Tag Archives: DMCA

DMCA needs to actually enter the millennium

The DMCA (Digital Millennium Copyright Act) of 1998 sought to give Internet Service Providers legal protection (a “safe harbor”) against copyright infringement claims should one of their users upload copyrighted material. The act made sense at the early stages of the Internet before broadband expansion lead to companies like YouTube and sites like the Pirate Bay.

The DMCA puts the burden of enforcement squarely in the hands of content providers by way of the “takedown notice” which is essentially a form sent to the ISP owner stating that there is some type of media or software on their site which they do not have the rights to be hosting. The takedown notice informs the ISP owner that further legal action will be taken if they don’t comply by removing the sited item(s).

The problem with the DMCA today is that content owners can’t keep up with the volume of takedown notices they have to file. YouTube has received over 100 million DMCA notices from the recording industry in just the last few years. Google’s own statistics show that 97% of these claims are valid.

The DMCA’s safe harbor is also the main defense used by pirate sites like The Pirate Bay, KickAssTorrents and Torrentz. These sites have earned millions by illegally hosting content for which they have no rights or licenses.

Unfortunately, rather than manage copyright, it [the DMCA] has provided a huge loophole through which a number of online pirate entrepreneurs sail blissfully through. Known as the “safe harbor” provision, this oft-abused language has served to shelter digital thieves at the expense of rights holders. ”Safe Harbor” has enabled the growth of a criminal cancer and it’s a cancer–that as of now–cannot be beaten, only kept (marginally) at bay. – See more at VoxIndie.org

The DMCA is Broken from fastgirlfilms on Vimeo.

The Tricky Task of Defining “Fair Use” in an electronic world

Copyright-imageAlmost every copyright infringement dispute regarding the Internet and electronic media comes down to the tricky task of defining what is Fair Use.

The Fair Use provision of US Copyright law was meant to ease the ways in which copyrighted material could be used to facilitate research. Teachers could reproduce portions of copyrighted material to illustrate a lesson, news reporters and broadcasters would not have to worry if copyrighted material was used incidentally during a news report.

This definition was crafted before the Internet was even a speck on the horizon. At that time using copyrighted material posed a bit of a challenge but in today’s world, where copyright infringement is a right-click away, Fair Use has blown up into a political issue with lobbyists now attempting to stretch the initial intent of the law to fit in digital world.

So far, determining how to apply Fair Use to the Internet and electronic media has proven to be a complex task for the courts. In the mammoth Google/YouTube v. Viacom copyright infringement case, the final decision of the court revolved around an interpretation of the Digital Millennium Copyright Act (DMCA), which addresses the liability of the online service provider, while dancing around the proverbial elephant in the room…the definition of Fair Use.

Cory Doctorow has an interesting post in which he discusses a very concise definition of Fair Use put forth by Tim Wu. Wu’s proposed definition of Fair Use is as follows:

If it adds new value, it’s Fair Use. If it substitutes for the original, it’s infringement.

It’s simple enough, to be sure, but it’s far more favorable to the users of content than it is to the creators of that content. It tracks along the lines of the ideas in Lawrence Lessig’s book Remix which argues that creative content should become something freely available to all for the benefit of moving the culture forward (how did our culture ever move forward before Lessig?). With Remix Culture, content can be used and turned into something else without the permission or remuneration of the original creator. Take a Beatles song, put some new beats on it and viola, you’re a composer.

Lobbyists now talk of the Fair Use Industries and a Fair Use Economy. I would ask – Fair Use Economy vs. what? The Copyright Economy? There is some heavyweight positioning going on trying to broaden the interpretation of Fair Use. To me this is almost always being done to restrict or remove the existing rights of content creators.

To see how the digital world can quickly skew the concept of Fair Use, one need only look at homemade videos uploaded to YouTube. Here you have a non-commercial, family video that uses a popular song as a soundtrack (obvious fair use). But then it gets uploaded to YouTube and becomes site content. Fair Use? It’s now an issue of interpretation. Is the content still Fair Use because the user created the content for private use, or does it infringe on copyright because that content is now an asset of YouTube, a money-making enterprise.

Yes, things get murky in an electronic world. Here’s my understanding of copyright and Fair Use. It’s also a simple definition but it’s one that is being rigorously challenged.

