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.
Monday, February 11, 2008
Google Litigators
Viacom v. Google, YouTube:
The Battle between Copyrights & Public Interest
In the contemporary era of information technology, as borders and boundaries between people across nations are ever decreasing, whilst the rapid global dissemination of knowledge, self-expression, and entertainment, Viacom has chosen to pursue the path of obstructing the advancement of society by diminishing the modern prime venue for individual self-expression, namely YouTube.com. Viacom alleges copyright infringement on the part of Google, Inc. through the YouTube.com website relating to some 150,000.00 clips, thereby attempting to persuade the world that this dispute revolves around alleged undue acts of Google with respect to copyrights. Aside of the conceptual realm of statutory theories and case law, the reality depicts that this epic battle is not truly about whether copyrights subsist in Viacom’s works, but rather whether the courts are going to allow the diminishment of the public interest over Viacom’s undue exploitation as well as expansion of IP rights, resting on the collapse of an entire industry and ultimately on the crumbling shoulders of individuals’ rights to express themselves.
In a similar yet humble manner to our forefathers’ democratic principles, YouTube.com has successfully created a platform of self-expression “from the people, for the people.” Its simple purpose of creating an environment, in which people can freely express themselves in an artistic, creative, commenting, and criticizing manner, generated an unprecedented attendance of the public. Meanwhile, Google was very cautious and intensely thoughtful in its preservation of other party’s intellectual property rights, implementing filters and constituting restrictions that both expressly prohibit the uploading of copyrighted works and oftentimes even disable such uploads.
Indeed, Google has been acting in good faith and accordingly has been striving for cooperation with intellectual property holders across the spectrum of artists and corporations in the pursuit of solving the issues at hand. However, Viacom aims at a monetary benefit from this lawsuit and plainly disregards the social benefits of the YouTube technology. They oversee the insignificance of the alleged 150,000.00 clips over the YouTube library of 70 million clips, encompassing substantially and almost exclusively original works of users. Their dispute is antagonistic to societal advancement and represents an obstacle to a thriving industry and above all the freedom of most users, who do not infringe any IP rights. YouTube does not embody harm towards Viacom. Instead, Viacom’s IP exploitation embodies the commencement of precedents aiming at halting the progress of technology and thereby the advancement of society.
The Silicon Valley Business Coalition op-ed
Thomas Jefferson once dreamed of having a library in every county in America: "Nothing would do more extensive good at small expense," wrote the author of the Declaration of Independence, than to make available "a few well-chosen books to be lent to the people."
Today, the advent of the Internet and the rapid growth in Americans' access to it allows us to surpass even Jefferson's vision of the democratic ideal. Instead of a library in every county, we have the possibility of a library in every home, stocked not just with a few well-chosen books but with a nearly limitless supply of content across every form of media imaginable.
What a shame it would be to squander such an opportunity. Yet that is exactly what we risk when government regulation and acrimonious litigation stifle and strangle the technological innovation that makes such far-reaching content delivery possible in the first place. Lawsuits like Viacom's action against YouTube, coupled with increasingly shrill calls from content owners to increase the regulatory burden on content deliverers represent a grave threat to both the new economy and people's newfound ease of access to information (no small problem now that we are officially living in the Information Age).
Perhaps none of our nation's founders understood the need for adequate intellectual property protection better than Jefferson – a prolific writer, thinker and inventor in his own right. But his understanding was shaped by a belief, reflected in the Constitution itself, that the point of such protection was to promote ideas and innovation with the aim of diffusing them throughout the public as widely as possible.
Similarly, those of us who strive to broaden everyday Americans' access to content have tremendous respect for the rights of the content owners. But when those rights are asserted not to promote innovation but to block it then we have strayed too far afield from the intent of the framers in granting those rights in the first place.
Our experiences with past government interventions into new technologies shows, that laws and amendments created to govern the new are bound to fail. Unclear and undefinable laws stifle innovation and discourage the development of new business methods. And in a constantly-changing business environment, laws and regulations that make their way through lengthy approval processes often lag behind the curve and govern situations that do not exist any more.
Instead of relying on the government to solve our problems for us, we urge content owners and content deliverers to work together do what we do best – innovate a solution. Specifically, we should be working to create an industry-wide filtering standard that allows easy recognition of protected content. Armed with such a tool, content owners and providers would find it much easier to navigate the presently murky waters of the Safe Harbor provisions provided for in current law.
Once protected content can be reliably identified, the invisible hand of the market will fashion several solutions. One approach would be to give the content owner a choice between removal of the infringing material from the content delivery site or a split of revenues earned from having that content on the page. For low-revenue sites, another possibility could be the grant of free advertisement space for the content owner.
In any event, a focus on finding a technological solution will keep us truer to Jefferson's spirit and bring us closer to achieving (and surpassing) his utopic vision than any lawsuit or bureaucratic rule ever could.
The Silicon Valley Business Coalition is a group of companies involved in development of internet-technology and internet based businesses. We experiment with new ways to create, distribute and market content on the internet. We respect reasonable copyright protection, but we seek to avoid overly strict regulations and copyright policies that threaten innovation and new ideas.
Today, the advent of the Internet and the rapid growth in Americans' access to it allows us to surpass even Jefferson's vision of the democratic ideal. Instead of a library in every county, we have the possibility of a library in every home, stocked not just with a few well-chosen books but with a nearly limitless supply of content across every form of media imaginable.
What a shame it would be to squander such an opportunity. Yet that is exactly what we risk when government regulation and acrimonious litigation stifle and strangle the technological innovation that makes such far-reaching content delivery possible in the first place. Lawsuits like Viacom's action against YouTube, coupled with increasingly shrill calls from content owners to increase the regulatory burden on content deliverers represent a grave threat to both the new economy and people's newfound ease of access to information (no small problem now that we are officially living in the Information Age).
Perhaps none of our nation's founders understood the need for adequate intellectual property protection better than Jefferson – a prolific writer, thinker and inventor in his own right. But his understanding was shaped by a belief, reflected in the Constitution itself, that the point of such protection was to promote ideas and innovation with the aim of diffusing them throughout the public as widely as possible.
Similarly, those of us who strive to broaden everyday Americans' access to content have tremendous respect for the rights of the content owners. But when those rights are asserted not to promote innovation but to block it then we have strayed too far afield from the intent of the framers in granting those rights in the first place.
Our experiences with past government interventions into new technologies shows, that laws and amendments created to govern the new are bound to fail. Unclear and undefinable laws stifle innovation and discourage the development of new business methods. And in a constantly-changing business environment, laws and regulations that make their way through lengthy approval processes often lag behind the curve and govern situations that do not exist any more.
Instead of relying on the government to solve our problems for us, we urge content owners and content deliverers to work together do what we do best – innovate a solution. Specifically, we should be working to create an industry-wide filtering standard that allows easy recognition of protected content. Armed with such a tool, content owners and providers would find it much easier to navigate the presently murky waters of the Safe Harbor provisions provided for in current law.
