Copyright in Cyberspace

February 28

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.

Required Readings

• U.S. Copyright Office, Circular 1, "Copyright Basics" (.pdf)
• 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, Remix, Bloombsbury Academic (2008) (CC BY-NC 3.0), Ch. 1, "Introduction"
• Miguel Helft, "Judge Sides with Google in Viacom Video Suit," NYTimes.com (June 23, 2010)
• Jeffrey D. Neuburger, "Copyright Infringement Defendants Turn the Table on Righthaven," Mediashift (December 1, 2011)
• Steve Greenlee, "Cooks Source probably shutting down," Boston Globe CultureDesk (November 17, 2010)
• Jonathan Zittrain, Kendra Albert, and Alicia Solow-Niederman, "A Close Look at SOPA," The Future of the Internet Blog (December 2, 2011)
• Cary Sherman, "What Wikipedia Won't Tell You," NY Times (February 7, 2012)
• Mike Masnick, "RIAA Totally Out of Touch: Lashes Out At Google, Wikipedia And Everyone Who Protested SOPA/PIPA," TechDirt (February 8, 2012)

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

Just wanted to share an interesting post from The Wall Street Journal Law Blog on trademark infringement and online shaming: Shame on You, Trademark Holders
Aditkowsky 14:21, 23 February 2012 (UTC)

A relevant article for this week is one about domain name seizures. Also, muckrock.com filed a FOIA request on behalf of Aaron Swartz (founder of Demand Progress, or maybe better known for his break in to JSTOR @ MIT and subsequent arrest a couple years ago) with the DHS requesting records related to domain name seizures of many websites. I am kind of blown away by this practice and fairly certain it would have happened more frequently if SOPA had been passed.

Now, turning my attention to this week's readings. Is it just me, or does Cary Sherman and his misinformation/twisted view of reality remind anyone else of Fox news? Anyways, the Intro to Lessig's "Remix" touched on a few (well, a lot) things that I found very interesting. I liked his exploration of creativity and the description of music as more interactive. Music is very much about its audience, and how that audience interprets and interacts with said music. To me, this helps to show how the current copyright statute is archaic in a sense. The bit about Breitz's issues with the Lennon installment shed light on the true (and many times ugly) face of copyright holders and the entertainment industry. Unfortunately, it does seem to be the case that the "collateral damage" in these instances is creativity, as Lessig wrote. Breitzs' installments (which I saw in Berlin) were wonderful, and I'm surprised Ono didn't respond like Marley's widow, Rita. At least Breitz persevered and touched the lives of the fans and exhibit viewers.

I very much enjoyed the article that responded to Sherman's op ed piece. The government and the entertainment industry have not been able to keep up with the net. The net is too transformative for bureaucracy and old fashioned "cronyism." Even the VCR was labeled "pirate technology" (from "Remix") at one point. I think it will take awhile for the laws, policies, and the entertainment industry to catch up with the generativity of the net. Heck, it took America awhile to come to terms with Elvis' pelvic thrust. Aberg 23:52, 27 February 2012 (UTC)

February 28: Copyright in Cyberspace Just Johnny 17:10, 15 February 2012 (UTC)

I've been waiting for the right time to share this link, I think this is it. Whenever TPB (The pirate bay) gets send a cease and desist letter they post it and their (often funny) response here [1]. (Some replies contain NSFW language).
Gregor 14:21, 27 Febuary 2012 (UTC)

I have been particularly sensitive of copyright laws since I am interested in music recording and video. Lawrence Lessig’s article Remix: Making Art and Commerce Thrive in the Hybrid Economy does bring up an important point; do companies really stand to lose profits by targeting artists who may use short clips of their copyrighted material or are these cases mostly based on ideology and principle with little concern for lost profits? In the case of Stephanie Lenz and the Youtube video of her child dancing to Prince, clearly Lessig is correct in pointing out that the inclusion of Prince music in the video would not cut into the album sales. The clip was short and the sound quality was poor. In fact, popularizing the clip through the video could only broaden interest in Prince’s music and may lead to additional sales.

