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.

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:

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.


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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.

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.

"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. . . .

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.

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

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.

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.

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.

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.

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....

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.

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

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.

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.

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.

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.

YouTube goes H.264.

Bad quality video is a weak spot with YouTube. However, according to iLounge, YouTube converted all video to H.264 format. Although the H.264 format requires a high performance computer, it means we can enjoy higher quality YouTube video than ever before. Of course, we welcome the new format, but it will be difficult to say that YouTube video is transformative, such as thumbnails. If the video is copyrighted, a potential infringer is not likely to find a fair use excuse.

Interesting News on YouTube in Turkey.

The Turkish government, via a court order, just recently constituted a nation wide ban on the use or provision of accessibility of YouTube, due to the fact that YouTube featured clips criticizing the founder of the modern Turkish nation state. Not only is this a clear violation of an individual's freedom of speech, but also more relevant to our subject matter such a ban infringes upon the individuals right to freely distribute and promote his/her literature or visual art. If such art was antagonistic to the public order or was obscene in nature, as defined in TRIPS, it could be arguable that the court has the rights restrict the distribution of the same. However, in this case neither of the former was evident.

My Comments on Safe Harbor Cases

The U.S. and E.U. have similar safe harbor provisions, although DMCA safe harbor is for four information providing functions: transmitting (the “mere conduit” function),caching,hosting,and searching;while E-Commerce Directive(E.U.) focuses only on the first three. But the question is, whether SABAM(Belgium) is still in line with the equilibrium organized by this safe harbor provision? And how about Grokster?

I believe both of them are already beyond the line, but on two different issues.

First, Grokster on “actual knowledge”. There are unlimited facts beside notice could become an evidence to prove “actual knowledge”. So Grokster may not be in conflict with these two precedents (Hendrickson and ALS Scan). But without direct evidence of knowledge, I do not think Grokster’s reasoning is persuasive. Anyway, knowledge of possibility and knowledge of actual, specific infringement are totally different. Even Grokster did know some users may infringe and did inspect, but how could they know if one piece of specific video record is infringed or authorized? So even it is true that Grokster did predict and wish users infringe, it is still not a liable “actual knowledge”, unless evidence tells Grokster has reason to know specific infringement action, or does abet.
Second, the scope of “take back” obligation, on which I believe SABAM is beyond the line of justice. The technical measures to block or filter required by court, as expert testimony, are expensive and not waterproof, since even the best one still blocks some legal contents while lets some illegal contents go. Is requirement of an expensive and technically ineffective measure too much more than a merely “take back”?

I wish Viacom v. Google would not become the next SABAM or Grokster, which created unreasonable burden on technique service provider. While law does not punish producers of guns, which I can not find any substantial use other than hurting, killing or threatening, why should we be so harsh to technique service providers?

My comment on YouTube!!

From the perspective of consumer, myself, I would say that I prefer YouTube. Actually, I had never viewed YouTube's website until I came to the U.S. because it was banned in Thailand. Living in the U.S. is quite hard for me to get my favourite Thai variety shows; however, YouTube has changed this situation. It make me easier to get what I want without spending time searching for those VDOs; it seems like YouTube is one stop service for all VDOs. There are variety of VDO clips in YouTube; for example, musics, variety shows, movies, cartoons, or even news. What I like the most is all those clips are available in Thai version. I would recommend all you guys to try searching for "crayon chin jung." This is my favourite cartoon and I believe it can make you smile. It is the example of Japanese cartoons that can be available in many versions, such as, Japanese, Chinese, Thai, and English.

One thing I observe is that some VDO clips, the entire version, in YouTube can be free accessed on other websites, especially in websites of copyright holders themselves. Therefore, I wonder if it is possible that some of the copyright holders may post those clips in YouTube; one reason is that YouTube is such a huge market. There are over a million viewers visit YouTube everyday. So, YouTube may be another way that the copyright holders can promote their works without any advertising fees.

One thing that I don't like in YouTube is some clips that violated privacy. Even this issue is not copyright, it is quite important that one, espectially women, shouldn't be recorded in VDO clips and post in internet.