Once protected content can be reliably identified, the invisible hand of the market will fashion several solutions. One approach would be to give the content owner a choice between removal of the infringing material from the content delivery site or a split of revenues earned from having that content on the page. For low-revenue sites, another possibility could be the grant of free advertisement space for the content owner.
In any event, a focus on finding a technological solution will keep us truer to Jefferson's spirit and bring us closer to achieving (and surpassing) his utopic vision than any lawsuit or bureaucratic rule ever could.
The Silicon Valley Business Coalition is a group of companies involved in development of internet-technology and internet based businesses. We experiment with new ways to create, distribute and market content on the internet. We respect reasonable copyright protection, but we seek to avoid overly strict regulations and copyright policies that threaten innovation and new ideas.
The Artists' Coalition Speaks Out on YouTube
As Viacom and Google wage war in the courtroom over YouTube, we ask that they each stop to consider the true source of their respective fortunes. At the end of the day, it's about content. Without it, Viacom would have nothing to sell through its massive distribution channels. Google would have nothing to search, and more importantly in this context, nothing to play on its most intriguing and controversial acquisition—YouTube.
Where does this content come from? Simple. The artists.
The controversy, at its core, is about our creations and performances. As such, one would think we'd have a large financial stake in the outcome. However, this is not the case. The race to bring audiovisual content to the internet has left us behind and overlooked our role in creating value.
The large media companies, like Viacom, place our works online and pay us lower royalty rates—if at all—claiming that internet broadcasting is promotional. To make matters worse, YouTube pays us nothing unless it is through a license deal with a major media company—a deal in which we would likely not fully participate.
Importantly, YouTube creates new opportunities for young artists. It allows them to display their own creations online to a global audience without the financial backing and distribution power of record labels and film studios. Let's not forget the voice it has given to our striking writers, as they fight for their fair share of online revenues. YouTube may even support business models for direct-to-online productions.
Some users have begun to create their own "art" by remixing and modifying ours works, with many showing our works in an unsavory light. Unauthorized mashups and remixes, despite their popularity, take away our ability to control the integrity of our creations. Some argue these represent a new art form; we hold that they are theft and distortion of our works.
YouTube will always have some degree of infringing material. As such, it has an obligation to give portions of its profits back to the artist community. While not a perfect solution, it would be a great first step.
Where does this content come from? Simple. The artists.
The controversy, at its core, is about our creations and performances. As such, one would think we'd have a large financial stake in the outcome. However, this is not the case. The race to bring audiovisual content to the internet has left us behind and overlooked our role in creating value.
The large media companies, like Viacom, place our works online and pay us lower royalty rates—if at all—claiming that internet broadcasting is promotional. To make matters worse, YouTube pays us nothing unless it is through a license deal with a major media company—a deal in which we would likely not fully participate.
Importantly, YouTube creates new opportunities for young artists. It allows them to display their own creations online to a global audience without the financial backing and distribution power of record labels and film studios. Let's not forget the voice it has given to our striking writers, as they fight for their fair share of online revenues. YouTube may even support business models for direct-to-online productions.
Some users have begun to create their own "art" by remixing and modifying ours works, with many showing our works in an unsavory light. Unauthorized mashups and remixes, despite their popularity, take away our ability to control the integrity of our creations. Some argue these represent a new art form; we hold that they are theft and distortion of our works.
YouTube will always have some degree of infringing material. As such, it has an obligation to give portions of its profits back to the artist community. While not a perfect solution, it would be a great first step.
Sunday, February 10, 2008
Op/Ed Assignment: Statement by the Digital Millennium Copyright Act Revision Committee
The Internet and online technologies have grown so quickly that the Digital Millennium Copyright Act (DMCA) was arguably out of date before its October 28, 1998 signing. Hence, nearly 10 years after its enactment, it is necessary to revisit the provisions of the DMCA. We limit the scope of our revisionary proposals to two areas within 17 U.S.C. § 512.
One major flaw in the act is an inadequate handling of the term “service provider”. The DMCA defines “service provider” near the end of § 512 at (k) in two different ways. “Service providers” are then broken into categories by provisions (a) through (e). This convoluted verbiage is not only confusing, it fails to account for emerging technologies that, though worthy of safe harbor protection, might fall outside of the listed categories. We propose that “service provider” be redefined in a single simpler and more robust way that would not only account for the current categories but also for service providers that might now be beyond the imaginative grasp of legislators.
A second major flaw is the untenable burden placed on IP owners who try to police misuse of their works. We acknowledge that redefining “service provider” as suggested above could lead to an even greater burden for IP owners. Hence, we would require service providers to make use of technology in order to combat the problems that technology has caused. Current take-down notices are ineffective; service subscribers repost infringing works as soon as they are removed. Therefore, we propose a revision such that when IP owners provide sufficient identification of a work (e.g. digital signature, the work in its entirety, etc.) with the initial notice, no further notice will be required. The burden then shifts to the service provider to ensure that works so identified are not reposted. Section § 512(g)(2), which allows the subscriber to oppose take-down of noninfringing material, will stay in place in some form. Since the level of service provider might range from an amateur, noncommercial user to a major corporation, we further propose a reasonability standard for protective measures. This will allow for effective, one-time notices without overburdening low level service providers.
One major flaw in the act is an inadequate handling of the term “service provider”. The DMCA defines “service provider” near the end of § 512 at (k) in two different ways. “Service providers” are then broken into categories by provisions (a) through (e). This convoluted verbiage is not only confusing, it fails to account for emerging technologies that, though worthy of safe harbor protection, might fall outside of the listed categories. We propose that “service provider” be redefined in a single simpler and more robust way that would not only account for the current categories but also for service providers that might now be beyond the imaginative grasp of legislators.
A second major flaw is the untenable burden placed on IP owners who try to police misuse of their works. We acknowledge that redefining “service provider” as suggested above could lead to an even greater burden for IP owners. Hence, we would require service providers to make use of technology in order to combat the problems that technology has caused. Current take-down notices are ineffective; service subscribers repost infringing works as soon as they are removed. Therefore, we propose a revision such that when IP owners provide sufficient identification of a work (e.g. digital signature, the work in its entirety, etc.) with the initial notice, no further notice will be required. The burden then shifts to the service provider to ensure that works so identified are not reposted. Section § 512(g)(2), which allows the subscriber to oppose take-down of noninfringing material, will stay in place in some form. Since the level of service provider might range from an amateur, noncommercial user to a major corporation, we further propose a reasonability standard for protective measures. This will allow for effective, one-time notices without overburdening low level service providers.
Thursday, February 7, 2008
In my family's case
My family enjoy YouTube, especially old TV programs and kid programs. Of course, they are probably copyrighted. However, I think they do not harm the copyright owners by the potential infringement.
Old TV programs on YouTube recall our childhood, and we can enjoy reminiscing about the old days. I guess somebody uploaded them from his old video tapes. Without his effort to upload, nobody can enjoy them because the copyright owners are not interested in selling them as DVD or other media. Since the old TV program market is small, it may be difficult to profit from them. Therefore, they not only harm nothing but also bring us a lot of fun.
