Monday, March 10, 2008
Silicon Valley Business Coalition
Our members are longtime proponents of technological innovation, supporters of legitimate copyright protections and opponents of increased government interference in the online business sector. Today we present a three-prong initiative that highlights our commitment to each of these interests.
We will reach out to content providers to create a joint trade association: Valleywood. This group will work to open up channels of communication between content providers and distributors to help us better achieve our common goal of entertainment.
We provide a model content provider-distributor relationship that takes advantage of current and anticipated technology and is the most detailed plan to date on how to block infringement without stifling legitimate activity.
We will vigorously oppose current efforts to amend the DMCA. The law is far from perfect, but any major changes to it will induce expensive lobbying battles between content providers and distributors that will undermine our efforts to cooperate. It is also extremely unlikely that the solution to the challenges we face will be provided by bureaucracy rather than innovation.Welcome to Valleywood
Who knows better than the innovators the issues raised by the technology they developed? Nobody. Maybe users can help them to solve some problems. One may say that it is like giving the Silicon Valley a blank check. Not really.
· The Silicon Valley Industry and content owners are not opposed but have convergent interests: VALLEYWOOD
Many people assume Silicon Valley and Hollywood exist in a permanent state of conflict. Whatever its merit in the past, that assumption is simply not accurate any more. If it is true that Hollywood people have very different (and certainly better) taste for clothes, fashion and cars than we do, we still have a lot in common. Bottom line: both of us want consumers and Internet users to be entertained by us. In order to do so, we should both agree on the principle of developing technologies for the sole purpose of having users pleased.
Indeed, Hollywood provides great content, and we, the Silicon Valley, take care of finding the most efficient and faster way to give access to this work. Again, we are not opposed but have a common goal: people’s entertainment.
The Silicon Valley was often accused of aiding and abetting the “theft” of Hollywood’s content. That is a misleading statement. First, we refer to this famous saying: “Guns don’t kill, people do”. Our version of this is “Technology does not infringe, people do”.[1] However, it is not our policy to accuse consumers. We are responsible and assume the consequences of our innovations, as long as we have the possibility to do so. But we also must not forget the benefits that our innovations provide for the society.
As mentioned previously, the Silicon Valley needs content owners for its business. What would be the utility of iTunes or Google without them? Consequently it is in our own interest to have a flourishing art industry and a multitude of content. From this perspective we do support content owners in the fight for the respect of their rights.
This share of views between Hollywood and us is so true, that one may call us “Valleywood”. We cooperate closer and closer for finding the best balance between the necessary protection of IP and the best interest of users and consumers.
There are already many ongoing instances of successful cooperation between content providers and distributors. One prime example is the working relationship between Dailymotion and content owners. Indeed, TF1, a major French TV channel, cooperate with Dailymotion. The result of this cooperation is wat.tv, a website where Internet users can freely view protected content. Moreover, they can also post their own works.
Another more recent example is FaceBook. Indeed, FB is currently negotiating with the major record label in order to offer a new service where users could listen and download free music. It is worth noting that FaceBook is not trying to ignore content owners but rather work and cooperate with them to find the best solution.[2]
· Silicon Valley previously proved its ability to protect content owners’ rights
The Silicon Valley industry already proved in the past how keen it is to develop solutions in order to protect copyright owners’ rights. Among others, the filtering technology on the Internet can be cited. Indeed, it is well known that YouTube and dailymotion are doing their best to not have pirated work on their websites. They developed powerful technology to filter content online. However, we acknowledge that we are not always capable of detecting the infringing content and removing it fast from our servers. That’s why we are constantly trying to keep up with these new technologies.
Another example is Corbis. Although it was feared that this online service would encourage infringing activities, it is clear now that this technology and service had been developed in a total lawful way. The same statement can be made about iTunes. Another example is iLike, which takes advantage of the creative commons licenses.
· Technology developers are the ones who really know the best how to find solution to problems raised by their technology
Experience shows that the best way to solve issues raised with new technologies is cooperation between stakeholders. Having a good understanding of the situation in the market place where we are present for so many years is a powerful tool that helps us understand what it takes to solve the issues. A solution which is a result of cooperation between the parties involved is always more favorable than imposed solution by the legislative branch of the government.
There are numerous examples in the practice so far. A good example is Second Life that raises numerous issues not taken into consideration by the law. However, through consultation and cooperation, all of them are solved now. Even in a virtual world, there is creation and their protection can be an issue.[3] Some protests happened in Second Life with respect to the protection of content in Second Life. However, Linden Lab was able to develop solutions in cooperation with users to find an alternative to copyright such as the use of “first use metadata”, the development of creative commons licensing, or the signature works created in Second Life.[4]
A Model of Cooperation
As expressed above, we truly respect copyright owners’ rights. At the same time, we think the open distribution of content is important for the developments of our society.
We would like to point out that under the current DMCA, the content distributors do not have any burden to monitor the content owners’ copyright infringement. However, as a show of good faith that our respect for content providers is not just mere words, we are recommending that content distributors should take some burdens to protect the content owners’ rights. The following can be one of the models to solve the above mentioned problems more easily and effectively.
(1) The content owner first sends the copyright content which they want to protect to content distributors. To get benefit from this model, the content owners should deposit their copyright works to content distributors in advance.
(2) The content distributors develop the technology which makes it possible to compare the content owner’s copyright works with uploaded works.
(3) After comparison, if the copyright works are 100% same to the uploaded works, the content distributors voluntarily take down the uploaded work without content owner’s notice.
(4) After the comparison, if the uploaded works are 60%-99% same to copyright works, the content owner first send notice to the uploader and let him/her know the possibilities of copyright infringement. The uploader agrees to delete the said work, then it is ok. If the uploader resists to delete, then the content distributor send again notice that they would agree to put some advertisements of copyright owner on their work. If the uploader does not agree the second proposal, then the copyright distributors let content owner know that situation and the content owner should determine whether they file a suit.
(5) After the comparison, if the uploaded works are under 1%-60% same, then the content distributor just let the content owner know and determine whether they take action or not.
The above mentioned model will be done automatically and mechanically, which means that it would not be big burdens for content distributors.
Although provisions of the DMCA and Sec. 1201 and 1202 of the Copyright Act have in some instances created an environment that can stifle innovation, we had some time and court’s decisions to explore the limitations of the DMCA. This gives us some certainty when creating technology around content. Fundamental changes would take away what little certainty we have gained so far and although we would support a version of the DMCA that gives more freedom to developers of technology, we fear that any changes would be heavily influenced by the powerful lobby of content owners. In our view, any changes to the DMCA would like further weaken the possibilities of innovators to create technology based around content.
Leave bad enough alone
Do you know that the following are actual suggestions for amending the DMCA?
Permit wiretaps in investigations of copyright crimes, trade secret theft and economic espionage. It would establish a new copyright unit inside the FBI and budgets $20 million on topics including creating “advanced tools of forensic science to investigate” copyright crimes.
Amend existing law to permit criminal enforcement of copyright violations even if the work was not registered with the U.S. Copyright Office.