Viacom v.Google

Google has just changed its legal team in this suit..Is the suit going to be won or lost on lawyering or based on the issues that will promote intellectual property rights and innovation? just thinking aloud....

Belgian Court: ISPs Is Liable for Indirect Copyright Infringement (June 29, 2007)

I would like to share SAVAM vs. Scarlet (Belgium) with you since it is believed to be the first decision to force an ISP( Internet Service Provider) to block a broad class of copyright infringing materials and its influence is worldwide. I don’t think any court in the U.S. ruled that ISPs is liable, although they are considering liability on P2P or other service providers. It seems that Belgian court had already taken a further step in favor of copyright owners. This Belgian decision resulted in an endless argument on indirect infringement and might be a reference for Viacom v. Google. I have attached news reports including comments.

Since this case was decided six months ago, I am wondering if there is any similar decision in other countries and any further comments from the U.S.

Zhe Peng (Amy)

Injunctions against ISPs - The SABAM/Scarlet ruling 23-10-07
Laurent Masson

The President of the Brussels Court of First Instance (the ‘President’) ruled on 29 June 2007 that an Internet Service Provider (ISP) active in the Belgian market, must implement technical measures to prevent illegal peer-to-peer music file exchanges………..

http://www.twobirds.com/english/publications/articles/SABAM_Scarlet_Ruling.cfm

Court Orders ISP to Filter Content - SABAM v SA Scarlet
13 July 2007 Clintons

A Belgian court has ordered an internet service provider to use filtering technology on its systems to root out copyright-infringing content. In SCRL Societe Belge Des Auteurs v SA Scarlet (No. 04/8975/A) the ISP Scarlet (formerlyTiscali) was found liable in 2004 for the unauthorised exchange of music files through its service and, in a judgment made available this week, the Belgian Court of First Instance has ordered Scarlet to put into place blocking and filtering mechanisms to stop its users sending or receiving music throughpeer-to-peerapplications…………….

http://www.legalday.com/commentaries/clintons/SA_Scarlet_Internet_Sharing.html

Steve Davis C.V.

Steve Davis


Professional Experience

Corbis Corporation, Seattle, WA 1993 – 2007

Corbis, www.corbis.com, a global leader in creating, sourcing and distributing imagery and providing related services to publishers, advertising and design agencies, film-makers and other creative professionals and emerging markets, is based in Seattle, with offices in New York, London, Los Angeles, Chicago, Paris, Hong Kong, Tokyo, Dusseldorf, Hamburg, Amsterdam, Milan, Brussels, Montreal, Beijing, Warsaw, Shanghai, Singapore, Kuala Lumpur, Sydney and continuing to expand. The company is privately owned by Bill Gates and represents many of the greatest photographic, fine art, footage and other media collections in the world, along with providing many services such as rights clearances and representation, digital asset management, and assignment and production services, which it enables with leading technologies to provide innovative solutions to both creative professionals, business users and consumers.

Senior Advisor (2007 – present)

CEO (1997 – 2007)

· Oversaw the development of Corbis from an early-internet research and development opportunity into an 1100+ person, quarter billion dollar plus revenue, global media distribution leader.
· Working closely with Bill Gates for over fourteen years, and reporting directly for ten years, designing the product, service, technology and distribution strategy in a previously unformed sector.
· Oversaw acquisition program for the world’s largest and most comprehensive digital image archive, including the acquisition and integration of eleven companies, numerous strategic partnerships, and collection designations.
· Development of a global brand and service, with diverse components such as a global news-gathering and distribution network, e-commerce distribution service, creative photography programs for the advertising and publishing markets in many countries around the world, largest global rights clearances service and innovations in developing applications for new markets and usages, such as the first online print and poster store, the first media provider to cellular phone services in Japan and Europe, and the first global right and clearance service.
· Oversaw the organizational expansion of Corbis from a single office for research and development purposes, to a multi-national organization with twenty-four offices in sixteen countries, with corresponding infrastructure and organizational capabilities.
· Recognized as thought leader and expert in industry, particularly with respect to the emerging issues related to intellectual property rights and management, as well as the application of new technologies in the humanities and to community issues. www.creativity2dot0.com

VP, Strategic Development & General Counsel (1993 – 1997)
Corporate Attorney (1993)
Guided strategic direction of Corbis, both as a media licensing and interactive publishing company, working closely with owner and executive team. Oversaw award-winning CD-ROM publishing program, acquisition and licensing program from some of the world’s most renowned museums and collections of fine art and photography, and global expansion of Corbis into UK and foreign markets.
Led industry-leading initiatives in intellectual property protection and copyright registration and protection in the emerging digital environment, speaking and writing frequently on these issues.

