Advertising Networks Agree to New DMCA-Like Protocol

Typically, if you’ve found infringements of your work online, there have been three groups of people that you can contact to see about removing the infringement or mitigating its impact: The hosts involving in making the content available, the search engines that make it findable and the advertisers that support the sites.

If the content is hosted in the U.S., or in other nations with a notice and takedown system, it is usually trivial to get it removed with a Digital Millennium Copyright Act (DMCA) takedown notice (or similar notice). If the host was not responsive, it is then also trivial to get the page involved remove from the search results, mitigating how much impact the page would have.

However, targeting advertisers and hurting the site’s ability to earn revenue from infringing material has proved to be more difficult. Advertising networks are not mentioned explicitly under the DMCA and, though nearly all have stated policies against putting ads on infringing material, enforcement of those policies has been spotty at best.

That may soon change, at least in some cases.

An agreement was unveiled today that includes Google, Yahoo, Microsoft, AOL, the Internet Advertising Bureau and a slate of smaller advertising networks to create a DMCA-like system for dealing with ads that appear on infringing material.

The agreement was orchestrated by the Office of the White House’s Intellectual Property Enforcement coordinator, Victoria Espinel, and, after implementation, could give copyright holders, large and small, a new weapon against infringing sites.

Unfortunately, there’s reason to be dubious about this new agreement and to curb any excitement. But it is still an important process to watch as it could, if implemented well, yield some impressive results.

Background on the Agreement

The issue of legitimate advertisements appearing on piracy-oriented sites is nothing new. Filmmaker Ellen Seidler brought the issue to the forefront in 2010 with her Popup Pirates blog (Note: Seidler now blogs at Vox Indie, which is definitely worth the read!) but it had been an issue even farther back, including during the Bitacle saga when Google finally removed Adsense ads from that site.

However, since advertisers weren’t expressly mentioned in the law, every advertising network currently has their own policies regarding infringing content and enforce it in their own way (if at all). This makes it easy for infringement-oriented sites to maintain relationships with large, legitimate advertisers that were well-paying.

The new agreement, however, hopes to change that.

The full text of the agreement outlines what the signatories are supposed to do. In the most general terms, they are to:

1. Maintain policies barring infringing and counterfeit websites
2. Post the new best practices on their site
3. Add language to their TOS that prohibit partners from violating the law
4. Maintain an open dialog with creators, rights holders, free speech odvocates and others.

However, the core of the agreement sets up a DMCA-like system for receiving complaints and taking action against suspected infringing sites.

Signatories are to:

1. Publicly post the contact information for their designated agent, both on their site and with the Internet Advertising Bureau.
2. Investigate any valid complaints received.
3. Take appropriate action, including demanding the site change, ceasing advertising on the page (or whole site) and removing it from the network.
4. Consider any counter-notices received as potential evidence for restoration of service.

The system is very similar to that of the DMCA notice-and-takedown system, which is how hosts and search engines handle copyright infringement. However, there are several key differences and those differences could have a huge impact on the effectiveness of the service.

Reasons to be Cautious

On one hand, the idea of sending a DMCA notice to advertisers on a site with infringing material seems great, especially if the site is loaded with other infringing material. It can be a great way to strike at the heart of the site, it’s funding, and do damage beyond just removing one or two links.

But there are several limitations with the system that could impact its usefulness:

1. No Weight of Law: The system is completely voluntary and, if an advertiser doesn’t take action, there’s no lawsuit coming and not even a way to appeal the decision.
2. It’s Not Automatic: The new policy gives advertisers a lot of leeway to investigate and make decisions about
3. Higher Evidence Requirements: The best practices require copyright holders to provide evidence, such as a timestamped screenshot, to prove the company’s ads are on the site, placing a higher burden on the rightsholder.
4. No Clear Response: It’s unclear what the advertising network will do in response to a complete notice. Though they can do anything up to canceling the account, they can also just ask them to stop infringing.
5. Only Affects Signatories: Companies not on the list are not impacted by it all. Though it includes the leading advertisers, it doesn’t include many of the smaller companies pirate sites, spam blogs and other infringing sites use.

The hope of providing such a system for advertisers is that it would provide greater consistency in enforcement and streamline the process of contacting advertisers over copyright issues. At best, this agreement is incremental with its improvements.

Though the effort required is higher, the new system does make notices a consistent format and provide a central location to find the contact information. However, the leeway provided in enforcement does little to guarantee consistency in the response. In short, there’s still a very real risk that advertisers will continue to follow their internal policies with little in the way of repercussions.

To be clear, some of these limitations are necessary. Advertisers have a different relationship with a site than a host or a search engine and it can be more difficult to show a site has a relationship with an advertiser, especially if they rotate ads. However, a system with this much leeway and no legal teeth behind it is not going to do much good, unless the advertisers are truly serious about it.

Bottom Line

In the end, I find myself agreeing with Cary Sherman at the Recording Industry Association of America, the real test of this system will be its implementation. If the advertisers are serious about this and genuinely want to help clean up their ranks, then the system could work.

However, most advertising networks have had policies against piracy and copyright infringement for years and enforcement has historically been hit and miss.

This system doesn’t really change the problems that made the enforcement so erratic previously and, even if it does start to have a significant impact, infringing sites will likely move to advertisers not a part of this agreement.

While those advertising networks generally attract lower-quality advertisers and pay less to the sites they work with, they can still pay enough, especially to large sites, to keep them afloat.

It will be interesting to revisit this a year or so after implementation and see how much of an impact it had, if any, and how advertising networks responded to notices.

While I’m not optimistic, I’m hopeful. I’d love to see this succeed and make a real difference. But with the history of both infringing sites and advertising networks, I have a lot of reason to keep my enthusiasm to a minimum.