Cyberlaw Central

I attended only one day of the ABA Techshow here in Chicago on Friday, March 23rd.

I initially wrote this post on the train using my latest gadget acquisition, an EvDO Mobile Broadband Card I won at Techshow courtesy of Sprint.  I was one of the lucky winners of their giveaway, and wow, it’s nice.  The speeds are just a little slower than hard-wired broadband.  Chicago just recently got revA, which provides a significant speed increase, so this is the time to get it.

Then, life intervened - between work, the teething pains of a 7-month old, and the double-ear infection of a 2-year old, this summary has been long delayed.

I attended sessions on security with Ross Kodner and Debbie Foster, on email management with Ellen Freedman and Sheila Blackford, on remote access for lawyers by Lincoln Mead and Toby Brown, and on client satisfaction using technology presented by Jim Calloway and Nancy Roberts Linder.

I was pleased to catch back up briefly with Matt Homann, Tom Mighell, Nerino Petro, Rob Robinson, and a few others. I also briefly saw Adriana Linares, but didn’t have a chance to remind her who I was or how much I enjoy reading I Heart Tech. 

Some of the best takeaways, other than the EvDO card, were the following:

- Remote access has to be driven by policy, not just the geeky desire to be remotely connected all the time.  Careful consideration should be given to security, accountability, and recoverability.

- Technology doesn’t change the fundamental nature of client satisfaction, it can only help you do it.  You still need to communicate clearly and effectively what you will do, by when, and what it will cost.

- The instant answer is not always the best answer.  Even with the speed of modern communications, sometimes you need time to think through the problem.

- Always use an automated email response if you are going to be out of the office for one day or more. You will never know in advance when a client has an emergency and is counting on your otherwise normally speedy response times.

- By percentage, the average company spends less of its annual budget on security than it does on its coffee service.

Wow, Blawg Review had it’s 100th edition this week! The Editor prepared a retrospective on the past issues which included my #42, The Hitchhiker’s Guide to the Blawgosphere, and #93, the Illuminati edition.  It’s been fun, I look forward to more! I host again next January.

Thanks, Ed, for your kind words to me in a private email I won’t post here.

FYI, I will be attending the ABA Techshow here in Chicago tomorrow, so if you read this and see me there, let me know and say Hi! 

It’s often been said that when Google, Inc. bought the YouTube service, it bought a lawsuit. There have been several, but the biggest one yet was filed on March 13, 2007. There are six counts, the first three are for infringements of the exclusive rights granted to copyright holders, and the remaining three are for various theories of indirect infringement.

The counts are:
Count I - (Direct Copyright Infringement – Public Performance)
Count II - (Direct Copyright Infringement – Public Display)
Count III - (Direct Copyright Infringement – Reproduction)
Count IV - (Inducement of Copyright Infringement)
Count V - (Contributory Copyright Infringement)
Count VI - (Vicarious Copyright Infringement)

This filing is obviously intended as more of a statement; the introduction reads like a brief, not a complaint. The meat of the complaint doesn’t start until Page 5, and even that’s just the jurisdictional statement.

Google/YouTube’s business strategy has been to comply with takedown notices given under the provisions granted under the DMCA, see my discussion of the 100,000 notices that Viacom issued in February here.

While the Defendants can prevail on Counts I, II and III under the Section 230 immunity granted to publishers under theories of direct liability, they could lose on Counts IV through VI, the indirect liability theories.

Paragraph 66 of Count IV alleges “…by their clear expression and other affirmative steps, Defendants are unlawfully fostering copyright infringement by YouTube users.” Loose lips sink ships, like what happened with Grokster. Discovery in the case will certainly be focused on this element, if there is a smoking gun/letter/email out there Viacom can afford to find it.

Count V alleges that Defendants are vicariously liable for the infringement of its users. In particular, it alleges they have actual or constructive knowledge of the infringments, which they then “enable, facilitate, and materially contribute” to. Essentially, Viacom is claiming that the infringement is so widespread, how could the defendants not know it was going on? To be fair, I believe this count is a stretch, as Google has been consistently taking clips down when notified of the infringement.

Count VI alleges that Defendants are vicariously liable because they have both the right and ability to stop the infringement by its users. Paragraph 84 is particularly interesting: “Upon information and belief, YouTube currently engages in practices to enforce content restrictions and protect the copyrighted works of its business partners, but withholds these same protections for the copyrights of persons, including Plaintiffs, who have not granted licenses to YouTube.” If true, it casts doubt on the oft repeated allegations that systems such as those alleged to exist here are impracticable.

We’ll see how this case pans out. I expect to see it fully litigated, not settled, but you never know.