[research] Summit Entertainment shoots down art when automated process thinks it's Twilight fan art

[unjapanologist]

Apparently Summit Entertainment had a picture by artist Kelly Howlett yanked from Zazzle because they believed - wrongly - that she was selling Twilight fan art.

Now, I seriously question the wisdom of Summit Entertainment spending time and resources to track down Twilight fan artists who may be trying to make a buck from their work. Except that they don't have to spend time or resources on this sort of thing anymore: the identification of this picture as unauthorized Twilight art being sold in violation of Summit's intellectual property rights happened via an automated process.

Howlett is not actually convinced that anyone at Summit even saw her sketch, that this was done by an automated process that found a (vaguely) familiar tag. But if that is what’s considered the intellectual property of anyone, then is there any stopping big companies like Summit from going after even the most minor of references, let alone the entre fan art community? And how are regular people who make fan art supposed to stand up to high-power corporate lawyers? (Answer: They can’t.)

Using automated processes to identify and "prosecute" (term used loosely here, since these are private companies who've been given the power to police and sentence) infringing art on the internet is a practice that's very error-prone and has considerable collateral damage. People can get their livelihood yanked off the internet or even get kicked offline entirely for no good reason and without due process. And when individual creators want to protest bogus infringement claims, they don't have an automated process to do the work for them or the confidence of having lawyers in their pockets that they can shake at big companies: it takes a great deal of time and effort before they get permission to upload a work again. Some people say that such "annoyances" for individual creators are unfortunate but necessary, because rightsholders need automated systems to track infringement of their works on the whole wide internet, and they just can't afford to actually look at every single online work that gets flagged. I think that claim shows a complete failure to understand what makes works valuable on the internet, for their creators and in the eyes of others.

When a work is taken down after a bogus infringement claim, it can often be uploaded again, but that new copy will have been stripped of its the work's whole history. A "work" isn't just the text or the picture that you can make a backup copy of; it's the work, and the comments, and the views, and the kudos/favs/stars/bookmarks/ other thingies by which sites let people show appreciation and communicate. You could even argue that the "work" also includes bookmarks outside of the posting location - bookmarks that get broken if the work has to be reposted to a different URL. A bogus takedown notice can destroy all of that in a second.

I recently deleted one of my fics from the AO3 by accident, and losing that one easily replaceable online copy of that work was nothing compared to losing the whole history of comments etc. associated with that particular copy. If this snafu had happened because of some random claim by an automated process rather than through my own inattention, I'd have expired from sheer fury on the spot, because someone would have taken three quarters of what made that fic valuable for me simply because their algorithm had a hiccup. Whoops.

There's lots of reasons to dislike automated processes, but deep down, what offends me the most is that a bunch of media companies apparently feel totally okay with imposing their view of where the value of "culture" lies on everybody else. In their framework, the financial value of any given movie or other commercial property they own trumps the different value of works created outside of their circuit, in any and all circumstances. In the minds of these companies (because companies are apparently persons), if it's to protect the need of a handful of people to make all financial value derived from a movie flow into their pockets and nobody else's, it's completely acceptable to use automated processes to randomly shoot down online art and potentially destroy the value it holds for its creators. Not just "acceptable": it's the natural order of things.

It's unbelievable that the new RIAA policing scheme actually has some people going "Bwahaha, that will teach those pirates". Media companies who only want to protect their current business model get the power to decide what "legitimate" culture is for everybody else? Via use of automated processes? What could go wrong.

Comments

[ravenna_c_tan]

It's going to take some serious work to stand up to this sort of thing. A similar thing happened recently with the whole Paypal ebook policing debacle. Paypal told various legitimate ebook retailers (like AllRomanceEbooks.com and Smashwords) that they would lose their Paypal accounts if they didn't immediately take down all LEGAL content that Paypal disapproved of, which included (for example) all "pseudo-incest" .. i.e. stories about not actual incest but people pretending to be, or step-relatives, etc. Instead of actually checking the content of each book, though, they just blanket-bombed the removal of ALL books marked as erotica that included the word "Daddy" in the title, even ones that were not remotely pseudo-incestuous. Pretty stupid, right? Well, Mark Coker of Smashwords fought back, and maybe it took a white male tech millionaire CEO to do it, but Paypal backed down and basically admitted that trying to judge entire "categories" without judging the individual works was just plain wrong and that they needed to re-do their entire terms of service. If someone like Mark were the head honcho at DeviantArt or Zazzle, we might have a chance of getting somewhere. If Zazzle is just going to cave, we're sunk.

