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.

It’s been 10 years today since President Clinton signed the Digital Millennium Copyright Act into law.

Wired has put together a nice retrospective, available here. They call it a misunderstood law that created the Internet commerce as we know it today.

Public Knowledge’s take on the act is here.

David Robinson at Freedom To Tinker has Part I of a retrospective here.

The Electronic Frontier Foundation covers “Unintended Consequences: 10 years under the DMCA” here.

The McCain campaign’s efforts to have YouTube deal with DMCA takedown notices directed to its commercials uploaded to the video sharing site differently from other content owners have been rebuffed. Recent commercials have featured clips taken from CBS News and other news sources, which the campaign argues is a fair use of the material. Rather than file a counter-notice as allowed by the DMCA, the campaign instead has written a letter requesting expedited review of their fair use claims.

To their credit, YouTube’s response acknowledges the urgency of the McCain campaign’s situation, but reminds them that there are alternative solutions. The company will not favor any one political candidate, which I believe is the right solution. The law is clear regarding the available options, and making an end run around the counter-notification provisions is not one of them.

Here’s a link to a good article written by Declan McCullagh if you would like to read more about this situation.

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.

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.

Here’s a link to a great discussion of the situation which has occurred recently when YouTube received 100,000 DMCA Takedown Notices from Viacom, claiming that all 100,000 videos infringed upon Viacom’s copyrights.

The problem? A good number of the videos were legitimate.  These users now face the burden of serving YouTube with written counter-notices asserting that Viacom misidentified the content.

Cyberlaw Central Commentary

Some YouTube users are grumbling about bringing suit against Viacom for this false identification, but I believe this is an example of how the system is supposed to work.  It’s the statutory scheme set forth in the DMCA, but I doubt anyone expected the scale of this notice.  Admittedly Viacom did overreach, but I believe it acted in good faith by notifying YouTube that these 100,000 videos had keywords associated with them related to its intellectual property.  Under the DMCA, the burden then shifts back to the content producer to assert its non-infringement or misidentification.