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January 2021
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Content Moderation Case Study: Using Hashes And Scanning To Stop Cloud Storage From Being Used For Infringement (2014)

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Summary: Since the rise of the internet, the recording industry has been particularly concerned about how the internet can and will be used to share infringing content. Over time, the focus of that concern has shifted as the technology (as well as copyright laws) have shifted. In the early 2000s, most of the concern was around file sharing applications, services and sites, such as Napster, Limewire, and The Pirate Bay. However, after 2010, much of the emphasis switched to so-called cyberlockers.Unlike file sharing apps, that involved person-to-person sharing directly from their own computers via intermediary technologies, a cyberlocker was more of a hard drive on the internet. The issue was that some would store large quantities of music files, and then make them available for unlicensed downloading.While some cyberlockers were built directly around this use-case, at the same time, cloud storage companies were trying to build legitimate businesses, allowing consumers and businesses to store their own files in the cloud, rather than on their own hard drive. However, technologically, there is little to distinguish a cloud storage service from a cyberlocker, and as the entertainment industry became more vocal about the issue, some services started to change their policies.Dropbox is one of the most well-known cloud storage companies. Wishing to avoid facing comparisons to cyberlockers built off of the sharing of infringing works, the company put in place a system to make it more difficult to use the service for sharing works in an infringing manner, while still allowing the service to be useful for storing personal files.Specifically, if Dropbox received a DMCA takedown notice for a specific file, the company would create a hash (a computer generated identifier that would be the same for all identical files), and then if you shared any file from your Dropbox to someone else (such as by creating a shareable link), Dropbox would create a hash and check it against the database of hashes of files that had previously received DMCA takedown notices.This got some attention in 2014 when a user on Twitter highlighted that he had been blocked from sharing a file because of this, raising concerns that Dropbox was looking at everyone's files.

Dropbox quickly clarified that it is not scanning every file, nor was it looking at everyone's files. Rather it was using an automated process to check files that were being shared and see if they matched files that had previously been subject to a DMCA takedown notice:
There have been some questions around how we handle copyright notices. We sometimes receive DMCA notices to remove links on copyright grounds. When we receive these, we process them according to the law and disable the identified link. We have an automated system that then prevents other users from sharing the identical material using another Dropbox link. This is done by comparing file hashes. We don't look at the files in your private folders and are committed to keeping your stuff safe.
Decisions to be made by Dropbox:
  • How proactive does the company need to be to remain on the compliant side of copyright law?
  • Will blocking sharing of files that might be shared for non-infringing purposes, make the service less useful to users?
  • What steps are necessary to avoid being accused of supporting infringement by traditional copyright industries?
Questions and policy implications to consider:
  • There may be legitimate, non-infringing reasons to share a file that in other contexts may be infringing.
  • Is it appropriate for a company to block that possibility?
  • What measures could be put in place to allow for those possibilities?
  • The recording and movie industries have a history of being aggressive litigants against technologies used for infringement. What level of response is appropriate for new startups and technology companies?
  • Will there be limitations on innovation to services like cloud storage imposed by the need to avoid angering certain industries?
Resolution: Dropbox has continued to use a similar setup, and for the most part has avoided being compared to traditional cyberlockers. Since 2014, the issue of DMCA takedowns leading to future blocking of files has not received all that much attention either. There have been a few articles and forum discussions about how it works, with some users looking for workarounds, but for the most part this technological setup appears to have prevented Dropbox from being considered a cyberlocker-style site for infringing file sharing.Originally published on the Trust & Safety Foundation website.

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posted at: 12:00am on 21-Jan-2021
path: /Policy | permalink | edit (requires password)

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SCOTUS Refuses To Hear Case Between Jack Daniels And VIP Products Over Doggy Chew Toy

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The trademark dispute between Jack Daniels, famed maker of brown liquor, and VIP Products, maker of less famous doggy chew toy Bad Spaniels, has been a long and winding road. If you aren't familiar with the case, the timeline goes like this. VIP made a dog toy that is a clear parody homage to a bottle of Jack Daniels whiskey, called Bad Spaniels (get it?). Jack Daniels sent a C&D letter to VIP, claiming trademark infringement. VIP turned around and sued Jack Daniels for declaratory judgement that its product did not infringe, leading Jack Daniels to then file its own trademark lawsuit in response. The initial court ruling found for Jack Daniels, rather bizarrely claiming that VIP's product couldn't be expressive work, thereby protected by the First Amendment, because it wasn't a form of traditional entertainment. On appeal, however, the U.S. Court of Appeals for the 9th Circuit said that ruling was made in error, vacated it, and instructed the lower court to apply the Rogers test since the product was clear parody and expressive after all. Rather than have that fight, though, Jack Daniels instead petitioned the Supreme Court to hear its case.While I might find it interesting to see just how many doggy-related puns several SCOTUS Justices might fit into opinions on this case, however, we now have the news that the court has declined to hear the case.

As reported by Law360, the justices denied the petition filed by Jack Daniel’s last year that said the Ninth Circuit had been “egregiously misguided” when it afforded said protection to the toy, which looks like the famous whiskey but replaces the text on the label with puns.The justices didn’t explain why they denied the petition, but it is not hugely surprising as the courts only grant a small fraction of the petitions it receives.
So, this isn't SCOTUS saying Jack Daniels is wrong, but it does mean that the only place it is going to have this fight is the lower court that has already been instructed on appeal to apply the Rogers test. That means that Jack Daniels is now going to have to show that the use of any JD marks by VIP products is both "not artistically relevant to the underlying work" and that it "explicitly misleads consumers as to the source of the content of the work."And if you really think that Jack Daniels is going to be able to show that either of those are the case when it comes to a pet toy overflowing not with whiskey but with puppy puns, you may need to get your head checked. Certainly, it sounds like VIP is more than happy to have that particular fight.
In a statement to Law360, an attorney for VIP Products said the justices had made the right decision.“The Ninth Circuit followed settled precedent, which strikes the right balance to protect expressive speech,” said David G. Bray of Dickinson Wright PLLC. We look forward to bringing this litigation to conclusion in the district court.”
Or Jack Daniels can realize its mistake and try to settle this whole mess it made. Look what you did, Jack Daniels! Look what you did! Bad corporate bully. Bad!

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posted at: 12:00am on 21-Jan-2021
path: /Policy | permalink | edit (requires password)

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