Kid programs, especially Japanese ones, are enjoyable because my kids can understand only Japanese. In addition, it is hard to watch kid programs on DVDs in the U.S. because of their region code. A DVD player in the U.S. can not play Japanese DVD unless the player is a region free one. We can enjoy the kid programs as well as the old TV ones.
Old TV programs on YouTube recall our childhood, and we can enjoy reminiscing about the old days. I guess somebody uploaded them from his old video tapes. Without his effort to upload, nobody can enjoy them because the copyright owners are not interested in selling them as DVD or other media. Since the old TV program market is small, it may be difficult to profit from them. Therefore, they not only harm nothing but also bring us a lot of fun.
Kid programs, especially Japanese ones, are enjoyable because my kids can understand only Japanese. In addition, it is hard to watch kid programs on DVDs in the U.S. because of their region code. A DVD player in the U.S. can not play Japanese DVD unless the player is a region free one. We can enjoy the kid programs as well as the old TV ones.
Monday, January 28, 2008
How should we balance benefits
(I reposted this comment to make it easier for everyone to review.)
I agree with many other commentators that Viacom filed the lawsuit against YouTube as they want to use such lawsuit as a negotiating chip or bargaining tools. In my opinion, what they really want is to put the burden of policing infringing materials on website to YouTube. This idea is annoying to me. This type of conglomerate which have gained so much benefits (which, in my opinion, too much) from us should be able to spend some money to do such policing without a fuss.
I do not care much about YouTube as they (with Google) have more than enough money to pay for any damages and will be able to generate more money in the future after the case is settled or final. I believe Google have done due diligence thoroughly before they decided to purchase YouTube and saw this type of lawsuit coming. I am worried for the smaller with lower budget websites that will have to get the burden of policing their websites should Viacom can successfully force YouTube, one way or another, to policing its website. It would be a sad story if these small websites are forced eventually forced to close down.
I agree with many other commentators that Viacom filed the lawsuit against YouTube as they want to use such lawsuit as a negotiating chip or bargaining tools. In my opinion, what they really want is to put the burden of policing infringing materials on website to YouTube. This idea is annoying to me. This type of conglomerate which have gained so much benefits (which, in my opinion, too much) from us should be able to spend some money to do such policing without a fuss.
I do not care much about YouTube as they (with Google) have more than enough money to pay for any damages and will be able to generate more money in the future after the case is settled or final. I believe Google have done due diligence thoroughly before they decided to purchase YouTube and saw this type of lawsuit coming. I am worried for the smaller with lower budget websites that will have to get the burden of policing their websites should Viacom can successfully force YouTube, one way or another, to policing its website. It would be a sad story if these small websites are forced eventually forced to close down.
Just b/c it's a smarter use doesn't make it a fair one
Granted, I am reaching a new level of Dorkdom by using the class break to blog about the class discussion, but I can't stand not getting the last word. ;->
I thought Ali (sp?/apologies if I have the wrong person) raised an interesting point with his observation that people might watch half-a-movie on youtube for free and then go purchase the real thing...or see an episode of a show and start watching it weekly.
I don't doubt that this happens and, when it does, the content owner benefits from the unlicensed use of his/her content. This is probably why different content owners have struck deals with youtube to share official versions of content; it's also behind miracles, er, sound business decisions like ABC making all of Lost available online for free.
Similarly, I agree with David that there is a significant market for receiving content in a format/medium that looks more like youtube and less like broadcast television. Like him, I have been effectively TV-less for a few years now, although in my case this has *much* less to do with high-minded ideals than w/my obstinate objection to paying for cable. But regardless of this difference in rationale, I too would embrace the chance to watch shows online, at my convenience with ads relegated to interstitial time and/or peripheral space.
What's troubles me is the idea that if you tried to tease Ali's thread into a rule it would look something like:
Now there's plenty of room to debate who should control new content like amv's, and mashups...and I think things like the Disney Fair(y) Use video pretty obviously fall under existing Fair Use exceptions. But being honest with ourselves, I think we know that Viacom's suit isn't about videos like that, it's about videos like this, this, this, and this.
Posting an entire episode of a show (even in 5-10 minute chunks) must surely fail the "Amount/Substantiality" factor of the Fair Use Test we discussed today. Similarly, even if you could make an argument that these videos are "educational" (they are subtitled in Spanish which is why I picked them) the fact that there is not even a token effort to comply with the A/S factor suggests that it must fail the Fair Use test overall, otherwise the A/S factor has no real-world meaning and shouldn't even be part of the test.
So, assuming that the case is really about whether or not it's ok to post complete/substantially complete reproductions of copyrighted material online, I don't see how a traditional fair use defense is available to youtube. To put it another way, just because it's possible that some content providers can/do benefit from having their content posted on youtube w/o their permission that doesn't make that a "fair use" under copyright law, just a smarter one.
.
I thought Ali (sp?/apologies if I have the wrong person) raised an interesting point with his observation that people might watch half-a-movie on youtube for free and then go purchase the real thing...or see an episode of a show and start watching it weekly.
I don't doubt that this happens and, when it does, the content owner benefits from the unlicensed use of his/her content. This is probably why different content owners have struck deals with youtube to share official versions of content; it's also behind miracles, er, sound business decisions like ABC making all of Lost available online for free.
Similarly, I agree with David that there is a significant market for receiving content in a format/medium that looks more like youtube and less like broadcast television. Like him, I have been effectively TV-less for a few years now, although in my case this has *much* less to do with high-minded ideals than w/my obstinate objection to paying for cable. But regardless of this difference in rationale, I too would embrace the chance to watch shows online, at my convenience with ads relegated to interstitial time and/or peripheral space.
What's troubles me is the idea that if you tried to tease Ali's thread into a rule it would look something like:
If it appears that a content owner is economically better off having their copyright violated, then society should permit that violation.That seems to ignore a crucial stick in the bundle of IP rights, i.e. the right to control content you create/acquire. And it seems especially hard to justify under traditional fair-use rationale.
Now there's plenty of room to debate who should control new content like amv's, and mashups...and I think things like the Disney Fair(y) Use video pretty obviously fall under existing Fair Use exceptions. But being honest with ourselves, I think we know that Viacom's suit isn't about videos like that, it's about videos like this, this, this, and this.
Posting an entire episode of a show (even in 5-10 minute chunks) must surely fail the "Amount/Substantiality" factor of the Fair Use Test we discussed today. Similarly, even if you could make an argument that these videos are "educational" (they are subtitled in Spanish which is why I picked them) the fact that there is not even a token effort to comply with the A/S factor suggests that it must fail the Fair Use test overall, otherwise the A/S factor has no real-world meaning and shouldn't even be part of the test.
So, assuming that the case is really about whether or not it's ok to post complete/substantially complete reproductions of copyrighted material online, I don't see how a traditional fair use defense is available to youtube. To put it another way, just because it's possible that some content providers can/do benefit from having their content posted on youtube w/o their permission that doesn't make that a "fair use" under copyright law, just a smarter one.