Boost criminal penalties for copyright infringement originally created by the No Electronic Theft Act of 1997 from five years to 10 years (and 10 years to 20 years for subsequent offenses). The NET Act targets noncommercial piracy including posting copyrighted photos, videos or news articles on a Web site if the value exceeds $1,000.
Create civil asset forfeiture penalties for anything used in copyright piracy. Computers or other equipment seized must be “destroyed” or otherwise disposed of, for instance at a government auction. Criminal asset forfeiture will be done following the rules established by federal drug laws.
Allow copyright holders to impound “records documenting the manufacture, sale or receipt of items involved in” infringements.
Even though the DMCA may have some defects in terms of legal point of view, i.e., unclear definition of terms and unfair burden for monitoring copyright infringement contents on copyright owner, etc., changing it in this charged atmosphere might only make the problem worse. Setting internal rules between contents owners and content distributors would be a far better solution.
Since the advent of TV there has been a war between copyright holders and innovators. The latter would come up with a new technology and copyright holders would raise concerns as to how it effected them. It’s telling that when Congress and the courts have allowed providers space to work things out between themselves, both groups have reaped higher profits.
A prime example of this is the famous Sony case. In 1984, after seven years of legal and legislative battles, the Supreme Court denied Hollywood's efforts to ban the videocassette recorder. The VCR flourished but to Hollywood's surprise it resulted in more profit, not less and movie rental revenues now outpace the box office.
Even with this past experience however, content owners are still trying to impose huge burdens on innovators. In the latest case, Viacom is attacking YouTube for uploading copyrighted work which will force courts to explore the full extent of the DMCA’s Safe Harbor provision. This has resulted in pressure from both sides for Congress to amend the DMCA to make it more favorable to each of them. This will only strain the relationship between content providers and distributors and chill any efforts to work together to innovate a solution. As flawed as it is, the DMCA is truly an opportunity to leave bad enough alone. Afterall, “you should not burn the house to roast the pig.”
[1] Mentioned by Prof. Laster in Advanced Copyright Seminar.
[2] http://www.ft.com/cms/s/0/4dc3ea28-ea54-11dc-b3c9-0000779fd2ac.html; http://mashable.com/2007/05/07/facebook-music/ ; http://coedmagazine.com/entertainment/Music/3400
[3] See http://fr.youtube.com/watch?v=HTR_OvJzWgo for an art gallery on Second Life, or http://fr.youtube.com/watch?v=ODi0jXYs8ds for a L’Oréal défilé.
[4] http://blog.secondlife.com/2006/11/13/copyrights-and-content-creation-in-second-life/
Sunday, March 9, 2008
We Are Artists
I. Introduction
One cannot get through a single day without experiencing art and the products of creative Endeavour. Creativity is ubiquitous to our environment; in some instances it even provides mental and spiritual sustenance. Creativity at the hand of the artist results in artistic creations and innovations which have become an essential part of our world—exemplifying the important role which artists maintain in all facets of society and culture.
II. Who We Are
Who are we? We are the thinkers, creators, and innovators of society: the child in the classroom, the athlete on the field, the scientist in the lab, the songwriter in the coffee shop—the daydreamer in the park. We celebrate humanity, promote creativity and innovation, and are social commentators on culture. We are not an exclusive club; in fact, we are a loosely coupled inclusive community bound together by a spirit of creativity and self-expression. We hold no boundaries and do not discriminate or distinguish based on race, color or creed. As a group, we reflect a common ethos relating to diversity, tolerance, and multiculturalism. We are ambassadors of our evolving culture giving depth and meaning to an understanding of the human condition.
Amidst all the quarreling and debating over who should get paid for a product, whether certain technologies are good or bad, and how legislation can address the issues at hand, we have lost sight of who or what is actually at the center of this debate—the creative mind. The creative mind has many options. One creative pathway for one to pursue leads to economic and other concrete and tangible rewards and incentives. In this instance, creative output is recognized more as a product available to consumers—as a hit record, a successful play, a commercial trademark, a successful business model or technology. Creativity, in this case, has an economic valence. The other pathway is typically described as one of struggle, poverty, and lack of recognition—as the starving artist playing guitar on the subway platform in Penn Station, the skilled artist doing charcoal portraits at amusement parks, the actor/part-time waiter struggling to make ends meet. This is the paradox in terms of society's valuing certain areas or instances of creative thinking and expression.
Internet companies with business models based on disseminating content (products) and media conglomerates whose models may be based on such content are all the result of hardworking individuals contributing and expending some form of creative effort. Marketing experts, programmers, and executives all use creative means to advance themselves. However, they do this within a different forum and venue compared to the traditional artist. Furthermore, the former are firmly grounded in an infrastructure which rewards them for their contributions and efforts. This is the venue they selected—the path they chose. Much like the mailroom clerk who dreams of an office on the top floor, the street musician may dream of the comforts of a warm and dry stage from which to broadcast her creative efforts; the only difference here is the path taken.
This debate is about providing an environment in which anyone who is determined to invent, create, and contribute can do so without fear that his/her expended efforts are first of all recognized and secondly, not exploited. Providing such assurance is, in essence, providing a foundation from which hopes and dreams can be achieved.
The creative mind is everywhere. It is the Artist Coalition’s goal that the creative mind be protected and rewarded for whatever path it chooses to take in achieving its ambitions and dreams. It is not about setting out on a singular and predetermined path to one day own a Bentley or to purchase the mansion on the hill. It is about being able to achieve a purposeful and self-fulfilling path that provides the kind of intrinsic rewards—rewards that result in recognizing that one is making a difference as a voice of one's culture, as well as extrinsic compensation--society’s official endorsement of value.
III. Our Place
It was in recognition of the creativity of the artist that the founding fathers of this nation deliberately made the promotion and protection of useful arts a constitutional subject matter.
We as artists have been part of the growth and strength of our communities and nation. Art in various forms: music, visuals, crafts, cinema, theatre, etc. have played irrefutable roles in the identity, cohesion, and unity of society. They form a common purpose of cultural expression in times of war, peril, as well as prosperity.
Artists have kept our cultures alive. Today the United States clearly sets the pace in socio-cultural transactions and cultural revivalism. The interpretation of culture through various agencies of artists has had a global effect. In Africa, Asia, Europe, the Middle East, Russia and the United States, culture and arts are vital social and economic developmental forces. The movie, music, fashion, and technology industries are influenced by artistic innovativeness, values, and culture.
The music and movie you watch and listen to, that uplifts you when you are down are products and works of artists. Music and artistic works have been documented as having medicinal and therapeutic effects. Society is made whole when it listens to our music. Stress and worries are relieved when you go to a cinema or watch a movie. The artist joins society in solidarity in the making it a worthy and prosperous place. Nation’s histories are illuminated by artists in various media. Paintings, photographs, and sculptures of political and economic leaders adorn our streets and our museums. We connect to our history through creative artists, thus we also educate society. The symbolic representations of various nations are works of artists. Neighborhood landscapes speak of a collective community. Artists interpret who we are to help us achieve goals we set for ourselves as nations. Artists are partners in the building of nations, communities, and families.
