“We are always looking for ways to make it easier for you to find, watch, and share videos. Many of you have told us that you wanted to take your favorite videos offline. So we’ve started working with a few partners who want their videos shared universally and even enjoyed away from an Internet connection.
Many video creators on YouTube want their work to be seen far and wide. They don’t mind sharing their work, provided that they get the proper credit. Using Creative Commons licenses, we’re giving our partners and community more choices to make that happen. Creative Commons licenses permit people to reuse downloaded content under certain conditions. “
I have just finished writing a draft of an essay titled “Decoding the DMCA Safe Harbors.“
The Essay analyzes some of the key uncertainties about the DMCA safe harbors that may figure into the copyright lawsuits against YouTube.
The Abstract:
The DMCA is a decade old, which, in Internet time, may well be closer to a century. Although the DMCA safe harbors have helped to foster tremendous growth in web applications in our Web 2.0 world, several very basic aspects of the DMCA safe harbors remain uncertain. These uncertainties, along with the relative lack of litigation over the DMCA in the past ten years, have threatened to undermine the whole purpose of the DMCA safe harbors by failing to inform the public and technology companies of what steps they need to undertake to fall within the safe harbors. In several high profile cases against MySpace, YouTube, and other Internet sites, the clarification of the DMCA safe harbors could prove to be just as important to the Internet as their enactment in 1998. This Essay has attempted to clear up two of the biggest uncertainties regarding the DMCA’s relationship to vicarious liability, and the so-called “red flags” theory of knowledge on the part of the Internet service provider. Specifically, under a proper interpretation of the DMCA, courts should (i) reject the “loophole” theory that posits that the DMCA safe harbors provide no immunity from vicarious liability at all, and (ii) require a high burden for proving a “red flags” theory by requiring knowledge of facts that show specific and “obvious” or “blatant” infringement. This Essay offers five principles for courts and Congress to consider in applying or amending the DMCA safe harbors in the future. The DMCA safe harbors should be made truly “safe” harbors, in a way that encourages greater investment in and the development of speech technologies on the Internet, all while encouraging copyright holders to share the burden of reducing infringement by utilizing the DMCA notice and take-down procedure.
You can download a copy from SSRN by clicking on this link and clicking from there the “Download” button.
News: The RIAA appears to be running scared from the recent district court granting Harvard Professor Charlie Nesson’s request to webcast Thursday’s court proceedings in the RIAA’s music file sharing case against BU student Joel Tennenbaum. The RIAA has now sought a writ of mandamus from the First Circuit to stop the webcast. The RIAA must realize it looks bad to be suing students, but here’s the spin it is using:
“Petitioners [the labels] are concerned that, unlike a trial transicipt, the broadcast of a court proceeding through the Internet will take on a life of its own in that forum. The broadcast will be readily subject to editing and manipulation by any reasonably tech-savvy individual. Even without improper modification, statements may be taken out of context, spliced together with other statements and []rebroadcast as if it were an accurate transcript. Such an outcome can only do damage to Petitioners’ case.”
News: Charles Nesson is a Harvard law professor and member of the Berkman Center. In a RIAA copyright lawsuit against Boston University students, Nesson is representing the students and has just pulled off some pretty deft strategic maneuvers against the RIAA, not only challenging the constitutionality of the RIAA’s lawsuit but also persuading the judge to webcast next week’s (Jan 22) hearing over the Internet. I will post a link to the webcast when I find it.
Analysis: Charlie Nesson was my evidence law professor, only he didn’t really teach us evidence. By then, he was much more interested in this new technology called the Internet. Nesson is an incredibly creative and “out of the box” (and sometimes “out there”) thinker whose imagination knows no bounds. I look forward to what he chalks up on Thursday of next week!!
Analysis: My guess: Coldplay settles! I wonder if Coldplay can still win the Grammy for “Viva la Vida,” with all these copyright infringement allegations swirling?
News: For the first time ever, the Copyright Alliance has filed an amicus brief asking the Supreme Court to reverse the Second Circuit’s ruling in favor of Cablevision’s RS-DVR system. The system allows Cablevision subscribers to record shows (time-shifting), with the recordings stored on Cablevision servers. (More from IPLaw 360 and here) Fenwick did an analysis of the case here.
News: I already discussed the letter the John McCain camp sent to YouTube regarding McCain videos removed because of alleged copyright infringement. In YouTube’s response, it asks Senator McCain for help in reforming copyright law:
News: Several people have alerted me to the copyright controversy brewing over at the McCain-Palin camp, and at YouTube. McCain’s attorney sent YouTube a letter–addressed to CEO Chad Hurley, GC Zahavah Levine, and copyright counsel Bill Patry–asking YouTube to make a determination that McCain’s unauthorized uses of copyrighted content are clearly fair uses and therefore should not be removed after a DMCA complaint. Apparently, several McCain videos–McCain’s letter says “numerous“–have been removed by YouTube after YT received DMCA notices from copyright holders alleging that McCain had infringed their copyrights by posting videos with their content, which McCain’s camp says consisted only of clips of 10 seconds or less of copyrighted news broadcasts.