.
Who would be a winner in this case?
I posted my opinion in the morning; however, the blog does not seem to accept my opinion!! Thus, I posted again.
I think Viacom definetly knew that the chances of success in this case are not so high due to the Safe Harbor Provision in DMCA when they started this lawsuit; however, they decided to sue Google... Why?
In my opinion, regardless of the results of this case, Viacom would be a winner; This is because that (1) through this lawsuit, they sucessfully made the internet users recognized how much Viacom's copyrighted works have been infringed (1.5 billion times) and how much damages have been incurred (1 billion dollars) by intense press releases, whether such figures are true or not; (2) through this lawsuit, Viacom seems to send very strong cease and desist letters to the third parties who operate UCC - they would give more attention when they uproad the contents; (3) after this lawsuit were brought, Google has strengthen their efforts to filter the copyright infringed materials; (4) Viacom would stand in better position when they negotiate with Google as to using Viacom's copyrighted contents; (5) finally, even if they lose in this case, based the decision of the court, they may push the congress to pass the bill which amend the Safe Harbor Provision to more favorable for contents generators;
In a nutshell, Viacom will be a loser in a court; however, they will be a winner out of the court.
I think Viacom definetly knew that the chances of success in this case are not so high due to the Safe Harbor Provision in DMCA when they started this lawsuit; however, they decided to sue Google... Why?
In my opinion, regardless of the results of this case, Viacom would be a winner; This is because that (1) through this lawsuit, they sucessfully made the internet users recognized how much Viacom's copyrighted works have been infringed (1.5 billion times) and how much damages have been incurred (1 billion dollars) by intense press releases, whether such figures are true or not; (2) through this lawsuit, Viacom seems to send very strong cease and desist letters to the third parties who operate UCC - they would give more attention when they uproad the contents; (3) after this lawsuit were brought, Google has strengthen their efforts to filter the copyright infringed materials; (4) Viacom would stand in better position when they negotiate with Google as to using Viacom's copyrighted contents; (5) finally, even if they lose in this case, based the decision of the court, they may push the congress to pass the bill which amend the Safe Harbor Provision to more favorable for contents generators;
In a nutshell, Viacom will be a loser in a court; however, they will be a winner out of the court.
Can YouTube be the next Sony?
In the beginging, the length of uploaded videoclip on YouTube is unlimited, therefore, sometimes we can see full episode of TV programs at one click. After the TV progames owners' protest, the length is reduced to less than 10 minutes. In addition to the length deduction, Youtube tried to build busisness connection with entertainment industry to keep those cilps not liabele for copyright infringement. YouTube, moreover, tried to fit itslef under the protection of safe harbor, such as take-down notice, terminating repeat infringers, and designating an agent. All the measures is to secure a position that YouTube does its best to avoid copyright infringement.
Perhaps others will counterargue that YouTube doesn't estabilsh good filtering system to screen uploaded clips, comparing YouTube to the Napster and Gorkster. As far as the content is concerned, the P2P file sharing is quite different from YouTube's. The contents of P2P file sharing are almost unauthorized copyrighted works, however, some contents of YouTube are original. So the staple doctrine might be applicable to YouTube as well.
The holding of Sony case is to balance the technology advancement and copyright protection. I wish the result of Youtube dispute could reach the same balance.
Perhaps others will counterargue that YouTube doesn't estabilsh good filtering system to screen uploaded clips, comparing YouTube to the Napster and Gorkster. As far as the content is concerned, the P2P file sharing is quite different from YouTube's. The contents of P2P file sharing are almost unauthorized copyrighted works, however, some contents of YouTube are original. So the staple doctrine might be applicable to YouTube as well.
The holding of Sony case is to balance the technology advancement and copyright protection. I wish the result of Youtube dispute could reach the same balance.
"Imagine no possessions, I wonder if you can"
Though I am a law school student, I have to say that YouTube is really a cute technology and has brought a lot of fun to all of us. Despite the related provisions in DMCA and those precedents, I personally hope the courts can recognize the legality of YouTube technologies. However, after reading ViaCom’s complaint and comparing their counts with Section 512 of DMCA, I think it is hard for YouTube to successfully defend the suit, unless the Congress amends the law further. The well-known fact that there are too many infringing clips residing in YouTube is one of the main reasons. Some of the users upload copyrighted works so frequently that it is hard to say YouTube has no actual knowledge to or is not aware of the existence of infringing activities, especially when red-flags are filled with the site.
From Sony’s equipment and Nasper/Grokster’s music sharing protocol to YouTube’s Video sharing platform, none of them is not extensively welcomed by the users. If it is not of the obstacle of copyright law, we can hardly imagine how far the progress of technologies has been made. Therefore, I wonder why the Congress can’t establish a standing committee to evaluate the possibility of accepting new technologies and, in the mean time, mandatorily distributing the profits resulting from the new technologies, just as the provisions in AHRA, 1992. Imagine an environment where there is no obstacle of property rights to hold back the development of cute technologies while there is a mechanism of fairly distributing related profits. . . .
From Sony’s equipment and Nasper/Grokster’s music sharing protocol to YouTube’s Video sharing platform, none of them is not extensively welcomed by the users. If it is not of the obstacle of copyright law, we can hardly imagine how far the progress of technologies has been made. Therefore, I wonder why the Congress can’t establish a standing committee to evaluate the possibility of accepting new technologies and, in the mean time, mandatorily distributing the profits resulting from the new technologies, just as the provisions in AHRA, 1992. Imagine an environment where there is no obstacle of property rights to hold back the development of cute technologies while there is a mechanism of fairly distributing related profits. . . .
Sunday, January 27, 2008
Let’s not forget the purpose of safe harbors.
One of Viacom’s core arguments against YouTube is that the DMCA takedown notices are not effective due to the large volume and rapid speed of user postings. However, isn’t this volume and user-based culture the reason why this safe harbor exists in the first place? This was the idea behind CDA §230, which created a safe harbor for tort liability for ISPs, recognizing that such liability would have a chilling effect on this new digital culture.
A peer to peer culture.
The same rationale sits behind the DMCA §512 takedown provisions, except as applied to copyright. However, now we have property rights in the mix. But should that really change the free speech equation? At what point do artifacts from television and film become part of our shared speech? One need only look to the culture of mashups and remixes that thrive in the YouTube environment to see the emergence of new art forms.
The conservative lawyer will vigorously defend his client’s assets from each and every infringement. A creative counselor will find ways to turn this new technology into a strategic advantage.
A peer to peer culture.
The same rationale sits behind the DMCA §512 takedown provisions, except as applied to copyright. However, now we have property rights in the mix. But should that really change the free speech equation? At what point do artifacts from television and film become part of our shared speech? One need only look to the culture of mashups and remixes that thrive in the YouTube environment to see the emergence of new art forms.