[unjapanologist]

I think what we're dealing with here is different from the Paypal affair. Paypal was just arbitrarily making up rules that it wanted Smashwords and similar companies to follow, so when there was an outcry, they rescinded (kind of) their own arbitrary rules. They didn't really have a leg to stand on, and they quickly pivoted when they saw a PR disaster coming.

The media company that told Zazzle to take this picture down, however, is not making up arbitrary rules that it wants sites to follow: the Digital Millennium Copyright Act gives media companies and other rightsholders the right by law to send infringement notices, and forces companies like Zazzle - again by law - to comply with those notices. If Zazzle doesn't comply, they risk getting sued for copyright infringement themselves. There's literally no one on the web who's allowed to just ignore this kind of automated infringement notice; if they do, they can get sued. Paypal never had that sort of power. Which makes this nonsense all the more terrifying. Paypal didn't really have the power to play cop and judge, but Summit Entertainment most certainly does.

(e.g. Dreamwidth has to comply with the DMCA as well, although it's as nice as humanly possible about this, explains very thoroughly what a user's options are, and sets reported content to non-viewable rather than deleting it outright. But most online companies aren't this nice and/or don't have the option of turning content "non-viewable", so the content is simply taken away entirely.)

[ravenna_c_tan]

Yes, I know, but there's a difference between "can get sued" and "will be." What if Zazzle didn't take the art down and said "This is obviously defensibly NOT Twilight fan art and we will prove it in court if necessary." ? Some actual human lawyer at Summit would have to look at the art before they could file suit, and they would likely conclude they were setting themselves up for not only a PR nightmare but a lost case if they pursued it. That kind of lost case could set a case law precedent that could very well overturn the automated mechanism of the DMCA, which is why Summit would never ever actually take them to court. But it takes a company willing to fight the abuse and take the risk of having to go to court on behalf of not only their users but their business model which is damaged by these spurious notices.

[unjapanologist]

To do this as a single company would be pretty suicidal; they might win in court, but it would still kill them dead because of the sheer time, effort and money involved in fighting massive media conglomerates (which is basically what killed Veoh). No company is going to do that. Organizations like the MPAA and the RIAA are too powerful to be scared of PR nightmares; they've had about ten million consumer-and-copyright-related PR incidents already, and it just doesn't hurt them, because they're too entrenched, rich, and good at pushing out their view of copyright to the world. This abuse is too entrenched to be fought just by one company; it's going to take a massive change in how everyone conceives copyright, and that's a fight for all of us. *waves flags and puts on some revolutionary music*

[elf]

Paypal has, unfortunately, not actually *implemented* their new "we only care if it's illegal" policy. :(

Selena Kitt says that "Except when Stuart contacted Paypal, the representative told him that, no, there had been no recent change in their policy in regards to adult erotic fiction. Incest, according to them, was still banned."

What we need is a solid class-action lawsuit against DMCA takedown notices done without due diligence and in bad faith. And a case against Paypal and Amazon for fraudulently misrepresenting what content they allow, by not providing clear guidelines. (Also, an anti-discrimination suit against Amazon for their continued heavier restrictions on LGBT books.)

[ravenna_c_tan]

Ditto yes "like" +1. :-)

[kimboo_york]

Well there are two issues here, copyright and the method by which companies enforce it. That is, there is compliance and then there is methodology. What I dislike here but believe we are fairly powerless to fight is the method of "guilty until we say otherwise, which we probably won't do" which really does place this in the same game as PayPal, even if the primary issue is not compliance for them. They are private corporations and they *can* do just that, and without government interceding -- which, yes, when hell freezes over -- they get to set the rules to fit their own comfort level.

