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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The webcast will be from 12:00 to 1:00 CST, and is accredited for one hour of CLE in Illinois. Many thanks to IICLE for asking me to speak.

From the webcast announcement:
The case of Viacom v. Google made international headlines when it was filed for the size of the damages requested and the interest in parsing the technological and copyright issues. The case is making headlines again as the district court recently ruled that Google is protected under the safe harbor provisions of §512(c) of the Digital Millennium Copyright Act and granted summary judgment in its favor.

Kevin Thompson of Davis McGrath LLC, and author of the legal blog Cyberlaw Central, discusses
* how the judge came to this decision
* the legislative history of the relevant DMCA section as well as the precedential cases
* the future ramifications of this decision and the potentially appealable issues

Register for IICLE webcast – 8/23/2010 – Viacom v. Google is a post from: Cyberlaw Central

©2010 Cyberlaw Central.

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Fact 1 – it’s a proposal, not a bill actually winding its way through congress.

Fact 2 – it’s a compromise, as Google admits in its recent post discussing the lack of wireless regulation:

MYTH: This proposal would eliminate network neutrality over wireless.

FACT: It’s true that Google previously has advocated for certain openness safeguards to be applied in a similar fashion to what would be applied to wireline services. However, in the spirit of compromise, we have agreed to a proposal that allows this market to remain free from regulation for now, while Congress keeps a watchful eye.

Why? First, the wireless market is more competitive than the wireline market, given that consumers typically have more than just two providers to choose from. Second, because wireless networks employ airwaves, rather than wires, and share constrained capacity among many users, these carriers need to manage their networks more actively. Third, network and device openness is now beginning to take off as a significant business model in this space.

In our proposal, we agreed that the best first step is for wireless providers to be fully transparent with users about how network traffic is managed to avoid congestion, or prioritized for certain applications and content. Our proposal also asks the Federal government to monitor and report regularly on the state of the wireless broadband market. Importantly, Congress would always have the ability to step in and impose new safeguards on wireless broadband providers to protect consumers’ interests.

It’s also important to keep in mind that the future of wireless broadband increasingly will be found in the advanced, 4th generation (4G) networks now being constructed. Verizon will begin rolling out its 4G network this fall under openness license conditions that Google helped persuade the FCC to adopt. Clearwire is already providing 4G service in some markets, operating under a unique wholesale/openness business model. So consumers across the country are beginning to experience open Internet wireless platforms, which we hope will be enhanced and encouraged by our transparency proposal.

Fact 3 – It was announced shortly after the FCC announced that its closed door meetings with stakeholders had ended, which likely means this proposal is one which had been floated, and rejected, in these closed door meetings.

Still, after much ado about nothing, for a careful analysis I can recommend this post by Nilay Patel.

Let’s see where this debate over this proposal leads us, hopefully to a real plan.

Much Ado About Nothing – Google & Verizon’s Network Neutrality Proposal is a post from: Cyberlaw Central

©2010 Cyberlaw Central.

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To download Episode 72 in either audio or video formats please follow the link here, or search for the show in iTunes. Or watch it on YouTube.

Guest on This Week in Law #72 is a post from: Cyberlaw Central

©2010 Cyberlaw Central.

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As background, in Federal court Judges can summarily hold people to be in criminal contempt of court if their conduct causes an obstruction of justice. If all of the facts required to make this determination are known to the Judge because they occur in his presence, then the Judge can summarily hold a person in contempt. This summary procedure is a great power, and is needed to allow Judges to control what occurs in their courtroom. But, as the 7th Circuit points out, it is a limited power in order to prevent abuse. If additional facts are needed, a more formal evidentiary proceeding is required under 18 U.S.C. §401 and Fed. R. Crim. P. §42(a). This evidentiary proceeding can also encompass conduct that is outside the Judge’s immediate presence but “so near thereto” as to still obstruct justice.

To summarize the basic facts, Defendant Trudeau was before Judge Holderman here in the Northern District of Illinois in an underlying case for civil contempt of court. Trudeau went on his radio show and urged his followers/supporters/listeners to send emails directly to Judge Holderman’s private email address in support of his case. Trudeau also posted an audio excerpt of this show to his website, then sent an email blast to his mailing list urging people to send emails to the Judge. Judge Holderman was concerned as a matter of courtroom security when he suddenly began getting hundreds of emails on his private email address. He was eventually able to determine that Trudeau was to blame, but it took a while for him and his staff to do so. To cut a long story short, he summarily found Trudeau in contempt of court for this behavior because the emails occurred in his presence, then one week later imposed a 30-day sentence.

