For the service provider hypothetical, I mentioned that while the notice and takedown provisions under the DMCA may be difficult to comply with when there are numerous infringements, it is the system we have.

Declan McCullagh’s article on CNet entitled “RIAA: U.S. Copyright law “isn’t working” speaks to this point as well. Essentially, the RIAA complains that it is too difficult to police YouTube and other sites, and they would prefer to forge deals with intermediaries in other parts of the chain, such as broadband providers, to help keep their works from being infringed online.

The quote from YouTube’s counsel in response is as follows:

“Lance Kavanaugh, product counsel for YouTube, disagreed that copyright law is broken. “It’s our view that the DMCA is functioning exactly the way Congress intended it to,” he said.”

I’d agree with that point – this is the law as enacted, and the natural consequences of the growth of the Internet and the web since the law was enacted in 1998. It is a compromise designed to allow the sites like YouTube to function while still balancing the needs of the copyright holders. It’s not a perfect system, but it is a compromise. Whether it remains a fair compromise is the RIAA’s point.

The alternatives I’ve seen so far go too far to hurt the rights of another stakeholder in this debate – the users. For example, a “three strikes” policy for users at the ISP level has been proposed before, and shot down, because there are few procedural safeguards to protect users at that level. Who determines what is a “strike” and what are the consequences for having three? A permanent ban on broadband access? That seems harsh and has much potential for abuse.

So, while the DMCA takedown provisions are not ideal for the RIAA and the other content providers, they strike a fair compromise. Until someone can propose another fair compromise, and get it legislated, Section 512 of the DMCA is the law we have.

Is Copyright law not working for the RIAA? is a post from: Cyberlaw Central

©2010 Cyberlaw Central.

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ยง 505. Remedies for infringement: Costs and attorney’s fees

In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.

This grant of attorneys fees is not automatic, instead a court must determine whether the grant of fees is reasonable.

In the recent case of UMG Recordings, Inc. v. Veoh, 2010 WL 1407316 (C.D.Cal., April 6, 2010), the video sharing site Veoh sought recovery of its attorneys fees after it had prevailed in its defense of the copyright claims brought by the copyright owners UMG. Veoh had been granted partial summary judgment on the grounds of its meeting all the requirements for 512(c) safe harbor immunity. Despite prevailing, in this recent ruling the Court held that Veoh was not entitled to the recovery of its fees because Veoh could not prove that “UMG’s legal challenge was improper, in bad faith, or contrary to the purposes of the Copyright Act.”

Here’s the important section discussing this holding from this short opinion:

Giving full consideration to the purposes of the Copyright Act, the Court concludes that Veoh is not entitled to recover attorneys’ fees. “[T]here is typically no award of fees in cases involving issues of first impression or advancing claims that were neither frivolous nor objectively unreasonable.” 4 Nimmer on Copyright ยง 14.10. Both Veoh and UMG advanced positions that were neither frivolous nor objectively unreasonable.

I understand that Veoh was recently acquired by Qlipso.

Awarding of Attorneys Fees for Copyright Cases Not Automatic is a post from: Cyberlaw Central

©2010 Cyberlaw Central.

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Briefly, Section 230(c)(1) provides immunity from liability for providers and users of an “interactive computer service” who publish information provided by others:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

In order to use this provision, there are three elements:

1. The defendant must be a “provider or user” of an “interactive computer service.”
2. The cause of action asserted by the plaintiff must “treat” the defendant “as the publisher or speaker” of the published information at issue.
3. The information must be “provided by another information content provider,” i.e., the defendant must not be the “information content provider” of the published information at issue.

Section 230 does not protect providers or users from all harms, for example it would not protect the provider or user from criminal copyright infringement, or from violating fair housing laws, etc. Still, the fact that it works as it does provides us with the modern internet we know today.

Why I’m thankful for Section 230 is a post from: Cyberlaw Central

©2010 Cyberlaw Central.

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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.

Slides from DMCA presentation – and Thanks! is a post from: Cyberlaw Central

©2010 Cyberlaw Central.

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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!

Fan Generated Content on the Internet is a post from: Cyberlaw Central

©2010 Cyberlaw Central.

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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.

Professor Lessig on copyright reform is a post from: Cyberlaw Central

©2010 Cyberlaw Central.

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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.

Guest on Lawyer 2 Lawyer Podcast: “Privacy and Piracy: Viacom v. YouTube” is a post from: Cyberlaw Central

©2010 Cyberlaw Central.

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Fascinating.

YouTomb: A Study of Copyright Infringement on YouTube is a post from: Cyberlaw Central

©2010 Cyberlaw Central.

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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.

The future of DRM is a post from: Cyberlaw Central

©2010 Cyberlaw Central.

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

Also presenting were Gina Durham and Paul McGrady.

Slides from Copyright presentation is a post from: Cyberlaw Central

©2010 Cyberlaw Central.

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