If the content in question is not original to your project (not created by you/in-house or work-for-hire) and its usage is contributing to a commercial enterprise then it is not fair use and the media should be legally licensed.

Copyright, Fair Use and the Internet

This fine article from Forbes.com describes the current cloud surrounding interpretations of legal doctrine of Fair Use.  The Fair Use doctrine is a part of USA  Copyright law that describes the conditions that have to be in place when using copyrighted material without permission from the creators.

Digitization and the Internet have blown the issue of what is and what is not “Fair Use” up beyond anyone’s imagination.  When the concept was originally set as part of copyright law, Fair Use was to

  1. facilitate the quotation of excerpts in a review or criticism for purposes of illustration or comment
  2. allow for the reproduction by a teacher or student of a small part of a work to illustrate a lesson;
  3. allow the reproduction of a work in legislative or judicial proceedings or reports;
  4. to allow the incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.

The Forbes.com article, written by Dan Fisher and Dirk Smillie makes these important points…

The real problem? Copyright laws never anticipated a time when people would be able to broadcast essentially private content all over the world, including scraps of copyrighted material.

Yet for all its importance, [Fair Use] remains a tricky concept courts determine on an agonizing case-by-case basis–making it difficult to determine whether the Next Big Thing on the Web is providing a valuable public service or violating copyright law on a wholesale basis. Judges must consider the nature of the work that has been copied, how much of it has been copied, and whether the copying hurt the ability of the content owner to make money off of it.

Today’s tug-of-war is mainly between Internet content providers, who use the doctrine of Fair Use as the rational behind posting copyrighted material without permission and content creators who believe that some content web sites are infringing on their copyrights and thus their right to earn money from their creations.

In the end, it’s about money. You have web content providers using Fair Use to enhance their business model on one hand and on the other, you have the content creators who feel that today Fair Use is being used to take money away from them.

The many angles of Fair Use in copyright

A recent article in the New York Times draws into focus the many differing interpretations and perspectives surrounding copyright law’s doctrine of Fair Use.

The article describes how three separate parties, a young musician, Google’s YouTube service and the Warner Music Group, became entangled over the use of the Christmas classic “Winter Wonderland”

The musician, Juliet Weybret, uploaded a video to YouTube that showed her performing the song. A few weeks later she was informed by YouTube that the video was being taken down because of objections by the Warner Music Group.  Warner Music Group owns the copyright for Winter Wonderland and currently has no licensing agreement in place with Google.

Ms Weybret rightly felt that she was using the song in a noncommercial way and therefore was within the tenets of fair use. She was not gaining financially in any way by performing the song. It was basically a home video that she put on YouTube. The performance is not a money making venture, it doesn’t compete or impede Warner Music Group from earning income from the song. If you look at the performance itself, it is certainly fair use and does not infringe on the copyright in any way. 

Warner Music Group, no doubt, feels the same way about the performance.  However, when that performance is uploaded to YouTube and becomes part of the content of a multi-million dollar enterprise, then the notion of the performance (the video) as fair use is challenged. In Warner’s view, the video now contributes to the income YouTube makes from showing videos on the web.  The use of the video by Google/YouTube is therefore not fair use.  

Use of third party copyrights without permission has dogged YouTube since it became a major Internet presence.  The company initially relied on Fair Use as well as the safe harbor provision of the DMCA as an argument for not removing video content.  That decision created a substantial amount of push-back from copyright holders and a slew of lawsuits followed. Google now has a very high-tech filtering system that will automatically remove videos that use unlicensed content from YouTube.  

From the NY Times article…

Referring to Ms. Weybret, Ben Sheffner, a copyright lawyer in Los Angeles who has worked on antipiracy at the 20th Century Fox movie studio, said, “From her persepctive it’s completely noncommercial because she’s not making a dime. But from another perspective it’s entirely commercial because Google is trying to make money off it”

Copyright law for Photographers

While reading Geetesh Bajaj’s Powerpoint blog on his excellent Indezine website, I came across a Powerpoint presentation that I think would be useful to all media producers who struggle with copyright and licensing issues.

The powerpoint presentation deals exclusively with copyright infringement as it pertains to photography and is the work of PACA (the Picture Archive Council of America ). It lays out the basic copyright law but it is the case studies that are included that really make this document worth your time. You get to see actual infringement cases, what the infringement charges were, and you can see side-by-side, the actual photograph and the infringement photograph. Other points…there is no fixed % an image can be changed to avoid infringement. That is a common myth that circulates within design studios.