The DMCA does have a “counter-notice” procedure that allows people to seek the re-posting of videos taken down under a DMCA notice, but the process takes between 10 to 14 days for that to happen, which the McCain camp says is not quick enough for the impending election.
Analysis: First things first. Against today’s backdrop of the financial crisis, this controversy over YouTube videos does seem, well, somewhat trivial. Also, there is some irony in complaining now about “overreaching copyright claims” under the DMCA, a law that I believe McCain voted for in 1998. I am generally sympathetic, though, to the McCain camp’s call for liberal fair use in the context of a presidential election. I’ve written an article arguing exactly that (click here).
One of the problems for YouTube, though, is that the fair use doctrine is notoriously vague, to be judged on a case-by-case basis. What is “clearly” fair use may depend on the eye of the beholder. Companies like YouTube follow the DMCA notice-and-takedown procedure in a more cautious manner, in order to avoid being sued. But the DMCA itself is vague in places — that’s why YouTube faces 2 major copyright lawsuits asking YouTube to pay damages of over $1 billion.
It’s just too bad we haven’t had any discussion by either presidential candidate about reforming the DMCA at any point in the campaign season. And with the financial crisis, copyright issues might never get discussed before the election. The frustrations McCain’s lawyers have expressed to YouTube are not new–they are ones with “overreaching copyright claims” that regular people have faced since the DMCA regime was enacted. Don’t get me wrong: I’m all for a DMCA safe harbor for Internet companies, but the one we have may need some tweaking or clarification.
I do wonder a little bit about what McCain videos have been removed, and what news networks have actually sought their removal. The McCain camp says “numerous” McCain videos have been removed from YouTube. How many are we talking about? I follow all the presidential videos pretty regularly, and I know only of 1 such McCain video involving a clip of Katie Couric that had been taken out of context and used in a negative ad against Barack Obama to suggest inaccurately that Couric was commenting about “sexism” in Obama’s use of “lipstick on a pig.” Is that kind of use of Couric’s broadcast, taken out of context and used in a negative attack ad, a fair use? Hard to say–possibly, debatable at least. Without a case or law saying that this kind of use in presidential campaign material is presumptively or per se fair, YouTube is in a difficult spot to do what the McCain camp proposes. It would be helpful if the McCain camp identified which videos have been removed and posted them all on the McCain website, where it has a section for videos. Then we can know what copyright holder or news network sought the takedown (and try to understand its basis for doing so), and see if all of it should be considered fair use or not.
UPDATE: YouTube wrote a letter to McCain denying his request, citing both practicality and the impossibility of determining fair use with reasonable certainty without a court ruling. “Lawyers and judges constantly disagree about what does and does not constitute fair use. No number of lawyers could possibly determine with a reasonable level of certainty whether all the videos for which we receive disputed takedown notices qualify as fair use,” wrote the YouTube general counsel. (More from PC mag and from ars technica.) Lessig Blog has a copy of YouTube’s letter.
Another option for the McCain camp is to send a letter directly to the news networks that have sent DMCA notices to take down McCain videos, and press their fair use claims with the networks.
News: Video producer Brave News Films, represented by Tony Falzone at Stanford Center for Internet & Society and the Fair Use Project, has sued radio host Michael Savage for an alleged improper DMCA takedown of BNF’s video on YouTube that replayed about a minute of Savage’s rants allegedly about Muslims. YT took down the video after receiving a DMCA notice of alleged copyright infringement and even suspended BNF’s YouTube channel temporariliy. (The channel is back up.)
According to the LA Times Savage’s producer said Savage was not responsible for the DMCA notice in the first place. (The notice is supposed to have the identity of the complainer, so it should be easy for YouTube to reveal who complained.)
News: The movie studios have sued RealNetworks for its program RealDVD, which apparently enables consumers to make “backup” DVDs. (More from WSJ) The studios argue that the RealDVD violates the anti-circumvention provisions of the DMCA.
News: NBC Universal General Counsel Rick Cotton reports the amazing success of keeping unauthorized copies of NBC’s broadcast of the highly successful (Mike Phelpsian) OIympics in Beijing off the Olympics. Cotton says that less than 1% of Olympics videos online were unauthorized.