The 7th Circuit reversed this finding, holding that this procedure was not appropriate because all of the facts did not occur in the Judge’s presence. Instead of the summary procedure, a more formal hearing should have been held. Judge Holderman was able to learn what he needed to know, but the entirety of the conduct did not occur in his presence. It was not enough that the effect of the conduct (the email) was felt in his presence, he and his staff had to take additional steps to confirm it was Trudeau to blame. The radio show itself was not in his presence. Neither was the posting to Trudeau’s website or the mailing to the list.

The case was remanded for further proceedings, so there is still an opportunity for a formal hearing to be held about this conduct, at Judge Holderman’s discretion.

FTC v. Trudeau – Are Emails Within a Judge’s “Presence”? is a post from: Cyberlaw Central

©2010 Cyberlaw Central.

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May 25th is Towel Day every year, in honor of Douglas Adams, so please bring your towels to:

Aria Bar, at the Fairmont Chicago hotel
200 North Columbus Drive
Chicago, IL 60601

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We start at 6 PM.

Hosts are @blawgreview and @insidecounsel. More information on the meetup is here. The hope is that some people attending the SuperConference will like to stop down and meet some of the best legal minds. And, we get to be social with social media!

Those who have indicated they are coming are:

@adriandayton – Adrian Dayton
@amyderby – Amy Derby
@Chris_McGeehan – Chris McGeehan
@CW_Schneider – Chris Schneider
@cyberlaw – Kevin Thompson (that’s me!)
@dgulbran – Dave! Gulbransen
@econwriter5 – Gwynne Monahan
@internetcases – Evan Brown
@JeremyKissel – Jeremy Kissel
@Kashhill – Kashmir Hill
@Molly_McDonough – Molly McDonough
@pzura – Peter Zura
@rdd – R. David Donoghue
@scottgreenfield – Scott Greenfield
@windypundit – Windy Pundit – Mark Draughn

If you are coming, and are not on this list, please direct message or @reply me on Twitter.

Ed Post
Dave! Gulbransen
Kevin Thompson

Towel Day Tweetup – May 25, 2010 is a post from: Cyberlaw Central

©2010 Cyberlaw Central.

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Denise Howell is the host, and guests are myself, Marty Schwimmer, and Xeni Jardin.  It was fun!

Also, I was pleased to speak today to the Chicago Bar Association‘s Cyber Law and Data Privacy Committee regarding Network Neutrality along with my friend Evan Brown.  Thanks to Chris McGeehan for the invitation.

Are Open Source Toyotas Neutrally Networked? is a post from: Cyberlaw Central

©2010 Cyberlaw Central.

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The hosts were Denise Howell and Evan Brown, and my co-guest was Marty Schwimmer. It was quite a panel!

For the audio and the show notes: http://twit.tv/twil59

For the video: http://blip.tv/file/3595192/

Guest on This Week In Law Podcast #59 is a post from: Cyberlaw Central

©2010 Cyberlaw Central.

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Last year on Towel Day, I hosted Blawg Review #213. This year, I’ll be participating in a blogger meetup for those attending the SuperConference here in Chicago. For details, see the post here, or follow me on Twitter – @cyberlaw.

For more on other Towel Day activities, check out Towelday.org. Towel Day is held in honor of Douglas Adams, the author of The Hitchhikers Guide to the Galaxy and other great works. Douglas suffered a permanent existence failure in 2001, and so we carry a towel in his memory. Why a towel? Because they’re so useful!
As the Guide itself says –

“A towel, it says, is about the most massively useful thing an interstellar hitchhiker can have. Partly it has great practical value. You can wrap it around you for warmth as you bound across the cold moons of Jaglan Beta; you can lie on it on the brilliant marble-sanded beaches of Santraginus V, inhaling the heady sea vapors; you can sleep under it beneath the stars which shine so redly on the desert world of Kakrafoon; use it to sail a miniraft down the slow heavy River Moth; wet it for use in hand-to-hand-combat; wrap it round your head to ward off noxious fumes or avoid the gaze of the Ravenous Bugblatter Beast of Traal (such a mind-boggingly stupid animal, it assumes that if you can’t see it, it can’t see you); you can wave your towel in emergencies as a distress signal, and of course dry yourself off with it if it still seems to be clean enough.”

Towel Day is May 25th, every year! is a post from: Cyberlaw Central

©2010 Cyberlaw Central.

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§ 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 § 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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