The presentation deals with Fair Use, the DMCA (Digital Millenium Copyright Act), ISP Safe Harbor and the public domain. All in all, it’s a really good document to know about if you are ever unsure about your usage of a photo or any other work which you want to use but don’t own the rights to.

A good take-away from this presentation that I would emphasize is that often permission and licensing is easily obtainable directly from the source. In other words, instead of going into competition against a photographer, by recreating a photo (the composition), it is cheaper in the long run to contact the creator and obtain permission to create a derivitive work.

The PACA presentation can be downloaded here

ISPs must take responsibility for stopping illegal file-sharing

ISPs must take responsibility for stopping illegal file-sharing on its network. So says a court in Belgium in a ruling that sets an important precedent in the fight against piracy.

The ruling against the ISP Scarlet (formerly Tiscali) was aimed mostly at P2P networks. The judge said that ISPs have the technical means at their disposal to either block or filter copyright-infringing material on P2P networks.

IFPI Chairman and CEO John Kennedy said: “This is an extremely significant ruling which bears out exactly what we have been saying for the last two years – that the internet’s gatekeepers, the ISPs, have a responsibility to help control copyright-infringing traffic on their networks. The court has confirmed that the ISPs have both a legal responsibility and the technical means to tackle piracy. This is a decision that we hope will set the mould for government policy and for courts in other countries in Europe and around the world.”

The ruling may be bad news for YouTube, faced as it is with several copyright-infringement lawsuits. This case says that ISPs definitely have some responsibility or obligation for the content that is displayed across their networks. YouTube has argued that it can’t know everything on its site, that it removes content once a DMCA takedown notice is served. However if a notice is never served, then infringing material stays. The Belgian ruling says that, in its purview, YouTube does bear responsibilty for the content it serves.

Copyright 2.0, a new podcast discussing recent copyright headlines

I’ve been listening to a fairly new podcast created by Chris Matthieu, the founder of Numly and Jonathan Bailey, writer of the blog Plagiarism Today. In their podcast, titled, the Copyright 2.0 show, they discuss many copyright and intellectual property issues that have made recent headlines. What’s more, links to all news stories they discuss are made available through a del.icio.us page.

The podcast is fairly low-key and conversational. Both Chris and Jonathan stress that they are not lawyers and are not offering advice on copyright law, they are examining copyright in this era of Web 2.0 and digital information.

You can hear the podcast by clicking on the “Play” button on the player below. There are several shows to choose from.

More copyright lawsuits for YouTube

Add England’s Football Association Premier League as the latest group to sue YouTube for violating copyright law.

Responding to the suit, Google’s general counsel, Kent Walker, said via email that “these suits simply misunderstand the (DMCA), which balances the rights of copyright holders against the need to protect Internet communications. As a result, they threaten the way people legitimately exchange information.”

It appears that defining YouTube as a “service provider” under DMCA regulations will be Google/YouTube’s main defense in these copyright infringement cases. But will a judge and jury accept that YouTube can be defined as a mere service provider under DMCA parameters? The DMCA (Digital Millennium Copyright Act), which was passed in 1998 under President Clinton, relieves ISPs or web hosts of liability if one of their hosted sites violates copyright law. Under DMCA, as long as the ISP immediately removes the illegal content and in some cases terminates the offending sites account, then the ISP is not liable for the actions of the hosted site.

When YouTube’s CEO Chad Hurley was asked about YouTube’s copyright violations by New Jersey Republican, Rep. Mike Ferguson at a May 10th hearing on Capitol Hill, Hurley defended the site’s practices as in compliance with the Digital Millennium Copyright Act.

I believe, as others do, that YouTube is misapplying the DMCA. Under their interpretation the burden is the copyright holders alone. The copyright holder has to maintain constant vigilance against infringement. While this may be true to some degree, YouTube is also basically saying here that they believe no law is broken as long as they receive no notice that a specific video is violating copyright. What if the copyright holder is unaware of the infringement and does not ask for removal, is there then no liability?

The truth is, copyright law is broken as soon as one party uses the copyrighted work of another without permission. Further, the law is broken, not at the moment the copyright holder becomes aware of the infringement, the law is broken the moment the work was used. Trying to wrap this simple statement of copyright law into a provision of the DMCA, complicating it with so called “take-down notices” and filtering software, though beneficial to YouTube, is, in my opinion, not going to fly at a copyright infringement trial.