In parody and satire we deliver social, political and philosophical messages as agents of development. We rely on society to carry on our roles as agents of beauty, unity, and development. Technology has captured our works in various forms, and with speed and ease has brought our work to the doorsteps of society, but our works are still ours. The creativity that we contribute to the commonwealth of humanity is still our drive. The unity and bonding that we instill in families and community is still our drive. The partnership that we consummate with society to make this world better than we met it is our goal.
IV. Art and Technology
Artists have been among the first to adopt and embrace new technologies. We need only look to the invention of the camera in the 19th century, which soon led to the creation of photography as an art form. In fact, it was a young photographer in search of a way to use photography in his travels at a time of heavy plates and equipment. Through long hours of effort and innovation, the film camera was born. Within a few years, that young artist, George Eastman, had not only revolutionized the art of photography, but also built one of the most successful companies in the field—Eastman Kodak.
This ingenuity continues today with ventures such as the Center for Digital Arts and Experimental Media (DXARTS) at the University of Washington, where artists push the boundaries of art and science to expand our world. MIT’s Media Lab combines creative vision and innovative technology to generate new ideas and entrepreneurial ventures. And companies like Apple Computer owe much of their livelihood to writers and graphic designers who use computers and software as their preferred instrument of creation.
Artists—and musicians in particular—have been quick to understand and use the power of the internet and Web 2.0 collaborative technologies. From label-free music distribution on community websites like MySpace and YouTube to interactive audio services like Pandora, artists have led the way. Old distribution models are eroding and new ones are rapidly rising. Radiohead, for example, left their record label and released their latest album “In Rainbows” online, allowing customers to choose their own price.
With the advent of digital video cameras and the ability to mix films by computer, we have begun producing independent films without the cost and demands on large studios. With technologies like YouTube, our ability to share these creations has grown exponentially. We embrace this new channel, which removes the middle-man and gives us direct access to our audiences.
We support new technologies that enable us to create, and ask only that some thought be given to new royalty and revenue models. Here, again, technology may provide ideas and solutions, such as the micro-payment model used on the online virtual community, Second Life. We’re confident that such solutions will be found; in the meantime, we will continue to use new and innovative technologies. This is what we do.
V. What We Want
We are in the thick of an era of ardent change. Time is marked by major advances in art, technology, politics, science and culture. We actually want more people to see our creative works. Our lives and livelihood depends upon the art works which we create. Without the arts, life becomes meaningless. Every creative work is always a new challenge ahead of us. By creating a new piece of work, we express our own thoughts and we value them. Therefore, we also want others to recognize who we are and respect the works we created. What we want to do is to perfect ourselves to the point that our work is recognized and valued.
We also want some protection to exercise legal control over the use of our creative work and to ensure that we receive proper compensation when that work is published or performed. We believe that artists don't have to starve to be geniuses. We want our works to be under certain control in the digital age, where copying is a one-click proposition. Without such protection in place, the ability of artists and publishers to continue to produce such works and the ability of the general public to enjoy the fruits of that creativity would both be jeopardized.
In more tangible terms, we have several suggestions. First, a technology like YouTube, despite best efforts in filtering and prompt responses to take down notices, will always have a certain level of infringement. As such, we ask that Google give back to artists by returning a small percentage of the profits to artists groups and organizations. Other countries, such as Japan, have developed royalty schedules for digital video and internet television, covering the performers, producers, and writers. As we have recently learned from the writers’ strike, we need to remember all the creators and effort that go into each video.
YouTube presents a unique opportunity for artists to bypass the middlemen, once necessary to market and distribute out works. However, as individuals, we don’t have the negotiating power to enter into agreements with Google to carry our licensed works on YouTube. To that end, we ask that Google explore micro-payment models, where users make small payments to access certain works. These payments would go to the artists, making the “direct to YouTube” model not only viable as a promotional tool, but as a sustainable business model for artists.
VI. Conclusion
We are artists. Each artist makes a lengthy journey in finding a style and developing methods and works—often struggling to create. A serious artist needs to be respected by serious and effective safeguards. Individual creativity should be rewarded by protection that respects ownership.
We help to create cultural artifacts which permit spirits to soar and express themselves, making the world a better place. Remember to respect our work whether you are a beholder of the arts, an exhibitor, or a dealer with commercial intent. Please value, reward and protect the work of those who choose to express themselves in a creative fashion.
One cannot get through a single day without experiencing art and the products of creative Endeavour. Creativity is ubiquitous to our environment; in some instances it even provides mental and spiritual sustenance. Creativity at the hand of the artist results in artistic creations and innovations which have become an essential part of our world—exemplifying the important role which artists maintain in all facets of society and culture.
II. Who We Are
Who are we? We are the thinkers, creators, and innovators of society: the child in the classroom, the athlete on the field, the scientist in the lab, the songwriter in the coffee shop—the daydreamer in the park. We celebrate humanity, promote creativity and innovation, and are social commentators on culture. We are not an exclusive club; in fact, we are a loosely coupled inclusive community bound together by a spirit of creativity and self-expression. We hold no boundaries and do not discriminate or distinguish based on race, color or creed. As a group, we reflect a common ethos relating to diversity, tolerance, and multiculturalism. We are ambassadors of our evolving culture giving depth and meaning to an understanding of the human condition.
Amidst all the quarreling and debating over who should get paid for a product, whether certain technologies are good or bad, and how legislation can address the issues at hand, we have lost sight of who or what is actually at the center of this debate—the creative mind. The creative mind has many options. One creative pathway for one to pursue leads to economic and other concrete and tangible rewards and incentives. In this instance, creative output is recognized more as a product available to consumers—as a hit record, a successful play, a commercial trademark, a successful business model or technology. Creativity, in this case, has an economic valence. The other pathway is typically described as one of struggle, poverty, and lack of recognition—as the starving artist playing guitar on the subway platform in Penn Station, the skilled artist doing charcoal portraits at amusement parks, the actor/part-time waiter struggling to make ends meet. This is the paradox in terms of society's valuing certain areas or instances of creative thinking and expression.
Internet companies with business models based on disseminating content (products) and media conglomerates whose models may be based on such content are all the result of hardworking individuals contributing and expending some form of creative effort. Marketing experts, programmers, and executives all use creative means to advance themselves. However, they do this within a different forum and venue compared to the traditional artist. Furthermore, the former are firmly grounded in an infrastructure which rewards them for their contributions and efforts. This is the venue they selected—the path they chose. Much like the mailroom clerk who dreams of an office on the top floor, the street musician may dream of the comforts of a warm and dry stage from which to broadcast her creative efforts; the only difference here is the path taken.
This debate is about providing an environment in which anyone who is determined to invent, create, and contribute can do so without fear that his/her expended efforts are first of all recognized and secondly, not exploited. Providing such assurance is, in essence, providing a foundation from which hopes and dreams can be achieved.
The creative mind is everywhere. It is the Artist Coalition’s goal that the creative mind be protected and rewarded for whatever path it chooses to take in achieving its ambitions and dreams. It is not about setting out on a singular and predetermined path to one day own a Bentley or to purchase the mansion on the hill. It is about being able to achieve a purposeful and self-fulfilling path that provides the kind of intrinsic rewards—rewards that result in recognizing that one is making a difference as a voice of one's culture, as well as extrinsic compensation--society’s official endorsement of value.
