Some of the world's largest online advertising companies have come up with a new plan to fight sites that trade in pirated materials and counterfeit goods: DMCA-style takedowns. AOL, Condé Nast, Google, Microsoft, Yahoo, as well as 24/7 Media, Adtegrity, and SpotXchange have agreed to a new set of "best practices for ad networks to address piracy and counterfeiting." The new plan, created in cooperation with the Obama Administration, allows copyright holders to ask an advertising network to cease supplying ads to a site engaging in copyright piracy or selling phony goods.
Here's how the new set-up might work. Let's say Walt Disney Studios spots a copy of Iron Man 3 (a Disney-distributed movie) on a piracy streaming site. Right next to the video window, Disney sees an ad distributed through AOL's advertising network. Disney would then have to send either a DMCA takedown request or a cease-and-desist letter to the website displaying the infringing content. If the website did not respond or comply with the request, Disney could then notify AOL that ads from its network were appearing next to a pirate stream of the latest Iron Man installment. It would then be up to AOL to blacklist the site and cease to provide advertising on the site.
Since most websites rely on advertising to generate revenue, cutting off ads could make it harder for piracy and counterfeit sites to remain online. The problem: There are numerous online advertising networks out there that may not be so squeamish about where its ad network shows up.
The most prominent example would be the notorious BitTorrent-tracking site, The Pirate Bay. An advertising-supported site, the Pirate Bay currently gets a large part of its advertising from exoclicks.com--an ad network based in Spain, not associated with the ones participating in the new best practices agreement.
So the effectiveness of this new takedown regime may be limited.
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Regardless, the advertising companies probably had to do something to deal with questions surrounding piracy and counterfeit goods. Distributors of online ads have to be careful where their clients' ads show up, lest a misplaced ad could suggest tacit approval from a company or institution for activity it does not normally approve of.
That's what happened last September when an ad from Canada's Department of Finance appeared on The Pirate Bay, according to The Ottawa Citizen. The marketing goof forced the Canadian government to temporarily suspend its ad campaign.
While ads showing up in low places can be a problem for advertisers, modeling your system on the takedown procedures enshrined in the Digital Millennium Copyright Act may not be the best choice.
Like the DMCA, the new ad practices require advertisers to state, on penalty of perjury, they have a "good faith belief" their material is being used illegitimately.
A question of practices
The best practices do not specify if copyright holders will be subject to any kind of redress should they continually file false claims. That's understandable since advertising networks don't want to get into the business of punishing their advertising clients.
The problem is, the history of DMCA takedown notices is rife with abuse and harmful mistakes.
Leo Laporte, the host and founder of the TWiT podcasting network, routinely complains of bogus DMCA takedown claims sent to YouTube that remove his work from the world's most popular video site.
Sci-Fi novelist and online activist Cory Doctorow recently complained about phony takedown requests from Fox. Doctorow typically releases his novels under a Creative Commons license and allows fans to freely download e-books of his work for free.
So imagine Doctorow's surprise when Fox, which has no rights to his work, issued takedown notices to Google and other search engines asking that links be removed to Doctorow's recent novel Homeland. Fox was apparently mistaking Doctorow's book for episodes of the TV show Homeland, a Fox-produced series on Showtime starring Claire Danes and Damian Lewis. "The DMCA makes it easy to carelessly censor the Internet," Doctorow said in a blog post addressing the Fox mix-up. "And makes it hard to get redress for this kind of perjurious, depraved indifference."
Similar to the DMCA, copyright holders that file complaints with the ad networks must state, under threat of perjury, that they believe their work is being misused. Given the problems with the DMCA system, however, there's little reason to think the new best practices for advertising will fare any better.
The one saving grace of the new ad networks' approach is that copyright holders must first deal directly with the offending site before complaining to the ad network. We'll have to see in the coming months whether that measure will be enough to prevent the ad networks' best practices from becoming just another version of the DMCA.