Cyberlaw Central

I’ve been meaning to put these up for a while, here are the slides from the presentation I gave to the Chicago Bar Association’s seminar on website operator liability on May 15, 2009. My presentation focused on the DMCA and discussed four recent cases.
thompson-presentation-2009-05-15-10-years-of-the-dmca

I’d also like to thank those who submitted pictures for the recent Blawg Review, those who “sherpa-ed” behind the scenes (Colin Samuels, Diane Levin, Victoria Pynchon) and to Ed. for giving me the opportunity to host on Towel Day. And thanks to all who commented, sent links, or otherwise helped spread the word. You all are hoopy froods who know where your towels are.

Here are the slides from my presentation to the Chicago Bar Association’s Cyber Law and Data Privacy committee on February 17, 2009 entitled “Fan Generated Content on the Internet.”

I talked about the Harry Potter Lexicon case, including the changes to the book which were made in order for it to be publishable. Then, we discussed different forms of fan-generated content on the Internet. I framed the discussion by providing examples of fan content made by people who (like me) are fans of the Joss Whedon TV show “Firefly” and the movie “Serenity.”

Please let me know if you have any questions or comments!

Here’s a link to a great article by Professor Lessig on the need for copyright reform. Despite the article’s title, he’s really not defending piracy per se, but merely noting that the law criminalizes certain behaviors that he believes should instead be encouraged. It’s well worth a read.

Posting here on the blog has been rather lax lately, I’ve apologized directly to those who have inquired. I’ve been busy with work, as well as some speaking. For example, I did a repeat of my copyright presentation to the Chicago Bar Association’s seminar on IP law for non-IP attorneys on October 1st.

Interested people can also follow me on Twitter, my profile is at http://www.twitter.com/cyberlaw. The discussions there are limited due to the 140 character limit per post, or “tweet”, but I believe it is a worthwhile forum. Topics are wide ranging and are usually non-legal, so caveat emptor.

In the meantime, enjoy the above-linked article.

I was honored to be asked to participate on the excellent Lawyer 2 Lawyer podcast on the topic of the recent stipulation entered into between Viacom and YouTube (Google) over user data that the Judge in that case ordered to be turned over to Viacom. My fellow guest was Lauren Gelman, the Executive Director of Stanford Law School’s Center for Internet and Society, and the discussion was very good. Of course, the hosts, J. Craig Williams and Bob Ambrogi, did their typically great job as well. I regularly listen to show during my commute, so it was fun to be on it for a change.

Please feel free to leave comments on the podcast here.

Here is a link to the show page, where you can download the show or listen online. You can also use the links on the left side of the page to subscribe to the show in Itunes.

Be sure to check out YouTomb, a research project of MIT Free Culture. It monitors YouTube for videos that are taken down pursuant to DMCA takedown notices. The site shows a screenshot of the video and information about the takedown. You can sort by the entity providing the notice, for example you can see all notices issued by Viacom International, Inc. here.

Fascinating.

Over lunch today, I had a nice chat with a fellow lawyer about digital rights management (DRM), among other topics. Then, later on, I came across this nice article from The Guardian entitled “How Apple is Changing DRM.”

DRM is a way for copyright owners to get around the rights the purchaser of a copy of a physical item would ordinarily have. These rights come from the “first sale doctrine”, whereby once the physical item is sold the copyright owner has no more control over what the purchaser does with the physical item. For example, if you purchase a book, you can tear it from its binding and put it into a 3-ring binder, or make paper airplanes, etc. DRM doesn’t let you do certain things with electronic media, such as put it on non-authorized hardware. Breaking the DRM usually means that you’re in violation of the Digital Millennium Copyright Act’s anti-circumvention provisions. But, as the article points out, DRM doesn’t really stop piracy, it just frustrates users.

The trend is now to eliminate DRM from many files, but as the article points out Apple is less likely to get rid of it. The article’s headline is a little misleading, it’s really more about what Apple’s competitors are doing rather than what Apple is doing.

I’m interested to hear what you as users find to be the most oppressive DRM in your ordinary use of your computers and media devices. The comments are open.

Here are my slides from the presentation I gave on April 1, 2008 at the Chicago Bar Association as part of the Internet Intellectual Property Issues for Small Businesses seminar.

My presentation is entitled “Copyright Issues for Small Businesses.”

Also presenting were Gina Durham and Paul McGrady.

Mike Masnick at Techdirt has written the latest in a series of posts which discuss the rationale and basis for what we think of as “Intellectual Property.” It’s a well written series, I’d recommend that you read it. I don’t agree with all he says, but it’s well reasoned.

It’s of particular interest to me because I often counsel people on their creative endeavors who do not know what regime under the umbrella of “intellectual property” their particular endeavor is best, whether it be trademark, copyright, patent, or trade secrets. It’s also interesting because people often think of “cyberlaw” as being the intersection of intellectual property and the Internet, but it really is much more than just that. It’s the application of both new and existing legal principles, whether they be IP or other regulations, to the Internet and other avenues of electronic communications. As more and more businesses go online, it’s rarer that people won’t have some issue that intersects with cyberlaw at one point or another.

Turning back to the article, to me the most important rationale for copyright and patent protection is the protecting the right of the creator to control the use, distribution, or exploitation for their ideas for a limited period of time. Trademark is a slightly different rationale, in that trademarks are tied into a consumer protection rationale and the right to identify the source of particular goods or services to avoid consumer confusion.

So, what rationale do you think is best to apply? Also, what term would you use other than “intellectual property” if you had a choice to do so? Those are certainly interesting questions posed by the article. Food for thought, as they say.

Jacqui Cheng’s article at Ars Technica points out the dilemma facing consumers who want to hack their iPhones so they are not tied to Apple’s exclusive service provider in the USA, AT&T. While hacks are available, they are quasi-legal at best. And, users who do it face the possibility that their $600/$400 iPhone could become an expensive brick when Apple next pushes updates to the phone.

While hack providers point out that recent amendments to the DMCA allow individual users to hack a phone to be put on any network, this exception was not intended for this particular situation. It’s supposed to be for people with older phones whose contracts are expired and/or can’t be used with their prior network because the company doesn’t exist anymore. It’s doubtful that this exemption will prevent Apple from going after the authors of these hacks, or allow Apple to be sympathetic to any users whose hacked phones become bricks.

As always… caveat emptor.

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.