NBC used a 2 pronged strategy: (1) get other online providers to use digital fingerprint technology to filter out those Olympics video that didn’t have the fingerprint–Cotton says 80% of the success is attributable to this strategy; and (2) using Web crawling technology from Vobile to police the web for unauthorized clips, which allowed NBC to send DMCA notices to sites.
Cotton beamed about YouTube’s digital fingerprinting technology the most. According to BusinessWeek, “By the way, Cotton says the most impressive automation occurred with YouTube. While the online video giant has had a reputation with many broadcasters for not doing enough to protect copyrighted content (not to mention a $1 billion lawsuit from Viacom), Cotton says YouTube worked closely with NBCU. Also, he says YouTube’s homegrown content recognition system worked effectively. This should come as a surprise to many of my sources, who were convinced that Google was doing as little as possible to perfect a technology whose reason for being is to keep content off its site. ‘The most extensive automation we had was with YouTube. Their system worked very well,’ says Cotton.” (More)
Analysis: This evidence from NBC Universal provides a devastating blow, in my view, to Viacom’s copyright case against YouTube. When coupled with the recent DMCA safe harbor victory for Veoh, NBC Universal’s backing of YouTube’s fingerprinting anti-infringement technology significantly bolsters YouTube’s defense that it goes above and beyond the DMCA safe harbor.
I have to admit that I marveled at the lack of unauthorized Olympics videos on YouTube. Now that NBC Universal has explained the amazing success of YouTube’s fingerprinting technology, Viacom and the other plaintiffs suing YouTube will be hard-pressed to argue that YouTube is not doing enough to combat copyright infringement. The 2008 Olympics may turn out to be not only a huge victory for Michael Phelps, but also Chad Hurley and the team at YouTube.
I think a key lesson of NBC’s success in keeping unauthorized Olympics videos off the Internet is that copyright holders must share the burden in protecting their copyrights. Yes, copyright holders must spend money to enforce their copyrights! Too often in the rhetoric against YouTube some of plaintiffs seem to want to shift the expense of enforcement to YouTube. The DMCA, however, always envisioned a sharing of that burden under a notice-and-takedown system.
News: As reported earlier, CNN reported that Universal Music Publishing and Sony BMG sent the McCain camp a letter asking it to stop playing Heart’s “Barracuda” on the campaign trail after the song was used at the Republican National Convention. (Sarah Palin’s nickname is “barracuda.”) Universal Music Publishing presumably owns the copyright to the musical work, while Sony BMG owns the copyright to the sound recording. The American Spectator reports that the McCain camp played the song “Barracuda” at another stop in Ohio just yesterday.
Analysis: It’s not clear what’s going on based on the limited amount of information given. It’s unlikely that the McCain camp has a blanket license to use the copyrighted song for the rest of the campaign season. So once the copyright holders Universal and Sony BMG sent the letter demanding that the McCain camp stop playing it, that would seem to make subsequent uses by the McCain camp unauthorized and infringement. Techdirt blog suggests that these uses may have been licensed by the venues (such as through an ASCAP license). CNN is now reporting that the McCain camp said it had obtained a license for the RNC Convention. There’s been no statement by anyone to verify a license for subsequent uses. Another interesting wrinkle is that the copyright holders appear to have put the McCain camp on notice not to play their copyrighted song. The scenario would present an excellent exam question for my copyright class.
News: The John McCain camp appears to be in trouble again for alleged copyright infringement. CBS today sent YouTube a DMCA notice about the McCain camp’s negative ad that insinuated Sen. Barack Obama’s use of the saying “lipstick on a pig” was a reference to Gov. Sarah Palin. (Obama refuted that claim in this video.) Part of the McCain ad used a CBS segment of Katie Couric, apparently spliced in by the McCain camp without permission. CBS has asserted the McCain camp’s unauthorized use violates CBS’s copyright in the segment. Under the DMCA, YouTube must take down the video to fall within the safe harbor for Internet sites.
Analysis: This is not the first run-in with alleged copyright infringement for the McCain camp. As recounted on an earlier post, FOX News and Jackson Browne have all complained to the McCain camp about alleged unauthorized use of their copyrighted materials. Universal Music Publishing and Sony BMG have also complained about the use of their copyrighted song “Barracuda” (by Heart), although it’s not clear — based on the CNN news reports — whether McCain has a license (or not) to play the song at the campaign stops where it’s being played. It will be interesting to see if the McCain camp continues to run that same ad on TV and, if so, what CBS’s response will be.
The Couric segment seemed to be taken out of context and to be not directly related to the context of the “lipstick on a pig” controversy. (I couldn’t tell for sure just based on watching the video.) If that is the case, any fair use argument is greatly diminished.
News: CNN reports that Universal Music Publishing and Sony BMG, which own the copyright to the Heart song “Barricuda,” sent a cease and desist letter to John McCain and Sarah Palin for their (apparent?) unauthorized use of the song last night at the Republican National Convention. It’s not exactly clear, but the CNN report implies that the use was not licensed.
