Most anti-piracy tools and mechanisms, whether dedicated online platforms or legislation crafted to achieve a particular goal, have issues that affect their performance.

No matter how tough, legislation could be of date when finally implemented, or reveal itself to be unwieldy in practice, too costly, or simply ineffective. Technical solutions may face compliance and regulatory issues, while pirate adversaries remain light on their feet by ignoring them all.

One key to success for rightsholders is to exploit pirates where they’re most vulnerable, i.e anywhere where they’re reliant on services operated by businesses that already comply with the law and are more likely to take action.

The European Commission’s Recommendation (Toolbox) published on Tuesday, focuses on just that by providing guidance on enforcement, suggesting priority actions, and encouraging use of existing anti-counterfeit/anti-piracy tools.

Cooperation, Coordination and Information Sharing

The Commission says a key aim of the Toolbox is to promote and facilitate effective cooperation between rightsholders, providers of intermediary services, and competent authorities, by promoting good practice and use of appropriate tools and new technologies.

The headline focus is anti-counterfeiting but within the text the EC notes that “most guiding principles, good practices and tools” developed under the recommendation can also be relevant when tackling pirated content online. In particular, voluntary actions taken by online intermediaries, “enhanced cooperation among competent national authorities,” and the sharing of information and data.

Cooperation and increased information sharing are essential and should be further promoted, at all levels, in accordance with Union law, the protection of personal data and the freedom to conduct business under Article 16 of the Charter of Fundamental Rights of the European Union (‘ the Charter ’). Good practices should be identified, and recommended to all actors, including e-commerce marketplaces, transport and logistic service providers, payment services providers, social media providers, providers of domain name services, etc. Secondly, further cooperation and information sharing should be encouraged. This relates to all competent authorities, including market surveillance authorities that currently may not have competences for IP-infringing activities, and promoting further the use of dedicated tools such as the IP Enforcement Portal (‘IPEP’)…

Payment Services, Social Media Platforms

The EC highlights payment services as an area where more can be done. On one hand, these companies are central to rightsholders’ activities. On the other, they can also be used to support IP-infringing activities. The EC says that to prevent misuse of their services for IP-infringing activities, payment services should be encouraged to implement the following good practices:

(a) to clearly state in their terms and conditions, as a ground for suspension or termination of their contract with sellers, any finding, including by the competent authority, of the use of their payment services for IP-infringing activities;
(b) to set up notification mechanisms allowing rightsholders using their payment services to notify any IP-infringing activity;
(c) where technically and economically feasible, to have an information system in place to enable the identification of operators engaging in IP-infringing activities, across different payment services, when one payment service provider has terminated its services with such operators on the grounds of IP-infringing activities;
(d) to exchange information with other payment service providers on trends regarding IP-infringing activities and to put in place specific measures against repeated misuse of their services, particularly where there has been a finding by a competent authority that their services have been used for IP-infringing activities.

Social media providers should similarly prevent misuse of their services, including by having systems in place to identify and take action against those misusing their services for IP-infringing activities.

Domain Name Registries/Registrars

The Commission’s Recommendation naturally assumes that where the law compels intermediaries or service providers to take action, that should be the standard minimum response. However, when entities are asked to go above and beyond, which appears to underpin almost every proposal in the Toolbox, service providers find themselves “encouraged to implement” various measures.

In respect of domain names, Directive (EU) 2022/2555 obliges “TLD name registries and entities providing domain name registration services” to “collect and guarantee the integrity and availability of domain name registration data.” EU Member States should further require these entities to “respond without undue delay” to requests for the disclosure of registration data following requests from “legitimate access seekers.”

Legitimate access seekers include those considered competent under EU or national law for the prevention, investigation, detection, or prosecution of criminal offenses. However, the definition can also encompass anyone with a legitimate reason to access the information, which includes rightsholders and their agents.

When access to domain name registration data that is personal data is sought, TLD-name registries and entities providing domain name registration services established in the EU and/or offering services in the EU are encouraged to recognize as legitimate access seekers any natural or legal persons who make a request for a right to information pursuant to Directive 2004/48/EC .

Member States are further encouraged to share intelligence and data on emerging piracy trends, including lists of websites that have been held by competent authorities to have carried out IP-infringing activities, the tactics and behaviors of alleged infringers, and to explore news ways to share information on those who “repeatedly engage in IP-infringing activities.”