Preston Gates & Ellis, Seattle, WA (1988 – 1993)
A prestigious Seattle-based international law firm specializing in intellectual property, international joint ventures and non-profit agencies and public institutions.
Attorney
· Legal research and writing, including work on municipal development projects, international transactions and litigation, and transportation policy, ultimately specializing in intellectual property issues.

United Nations High Commissioner for Refugees (1987)
Policy Intern
Research and analysis on policy development surrounding refugees and displaced persons in Africa and Asia, particularly with respect developing immigration and travel policies, and the impact of the HIV/AIDS epidemic on refugee policies.

Refugee Resettlement Programs (1980 – 1983)
Resettlement Program Officer
Working with several programs (Church World Service, HIAS, King County Refugee Programs) in direct services, then management and policy work related to the resettlement of refugees from around the world in Seattle and the surrounding areas.


Education & Leadership Training

Princeton University, A.B., Religion/Politics Major (1975 – 1979)

University of Washington, M.A., Chinese Studies (1981 – 1983)

Columbia University School of Law, Juris Doctor (1985 – 1988)
Faculty Prize in International Law
Founding Editor, Journal of Chinese Law
International Human Rights Program & Intern
Harlan Fiske Stone Scholar
Parker School of International Law, Certificate with Honors

Beijing University, Chinese Language & Cultural Certificate Program (1983)

Stanford Business School, Executive Education Certificate Program (1998)

Leadership Tomorrow, Seattle leadership education program (1992)


Professional & Community Activities

PATH, Board of Trustees (2001 - Present); Chair, Leadership Council
www.path.org
One of largest and fastest-growing non-profits in country, and a leader in both technology development and systems delivery models for improving public health in the developing world, and one of the largest recipients of funds from the Bill & Melinda Gates Foundation
Active board participation, including advising on organizational growth and development strategies, participating in strategic plan development, supporting public-private partnership collaborations and intellectual property issues, leading volunteer marketing and resource development effort, including helping launch the first Leadership Council, and visiting in-country projects in Africa and India.

Intrepid Learning Solutions, Board of Directors (2000 - Present)
www.intrepidlearningsolutions.com
For-profit startup on-line learning and corporate training outsource model, privately-held with venture capital support with over 200 employees.
Active participation in personnel issues, growth strategies, marketing efforts and CEO transition work.

Fred Hutchinson Cancer Research Center, Board of Trustees (2004 – Present); Chair, Tech Transfer Committee (2007 – present); Executive Committee / Board Secretary (2007 – Present)
www.fhcrc.com
One of largest cancer (and increasingly other infectious diseases) research centers in the world.

Seattle Foundation, Board of Trustees (2005- present)
www.seattlefoundation.org
One of largest community foundations in country.
On strategic planning committee, focused on the changing marketplace for philanthropy and more targeted community-based programs for TSF support.

PlanetOut Inc., Board of Directors (2007 – present)
www.planetout.com (Nasdaq: LGBT)
Publicly-traded integrated media company, with magazines, online offerings and related services, based in San Francisco, focusing on the gay and lesbian marketplace.

Council on Foreign Relations, Member (2004 – Present)

Alliance for Education, Board of Directors (2000 - 2006)

NPower, Founding Board (2000 – 2006), Seattle Board Co-Chair (2002), National Board Co-Chair (2003 - 2005)
www.npower.org
A national organization with local affiliates around the country to support technology strategy and training in the non-profit community
Led strategy to develop a national footprint, including developing a new national organization, involving many complex issues of organizational development, fundraising, leadership models and knowledge-sharing.

