Copyright in Cyberspace

April 5

The Internet has enabled individuals to become involved in the production of media and to distribute their contributions widely at a very low cost. The former bastion of the entertainment industry is opening up to what many are calling a democratization of culture. The copyright doctrine of fair use seemingly bolsters the right to "recut, reframe, and recycle" previous works, but the protection fair use gives to those re-purposing copyrighted material is notoriously uncertain.

Digital and file-sharing technologies also spawned the proliferation of sharing of media and music, which has led to a number of controversial legal and technological strategies. The "notice-and-takedown" provisions of the Digital Millennium Copyright Act ("DMCA") allow Internet service providers to limit their liability for the copyright infringements of their users if the ISPs expeditiously remove material in response to complaints from copyright owners. The DMCA provides for counter-notice and "put-back" of removed material, but some argue that the statutory mechanism can chill innovative, constitutionally-protected speech.

This class provides an overview of some major copyright law concepts and takes up some of the issues swirling around copyright in cyberspace.

Slides: Copyright in Cyberspace

Required Readings

• U.S. Copyright Office, Copyright Basics
• 17 U.S.C. § 107 ("Limitations on Exclusive Rights: Fair Use")
• 17 U.S.C. § 512(c) ("Information Residing on Systems or Networks at Direction of Users")
• Lawrence Lessig, Free Culture (pp. 1-20)
• Viacom v. YouTube: "Viacom Says YouTube Ignored Copyrights" (M. Helft, NY Times, 3/18/2010), What the Viacom vs. YouTube Verdict Means for Copyright Law
• Righthaven Copyright Lawsuits: Las Vegas Sun, Righthaven wins round in litigation campaign, Las Vegas Sun, Righthaven lawsuits backfire, reduce protections for newspapers, and skim this.
• The Rise of the News Aggregator: Legal Implications and Best Practices

Optional Readings

• Super Bust: Due Process and Domain Name Seizure
• Creative Commons: A Spectrum of Rights (comic)
• Center for Social Media, Recut, Reframe, Recyle (full report optional)
• MGM v. Grokster, 545 U.S. 913 (2005) (Sec. II, pp. 928 - 937)
• "Rowling Wins Lawsuit Against Potter Lexicon" (J. Eligon, NY Times, 9/8/08)
• New York Times Bits Blog: Mixing It Up Over Remixes and Fair Use
• EFF, Unsafe Harbors: Abusive DMCA Subpoenas and Takedown Demands
• The White House Blog: Concrete Steps Congress Can Take to Protect America's Intellectual Property

Class Discussion

For the mind map software, I found VUE easy to use. I was especially impressed by the rendering in PDF. Everything fit neatly on the page. This was a big surprise after being a Microsoft Office User ;-). Also, PC Users, if you need to print to PDF, PDF Creator is wonderful. --SCL 22:17, 3 April 2011 (UTC)

The story of Edwin Howard Armstrong in Lawrence Lessig's Free Culture, is especially disturbing due in part to his unfortunate demise. FM radio was systematically repressed by RCA and the government (FCC); for the benefit of RCA (to keep it's market share with AM radio).The fight between RCA and Edwin Armstrong ultimately broke him down, but this story has repeated itself in many forms throughout history. RCA benefited from AM radio at the expense of millions of radio listeners who would have been able to enjoy clear FM transmissions. In this particular case, it lead to the direct death of the inventor and the short changing of the radio listening public. What happens in other cases where lives are at stake? Would a pharmaceutical company react the same way to protect their financial interests in the event of an important cure being developed? What if the cure was developed using prior pharmaceutical patents? Would “common sense revolt at the idea?”1 Earboleda 23:44, 4 April 2011 (UTC) 1 Lawrence Lessig, ( New York: Penguin Press, 1994) Free Culture, 2

The Righthaven case cites some factors working against the plaintiffs, one of which is the fact that they sought copyright protection with the specific intent to file suit. While I certainly don't think their actions are on the whole noble, it does seem a bit challenging that copyright protection does not require registration. If registration is mere legal formality, but is also required in order to file a suit, it seems unfair to subject Righthaven to scrutiny on that particular basis. If a judge is going to deem such actions as dubious, why not require registration at the outset? Jsanfilippo 19:55, 5 April 2011 (UTC)