III. Our Place
It was in recognition of the creativity of the artist that the founding fathers of this nation deliberately made the promotion and protection of useful arts a constitutional subject matter.
We as artists have been part of the growth and strength of our communities and nation. Art in various forms: music, visuals, crafts, cinema, theatre, etc. have played irrefutable roles in the identity, cohesion, and unity of society. They form a common purpose of cultural expression in times of war, peril, as well as prosperity.
Artists have kept our cultures alive. Today the United States clearly sets the pace in socio-cultural transactions and cultural revivalism. The interpretation of culture through various agencies of artists has had a global effect. In Africa, Asia, Europe, the Middle East, Russia and the United States, culture and arts are vital social and economic developmental forces. The movie, music, fashion, and technology industries are influenced by artistic innovativeness, values, and culture.
The music and movie you watch and listen to, that uplifts you when you are down are products and works of artists. Music and artistic works have been documented as having medicinal and therapeutic effects. Society is made whole when it listens to our music. Stress and worries are relieved when you go to a cinema or watch a movie. The artist joins society in solidarity in the making it a worthy and prosperous place. Nation’s histories are illuminated by artists in various media. Paintings, photographs, and sculptures of political and economic leaders adorn our streets and our museums. We connect to our history through creative artists, thus we also educate society. The symbolic representations of various nations are works of artists. Neighborhood landscapes speak of a collective community. Artists interpret who we are to help us achieve goals we set for ourselves as nations. Artists are partners in the building of nations, communities, and families.
In parody and satire we deliver social, political and philosophical messages as agents of development. We rely on society to carry on our roles as agents of beauty, unity, and development. Technology has captured our works in various forms, and with speed and ease has brought our work to the doorsteps of society, but our works are still ours. The creativity that we contribute to the commonwealth of humanity is still our drive. The unity and bonding that we instill in families and community is still our drive. The partnership that we consummate with society to make this world better than we met it is our goal.
IV. Art and Technology
Artists have been among the first to adopt and embrace new technologies. We need only look to the invention of the camera in the 19th century, which soon led to the creation of photography as an art form. In fact, it was a young photographer in search of a way to use photography in his travels at a time of heavy plates and equipment. Through long hours of effort and innovation, the film camera was born. Within a few years, that young artist, George Eastman, had not only revolutionized the art of photography, but also built one of the most successful companies in the field—Eastman Kodak.
This ingenuity continues today with ventures such as the Center for Digital Arts and Experimental Media (DXARTS) at the University of Washington, where artists push the boundaries of art and science to expand our world. MIT’s Media Lab combines creative vision and innovative technology to generate new ideas and entrepreneurial ventures. And companies like Apple Computer owe much of their livelihood to writers and graphic designers who use computers and software as their preferred instrument of creation.
Artists—and musicians in particular—have been quick to understand and use the power of the internet and Web 2.0 collaborative technologies. From label-free music distribution on community websites like MySpace and YouTube to interactive audio services like Pandora, artists have led the way. Old distribution models are eroding and new ones are rapidly rising. Radiohead, for example, left their record label and released their latest album “In Rainbows” online, allowing customers to choose their own price.
With the advent of digital video cameras and the ability to mix films by computer, we have begun producing independent films without the cost and demands on large studios. With technologies like YouTube, our ability to share these creations has grown exponentially. We embrace this new channel, which removes the middle-man and gives us direct access to our audiences.
We support new technologies that enable us to create, and ask only that some thought be given to new royalty and revenue models. Here, again, technology may provide ideas and solutions, such as the micro-payment model used on the online virtual community, Second Life. We’re confident that such solutions will be found; in the meantime, we will continue to use new and innovative technologies. This is what we do.
V. What We Want
We are in the thick of an era of ardent change. Time is marked by major advances in art, technology, politics, science and culture. We actually want more people to see our creative works. Our lives and livelihood depends upon the art works which we create. Without the arts, life becomes meaningless. Every creative work is always a new challenge ahead of us. By creating a new piece of work, we express our own thoughts and we value them. Therefore, we also want others to recognize who we are and respect the works we created. What we want to do is to perfect ourselves to the point that our work is recognized and valued.
We also want some protection to exercise legal control over the use of our creative work and to ensure that we receive proper compensation when that work is published or performed. We believe that artists don't have to starve to be geniuses. We want our works to be under certain control in the digital age, where copying is a one-click proposition. Without such protection in place, the ability of artists and publishers to continue to produce such works and the ability of the general public to enjoy the fruits of that creativity would both be jeopardized.
In more tangible terms, we have several suggestions. First, a technology like YouTube, despite best efforts in filtering and prompt responses to take down notices, will always have a certain level of infringement. As such, we ask that Google give back to artists by returning a small percentage of the profits to artists groups and organizations. Other countries, such as Japan, have developed royalty schedules for digital video and internet television, covering the performers, producers, and writers. As we have recently learned from the writers’ strike, we need to remember all the creators and effort that go into each video.
YouTube presents a unique opportunity for artists to bypass the middlemen, once necessary to market and distribute out works. However, as individuals, we don’t have the negotiating power to enter into agreements with Google to carry our licensed works on YouTube. To that end, we ask that Google explore micro-payment models, where users make small payments to access certain works. These payments would go to the artists, making the “direct to YouTube” model not only viable as a promotional tool, but as a sustainable business model for artists.
VI. Conclusion
We are artists. Each artist makes a lengthy journey in finding a style and developing methods and works—often struggling to create. A serious artist needs to be respected by serious and effective safeguards. Individual creativity should be rewarded by protection that respects ownership.
We help to create cultural artifacts which permit spirits to soar and express themselves, making the world a better place. Remember to respect our work whether you are a beholder of the arts, an exhibitor, or a dealer with commercial intent. Please value, reward and protect the work of those who choose to express themselves in a creative fashion.
Monday, March 3, 2008
Short Quiz
The internet is confusing and the questions of authorized content use is not always easily answered.
Take a look at the two websites and try to find out whether or not they are pirate sites.
http://www.zml.com/
http://www.filmon.com/welcome/
For some background please read:
http://www.economist.com/world/na/displaystory.cfm?story_id=10723360
Best regards
Sebastian
Take a look at the two websites and try to find out whether or not they are pirate sites.
http://www.zml.com/
http://www.filmon.com/welcome/
For some background please read:
http://www.economist.com/world/na/displaystory.cfm?story_id=10723360
Best regards
Sebastian
Google Litigators PowerPoint Presentation
Hi everyone,
Please follow the below link to view our presentation slides. Thank you.
http://a-liphe.com/Documents/Viacom%20v.%20Google.ppt
Sincerely.
Google Litigators
Please follow the below link to view our presentation slides. Thank you.
http://a-liphe.com/Documents/Viacom%20v.%20Google.ppt
Sincerely.