Washington State Technology Alliance, Board (1998 – 2006), Board Chair (2002 – 2004)
www.technology-alliance.com
State-wide organization composed of CEO-level leaders of technology sector, university/research sector and government sector, whose mission is to support the development of a knowledge based economic development program with programs and advocacy in education, research and entrepreneurial development.
Led the development of new strategic plan, including the three pillars, and corresponding programs and policy development, including considerable speaking, writing and lobbying on these issues.

Greater Seattle Chamber of Commerce, Trustee (2003 - 2006)

University of Washington Information School, Advisory Board (2004 – 2005)

Governor’s Council on Competitiveness (2004)

United Way of King County, Board (1993 – 1997), Board Chair (1996-1997), Strategic Planning Committee

United Way International, Board (1998 - 2001), Strategic Planning Committee

Governor’s Internet Advisory Board, (2002)

Lambda Legal Defense & Education Fund, National Board (1992 – 1997); Chair, Strategic Planning

WSA (formerly Washington State Software Association), Board (1997-2000)

International Section of the Washington State Bar Association, Chair (1992-93)

Leadership Tomorrow (1991 – 1992)


Personal

Family: Partner of 27 years; eleven year-old son

Other Interests/Activities: Running/Marathons; Skiing; Creative Writing; Piano; Travel; Reading
See addendum for Publications & PresentationsAddendum

Steve Davis Resume


Publications

Ed., Choices for Puget Sound, Economic Impact Project, 1985.

“The Death Penalty and Legal Reform in the P.R.C.,” 1 Journal of Chinese Law 2
(Fall 1987)

“Economic and Trade Organization in China,” in Doing Business in China, Matthew Bender, 1990, 1991 (co-author)

“Why the U.S. Should Re-establish Ties with Vietnam,” (Op-Ed) Seattle Post-Intelligencer, April 15, 1993

“What’s ‘New’ in New Media: Multimedia Lawyers as Strategists,” The Multimedia Law Report, Sept. 11, 1995

“Roundtable Discussion on Electronic Rights,” 20 Columbia-VLA Journal of Law & the Arts 4, Summer 1996

“International Congress on the Status of the Artist,” UNESCO, in collaboration with the Getty Conservation Institute, Paris, France, June 1997

“Letter to the President,” (Op-Ed) Seattle Post Intelligencer, ABC News, and reprinted in numerous periodicals and internet sites, March 2004

“Lessons from our Neighbors to the South,” (Op-Ed) Seattle Times, May 2005

“A Coffee House Debate: Artists’ Contracts in the Evolving Internet Era,” 29 Columbia Journal of Law & the Arts 3 (Spring 2006)

“The Fourth Pillar of Our Innovation Economy: Technology Innovation in the Non-Profit Sector,” Open Spaces, September 2006



Presentations

“HIV Screening of Immigrants,” presented at the World Health Organization International Conference on AIDS Counseling and Education, Ixtapa, Mexico, 1988

Chair and Moderator, “Regional Trade Blocs,” WSBA Convention, San Diego, California, 1991

Co-Chair and Panelist, “Options for Washington Businesses Going Abroad,” Annual WSBA International Law Institute, Seattle, 1992

“Building Communities in the Face of AIDS,” Leadership Tomorrow Annual Dinner Speaker, Seattle, 1992

Guest Lecturer, International Business Transactions course, University of Washington School of Law, Seattle, 1989-1992

Guest Lecturer, AIDS and the Law course, University of Puget Sound School of Law, Tacoma, WA, 1991

“Copyright Issues and Museums,” American Association of Museums Conference, Seattle, April 1994

“New Technology and the Arts,” EEC Conference on Telecommunications and the Visual Arts, Ravello, Italy, April 1994

“Multimedia Content: A Continuum of Issues,” Texas Bar Association Computer Law Conference, Dallas, October 1994

“Legal Issues For a Multimedia Project,” MILIA Multimedia Festival, Cannes, France, January 1995

“Consumer Opportunities for Software Companies,” Washington Software Association Digital Century Conference, Seattle, February 1995

“Electronic Publishing and French Culture,” National French-American Chamber of Commerce Board Meeting, Seattle, April 1995

“Back to the Future: Trends in Multimedia Business & Law,” Multimedia Law Institute, New York City, May 1995