Dynamic Injunctions, Unmasking Petty Infringers

Several EU Member States already have mechanisms in place that allow rightsholders to obtain injunctions against infringers and intermediaries, but the Commission would like to see more.

Specifically, Member States are encouraged to provide for the possibility of dynamic injunctions that can be applied to IP-infringing activities that are similar to those already identified, but are yet to be identified, such as the use of mirror sites.

The Commission also encourages Member States to ensure that petty infringers can’t escape simply because their activities are not commercial in scale or even commercial at all.

“Member States are encouraged to provide for the possibility for the competent judicial authorities to order disclosure of the relevant information to effectively fight IP infringements which are not on a commercial scale, in response to a justified and proportionate request of the claimant in proceedings,” the Commission writes.

“For these purposes, the relevant information could consist of the same information which may be requested in accordance with Article 8(2) of Directive 2004/48/EC , including the email address, telephone number and IP addresses relating to alleged infringers or participants to alleged infringing activities.”

The European Commission’s Recommendation (Toolbox) can be found here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

Officials could put forward proposal before meeting of prime ministers in Brussels next week

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EU leaders are to take a significant step towards confiscating €27bn in profit generated by Russian state assets frozen in Europe to help fund the war effort in Ukraine.

Officials at the European Commission are poised to put forward what they believe is a legally robust proposal to be considered by member states, possibly before a meeting of prime ministers in Brussels next Thursday.

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European Commission will open office in the territory, made strategically important by rare resources and melting ice

The president of the European Commission, Ursula von der Leyen, is heading to Greenland as melting Arctic ice, demand for green-technology raw materials and competition from China increase the territory’s strategic importance.

While not in the EU, the autonomous Danish territory is of strong interest to Brussels, especially for highly sought after raw materials – it believes it has 25 of the 34 that it needs.

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Members of justice committee say €150m in EU funding went straight to country’s president, Kais Saied

The European Commission has been accused of “bankrolling dictators” by senior MEPs, who have claimed that the €150m it gave to Tunisia last year in a migration and development deal has ended up directly in the president’s hands.

A group of MEPs on the human rights, justice and foreign affairs committees at the European parliament launched a scathing attack on the executive in Brussels, expressing fears that the commission’s president, Ursula von der Leyen, was about to seal a similar deal with Egypt .

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Charity loaded humanitarian supplies on the Open Arms vessel, which will travel on a new maritime corridor

A ship laden with humanitarian aid intended for Gaza is expected to leave Cyprus this weekend.

A US charity said it was loading aid for Gaza on to a boat in Cyprus, which will be the first shipment to the war-ravaged territory along a maritime corridor the European Commission hopes will open this weekend.

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Late last month we reported on the latest copyright claim data made available by YouTube. In the first half of 2023, YouTube said it processed 980 million Content ID claims , a 25% increase compared to a year earlier.

Given the upward trajectory, soon there will be a billion Content ID copyright claims every six months, which rounds to over two billion claims every year. To put that into perspective, if the world currently has five billion-odd internet users, that’s enough for 20% of the entire internet population to receive two copyright complaints per person, every 12 months.

Coincidentally, reports suggest that YouTube has around two billion active users already.

Takedown Notices Must be Reported

The numbers above are enormous but since Content ID-claimed videos stay up, they don’t need to be reported to the European Commission, a requirement for large platforms under the EU’s fledging Digital Services Act.

When Google and major online platforms including TikTok, Facebook, Twitter, Instagram, plus others, restrict or take content offline in response to a takedown notice under Article 16 , clear information must be sent under Article 17 to affected users.

Under Article 24 (5) , these so-called ‘statements of reasons’ must also be sent to the European Commission. Required information includes the legal basis for the complaint, the legal basis for taking the content down, and a myriad of additional details including a synopsis of considerations preceding takedowns.

To ensure consistency, submitters use an API to file ‘statements of reasons’ (SOR) in the standardized format below.

At the time of writing, just 16 large online platforms are required to supply the EC with this information. When things were just getting warmed up in December 2023, the volume of SOR notices sent by just five submitters had reached 25.8 million per week and when all submitters’ notices were combined, the all-time total topped 710 million.