Google Litigators
Google Litigators Final Paper
Dear Class,
Hopefully this finds you well. Please find below a link to our final paper, which will open in pdf format. We hope you will all enjoy this analysis. Thank you in advance.
http://a-liphe.com/Documents/Viacom%20v.%20Google%20-%20Final%20Paper.pdf
Sincerely,
Google Litigators
Hopefully this finds you well. Please find below a link to our final paper, which will open in pdf format. We hope you will all enjoy this analysis. Thank you in advance.
http://a-liphe.com/Documents/Viacom%20v.%20Google%20-%20Final%20Paper.pdf
Sincerely,
Google Litigators
Sunday, March 2, 2008
Proposed Statutory Amendments by the DMCA Revision Committee
Below is an outline of our group's proposed amendments to section 512 of the copyright act. For each section, we state the proposed changes to the statute and explain those changes, and then we include "legislative history" in the form of a semi-fictitious summary of our discussions concerning each proposed modification.
Section I. Proposals and the legislative history for the inclusion of filtering technology:
Proposed Language:
(a) A service provider shall take good faith reasonable steps to police and prevent copyright infringement by users through its service.
(b) Paragraph (a) does not apply to the following services of a service provider.
(1) intermediate and transient storage; or
(2) providing links to, indexing of, or directories of online locations for the purposes of information location.
Introduction:
As the current DMCA doesn’t require online service providers (“OSPs”) to police themselves, it is not fair for the copyright holders to have the sole duty to police all of their copyrighted works, especially since, in the digital era, many mediums like the Internet facilitate the massive distribution of copyrighted works. The OSPs, who gain a benefit from their users, do have the right and ability to control infringing activity on their servers. Therefore, we propose to impose part of the burden of policing copyright infringing conducts through the service provided by the OSPs.
Part (a):
We provide broad language in part (a) to allow a more flexible and nimble application to various types of OSPs for now and in the future. Nowadays, technology that filters and blocks the unauthorized distribution or posting of copyrighted works over an OSP, but allows distribution or posting of public domain materials or, where authorized by the copyright holders or the Copyright Act, is available for OSPs to incorporate within their services. Moreover, we also consider the Supreme Court Decision in Grokster (125 S.Ct. 2761 (2005)); the court pointed out that the effort to filter copyrighted materials could be a prima facie showing of non-inducement. Therefore, we believe that filtering technology would be one of the possible solutions to the problem of protecting the interests of the copyrights holders without stifling the development of technological innovation.
However, we decline to insert a requirement for specific filtering technology into the DMCA. First, it may require an excessive amount of money to access and manage certain kinds of filtering technology. In view of the different capabilities to access filtering technology among various types of OSPs, for instance, the large, medium, and small OSPs; profit and non-profit OSPs, it would cause problems to the small, medium or non-profit OSPs who have insufficient resources to create or adopt all technologies. Second, the necessity of adopting filtering technology also depends on the size and type of these OSPs. For example, to small OSPs having only a small number of users and traffic, it would be sufficient to use human power to police instead of a very high technology of filtering.
Last but not least, in consideration of the fair use materials protected under the First Amendment of Constitution, to incorporate the filtering technology mandate into the DMCA is likely to wipe out these materials and stifle the free speech incentive because it is still not likely to use filtering technology to distinguish copyright infringing material from fair use ones so far.
Part (b):
We exclude services providing intermediate and transient storage and information-locating from the policing requirement for the following reasons. First, for “mere conduit” and “information-locating” kinds of service, it is too burdensome for OSPs to monitor immense materials transmitted through the conduit. Second, for “mere conduit” kinds of service, as to the undertaking to police, it would inevitably violate privacy of users, which should be a serious concern.
Legislative History:
Ethan: In order to balance the burden to monitor copyright infringement, should we adopt a “filtering technology” mandate into the DMCA? It is a very important factor to determine the contributory infringement in the Grokster case.
Sirimas: I agree with the importance of filtering technology that would balance the duty of the copyright holders and the OSPs. However, if we include the filtering technology mandate into the DMCA, it would be too burdensome to the small OSPs without sufficient resources to adopt the technology. And the fair use materials protected under the First Amendment would be deeply undermined in the future.
Ethan: Yes. But what should we do? We need to take some steps to balance the burden because the Internet is worsening the level of copyright infringement at both incredible speed and amounts. It is unfair to only impose on the copyright holder the duty to police copyright infringement under the current DMCA.
Sirimas: Why don’t we use a flexible term to regulate the burden to OSPs in the DMCA and let the court decide discretionally if the technology or step that the OSPs adopt is sufficient.
Ethan: I agree. And we should also consider whether a filtering requirement should apply to intermediate and transient storage and information location. It would be unnecessarily burdensome to the OSPs providing “mere conduit” and information locating services to monitor immense materials transmitted through the conduit. And it would inevitably violate the privacy right of users while OSPs providing “mere conduit” services undertaking the police.
Sirimas: Yes, you are right. So our conclusion in this issue is that a service provider should take reasonable steps to prevent copyright infringement, and the burden should be precluded for mere conduit and information-locating services.
Section II. Proposals and the legislative history a redefinition of “service provider”:
Proposed Definition:
The new proposed definition for a service provider is as follows:
A service provider is an entity which acts as a conduit for transmission or routing of data to or from a user to one or more specified points at the direction of the user, without modification to the sent or received material other than automatic modification necessary for the mere performance of the service, and performs one or more of the following actions:
providing online services or network access;
acting as an intermediate, transient, temporary, or permanent data storage;
providing links to, indexing of, or directories of online locations for the purposes of information location.
The current DMCA definition of “service provider” occurs in two parts, and it is inadequate to cover the full range of possible entities that may be considered to be service providers. Hence, we propose the above single definition which contains multiple characteristics that a service provider may contain. We believe that this definition provides broad coverage for entities that are currently considered to be service providers that are worthy of protection. Moreover, this definition is broad enough to cover new kinds of service providers as they develop.
The first part of the definition is written to include all service providers since the basic function for service providers is to act as a conduit for sending and receiving data. Unlike the current definition contained in the DMCA, this new proposed definition recognizes that some modification of data by service providers will occur under circumstances which should not expose the service provider to liability. Such modification may be automatic and necessary for the service. For example, data transmitted through a network may need to be compressed or encrypted. Or, a service that allows material to be posted may need to convert that material into an acceptable format. These kinds of modifications, which are not at the selective direction of the service provider, will be allowed under the proposed definition.
Part (a) is a broad category that includes entities that provide access to the Internet as well as entities that provide access to other kinds of networks. Such entities may universities, cable or DSL companies, or entities allowing access to networks not directly connected to the Internet. Other included service providers might be entities that allow the exchange of email or instant messages.
Part (b) covers virtually every service provider in some form. For every service provider, a copy of infringing material will necessarily exist on the service provider’s network at least in a transient manner. Other service providers, including discussion boards, file sharing servers, or sites allowing users to post video or audio clips, will provide more permanent storage of possibly infringing materials. Hence, this section will capture a wide variety of service providers.
Part (c) covers service providers which help users find and navigate to online information. This definition covers directories that may contain links to other pages and items as well as search engines.