“Barracuda” is the nickname of Sarah Palin from her days as a point guard on the high school basketball team. It is also the title of the very famous song by Heart.
I’m all for liberal fair use in the context of presidential campaigns, which are no doubt important for this country, but it does seem ironic to see presidential candidates flagrantly disregard copyrights, particularly with musical works (which receive a greater scope of protection than coverage of news events).
UPDATE: CNN is now reporting that the McCain camp says a license had been obtained for the song.
Unfortunately, the McCain camp has just stitched together sound bites from Sarah Palin’s speech last night, which ran for 30 minutes. Would have been better not to edit it, I think, but instead just give the entire speech verbatim.
Also, the McCain camp has apparently just taken the copyrighted footage of CSPAN or some other network and tried to crop out their logo and “ticker” at the bottom of the screen. That’s why Sarah Palin looks like her body has been totally cut off. On several occasions, you see the network “ticker” bleed through the McCain camp’s crop job.
News: The district court in the Northern District of California decided in favor of Veoh, an online video sharing site, holding that it fell within the DMCA safe harbor. Michael Arrington of Tech Crunch has 2 excellent analyses of the decision here and here. One of the key parts of the ruling is that a video sharing site does not become disqualifed from the safe harbor by setting up a system that converts videos into a different (here, Flash) format (the plaintiff porn entertainment company claimed that such conversion showed that Veoh had control over the content). Arrington also lists a number of key parts of the decision on his blog.
Analysis: I am poring over the opinion myself and hope to have a followup soon. The copyright cases against YouTube are in New York, so this precedent is not binding in that jurisdiction. But it is undoubtedly helpful to YouTube’s case there.
UPDATE: Here are some of the most important principles the court appeared to embrace in the Veoh case:
1. A video sharing site doesn’t have the “right and ability” to control infringing activity just by setting up a system where users can upload videos. The site’s control over its system is different from control over the content uploaded by users. Op. at 28.
2. The presence of professional content in videos (without copyright notices) that are posted on video sharing sites do not necessarily create a “red flag” of infringing activity. Op. at 21-22.
3. Court completely rejects argument that Veoh should have prescreened every video finding that practically infeasible (and in any event it’s not required by DMCA). Op. 28
4. The court says that Veoh policed its system as presently architected, and that was reasonable enough under the DMCA. Op. 29 A lot of what Veoh did (e.g., hashing or fingerprinting technology) appears to be what YouTube is doing as well.
News: Singer Jackson Browne filed a copyright infringement suit against John McCain, the Ohio Republican party, and Republican Party for using his song “Running on Empty” in a campaign video, but without permission from Browne. (More from Wired)
Analysis: I wish I could watch the video to hear how much music was taken. I’ll try to say more later. If I’m not mistaken, McCain ran into some earlier copyright troubles with FOX (if not others) and so did Barack Obama. But this is the first copyright lawsuit filed against a presidential candidate, perhaps ever.
News: Noted copyright lawyer William Patry officially ended his copyright blog on Friday of last week. His reasons are explained in the only post that remains on his blog (of 4 years). He now works for Google, so that’s one of his reasons b/c too many people confused his personal comments as Google’s comments. He also finds the state of copyright law too depressing.
News: YouTube was sued again for copyright infringement, this time by Mediaset in Italy for allegedly infringing its programs in 4,643 unauthorized clips on YouTube. Mediaset seek 500 million Euros ($779 million US). More.
Analysis: YouTube already faces 2 major copyright lawsuits in the U.S. (one by Viacom for $1 billion and a class action lawsuit, both in NY). YouTube also was sued by Telecinco in Spain, and some news reports indicate that YouTube lost. The lawsuit in Italy just adds to YouTube’s headaches. The U.S. cases will test the scope of the DMCA safe harbors. I am not sure whether Spain and Italy have any comparable safe harbor.
News: Michael Arrington of Tech Crunch has the lowdown on the agreement reached by Viacom and YouTube to allow YouTube to redact usernames and IP addresses from the logs of videos watched on YouTube.
Analysis: At least Viacom is not being pig-headed about the way it litigates its copyright lawsuit against YouTube. Although Viacom initially sought the usernames and IP addresses and persuaded the court to force YouTube to turn the information over (potentially in violation of the VPPA), now Viacom realizes the public relations nightmare that was brewing among users of YouTube — who also may watch Viacom shows. This is a sensible narrowing of Viacom’s discovery request because Viacom really wants to go after YouTube, not smaller fish. Also, it probably takes care of any VPPA problem.
Posted by utubeblog 
Posted by utubeblog 
Posted by utubeblog 