Google’s Kent Walker interprets the DMCA to say that the exchange of information over the Internet and the need to “protect Internet communications” (not quite sure what that means?) is equally as important as upholding the rights of copyright holders. I don’t believe the DMCA was made law for this reason. It sought to relieve ISPs of liability if, say, one of their sites uploaded a hacked version of Microsoft Word. I don’t think the legislators in 1998 ever envisioned the DMCA being used to offer coverage for a company that freely broadcasts videos that they have no permission to offer.

Copyright and Process in the Age of User-Posted Content

Denis DeJong, a senior fellow at The Progress and Freedom Foundation has released a transcript from the foundation’s March 16 seminar titled What Goes Up Must Come Down: Copyright and Process in the Age of User-Posted Content. Mr DeJong is the director of the foundations’s Center for the Study of Digital Property.

The 27 page pdf transcript successfully frames the YouTube copyright infringement issue looking at remedies such as DMCA takedown notices and filtering technology.

The panel includes Donald Verrilli, a partner at Jenner & Block, the law firm that brought the suit by Viacom against YouTube and Google. Read his comments to see a glimpse of Viacom’s legal strategy. He rejects YouTube’s DMCA defense saying “And I don’t think we are getting any serious dispute from YouTube about whether this is infringing activity. After all, when these DMCA notices go to YouTube, YouTube does pull the works down… It’s not like this is a real fight about whether there is some great level of fair use or non-infringment use going on here.”

Along with Verrilli and moderator DeJong, the other panelists are Solveg Singleton, a senior adjunct fellow at The Progress & Freedom Foundation, Christian Dawson, of Servint Internet Services (in the discussion he gives the ISP side of the infringement debate) and William Rosenblatt, a recognized authority on digital media technologies.

A great discussion with very informative panelists.

YouTube/Google will see Viacom in court

The New York Times reports that Google is not interested in settling the copyright infringement suit brought by Viacom. They want a jury trial. Google is relying on the “safe harbor” provisions of the Digital Millennium Copyright Act (DMCA) which says essentially that Internet service providers, like ISPs or web hosts, are not liable for the copyrighted material uploaded by their subscribers as long as the service providers promptly remove the material once asked to do so by the copyright holder.

“This response ignores the most important fact of the suit, which is that YouTube does not qualify for safe harbor protection under the D.M.C.A.,” Viacom said. “It is obvious that YouTube has knowledge of infringing material on their site, and they are profiting from it.”

This story sparked over 80 comments on TechCrunch. One of those comments, by a poster name Raj, frames the issue very well.

“Ultimately, the even bigger issue that may arise from the ViaGoog lawsuit is whether DMCA may need to be re-visited to better reflect appropriate use of copyrighted material. The way it is written now, DMCA is being interpreted quite loosely by firms such as Google. DMCA was written to protect copyrighted material from inappropriate use but it seems in reality that firms which interpret it loosely are using it as a protection in a sense to get away with leveraging unconsented content for profit without properly compensating content owners for the material being used. The people who own/create content tend to get [angry] when others utilize their content without consent. Google has gone one step further by monetizing this material by displaying ads next to the video content in question. It will come down to which firm’s high priced lawyers can make a better case about DMCA compliance/non-compliance.”

I believe this case will come down to the court’s interpretation of DMCA and whether YouTube can successfully claim they are just a “service provider”.

Personally I think they are more than just a service provider. The Digital Millennium Copyright Act became law in 1998 under President Clinton. Back then it was intended to give ISPs some protection from liability if one of their hosted sites uploaded copyrighted content – like say – hacked versions of Microsoft Word.

But YouTube is more than a host – it tags all of its content, there are cross-referenced links to similar content. I can view a bootleg copy of a Rolling Stones performance and the site will show me tags for other similar bootleg Stones videos and it will then also offer linked recommendations to view similar bootlegs from Bob Marley for example. In other words, YouTube is actively engaged with its content, its not just sitting there as a mere host. There is a database in place that aggregates the content and offers users its results.

At some point in 2005 the folks at YouTube made a decision to allow the uploading of copyrighted material to the site. That decision led to the immense popularity of the site and an eventual $1 billion windfall. Now that decision will have its day in court.