The conservative lawyer will vigorously defend his client’s assets from each and every infringement. A creative counselor will find ways to turn this new technology into a strategic advantage.
Although there is no question about the infringement of IP rights by You Tube, this case brings many other issues. I do not want to discuss much legal issues here (I guess we'll have a chance to do so later on in class).
The first one is simply about free speech. How can IP and free speech be reconciled? Certainly not with the path that Viacom is taking. There is no doubt about the fact that Viacom is violating some copyrights, but there is a tremendous amount of non infringing contents. Since You Tube is available worldwide, this amazing tool allows some people to express ideas that they cannot do in their own countries since they are dictatorships. I worry about the consequences of such a lawsuit. Thinks about what happened to Napster, which was also a great tool. Although it is sometimes used for copyright infringement reasons, a lot of people use it simply to post their "creations."
The second point is a comparative perspective. Video sharing is not (fortunately) limited to you tube. All around the world such websites exist (see myvideo.de for Germany or metacafe.com).
They are more or less successful. But among them there is one that is particularly successful (I swear I am not saying that because I am French...), which is Dailymotion.com. Dailymotion is based in Paris and also has some protected contents on its website. It was found liable by a French Court for copyright infringement since a full movie was available online (around 30000€ for damages...I guess that Google dreams for seach "inexpensive" damages) . But the interesting thing with Dailymotion is that they found an agreement with the major French TV channel to have some protected contents available for free. More over they even created a website together (www.wat.tv). And the TV channel broadcast clips from this website...
What I do not accept from majors and IP rights holders is that they always come late when "the battle is over", and then ask courts to give them huge damages based on an old & inappropriate law. That was the case for cassettes, CDs, P2P and now with video sharing. Will they understand once that they have to adapt quicker and to stop to attack consumers via Napster and Grokster yesterday, and with You Tube today?
Because at the end of the day, consumers are tired of this very "aristocratic" way of doing business, just because those huge companies have privileges, namely IP.
I guess consumers would be reconciled with IP if copyrights holders (the majors) stop exaggerating with IP in invoking IP only to fill the gap of their lack of adaptability (lack of competence...?) to the market & to new technologies...
Unfortunately, it is exactly what Viacom is doing.
Daoud
My impression of Viacom v. Youtube
As I remember, Youtube became famous for UCC two or three years ago. That means Youtube was filled with User Created Contents rather than copyright infringed contents. As digital techniques such as digital camera and digital recorder, are developing very quickly, new pen of young computer users is the digitalized and convenient electronic equipment. New electronic equipment is helping young generations produce and display their own contents very easily. Consequently, it became the vogue that young computer users express themselves in internet by uploading their own contents onto Youtube or their blog. So in some aspect, Youtube is the symbol of free expression in cyber-world. Although some of Youtube users are uploading illegal copyrighted contents, I guess the portion of illegal contents is small compared to total contents of Youtube. And I think the existence and proportion of UCC in Youtube will make Viacom v. Youtube case distinct from Napster case or Grokster case.
When I was in Korea, I used to say it about indirect liability like this. Suppose that an angry wife stabbed a husband with kitchen knife. Can the family of the husband sue the maker of kitchen knife for damages?
~Richard(Jisu) Kim
When I was in Korea, I used to say it about indirect liability like this. Suppose that an angry wife stabbed a husband with kitchen knife. Can the family of the husband sue the maker of kitchen knife for damages?
~Richard(Jisu) Kim
Be Cautious in Finding the Right Balance
Looking at the YouTube case from the perspective of an IP law student, I can understand many of the issues raised by Viacom against YouTube. It is understandable that copyright owners would want to protect their rights and efforts—especially when the owners are large corporations with vast repositories of copyrighted works. This subsequently, as Ms. Trim pointed out, may be part of their business model. However, small or relatively small authors may also wish to protect their works. It cannot be denied that the forum created by YouTube allows for authors with limited resources to easily present their work to the masses. So as Mr. Lee identifies, the right balance must be struck.
As a consumer and someone who appreciates technology and innovation, I can’t help but look at the whole picture. By “whole picture” I mean objectively looking at technology and the Internet—where it has been—and where it is going. Though personally, I believe the filtering technology introduced by Google may not be the best or optimum approach, I applaud Google’s first step toward addressing the situation (perhaps with some naiveté), while at the same time evolving technology a step further. I believe each party in this case has rights it must and should assert. However, all parties, not leaving out the courts and legislature, must be cautious in making sure the right balance is struck. This may entail protecting both sides of the suit, the technology, and the future of the technology. As many of my classmates have directly and indirectly pointed out, and what has occurred with countless other technologies created throughout history—the fear it creates—is not always the reality it achieves.
As a consumer and someone who appreciates technology and innovation, I can’t help but look at the whole picture. By “whole picture” I mean objectively looking at technology and the Internet—where it has been—and where it is going. Though personally, I believe the filtering technology introduced by Google may not be the best or optimum approach, I applaud Google’s first step toward addressing the situation (perhaps with some naiveté), while at the same time evolving technology a step further. I believe each party in this case has rights it must and should assert. However, all parties, not leaving out the courts and legislature, must be cautious in making sure the right balance is struck. This may entail protecting both sides of the suit, the technology, and the future of the technology. As many of my classmates have directly and indirectly pointed out, and what has occurred with countless other technologies created throughout history—the fear it creates—is not always the reality it achieves.
Another Copyright Wars-What is the next step for YouTube?
YouTube is the fastest growing site in the history of the web and gives everyone a glimpse. It is a very powerful platform for users to upload their personal videos on the website to share with their friends or family. As a consumer, for sure, there is a need for existence. However, YouTube raises some copyright issues. Although there is a statement warning users against improperly using copyright material, users are free to upload any content they have, such as unauthorized TV shows. If YouTube went out of business or changed how it functions, links from other web resources could become nonfunctional.
Some people do not look positively on YouTube because there is too many unauthorized copyright infringement works upload on the web each day. Nevertheless, YouTube and Napster or Grokster are not the same, YouTube still have its position to survive because according to DMAC’s ISP safe harbor provision, YouTube belongs to the definition of the safe harbor. If YouTube wants to exempt for the infringement, YouTube has to prove it is not for the sake of increasing profit. Therefore, if YouTube.com could provide new technology such as anti-piracy filters to protect copyright holders and stop future copyright infringement and effectively remove the unauthorized works and establish a better method to solve this problem. Then YouTube could exempt its right and at the same time, it could highly decrease the lawsuit from copyrighted holders.
Some people do not look positively on YouTube because there is too many unauthorized copyright infringement works upload on the web each day. Nevertheless, YouTube and Napster or Grokster are not the same, YouTube still have its position to survive because according to DMAC’s ISP safe harbor provision, YouTube belongs to the definition of the safe harbor. If YouTube wants to exempt for the infringement, YouTube has to prove it is not for the sake of increasing profit. Therefore, if YouTube.com could provide new technology such as anti-piracy filters to protect copyright holders and stop future copyright infringement and effectively remove the unauthorized works and establish a better method to solve this problem. Then YouTube could exempt its right and at the same time, it could highly decrease the lawsuit from copyrighted holders.
