright Act (DMCA).

Re:Create wants everyone to think “everything’s fine, nothing to see here, move along.”

Just one problem: Re:Create is peddling “alternative facts,” to put it kindly. They want us to ignore the real facts, which are inescapable: all is not well with the DMCA.

Here are the main points in Re:Create’s mis-infographic, and our (factual) counterpoints.

POINT: “Online copyright infringement is on the decline worldwide despite entertainment industry claims.”

COUNTERPOINT: Hey, Re:Create, here’s a quick “gotcha.” It’s not just the “entertainment industry” (a great one that we love) that is impacted by growing (not declining) piracy. Piracy robs all of the core copyright industries – books, newspapers and periodicals, motion pictures, recorded music, radio and television broadcasting, video games, software – and the millions of people who work in these industries. 

Here’s who’s hurt: the film and television industry employs more than 2.5 million Americans across all 50 states, and 87% of the businesses employ fewer than 10 peopleThe core copyright industries at large employed nearly 5.7 million workers as recently as 2017, accounting for 3.85% of the entire United States workforce.  These are who copyright protects – an industry of small businesses and individuals working to put food on tables and support families.

Moreover, where does Re:Create get its facts showing that piracy is “on the decline?” Here are our facts.

One recent study from the data analysts at MUSO, showed nearly 78 billion visits to piracy streaming sites over a year-long period. And streaming piracy, not surprisingly, now accounts for 80% of all piracyAnother study, from the U.S. Chamber of Commerce, found that global online piracy costs the U.S. economy at least $29.2 billion in lost revenue. And jobs? The Chamber found that “digital video piracy” alone results in losses of between 230,000 and 560,000 American jobs every year.

OK, Re:Create, we showed you ours – show us yours.

POINT: “Increased access to legitimate content has been proven to drive down infringement.”

COUNTERPOINT: Well, it’s beyond argument that the legitimate digital marketplace has exploded over the past decade, giving people all over the world more choices and more flexibility. Just one little problem – the more content you put in front of the pirates, the more they steal it and try to resell it for a profit.

There was a theory once upon a time that Netflix would be piracy-proof. They’d make the same content available all over the world at the same time at a good price. Why would anyone bother to steal it? Well, we don’t know, but the fact is that they do. And what’s more? Netflix’s piracy problem began long before streaming piracy was ubiquitous.

Today, black-market offerings like “fully-loaded” Kodi boxes bring pirated streams of television channels, movies, and even live sports events right to the viewer’s living room – including Netflix’s entire library. Or, a viewer can skip the hardware altogether and simply use Google Search or Reddit to find virtually anything they want to watch – from Netflix, Hulu, Amazon, and every other streaming site – and watch it for free or next to nothing.

The better online content gets, the more clever the commercial thieves become. And while it has never been easier to access legitimate content, it has also never been easier to steal and resell it. Sorry, Re:Create, you have failed again.

POINT: “An analysis of other countries found that…anti-piracy laws and regulations had a minimal effect or none at all.”

COUNTERPOINT: Well, Re:Create, you must be thinking of an analysis funded by Google, which  wants no anti-piracy regulations – whether in the DMCA or anywhere else – because they don’t want anyone messing with their ability to monetize free content regardless of who makes it or owns it.

So here are some real (non-Google-funded) facts: measures such as site blocking, content removal, and/or injunctions, have measurably diminished piracy in many countries. And democracies like ours – ranging from Australia to the United Kingdom to Canada and beyond – have successfully implemented court-ordered site blocking, resulting in far fewer visits to the blocked sites, fewer visits overall to pirate sites, and some increase in traffic to legitimate streaming sites.

Swing and a miss, Re:Create.

POINT: “The U.S. notice-and-takedown system works to protect rights holders.”

COUNTERPOINT: So here’s how Re:Create measures success: “Billions of URLs and millions of pieces of content were taken down in 2018 due to DMCA notice-and-takedown requests.”

Think about that – a system in which creatives have to invest huge amounts of time and money that they do not have to get billions of takedown requests filed – is good thing?

And once they get a pirated work taken down by, say, Google, there is nothing in the law that requires Google to permanently keep it down. As long as they respond to each individual takedown notice in a (relatively) timely fashion, they’re off the hook. And even before Google does that takedown, someone else somewhere in the world (or the same person simply using a different account) uploads the work again, requiring yet another takedown notice. And the wheel goes round and round…

Meanwhile, as Google and other internet platforms require creatives to waste their limited time and resources and gives them little or no help to track down their stolen works, Google and YouTube’s parent company, Alphabet, has built an empire worth over a trillion dollars – a significant part of which has come from monetizing the very work these creatives made and must fight to protect.

POINT: “The notice-and-takedown system is abused by rights holders to take down works that are either fair use, licensed or not subject to copyright.

COUNTERPOINT: Where did Re:Create get this one? Why, from yet another Google-funded study! – which reaches its conclusions based on a sample of just 1,826 notices over a six-month period about seven years ago. The Google-funded report, Notice and Takedown in Everyday Practice, concludes that 4.2% of the sampled takedown notices were “fundamentally flawed,” or about… 77 requests. 

Here’s a pop quiz: Can anyone extrapolate from a tiny percentage (4.2%) of a tiny sample size (less than 2,000 out of several billion) taken seven years ago that the DMCA system is “abused by rights holders”? If your answer is “no,” congratulations! You have already given more thought to this than Re:Create clearly has. Oh, and while you’re at it, take a look at the authors of that “study” and the anti-copyright biases they bring to their work.

POINT: “Overall, America’s balanced copyright framework is effective at stopping online infringement… copyright infringement is largely a non-U.S. problem.”

COUNTERPOINT: Hello?? Piracy is an American problem in every sense.  

Piracy is widespread here, as significant as it is in almost any part of the developed world.  

But it is also an American problem in terms of its impact on jobs. As we said, 2.5 million Americans are employed in film and television alone, and those jobs are put at risk by piracy.  

And, it is an American problem in terms of trade, because it depresses the value of our creative works around the world. 

And, it is an American problem in terms of culture, because revenues diverted to pirates are revenues that cannot be reinvested in creating American content.

We strongly support Congress’ current reassessment of the Digital Millennium Copyright Act. This review depends upon Congress getting reliable information, so they can create new policies that hold internet platforms like Google accountable for helping to stop piracy. 

Re:Create’s mis-infographic is the opposite of reliable; it is willful misinformation. 

But then again, maybe we should not be surprised. Let’s start with its name. Re:Create does not create anything, does not speak for creatives, and is not supported by the creative industries. The only “creative” thing we will give them credit for is the creativity of their misinformation.