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/
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