Balance between copyright holders' benefits and public interests
In order to protect own copyrighted works, copyright holders, such as motion picture companies, TV companies oblige to put their tremendous resources, human resources and money, in monitoring whether there are their copyrighted works on video hosting services and to notify them of copyright infringement. But, once the copyrighted materials are removed from the web site, substantively same materials will be posted soon. Nowadays, copyright owners have to pay attention to this surveillance more and more. Moreover, there are many video hosting services not only YouTube but also Dailymotion, Veoh and so on.
So, if Viacom wins this law suit, that is not fundamental solution for this problem. I feel the current U.S. Copyright Act section 512 charges too much burden on a copyright holder. Personally, I think this article should be amended for a copyright holder. Otherwise, the small companies and individual creators can not afford the cost of observation on video hosting services and this disturbs creation of a new art.
However, if a new article protects copyright owners’ benefits too strictly, it also blocks cultural promotion which the Constitution aims for. It's difficult how a new article balances between copyright owners' benefits and public interests.
So, if Viacom wins this law suit, that is not fundamental solution for this problem. I feel the current U.S. Copyright Act section 512 charges too much burden on a copyright holder. Personally, I think this article should be amended for a copyright holder. Otherwise, the small companies and individual creators can not afford the cost of observation on video hosting services and this disturbs creation of a new art.
However, if a new article protects copyright owners’ benefits too strictly, it also blocks cultural promotion which the Constitution aims for. It's difficult how a new article balances between copyright owners' benefits and public interests.
leave some room for copyright fair use
The US constitution granted the power to promote the useful arts and to secure limited times of the authors’ exclusive rights. The copyrighted works, therefore, would finally fall into the public domain and benefit the society as a whole. However, it seems like a lifetime until we can use a copyright content for free. Thanks Youtube to make many people’s dreams come true.
I personally enjoy viewing the contents on Youtube website. Sometimes I get some difficulty to find the clips that I want to watch. If I wanted to watch the Episode from the US series or TV show, I rather go to the host website. They are much easier to find and the clips are in a much better quality. I respect the right of copyright owners. However, I also respect the freedom and fair use of individual.
I think the scope of copyright protection is too absolute. There is almost no room for a fair use defense or personal use. We are focusing on how to maximize the copyright protection and benefit the copyright owners and forgetting about the consumers.
In Thailand, there is an exception to infringement of copyright under Section 32(2) for personal use. We allow a use for personal benefit or for the benefit of the user and his family members or close relatives which does not conflict with normal exploitation of the copyright work by the owner of copyright and does not unreasonably prejudice the legitimate rights of the owner of copyright.
I’d like say that the use of copyrighted work on Youtube is a personal use. Users don’t make the profit on the website. Initially, they just wanted to share the clips and opinions in a group of friends. It’s just somehow that group is now getting so huge!
What if You Tube is not so bad?
There is no doubt that you tube and its users are constantly reproducing, publicly performing and publicly displaying other’s copyrighted works. But to what extent those activities can be considered infringement? And even if there is infringement, to what extent it is damaging the copyright holders business?
The DMCA provides a safe harbor for the OSP’s against a copyright infringement claim as long as they comply with its requirements which basically are: not have actual knowledge of infringement and, once receiving a notice of infringement, remove the infringing material and not receive financial benefit from the infringing activity. You tube has a well known policy of receiving complaints from copyright holders and removing the infringing material from the internet. Whether it is efficient or not is controversial, but the fact is that You Tube removes the infringing content when it receives a notification from the copyright holder.But let’s say that You Tube’s policy of removing infringing content is not enough to comply with the DMCA provisions and therefore there is infringement. Is it really bad for copyright holders considering that it can be a good marketing channel for artists, TV shows and movies? Maybe, the copyright holders should try to face You Tube as a potential business partner instead of a threat, or maybe as the VCR of the digital era.
The DMCA provides a safe harbor for the OSP’s against a copyright infringement claim as long as they comply with its requirements which basically are: not have actual knowledge of infringement and, once receiving a notice of infringement, remove the infringing material and not receive financial benefit from the infringing activity. You tube has a well known policy of receiving complaints from copyright holders and removing the infringing material from the internet. Whether it is efficient or not is controversial, but the fact is that You Tube removes the infringing content when it receives a notification from the copyright holder.But let’s say that You Tube’s policy of removing infringing content is not enough to comply with the DMCA provisions and therefore there is infringement. Is it really bad for copyright holders considering that it can be a good marketing channel for artists, TV shows and movies? Maybe, the copyright holders should try to face You Tube as a potential business partner instead of a threat, or maybe as the VCR of the digital era.
Viacom v .Google (2)
This case in my opinion is the continuation of the turf warfare on the ,essence of intellectual property rights,in this case copyright.The supreme court and the United States Constitution have emphasize the incentive theory in justifying intellectual property .See U.S. Const.art.1 cl 8.The same Supreme Court has also directed us to be mindful of the extent to which a use of a copyrighted work promotes the purposes of copyright and serves the interest of the public.See cases from Campbell,Sony,Grokster and Harper & Row.The high court in all these cases has emphasised the public interest use of copyrighted works aka fair use.D.M.C.A especially S.512 and other relevant sections were also promulgated for "democratisation" of digital medium viz a viz copyright issues.
So if Google is taking advantage of this privileges granted by laws and the court,why cry murder Viacom?The answer may be found not in the courts ,where legal precedents on totality seems on Google's side(Using the Rule in Grokster,Sony and Perfect 10) but in congress.The content Industry represented by Viacom would have to come up with a convincing case in congress on why the emphasises of intellectual property should be rewarding the "sweat of the brow,"principally.The Supreme Court in Feist Case annulled this theory.Viacom and its supporter will also have to convince congress has to why intellectual property rights should be used as regulators of market entrants in emerging technologies.What then should become of the constitutional requirement, "To Promote the progress of science and useful Arts"
Looking at the Case in point the product design of Google ,its conducts coupled with the underlining policy of copyright is quite different from Napster,so we are in for a jurisprudential excursion.Meanwhile who does not like youtube except the minority content industry....
So if Google is taking advantage of this privileges granted by laws and the court,why cry murder Viacom?The answer may be found not in the courts ,where legal precedents on totality seems on Google's side(Using the Rule in Grokster,Sony and Perfect 10) but in congress.The content Industry represented by Viacom would have to come up with a convincing case in congress on why the emphasises of intellectual property should be rewarding the "sweat of the brow,"principally.The Supreme Court in Feist Case annulled this theory.Viacom and its supporter will also have to convince congress has to why intellectual property rights should be used as regulators of market entrants in emerging technologies.What then should become of the constitutional requirement, "To Promote the progress of science and useful Arts"
Looking at the Case in point the product design of Google ,its conducts coupled with the underlining policy of copyright is quite different from Napster,so we are in for a jurisprudential excursion.Meanwhile who does not like youtube except the minority content industry....