“US Intellectual Property Rights vis-à-vis Canadian Intellectual Property Rights,” Multimedia ‘95 Exposition and Forum, Toronto, June 1995

“Dissemination and Protection of Artistic and Literary Works,” Intellectual Property Conference of the Americas, Los Angeles, July 1996

“Parallels in Creativity,” Washington Software & Digital Media Alliance, Bellevue, October 1996

“Communication & Technology in Museums: The Multimedia Information Highway,” 9th World Congress of Friends of Museums, Oaxaco, MX, October 1996

“From a History of Digital Stock a View of its Future,” VISCOMM West, Los Angeles, June 1997

“The Future of Digital Stock,” PhotoPlus ’97, New York City, October 1997

“@travel Strategies for Destination-Based Commerce,” Jupiter Communications Travel Conference, Los Angeles, April 1998

“The Art of Technology; TheTechnology of Art,” Bellevue Art Museum, Seattle, May 1998

“E-Commerce 99 – Soaring Sales,” Washington Software Association, Seattle, February 1999

“Content Challenges: Digitization, Distribution and Intellectual Property,” Jupiter Communications Content Conference, New York City, September 2000

“Technology Today: Current Issues and Trends in Washington, State,” South Sound Technology Conference, Tacoma, May 2001

“Our State of Technology” Technology Alliance Annual Luncheon, Seattle, June 2001

“The Globalization of Photography,” Picture Agency Council of America, New York City, November 2001

“Digital Media: Back to the Future,” Harvard Business School Alumni Association, New York City, November 2001

“Digital Content & Rights: An Entrepreneur’s View,” Columbia Law School, New York City, May 2003

“The State of Technology 2003,” Technology Alliance Annual Luncheon, Seattle, May 2003

“Global E-Commerce: The Future or an Oxymoron?,” WSBA International Practice Section, Seattle, May 2003

“State of the Market: Global Perspective on Our Industry” CEPIC Congress 2003, Lisbon, Portugal, May 2003

“Digital Media Opportunities,” CEO Roundtable, Seattle, December 2003

“Digital Content & Intellectual Property: An Entrepreneur’s View”, Guest Lecture, University of Washington School of Law, Seattle, WA, November 2003, 2004 & 2005

“Northwest E-Business 2005, Capturing Value in the Information Economy: Back to the Future, an Internet Love Story”, University of Washington Business School, Seattle, February 2005

“Digital Media: Digital Media Business Models”, Law Seminars International, Seattle, September 2005

“The Fourth Pillar of Community Development: Enabling our Non-Profits,” Keynote Address, NPower Annual Luncheon, Seattle, November 2005

“Global Strategies for Growing Businesses,” Business Week CEO Forum, Beijing, China, November 2005

“A Twenty-first Century Marriage: Technology and the Arts” United Arts of Central Florida Chamber Trustee Luncheon Keynote, Orlando, Florida, February 2006

“Digital Media in the 21st Century,” MIT Sloan Fellows Program, Boston, April 2006

“The Business of Digital Media,” Harvard Business School, Boston, April 2006

Course Syllabus

Weekly Outline

Week 1: January 7, 2008
So What Really Is the Problem?

Reading for this Class:

Read Luckhurst, “Viacom v. Google: The $1B Battle for Content,” The Independent, (March 18, 2007) http://news.independent.co.uk/media/article2368890.ece
Read Lessig, “Make Way for Copyright Chaos” New York Times Op-Ed, March 18, 2007 http://www.nytimes.com/2007/03/18/opinion/18lessig.html?ex=1331870400&en=a376e7886d4bcf62&ei=5088&partner=rssnyt&emc=rss
Review complaint, Viacom International, Inc., et. al. v. YouTube, Inc. et. al., (SDNY) www.lessig.org/blot/archives/vvg.pdf
Lessig Blog on Viacom v. YouTube, http://lessig.org/blog/2007/03/viacom_v_youtube.html

Class Discussion:

Introductions
Establishing the Problem
The Courts. v. The Court of Public Opinion v. Business Practices
Scenarios from Different Stakeholders

Next Assignment:

Readings (see below)
Go to YouTube (www.youtube.com) – Identify four different properties that are both authorized and unauthorized
Post short (<200 words) blog of YOUR personal bias/position – whether as consumer, change agent, law student, etc. regarding the issues of this case – on Class Blog. Due January 28


Week 2: January 14, 2008
But What Does the Law Say?