I think the only way this is going to change is through a major company -- not Zazzle, but something along the lines of what MegaUpload used to be (and don't I wish they had not been morons) -- challenging copyright law itself. Somehow. That won't stop companies like PayPal and Google censoring content due to filthy, filthy porn, but in cancelling out the compliance issue it would give users a leg to stand on in regards to complaining about methodology of enforcement. Sometimes. *sigh*

Honestly? I think it's going to happen over AO3 - some corporate jerkwad is going to press to have OTW take it down, and then the BIG guns will come out. We aren't ready for that kind of fight yet, but if OTW is smart, they see it on the horizon. (speaking of, I need to renew my membership...)

[ravenna_c_tan]

Ditto, I better check when the last time I donated to OTW was. Because I think you're exactly right. The way the winds are blowing, media corporations are acting extremely non-rationally about "copyright violations" (including ones that aren't even violations).

If you want a good laugh, though, Google "Copyright Math" and watch the 5 minute TED Talk on the subject. BRILLIANT.

Actually, let me see if I can embed it here:

[ravenna_c_tan]

OK, no embedding... or my adblocker is blocking it. Here's the link though, to the version on Youtube:

http://www.youtube.com/watch?v=GZadCj8O1-0

[unjapanologist]

only way this is going to change is through a major company

It's definitely not going to happen if major companies don't support it, but if Google (which would really rather pocket the tons of money it has to spend policing YouTube) isn't in a position to say "this sucks, and we'll stand by that in court", no major company is. What's become abundantly clear through the SOPA/PIPA business, IMO, is that tech companies alone are simply not capable of pushing their views through to lawmakers ahead of the views of media conglomerates. The latter are just too entrenched and too rich, and lawmakers are too uncritical of them and often fail to understand the new realities of these intertubes. SOPA/PIPA got temporarily shelved not because tech companies protested; they were doing so as hard as they could, and nobody listened. SOPA and PIPA got shelved because tech companies poked their customers, and vast numbers of individual people realized something was going on and started yelling at their elected representatives.

That's why I think it's so critical for people to get informed about copyright, understand the issues at stake, and protest. We've all been pretty much indoctrinated by media companies' view of copyright since we were old enough to sit in front of a television; every video and every DVD we watch starts with dire warnings about the evils of piracy. Most mainstream media don't make any sustained critical noises about copyright abuse because they have a vested interest themselves. The broad lack of awareness about copyright abuse is understandable, but if it doesn't change, organizations who may be willing to challenge these awful laws won't have a chance of getting heard.

That's part of what I like about the OTW - they don't just stand by their opinion, they also try to get people informed that these issues matter to fans as well. Which I feel is tremendously important, because they won't get anywhere if the people whose rights they want to defend aren't fully aware of what those rights even are and how they're being violated by current copyright policing. (In fact, I feel very motivated to go do some OTW work right now. *runs off to start translating*)

[kimboo_york]

We've all been pretty much indoctrinated by media companies' view of copyright

Gah. I agree with your whole comment here 100%, but nothing moreso than THIS. Even authors who have a vested financial interest in understanding copyright toe the corporate line because of that indoctrination. We've been so brainwashed that's it's hard to move beyond the "copying is STEALING!!!!" argument. It's not just about logic or law, but a whole argument that media companies have pinned to morality to the point that people dare not question the status quo for fear of being judged as corrupt or criminal.

Education is our only defense against that, but in my experience it is still like beating a brick wall with a whiffle bat.

[unjapanologist]

a whole argument that media companies have pinned to morality to the point that people dare not question the status quo for fear of being judged as corrupt or criminal

Exactly. And I hear you - where the hell do you even start when the first thing you have to do is convince people that something is not a crime when they've been told it's a crime their whole lives? It's so grating to hear the MPAA whine that Wikipedia and co. abused their power to indoctrinate consumers. That's a very big pot calling a very tiny kettle black.

And that whole "copying is stealing" idea carries right over into discussions about fanwork, all the bloody time. They constantly try to define "legitimate" culture as the kind of (copyrighted) culture they create.