Looking forward to win-win
As to Viacom, bringing the case to the court could be a strategy to enhance its bargaining position in negotiation with Google. Personally, I hope that the case could end-up win-win.
At one end of the spectrum of incentive, copyright protection is essential to content creators (ex: films, articles…etc.); At the other end, more room to new technology of content medium within the copyright law is vital (ex: “VHS” in Sony; “website” in Viacom). How to balance the interests between these two ends is very important to the development of technology and economy. Base on the perspective, either end goes too far is not a good result we would like to see. Digital Millennium Copyright Act (“DMCA”) is a good example of the balance at 1998.
New technologies continuously influence our lifestyle, bringing the significant and irreversible changes to human’s lifestyle. I believe that Viacom definitely understands this point. It just wants to use the power of the court to push Google to share the profit and find a balance within the copyright law.
In the age of post Sony, content industries are not stifled, instead cooperated with new technological innovations (VHS; VCD; DVD) to make more profits. I believe and hope that the same outcome would arise in this case. The new filtering technology offered by Google may be the first step of the cooperation, though Viacom is not satisfied. But one thing having critical impact to the fair use right of individual consumers is whether the new filtering technology would block everything including fair use content (ex: reasonable excerpts; parody). That would adversely undermines the free speech right and knowledge dissemination, which we would definitely not like to see.
At one end of the spectrum of incentive, copyright protection is essential to content creators (ex: films, articles…etc.); At the other end, more room to new technology of content medium within the copyright law is vital (ex: “VHS” in Sony; “website” in Viacom). How to balance the interests between these two ends is very important to the development of technology and economy. Base on the perspective, either end goes too far is not a good result we would like to see. Digital Millennium Copyright Act (“DMCA”) is a good example of the balance at 1998.
New technologies continuously influence our lifestyle, bringing the significant and irreversible changes to human’s lifestyle. I believe that Viacom definitely understands this point. It just wants to use the power of the court to push Google to share the profit and find a balance within the copyright law.
In the age of post Sony, content industries are not stifled, instead cooperated with new technological innovations (VHS; VCD; DVD) to make more profits. I believe and hope that the same outcome would arise in this case. The new filtering technology offered by Google may be the first step of the cooperation, though Viacom is not satisfied. But one thing having critical impact to the fair use right of individual consumers is whether the new filtering technology would block everything including fair use content (ex: reasonable excerpts; parody). That would adversely undermines the free speech right and knowledge dissemination, which we would definitely not like to see.
DRM & DMCA & BIG BROTHER
As a consumer, I should be able to make personal use of my stuff under fair use. However, the Hollywood and the recording industry are trying to control my digital media devices and are depriving my fair use right. I am always wondering that many things I own today are not fully mine. DRM is the mechanism used to to prevent illegal distribution of paid content over the Internet. However, DRM is abused today and just as Ken Fisher said, “DRM's sole purpose is to maximize revenues by minimizing your rights and selling them back to you. “
As a music and art lover, I think it’s the best time for artists and music lovers because music and art is thriving in the web 2.0 and social networking age. The traditional model of artist revenue is changing and the entertainment industry has to cultivate new business model to survive rather than suppressing the technologies and artists.
Radiohead let the music lover pay expenses at will, even free download few months ago. It is kind of revolution from musicians. It suggested that more and more bands and independent musicians do not have to choose any one recording company, and they may try to promote their own works by themselves by my space or any other social networking sites. The cost is lower and more people will listen to their music. Let the music flow!
The objective of a copyright policy is to encourage creativity and culture, as well as access to works.We don’t need Big Brother to monitor the use of art work under fair use in the beautiful digital environment. Maybe it’s the best time to rewrite the DMCA!
Need of Amendment to DMCA
According to Article 512 of DMCA, an internet service provider could be immune from copyright infringement if it takes down internet contents upon receipt of infringement notice from copyright owner. However, it is time to amend Article 512 of DMCA in that it has given too much burden to copyright owner as well as it does not keep up with the current development pace of internet technology.
Such a monitor by copyright owner might be possible in 1998 when DMCA was passed since the number of internet users was not so many at that time. However, today, around one billion people are using internet all over the world, and thus, the uploadings made by these internet users are beyond our imagination. It is almost impossible for copyright owner alone to control illegal uploadings. I think that it would be desirable to amend Article 512 of DMCA in a way that the internet service provider such as YooTube shares such monitoring or controlling responsiblities with copyright owners. For example, Congress might consider charging internet service providers with obligation to set up any potential technical systems to prevent copyright infringement.
Some pelple argue that free flow of ideas or information is helpful for creative works and this freedom prevails copyright protection. This can be true in the early stage of any artist works. However, we should think that any artist would expect economic compensation for his work once he got wide attentions from outside and became famous. Without such compensation, any artists would lose their interests in further creative works. Better protection for copyrighted works would bear better fruits in the long run.
~Hyung-Geun (Harry) Ji
Such a monitor by copyright owner might be possible in 1998 when DMCA was passed since the number of internet users was not so many at that time. However, today, around one billion people are using internet all over the world, and thus, the uploadings made by these internet users are beyond our imagination. It is almost impossible for copyright owner alone to control illegal uploadings. I think that it would be desirable to amend Article 512 of DMCA in a way that the internet service provider such as YooTube shares such monitoring or controlling responsiblities with copyright owners. For example, Congress might consider charging internet service providers with obligation to set up any potential technical systems to prevent copyright infringement.
Some pelple argue that free flow of ideas or information is helpful for creative works and this freedom prevails copyright protection. This can be true in the early stage of any artist works. However, we should think that any artist would expect economic compensation for his work once he got wide attentions from outside and became famous. Without such compensation, any artists would lose their interests in further creative works. Better protection for copyrighted works would bear better fruits in the long run.
~Hyung-Geun (Harry) Ji
Challenging the media conglomerate business model???
It is simple to understand why Viacom has filed this lawsuit in the first place. Viacom wants to have control over work it creates and distributes. Their business model is closely tailored to maximize their profits. They control how their content is distributed by dictating to the TV cable companies how the content will be bundled and sold. In example, in US if you want to purchase cable subscription you as a user do not have the opportunity to choose the channels you want to pay for, instead you are accepting an offer (package) out of which only a small subset of channels you explicitly have interest in and rest of them are pushed on you in order to get the subscription. Companies (studio owners) make large amounts of money from advertisements they distribute on the TV channels – the ones that you wanted and the ones you got pushed on to you - and their business model works (successfully).
On the other hand, here comes YouTube which turns the big companies’ business model upside down by closely tailoring the content to the need of the customers. They make watching the content more appealing to you by providing social commentary and videos related to the content you are already watching. It is undisputable that their business model is to make money as well but the most important difference is that YouTube tailors the content to fit the customers’ needs and interests. In my opinion that’s what drives the customers towards YouTube. People always look for more and expect more when new technologies arise. It is true that the content owners provide some of the shows on their home websites, but again this content is controlled by them and the consumer is not really able to immerse themselves in the social commentary and discover content similar to what they are watching.