Readings for this class:

DMCA, Sections 512 http://www.copyright.gov/title17/92chap12.html
Review MGM v. Grokster, 125 S.Ct. 2764 (2005)
Review A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9thCir. 2001)
Review Kelly v. Arribasoft, 336 F.3d 811 (9thCir. 2003)
Compare approaches and legal positions of www.eff.org v. www.musicunited.org v. www.googlecopyright.blogspot.com

Class Discussion:

Review basic legal doctrine and cases covering relevant copyright cases
Discuss DMCA – the key statute
Divide into Four Stakeholder Teams
n DMCA Amendment Drafters
n Google Litigators
n Silicon Valley (Internet) Business Coalition Leaders
n Artists (Publishers/Writers/Photographers/Etc.) Association Leaders
Define Assignment for Stakeholder Teams

Next Assignment:

Readings below
Meet with your Stakeholder Team at least one time to start organizing research and approach to problem, including identifying possible articles or other readings for class (provide best links on Class Blog).


January 21, 2008 – No Class – MLK Day


Week 3: January 28, 2008
Can Technology Solve the Problems It Creates?

Reading for this Class:

Wu, The Copyright Paradox: Understanding Grokster, 2005 S.Ct.Rev. 229
Filtering: http://businessweek.com/magazine/content/07_24/b4038073.htm; www.news.com/8301-10784_3-9797622-7.html
Article explaining future of DRM opportunities http://www.eff.org/issues/drm; http://www.eff.org/wp/digital-rights-management-failure-developed-world-danger-developing-world;
Google’s Secret Formula www.portfolio.com/interactive-features/2007/08/google
Review Perfect 10 v. Amazon.com, 487 F.3d 701 (9thCir. 2007)

Class Discussion:

Review Key Issues in Context of Historical Perspective on Technology
Safe Harbors
Opt Out v. Opt In
Fair Use
DRM and Filtering Technologies
Future Impacts / Trends
Define and discuss in more detail Stakeholder Teams’ assignment and issues

Next Assignment:

Meet with your Stakeholder Team before next week. Divide into respective sub-groups as necessary. Begin process of developing positions/sub-positions and approaches.
Each Team to post on Class Blog your most compelling case (but not a legal argument!!) in an op-ed piece advocating your position – due February 11th (<350 words).


Week 4: February 4, 2008
Let the Debates Begin!

No readings for this class, but participation in Stakeholders sessions required

Use class time for Stakeholder Team discussions, including debates between sub-groups, drafting and discussion, in advance of paper and presentation for end of class.

Week 5: February 11, 2008
The Case for Creators’ Rights in the Digital Age

Reading for this Class:

Read selected sections of Columbia Journal on Law & the Arts, Symposium on Artists’ Rights in the Digital Age, Spring 2007 (to be assigned)
Review selected press articles on Google Books http://www.ecommercetimes.com/story/L5hOifz6VQu3Ux/Microsoft-Copyright Attorney-Bashes-Google-Books-Search.xhtml; http://publishers.org/main/PressCenter/Archicves/2005_Aug/Aug_02.htm; http://www.washingtonpost.com/wp-dyn/content/article/2006/08/21/AR2006082101149.html
Explore Columbia University Kernochan Center on Law and Media’s project www.keepyourcopyright.org
Read article on approaches to music downloading http://www.paidcontent.org/entry/419-music-roundup-starbucks-iphone-radiohead-fans-pricing-bebo-atlantic-imeb

Class Discussion:

Guest Lecturer (tbd)
Explore and Discuss Artist Views and Issues, legally, economically and socially
Google Books; keepyourcopyright.org; Radiohead, and other innovations
Update on status of different Stakeholder Team assignments – identify with class current challenges and issues

Next Assignment:

Further Development of Stakeholder’s Position Papers – Final Articles Due 2/29/08 (<10 pages from each of the four groups) for posting on Class Blog


February 18, 2008 - No Class – Presidents Day


Week 6: February 25, 2008
Where Do We Go From Here?