Although we do not address a revision of the service provider categories at this time, this definition is a first step towards the elimination of the service provider categories. The current categories needlessly separate the different possible functions of a service provider. It is possible that these five categories could be collapsed into a single statement specifying under what conditions a service provider will be liable for copyright infringement. However, such an extensive modification must be reserved for another occasion.
Legislative History:
Harry: Don't you think that the structure of § 512 of DMCA is too complicated to easily understand?
Ryan: I agree with you. I think that one major flaw in DMCA is an inadequate handling of the term "service provider." DMCA defines "service provider" near the end of § 512 at (k) in two different ways. "Service providers" are then broken into five categories by provisions (a) through (e). I think that this convoluted verbiage is not only confusing but also fails to account for emerging technologies.
Harry: I think we should redefine the "service provider" in a single simpler and more robust way. Then, in the future it would be easier to collapse the five categories into a single statement specifying under what conditions a service provider will not be liable for copyright infringement.
Ryan: Yes, right. By the way, I think that another problem with the current definition for the "service provider" contained in DMCA is that it requires no modification to the content of the material to qualify for the liability exemption of the service provider. But, such modification may be automatic and necessary for the service.
Harry: I agree. The data transmitted through a network may need to be compressed or encrypted. Or, a service that allows material to be posted may need to convert that material into an acceptable format. We should explicitly state that such modification necessary for the service does not affect the liability exemption.
Ryan: Should we clarify some ambiguous descriptions such as "financial benefit directly attributable to the infringing activity" and "expeditiously"?
Harry: Yes, right. As for "expeditiously," I think we might consider clarifying this to specific terms such as "within 36 hours." As for "financial benefit directly attributable to the infringing activity," I think we can consider deleting the entire condition relating to this.
Ryan: I agree with you regarding the direct financial benefit term, but let’s leave “expeditiously” as it is since what is or isn’t expeditious could change dramatically depending on the type of work and service provider.
Section III. Proposal to amendment to the current “notice and take-down” procedure:
Proposed Revisions:
The current “notice and take-down” procedure is ineffective because users can repost infringing works as soon as they are removed. Copyright owners, thus, have the burden to give new notice any time that an infringing work is reposted. We believe that an OSP has sufficient information to remove or disable online access to infringing works from the first notification of the copyright owners. Therefore, we propose to make it obligation of an OSP to monitor its website to prevent such reposting. This can be done by adding the following phrase as Subsection (c)(1)(D) of Section 512:
“…; and (D) take reasonable steps to prevent the subscribers from reposting the same infringing materials after being removed according to (c)(1)(C).
We propose that a similar phrase should be added as Subsection (d)(1)(c)(4) of Section 512:
“…; and (4) take reasonable steps to prevent subscribers from reposting the same infringing materials after being removed according to (c)(1)(C).”
We believe this amendment will make the procedure more efficient.
Legislative History:
Pricilla: Shouldn’t we make the proposed Subsection broader to cover the same infringing materials posted by not only the same subscriber but by any other subscribers? That will help copyright owners from sending new notifications for the same infringing materials.
Piyawat: I see you point. However, that will cause problems in practice. For example, the same material that is posted by another subscriber may not be deemed infringing. Another person may have permission to post such material. Moreover, another person may be entitled to claim fair use.
Proposal to add “reversed notice and take-down procedure” to Section 512:
It is a known fact that not every clip that is posted by users on YouTube website is copyright infringing work. A number of them are works created by those users. Some were posted with consent, whether implicitly or explicitly, of creators. Some works, even though made and posted without authorization of copyright owners, are fair use of copyrighted works. Accordingly, users are authorized by law to post these types of works, and copyright owners are not entitled to request that an OSP remove or disable online access to such materials.
It seems that the available procedure works well for all parties. In fact, there are chances that fair use materials are taken down inappropriately by notice from copyright owners who do not appreciate, whether in good or bad faith, that such materials are fair use. Even though users are entitled to file a counter notification with the OSP asking for replacement of the removed or disabled materials, this procedure can only take place after the materials have been removed or their online access have been disabled. We, therefore, propose to amend the DMCA to add another procedure which entitles users to prevent their fair use materials from being removed unreasonably and may also solve the conflict between copyright owners and the OSP’s users.
Under the proposed procedure, either before or after posting a video clip on the OSP’s website, a user who believe his/her material is fair use or who would like to try to get permission to post a copyrighted content on a website from the copyright owner (as, for example, those who believe posting a music video of a particular song will help promoting sales of CDs of such song) is entitled to send a request to the copyright owner via OSP asking for clearance or permission to post the material. The copyright owner is, thus, obligated to revert to the user via OSP within 10 days with an answer whether to give such clearance or permission. Failure to revert to the OSP by the prescribed time is deemed to be an implied clearance or permission, as the case may be, to post the material. After receiving the request, copyright owner may negotiate terms and conditions of the permission (license) with the user directly. OSP must be informed of such negotiation.
If the copyright owner decides not to grant license to the user and advises the OSP of such decision by the due date, the OSP must promptly notify the user. The OSP must then block the user from posting such material or, if the material has already been posted, remove such material or disable access to the material. The OSP must then take necessary steps to prevent the subscribers from reposting the materials after being removed.
If the copyright owner decides not to give the requested clearance and advises the OSP of such decision by the due date, the OSP is obligated to forward the case to the DMCA Commission, a government agency established to handle this matter, for consideration and decision. The Commission must render decision within 10 days. If the Commission finds the material to be fair use, it must notify all parties promptly. The OSP must then allow the material to be posted. If the Commission finds, to the contrary, that the material is not fair use, it must notify all concerned parties promptly. The OSP must then block the user from posting such material or, if the material has already been posted, remove such material or disable access to the material. OSP must then take necessary steps to prevent subscribers from reposting the materials after being removed.
The parties who disagree with the Commission’s decision is then entitled to appeal the decision to the court. If the material has been posted as per the Commission’s decision, it can be taken down only by court injunction, whether preliminary or permanently. The copyright owner is not entitled to initiate the “notice and take-down procedure” while the “reversed notice and take-down procedure” is pending.
Legislative history:
Pricilla: Do we need to create a DMCA Commission to solve disputes between users and copyright owners? It is not an easy task to create a new government agency.
Piyawat: Without such agency, all disputes will have to be settled in courts. The very high litigation costs will dissuade poor users and independent artists from defending their rights in courts. It is very likely that they will give in.
Ryan: I’m against both the proposed reverse take down procedure and the DMCA administrative agency proposal for two reasons. First, the creation of a new agency is a complex and expensive act that should be reserved only for the circumstances where current legal avenues are inadequate to address an important need. Deciding what constitutes copyright infringement or fair use has always been the jurisdiction of the courts, and I’m not at all convinced that there is a need for this to change. I don’t think that the ability of users to post fair use materials is such a pressing public policy concern that a new agency is required. Secondly, copyright infringement and claims of fair use occur every day, both in digital and analog contexts, and it’s not clear to me why a DMCA commission for digital contexts should be favored over an agency covering all copyright disputes.