It is difficult to discern the common sense in today’s copyright law. It certainly makes sense that some expressions have value, and the author or assignee of copyright should have the ability to control the use of their valuable intellectual property. There’s a difference, however, between the deliberate misappropriation of copyrighted material for commercial gain (or infliction of harm), and the casual innocent use of copyrighted material by an individual. If I buy a newspaper and share it with several people on the train there’s no harm to the publisher. If I read an article on their web site and email a copy to my friends, that action should be fine too. While a blog has the potential for more viewers, it seems like a simple extension of social interaction. I think it’s a travesty that Righthaven was able to prosecute these kinds of claims. In contrast, the big commercial cases like Viacom v. YouTube, AFP v. Google, AP v. All Headline News and Gatehouse Media v. NYT all had a substantial monetary stake in the creation and dissemination of intellectual property. Those seem to me to be the more suitable parties for questions of copyright infringement. -Chris Sura 21:17, 5 April 2011 (UTC)

Dear Classmates,

Thank you for another thoughtful, engaging and energetic discussion both in class an online last evening. The topics discussed are today hyper relevant to all of us and as Earboleda points out in the case of Armstrong and FM radio have been the source of commerce, intrigue and even tragedy for time uncertain. From the business tactics of William Randolph Hearst to ASCAP suing the Girl Scouts for singing "God Bless America" and far beyond none of us are immune to the ramifications. Not to dwell on it, but as I said last evening even the dead.

In a strange coincidence last night when I got home, I sat down to grab a bite and flipped on CNBC. The show "60 Minutes on CNBC" was rerunning the segment “How Celebs Make A Living After Death”. It told how Attorney Mark Roesler, who wished to become a famous entertainment agent but because he lived in Indiana couldn’t find that many big named clients, latched upon the idea of representing notable figures who have passed away. For almost the past thirty years he has turned that idea into an industry.

Although I didn’t articulate this as well as I had hoped in class, I am conflicted over this. First it seems creepy to me that someone should take the life’s work of transformative figures from Einstein to Michael Jackson and use that for profit. I’m all for profit from one’s contribution, but affixing the face of Einstein, crossed eyed and sticking out his tongue to a tee shirt, doesn’t seem to me to be that much of a contribution to society and more so something that someone should be able to appropriate. As Chris points out, even more so, prevent the rest of us from also doing so without paying a royalty (if the tee shirt maker also had written above the image their correction of a mistake in one of Einstein's theorems, perhaps).

On the other hand, Mr. Roesler has created an industry from which many people today make a living, feed their families and send their kids to great institutions like Harvard where they are able to have engaging conversations dissecting the subject. There’s also the point that if someone is going to make money of the dead, shouldn’t some of that money go to their heirs. Well maybe yes and maybe no. Who knows what the dearly departed would have wished for their post mortem profits. I suspect that today there are a lot of people getting rich in part due to the legacies of people like Mother Teresa and other who never spent a night knee deep in filth caring for the sick and dying. --Gclinch 11:48, 6 April 2011 (UTC)

So sorry we did not get to spend more time discussing the Viacom v.YouTube case last night. When a company is abusing the legal process to further their own interests (as in Viacom wanting to buy YouTube) by their own employees posting copyrighted videos on the site, the focus should not be on YouTube but on Viacom. There is an old legal saying, bad cases make bad law. When new legal precedents are being established, one would hope for better facts.[[sjennings 19:28, 6 April 2011 (UTC)]]

Links

Interesting question: Have Media Companies Destroyed Their Copyrights With The ‘Share’ Button? --Gclinch 23:06, 3 April 2011 (UTC)

Not our topic this week, but AFLAC used crowdsourcing to create their advertising commercial. Very cool idea in a closely regulated industry - http://www.youtube.com/user/aflac#p/a/f/0/FfusU_MB1ew [[sjennings 19:32, 6 April 2011 (UTC)]]