No specific readings for this class, but come to discuss YOUR stakeholder’s point of view, with any appurtenant readings/articles/support

Class Discussion:

Feedback on Assignments
Mock Debates between groups
Who Represents the Consumer?
What about the Press?

Next Assignment:
Readings below
Reminder: Final Stakeholder team papers (one per group) to be posted on Class Blog by end of day on Friday, Feb. 29th.


Week 7: March 3, 2008
How Lawyers, Judges, and Legislators Might Solve Our Problem?

Readings for this class:

Review actual Viacom v. Google Court Briefings (for list of current documents on file, see http://news.justia.com/cases/featured/new-york/nysdce/1:2007cv02103/302164)
Review relevant sections of DMCA
Read Brief Outline prepared by Google Litigators Team
Read Proposed Amendment to DMCA prepared by DMCA Drafters Team

Class Discussion:

Presentation from our Google Lawyers
Presentation from our DMCA Drafters
Class Discussion and Debate

Next Assignment:

Readings Below

Week 8: March 10, 2008

How Business and Consumers Might Solve Our Problem
& Why IP Matters

Readings for this class:

See www.ugcprinciples.com; http://in.tech.yahoo.com/071018/137/6m4uw.html
Read Briefing prepared by Silicon Valley Coalition Team
Read Briefing prepared by Artists Association Team

Class Discussions

Presentation from our Silicon Valley Coalition P.R. Plan
Presentation from our Publishers/Writers/Photographers Association P.R. Plan
Class Discussion and Debate
Final Thoughts: Why IP Matters in the 21st Century – the rudder for solving our issues around communications, health, environment

Class Overview

Creativity 2.0: A Workshop Addressing Artists’ Rights in the Digital Age
Steve Davis
steve@stevebdavis.com
206-335-9559


Course Description / Goals

We are surrounded by the plethora of innovations and options spawned by the digital world and the internet. As a result, one of the most visible, challenging and inherently interesting legal debates emerges around the question of who owns and has the right to control artists’ works in the digital ecosystem.

This is not a new question. Important cases such as Napster and Grokster, among others, have set some standards for us to follow. But in more fundamental ways, practical questions surrounding the use and control of videos, music, pictures and text online are far from resolved, and the early case law surrounding these emerging questions only form part of a larger puzzle. There are policy questions, business standards and even social practices that eventually will define the ownership, control and access to works distributed through the internet.

Perhaps the most significant legal case on this topic pending in this country is Viacom’s suit against YouTube (and as the acquirer of YouTube, Google) claiming, among other things, widespread copyright infringement of Viacom’s many media properties by YouTube/Google for allowing open downloading and sharing of videos and more. Google vigorously opposes these claims, asserting a statutory safe harbor under the important Digital Millennium Copyright Act (DMCA) providing copyright owners the right to “opt out” and have their works removed from the site.

The emergent “grand debate” in the Creativity 2.0 world is whether in this era of new technology tools and platforms for distributing media, the current legal vehicles and standards of copyright are adequate to continue the long-standing constitutional balancing between protection and reward to the creator, and the public’s interest in knowledge and access.

Simply put, many are asking whether copyright is the enemy of innovation in the digital world.

This workshop will be a forum for examining different stakeholder’s points of view on this important debate, with the goal of developing a rationale and defensible outcome, and a way forward for both artists’ and technology innovators. After examining some of the underlying principles and legal framework regarding artists’ rights, we will spend most of our time debating, briefing and drafting:

(1) Possible revisions to the DMCA that best address the newest challenges presented by community sharing sites that were not contemplated when the initial legislation was drafted a decade ago;

(2) Outlines of relevant sections of the briefs for Google as if the case was to be heard in front of the U.S. Supreme Court; and

(3) A plan from both business and artists’ coalitions that are working to create non-judicial/non-statutory practices and approaches for resolving this problem to protect their respective interests.

Different groups in the class will prepare these proposals separately, then share and debate them as the class proceeds.

The class will include some case readings but mainly policy discussions, practical business analyses and mainstream press coverage on this topic. Guest speakers will participate. Active participation by the class is required.

First Day

Welcome.

This is my test message to see if this works as planned