Piyawat: In making this proposal, I thought of the DOJ's Antitrust Division and FTC in antitrust disputes. These administrative agencies not only taking action against violators of antitrust law but also provide other services to try to solve and prevent problems. For Example, a company or a group of firms is entitled to request for a Business Review Letter from the DOJ's Antitrust Division on their planed business plans. This is to get the officials to review and comment whether their plans would be deemed anti competitive under antitrust law. Based on this model, I thought it should be good to all parties concerned in DMCA case to have a similar administrative agency to take care of initial disputes. It would be more cost and time effective.
Section I. Proposals and the legislative history for the inclusion of filtering technology:
Proposed Language:
(a) A service provider shall take good faith reasonable steps to police and prevent copyright infringement by users through its service.
(b) Paragraph (a) does not apply to the following services of a service provider.
(1) intermediate and transient storage; or
(2) providing links to, indexing of, or directories of online locations for the purposes of information location.
Introduction:
As the current DMCA doesn’t require online service providers (“OSPs”) to police themselves, it is not fair for the copyright holders to have the sole duty to police all of their copyrighted works, especially since, in the digital era, many mediums like the Internet facilitate the massive distribution of copyrighted works. The OSPs, who gain a benefit from their users, do have the right and ability to control infringing activity on their servers. Therefore, we propose to impose part of the burden of policing copyright infringing conducts through the service provided by the OSPs.
Part (a):
We provide broad language in part (a) to allow a more flexible and nimble application to various types of OSPs for now and in the future. Nowadays, technology that filters and blocks the unauthorized distribution or posting of copyrighted works over an OSP, but allows distribution or posting of public domain materials or, where authorized by the copyright holders or the Copyright Act, is available for OSPs to incorporate within their services. Moreover, we also consider the Supreme Court Decision in Grokster (125 S.Ct. 2761 (2005)); the court pointed out that the effort to filter copyrighted materials could be a prima facie showing of non-inducement. Therefore, we believe that filtering technology would be one of the possible solutions to the problem of protecting the interests of the copyrights holders without stifling the development of technological innovation.
However, we decline to insert a requirement for specific filtering technology into the DMCA. First, it may require an excessive amount of money to access and manage certain kinds of filtering technology. In view of the different capabilities to access filtering technology among various types of OSPs, for instance, the large, medium, and small OSPs; profit and non-profit OSPs, it would cause problems to the small, medium or non-profit OSPs who have insufficient resources to create or adopt all technologies. Second, the necessity of adopting filtering technology also depends on the size and type of these OSPs. For example, to small OSPs having only a small number of users and traffic, it would be sufficient to use human power to police instead of a very high technology of filtering.
Last but not least, in consideration of the fair use materials protected under the First Amendment of Constitution, to incorporate the filtering technology mandate into the DMCA is likely to wipe out these materials and stifle the free speech incentive because it is still not likely to use filtering technology to distinguish copyright infringing material from fair use ones so far.
Part (b):
We exclude services providing intermediate and transient storage and information-locating from the policing requirement for the following reasons. First, for “mere conduit” and “information-locating” kinds of service, it is too burdensome for OSPs to monitor immense materials transmitted through the conduit. Second, for “mere conduit” kinds of service, as to the undertaking to police, it would inevitably violate privacy of users, which should be a serious concern.
Legislative History:
Ethan: In order to balance the burden to monitor copyright infringement, should we adopt a “filtering technology” mandate into the DMCA? It is a very important factor to determine the contributory infringement in the Grokster case.
Sirimas: I agree with the importance of filtering technology that would balance the duty of the copyright holders and the OSPs. However, if we include the filtering technology mandate into the DMCA, it would be too burdensome to the small OSPs without sufficient resources to adopt the technology. And the fair use materials protected under the First Amendment would be deeply undermined in the future.
Ethan: Yes. But what should we do? We need to take some steps to balance the burden because the Internet is worsening the level of copyright infringement at both incredible speed and amounts. It is unfair to only impose on the copyright holder the duty to police copyright infringement under the current DMCA.
Sirimas: Why don’t we use a flexible term to regulate the burden to OSPs in the DMCA and let the court decide discretionally if the technology or step that the OSPs adopt is sufficient.
Ethan: I agree. And we should also consider whether a filtering requirement should apply to intermediate and transient storage and information location. It would be unnecessarily burdensome to the OSPs providing “mere conduit” and information locating services to monitor immense materials transmitted through the conduit. And it would inevitably violate the privacy right of users while OSPs providing “mere conduit” services undertaking the police.
Sirimas: Yes, you are right. So our conclusion in this issue is that a service provider should take reasonable steps to prevent copyright infringement, and the burden should be precluded for mere conduit and information-locating services.
Section II. Proposals and the legislative history a redefinition of “service provider”:
Proposed Definition:
The new proposed definition for a service provider is as follows:
A service provider is an entity which acts as a conduit for transmission or routing of data to or from a user to one or more specified points at the direction of the user, without modification to the sent or received material other than automatic modification necessary for the mere performance of the service, and performs one or more of the following actions:
providing online services or network access;
acting as an intermediate, transient, temporary, or permanent data storage;
providing links to, indexing of, or directories of online locations for the purposes of information location.
The current DMCA definition of “service provider” occurs in two parts, and it is inadequate to cover the full range of possible entities that may be considered to be service providers. Hence, we propose the above single definition which contains multiple characteristics that a service provider may contain. We believe that this definition provides broad coverage for entities that are currently considered to be service providers that are worthy of protection. Moreover, this definition is broad enough to cover new kinds of service providers as they develop.
The first part of the definition is written to include all service providers since the basic function for service providers is to act as a conduit for sending and receiving data. Unlike the current definition contained in the DMCA, this new proposed definition recognizes that some modification of data by service providers will occur under circumstances which should not expose the service provider to liability. Such modification may be automatic and necessary for the service. For example, data transmitted through a network may need to be compressed or encrypted. Or, a service that allows material to be posted may need to convert that material into an acceptable format. These kinds of modifications, which are not at the selective direction of the service provider, will be allowed under the proposed definition.
Part (a) is a broad category that includes entities that provide access to the Internet as well as entities that provide access to other kinds of networks. Such entities may universities, cable or DSL companies, or entities allowing access to networks not directly connected to the Internet. Other included service providers might be entities that allow the exchange of email or instant messages.
Part (b) covers virtually every service provider in some form. For every service provider, a copy of infringing material will necessarily exist on the service provider’s network at least in a transient manner. Other service providers, including discussion boards, file sharing servers, or sites allowing users to post video or audio clips, will provide more permanent storage of possibly infringing materials. Hence, this section will capture a wide variety of service providers.
Part (c) covers service providers which help users find and navigate to online information. This definition covers directories that may contain links to other pages and items as well as search engines.
Although we do not address a revision of the service provider categories at this time, this definition is a first step towards the elimination of the service provider categories. The current categories needlessly separate the different possible functions of a service provider. It is possible that these five categories could be collapsed into a single statement specifying under what conditions a service provider will be liable for copyright infringement. However, such an extensive modification must be reserved for another occasion.
Legislative History:
Harry: Don't you think that the structure of § 512 of DMCA is too complicated to easily understand?