YouTube looks like a clever player “hiding” behind the safe harbors provisions of the DMCA and making us believe that really it is not that easy to control every upload of the content on their site. If we turn to Sony and analyze YouTube from perspective of new technology arising capable of non infringing use YouTube may be off the hook. We must not forget the initial purpose of YouTube –sharing home videos.
Personally, I love YouTube. It’s cool and fun and I can find tons of videos that if it was left up to the studios I would never be able to watch on my schedule.
On the other hand, here comes YouTube which turns the big companies’ business model upside down by closely tailoring the content to the need of the customers. They make watching the content more appealing to you by providing social commentary and videos related to the content you are already watching. It is undisputable that their business model is to make money as well but the most important difference is that YouTube tailors the content to fit the customers’ needs and interests. In my opinion that’s what drives the customers towards YouTube. People always look for more and expect more when new technologies arise. It is true that the content owners provide some of the shows on their home websites, but again this content is controlled by them and the consumer is not really able to immerse themselves in the social commentary and discover content similar to what they are watching.
YouTube looks like a clever player “hiding” behind the safe harbors provisions of the DMCA and making us believe that really it is not that easy to control every upload of the content on their site. If we turn to Sony and analyze YouTube from perspective of new technology arising capable of non infringing use YouTube may be off the hook. We must not forget the initial purpose of YouTube –sharing home videos.
Personally, I love YouTube. It’s cool and fun and I can find tons of videos that if it was left up to the studios I would never be able to watch on my schedule.
The genie’s out of the bottle! Grant our wishes???
YouTube is very popular also in Japan. While the number of access to YouTube is rapidly increasing, 23 groups in Japan, including TV companies, Yahoo!Japan and JASRAC (Japanese Society for Rights of Authors, Composers and Publishers), required YouTube to delete 29,549 files which were infringing their copyright on October 20, 2007. According to their joint announcement, YouTube accepted their claims and deleted them promptly. YouTube’s behavior might meet the requirements of Copyright Act 512 (g) (notice & take down), mightn’t it? Anyway, I expect that YouTube keeps expanding an effort to prevent copyright infringing works from being posted, under U.S. Copyright Act and the sophisticated U.S. legal system. Actually, Google has been developing a new technology (YouTube Video Identification) which helps copyright holders identify their own works on YouTube. So they can find copyright infringing files on YouTube by using the technology.
On the other hand, some copyright holders cash in on the popularity of YouTube. I heard that Kadokawa, one of famous Japanese publishers, would not only cooperate to improve the YouTube Video Identification but also create a new place on YouTube to bring up young creators, new works and many kinds of intellectual properties. Since they might support the company in the future, it is a good example for copyright holders to utilize YouTube. In addition, now we need many creators who create new entertainment such as game software, movies, cartoons for our joyful lives and vigorous economic growth. I hope that YouTube or “Neo-YouTube” such as “Xunlie” won’t destroy the creators at least.
On the other hand, some copyright holders cash in on the popularity of YouTube. I heard that Kadokawa, one of famous Japanese publishers, would not only cooperate to improve the YouTube Video Identification but also create a new place on YouTube to bring up young creators, new works and many kinds of intellectual properties. Since they might support the company in the future, it is a good example for copyright holders to utilize YouTube. In addition, now we need many creators who create new entertainment such as game software, movies, cartoons for our joyful lives and vigorous economic growth. I hope that YouTube or “Neo-YouTube” such as “Xunlie” won’t destroy the creators at least.
The lawsuit may not be a solution to Viacom.
Is it possible to shut down YouTube? No, it would be very hard. Can Viacom prevail in this lawsuit against Google? I do not believe so due to the DMCA's safe harbor provision. So, is YouTube really bad for Viacom? Maybe so, Maybe not. Viacom may be losing some profits because of YouTube, however YouTube can be a great advertisement source for Viacom. Then, what is at stake now? The answer can be the leading role of the future media industry. I believe that Viacom may know that the future media industry will be heavily dependent on the internet based market, which is closely related to search engines, such as Google. However, I do not believe that the court can give a reasonable solution to Viacom. Taking down of all the Viacom's contents from YouTube can not be a good solution to Viacom. Viacom need to be realistic. Viacom had better focus on making more profits with help of Google. I recommend that Viacom and Google suggest their own strategies to make money and make a reliable third party decide which is better for both parties. The lawsuit is not the solution.
Saturday, January 26, 2008
Youtube an ISP?
The case of Viacom and Google could set the playing field for the relationship between content owners and interactive platforms on the internet.
§ 512 of the DMCA provides a safe harbor provision for internet service providers (ISPs) and gives copyright owners the obligation of sending take down notices to ISPs that host material that violates copyrights. The cost of checking for infringement is thereby shifted towards the copyright owners. The copyright owners have to watch and see their absolute right to copy and distribute decrease to a right that has to be claimed in every instance in order to be protected. This shift makes running sites like youtube.com easier and may have a certain social benefit, but it makes it harder for owners of only a few copyrights to actually protect their rights. Monitoring for possible violations is expensive and time consuming. Only owners of many copyrighted works can afford that.
Several questions could be answered in this case. One would be if youtube.com is actually an ISP. The DMCA what arguably drafted with companies like AOL in mind. Companies that provide a physical network of computers and only access to the Internet. Recently this safe harbor provision has been applied to more and more players on the Internet.
A narrow interpretation of the DMCA could solve this question, but courts could shy away from this issue and leave this problem to Congress.
YouTube as a reference source
Although an infrequent user of it, I’m a fan of YouTube, and some of my favorite uses infringe copyright. I’m not talking about illegally watching movies or full TV shows. Instead, I’m talking about using YouTube as a pop culture reference source. Frequently, I hear about a short clip or event from a TV program that ran in the past and is unlikely to be repeated in the foreseeable future (e.g. Jon Stewart on Crossfire, http://www.youtube.com/watch?v=aFQFB5YpDZE). Or, I might hear about a viral video freely available on YouTube that would otherwise be nearly impossible to see in an authorized manner (e.g. Tom Cruise – Scientology Rant, http://www.youtube.com/watch?v=O53NlkPhQpE). Or, I might hear about an artist who is no longer popular, and it might be difficult to find samples of his live performances through any authorized source (e.g. Wreckless Eric – Whole Wide World, http://www.youtube.com/watch?v=DSjwl8lHEVE). Arguably, none of these clips fall under a recognized fair use exception. Although there are sometimes alternative ways to find these clips (e.g. many shows offer full episodes or highlights online now, and other YouTube-like sites exist such as www.spike.com), some clips, like Tom Cruise’s Scientology video would be unavailable to most viewers. Although I don’t support wholesale copying and distribution of copyrighted materials, I would like to see Congress or the Viacom v. YouTube court carve out a fair use niche for these kinds of small-scale but useful infringements.
Subscribe to:
Comments (Atom)