Section 1201 of the DMCA prohibits the circumvention of copyright controls without permission.
This restriction prevents the general public from bypassing DRM protection on many types of content.
There are some important exemptions to this rule, with phone jailbreaking as a well-known example. These are reviewed every three years by the U.S. Copyright Office, which generally puts copyright holders on the defense.
This year, however, there is a notable exception. Digital rights management company Pex, which works with many prominent copyright holders, is advocating for a DMCA exemption to track down infringing content.
To properly understand the nature of this request, some background on Pex and its service is warranted.
Pex Has a Rough Start
To the public at large Pex isn’t a familiar name but, in copyright circles, it’s a major player. The company was founded in 2014 and has developed a technology to scrape online services such as YouTube for infringing content.
In its early years, Pex and its founder Rasty Turek had trouble getting funded. There was a fair bit of interest but investors were petrified that scraping was illegal. Despite backing from legal experts, this fear almost drove the company into bankruptcy at the end of 2017.
With roughly two weeks of money left to keep the business afloat, Pex offered a major copyright holder a free taste of its platform. At that point, it had nothing to lose. This move paid off as the rightsholder was impressed with the service, becoming the first big investor a few days later.
Universal to the Rescue
This early adopter was none other than Universal Music. And once Universal was on-board, many competing music labels and Hollywood movie studios joined in as well. Instead of going bankrupt, a multi-million dollar business was born.
While copyright holders are pleased with Pex’s service, the same isn’t necessarily true for the online services it scrapes. In fact, companies including Facebook and YouTube actively block third-party scrapers.
“YouTube did fight us quite the hard to stop us from doing these kinds of things,” Pex founder Rasty Turek said in a Mixenergy podcast last summer.
Using Google to Scrape Google
Turek, who previously worked as a security engineer at Google, pressed on and decided to bypass Google’s restrictions. To add to the irony, Pex was actively helped by Google’s Cloud service, something YouTube was “very angry” about.
Similarly, when Pex started scraping Facebook the social media platform tried to prevent this as well. While it’s not clear whether that is due to the nature of Pex’s business, scraping activity is generally not welcomed. And that brings us to the DMCA exemption request.
Pex Wants a DMCA Exemption
In a letter sent to the US Copyright Office earlier this month, Pex’s Head of Business and Government Affairs, Cesar Fishman, explains the problem. The letter stresses that copyright infringement on user-generated content (UGC) platforms such as Facebook, Twitter, YouTube, Instagram, and TikTok is a massive problem.
Services such as Pex try to limit the damage for copyright holders, but they face significant hurdles. When their scrapers are blocked, for example, which is an issue Pex is all too familiar with.
“Crawlers that collect data and content present on UGC platforms and allow rights holders to know where and when their works are being used illegally, a practice colloquially referred to as ‘web scraping,’ are regularly blocked by platforms,” Pex informs the copyright office.
“This action results in rightsholders being largely unable to identify their works and send DMCA takedown notices as appropriate. In order for the DMCA’s notice and takedown system to be effective, the Copyright Office should consider an exception to monitor content.”
Bypassing Copyright Controls to Help Copyright Holders
Pex is essentially asking for an exemption to bypass copyright controls, so it can find copyright-infringing content. These are the same ‘copyright controls’ stream-rippers use to download content from platforms such as YouTube.
There is a crucial difference of course. In Pex’s case, this exemption would be used to help copyright holders.
Pex’s Cesar Fishman informs TorrentFreak that, right now, UGC platforms often block or limit third-party companies from reviewing their content, which ultimately hurts copyright holders. The company hopes that this will change.
“We’re asking the Copyright Office to make sure that the DMCA works as intended – by providing all rightsholders, regardless of size, with the opportunity to find all of their content amongst the millions of posts published on platforms every second,” Fishman says.
An API Would Help Too
In addition, these UGC platforms should provide an API to rightsholders and selected third-parties – chosen by those rightsholders – to help protect their content, Pex argues.
The letter to the Copyright Office is submitted as part of the DMCA section 1201 review. However, it was submitted as a general comment and is not a formal proposal being considered as part of the regular review process.
That said, it’s interesting to see that even major copyright holders can have problems with the DMCA’s anti-circumvention restrictions.
Pex, meanwhile, is working hard on dominating the copyright attribution space. The company has developed its own fingerprinting and filtering system that can be used by UGC platforms. Ideally, they would like the ‘Facebooks’ and ‘YouTubes’ of this world to use that system as well. But that’s a whole other battle.
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A copy of the letter Pex sent to the Copyright Office is available here (pdf)