Ryan: I agree with you. I think that one major flaw in DMCA is an inadequate handling of the term "service provider." DMCA defines "service provider" near the end of § 512 at (k) in two different ways. "Service providers" are then broken into five categories by provisions (a) through (e). I think that this convoluted verbiage is not only confusing but also fails to account for emerging technologies.
Harry: I think we should redefine the "service provider" in a single simpler and more robust way. Then, in the future it would be easier to collapse the five categories into a single statement specifying under what conditions a service provider will not be liable for copyright infringement.
Ryan: Yes, right. By the way, I think that another problem with the current definition for the "service provider" contained in DMCA is that it requires no modification to the content of the material to qualify for the liability exemption of the service provider. But, such modification may be automatic and necessary for the service.
Harry: I agree. The data transmitted through a network may need to be compressed or encrypted. Or, a service that allows material to be posted may need to convert that material into an acceptable format. We should explicitly state that such modification necessary for the service does not affect the liability exemption.
Ryan: Should we clarify some ambiguous descriptions such as "financial benefit directly attributable to the infringing activity" and "expeditiously"?
Harry: Yes, right. As for "expeditiously," I think we might consider clarifying this to specific terms such as "within 36 hours." As for "financial benefit directly attributable to the infringing activity," I think we can consider deleting the entire condition relating to this.
Ryan: I agree with you regarding the direct financial benefit term, but let’s leave “expeditiously” as it is since what is or isn’t expeditious could change dramatically depending on the type of work and service provider.
Section III. Proposal to amendment to the current “notice and take-down” procedure:
Proposed Revisions:
The current “notice and take-down” procedure is ineffective because users can repost infringing works as soon as they are removed. Copyright owners, thus, have the burden to give new notice any time that an infringing work is reposted. We believe that an OSP has sufficient information to remove or disable online access to infringing works from the first notification of the copyright owners. Therefore, we propose to make it obligation of an OSP to monitor its website to prevent such reposting. This can be done by adding the following phrase as Subsection (c)(1)(D) of Section 512:
“…; and (D) take reasonable steps to prevent the subscribers from reposting the same infringing materials after being removed according to (c)(1)(C).
We propose that a similar phrase should be added as Subsection (d)(1)(c)(4) of Section 512:
“…; and (4) take reasonable steps to prevent subscribers from reposting the same infringing materials after being removed according to (c)(1)(C).”
We believe this amendment will make the procedure more efficient.
Legislative History:
Pricilla: Shouldn’t we make the proposed Subsection broader to cover the same infringing materials posted by not only the same subscriber but by any other subscribers? That will help copyright owners from sending new notifications for the same infringing materials.
Piyawat: I see you point. However, that will cause problems in practice. For example, the same material that is posted by another subscriber may not be deemed infringing. Another person may have permission to post such material. Moreover, another person may be entitled to claim fair use.
Proposal to add “reversed notice and take-down procedure” to Section 512:
It is a known fact that not every clip that is posted by users on YouTube website is copyright infringing work. A number of them are works created by those users. Some were posted with consent, whether implicitly or explicitly, of creators. Some works, even though made and posted without authorization of copyright owners, are fair use of copyrighted works. Accordingly, users are authorized by law to post these types of works, and copyright owners are not entitled to request that an OSP remove or disable online access to such materials.
It seems that the available procedure works well for all parties. In fact, there are chances that fair use materials are taken down inappropriately by notice from copyright owners who do not appreciate, whether in good or bad faith, that such materials are fair use. Even though users are entitled to file a counter notification with the OSP asking for replacement of the removed or disabled materials, this procedure can only take place after the materials have been removed or their online access have been disabled. We, therefore, propose to amend the DMCA to add another procedure which entitles users to prevent their fair use materials from being removed unreasonably and may also solve the conflict between copyright owners and the OSP’s users.
Under the proposed procedure, either before or after posting a video clip on the OSP’s website, a user who believe his/her material is fair use or who would like to try to get permission to post a copyrighted content on a website from the copyright owner (as, for example, those who believe posting a music video of a particular song will help promoting sales of CDs of such song) is entitled to send a request to the copyright owner via OSP asking for clearance or permission to post the material. The copyright owner is, thus, obligated to revert to the user via OSP within 10 days with an answer whether to give such clearance or permission. Failure to revert to the OSP by the prescribed time is deemed to be an implied clearance or permission, as the case may be, to post the material. After receiving the request, copyright owner may negotiate terms and conditions of the permission (license) with the user directly. OSP must be informed of such negotiation.
If the copyright owner decides not to grant license to the user and advises the OSP of such decision by the due date, the OSP must promptly notify the user. The OSP must then block the user from posting such material or, if the material has already been posted, remove such material or disable access to the material. The OSP must then take necessary steps to prevent the subscribers from reposting the materials after being removed.
If the copyright owner decides not to give the requested clearance and advises the OSP of such decision by the due date, the OSP is obligated to forward the case to the DMCA Commission, a government agency established to handle this matter, for consideration and decision. The Commission must render decision within 10 days. If the Commission finds the material to be fair use, it must notify all parties promptly. The OSP must then allow the material to be posted. If the Commission finds, to the contrary, that the material is not fair use, it must notify all concerned parties promptly. The OSP must then block the user from posting such material or, if the material has already been posted, remove such material or disable access to the material. OSP must then take necessary steps to prevent subscribers from reposting the materials after being removed.
The parties who disagree with the Commission’s decision is then entitled to appeal the decision to the court. If the material has been posted as per the Commission’s decision, it can be taken down only by court injunction, whether preliminary or permanently. The copyright owner is not entitled to initiate the “notice and take-down procedure” while the “reversed notice and take-down procedure” is pending.
Legislative history:
Pricilla: Do we need to create a DMCA Commission to solve disputes between users and copyright owners? It is not an easy task to create a new government agency.
Piyawat: Without such agency, all disputes will have to be settled in courts. The very high litigation costs will dissuade poor users and independent artists from defending their rights in courts. It is very likely that they will give in.
Ryan: I’m against both the proposed reverse take down procedure and the DMCA administrative agency proposal for two reasons. First, the creation of a new agency is a complex and expensive act that should be reserved only for the circumstances where current legal avenues are inadequate to address an important need. Deciding what constitutes copyright infringement or fair use has always been the jurisdiction of the courts, and I’m not at all convinced that there is a need for this to change. I don’t think that the ability of users to post fair use materials is such a pressing public policy concern that a new agency is required. Secondly, copyright infringement and claims of fair use occur every day, both in digital and analog contexts, and it’s not clear to me why a DMCA commission for digital contexts should be favored over an agency covering all copyright disputes.
Piyawat: In making this proposal, I thought of the DOJ's Antitrust Division and FTC in antitrust disputes. These administrative agencies not only taking action against violators of antitrust law but also provide other services to try to solve and prevent problems. For Example, a company or a group of firms is entitled to request for a Business Review Letter from the DOJ's Antitrust Division on their planed business plans. This is to get the officials to review and comment whether their plans would be deemed anti competitive under antitrust law. Based on this model, I thought it should be good to all parties concerned in DMCA case to have a similar administrative agency to take care of initial disputes. It would be more cost and time effective.
Subscribe to:
Comments (Atom)