Things Have Moved On Since Then

It’s almost impossible to reconcile the figures being reported this week with any type of normal thought process. The 710 million figure reported last December was close enough to compare with the population of Europe, 746 million, give or take, or one takedown per person on average.

Over the past 24 hours especially but potentially longer, the EC system has been producing errors in response to our queries. A massive surge in reports filed by Google could be at least partly responsible.

Over 14.4 billion SOR being reported to the Commission was unexpected, to say the least. The ‘statement of reasons’ dashboard appears to show Google taking unprecedented – and as far as we can determine – mostly voluntary action, against billions of listings on its Google Shopping platform and various non-compliant content on Google Play.

Google may have submitted as many as 13.5 billion notices to the Commission thus far. From the few dozen we sampled relating to Google Shopping, many if not all cite terms of service violations committed by advertisers. Notices state that the removal was carried out as part of a voluntary initiative using automatic detection methods. We have seen examples where decisions are described as “Fully Automated” and others as “Not Automated.”

Four typical examples from the sample are presented below. The ‘ground for decision’ is the same in all notices we were able to review: Content incompatible with terms and conditions . The explanations vary considerably.

– There was a problem identified with the criteria used in your ads
– One or more of your products have images with promotional text or obstructions
– Google identified that some of your products contain adult-oriented content
– Some of your products have generic images. Use images that clearly show the product

Whether this has anything (or nothing) to do with the antitrust case hanging over Google in Europe is unknown. After the European Commission (EC) found that Google had used its dominant position in search, to gain an unfair market advantage elsewhere, the EC hit Google with a €2.4 billion fine.

Google challenged the EC at the EU Court of Justice but, in late 2021, its case was mostly dismissed and the Court confirmed the €2.4 billion fine. In an opinion released by EU Court of Justice Advocate General Juliane Kokott last month, the EU Court was advised to dismiss Google’s objections and uphold the fine.

When attempting to pull more data on Thursday evening, the EC’s system continued to throw error after error as Google continuously filed new reports. Given the number of notices already on file, not to mention the errors when attempting to pull the maximum 1,000-item reports currently allowed, checking anything like a representative sample is impossible. However, every statement we were able to access followed similar formats to those shown above.

Rightsholders Use DSA to Remove Apps from Google Play

The billions of reports filed by Google include over 208,000 that appear in response to a search for Google Play + Apps, with no specified content category or reason.

When filtering for intellectual property-related issues, over 2,800 reports indicate the removal of apps from Google Play, many listing ‘Copyright’ as the ‘legal ground relied on’.

The pair of notices shown below are typical of those we were able to review, most if not all of which reference technical issues experienced by Google.

In common with many of the others, the notices state that the apps were removed from Google Play in response to a “Notice submitted in accordance with Article 16 DSA” which in broad terms governs a DMCA-style takedown mechanism but applicable to a broader range of content.

The EU system improves on the U.S. variant by requiring reasons to be published, but lags behind in a non-insignificant way by disallowing references to content and identification of the notice-sender, which critically undermines investigations into abuse.

The EC’s Statement of Reasons transparency database is available here

From: TF , for the latest news on copyright battles, piracy and more.

European Commission chief makes rallying speech after being nominated by her EU grouping for new term as head of executive

Populists, nationalists and demagogues of the far right and left are challenging a peaceful and united Europe like never before, Ursula von der Leyen has declared, as she was endorsed as the sole candidate of the EU’s leading political group, the centre-right European People’s party, to head the the European Commission for another five years.

“They want to trample on our values, and they want to destroy our Europe. And we, the EPP, will never let that happen,” she said at the EPP conference in the Romanian capital, Bucharest.

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Centre-right European People’s party says it wants to create deportation deals with non-EU countries to head off rise of far right

A group of political parties backing Ursula von der Leyen for a second term in one of the most powerful jobs in Brussels at the head of the European Commission is planning to call for further migration reforms, similar to the UK’s Rwanda policy, to head off the rise of the far right.

The European People’s party (EPP), an umbrella group of centre-right and conservative parties, has said in the final draft of its manifesto ahead of elections to the European parliament in May that it wants a series of deal with non-EU countries with a view to deporting irregular migrants for asylum processing in “safe” third countries.

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