In the case of Gregg Gillis who remixed existing clips, I think his response to the copyright infringement law suit was apt; “This wasn’t something like a bootlegging case.” While Gillis’s music involves hundreds of different clips and I can only assume that no one single clip defines an entire song, certain copyright infringement cases are trickier. For example, rapper Vanilla Ice’s hit song Ice Ice Baby clearly took the entire bass line of the Queen song “Under Pressure” and used the clip repeatedly throughout the song. While Vanilla Ice never credited Queen, he would ultimately be forced to pay royalties. Therefore it may be a little more nuanced between Gillis’s case where the sum of the clips is more important than any one clip and Vanilla Ice’s situation where a single clip makes up the entire song. --Jimmyh 17:52, 27 February 2012 (UTC)

I found this week’s articles very interesting. Copyright has always been an interesting subject to me and I have found myself once doing extensive research on it and involving my lawyers as well for a specific case which I thought to be copyright infringement. Right out of college I found a temporary job working in a museum in Rome, Italy. In the meantime a photographic contest ended with a winning picture of an area of the Museum which had me at the center of it walking away from the photographer with no idea that I was in it. At first when I found out I thought it was simply funny but then the Museum started using that picture for numerous publications and advertising it in subway stations and around the city. Everyone knew it was me and all my friends recognized me; the Museum director even complimented me but when I talked to my lawyers to find out whether or not it was an infringement of copyright laws, I was told that it was indeed but unfortunately since my head was turned it wasn’t that easy to determine whether or not the subject in the picture was actually me. I also enjoyed Lessig’s article especially the sections concerning John Lennon since I am also a big fan and the first story about the 18 month old child dancing to Prince. In the article it said that the child was recorded for about 29 seconds and I must say that regardless of the other possible issues concerning the case, I have listened hundreds of times to songs for free on websites like amazon.com which reproduce quotes or samples for 30 seconds and allow you to listen to all of their repertoire for that time as many times as one wants. For what concerns Helft’s article on Google’s victory, I don’t know if I really agree with it and the Safe Harbor clause in general. It was always said that “ignorance of the law is no excuse” so why would someone be protected for not controlling what is infringing the law and what isn’t on their own website? I still have trouble understanding this decision. About the Cooks Source article instead, I think that if someone published their story online, then they would at least have to be notified if someone would like to use it for their own purpose. In the articles talking about SOPA and PIPA and the misleading and biased information found on Wikipedia I thought a lot about our first assignment and how Wikipedia does have rules but as we can see once again, many users do not respect them and then cause public disputes. Once again, I think that Wikipedia should find a way to better enforce their rules and take care of any articles which infringe their policies somehow. Emanuele 18:13, 27 February 2012 (UTC)

"That’s partly because “old media” draws a line between “news” and “editorial.” Apparently, Wikipedia and Google don’t recognize the ethical boundary between the neutral reporting of information and the presentation of editorial opinion as fact. " -Cary H. Sherman.

That quote felt pretty representative to me of how intentionally blind Sherman seemed to be making himself in that NYTimes op-ed. Has he seen Fox News or MSNBC? It's difficult to find a headline or story on either that isn't skewed pretty heavily towards that networks opinion on the political issues of the day. Ditto Wall Street Journal (spent at least 2 weeks pretending the Murdoch phone tapping case didn't exist) and many many other newspapers. The response article did a great job responding to his claims and bringing up the point that it is NOT "democracy" to have major industries create, fund, and often even write major bills that lawmakers then pass out of fear of angering major powers. It isn't necessarily good that a massive internet spasm of anger can have the same sort of effect, but at least it proved it can sometimes counter the more traditional abuses of power and influence. Until we arrive at independent and thoughtful politicians who aren't beholden to fundraising reality (here's my plug for election reform, national popular vote, and capped public campaign funding) the internet is a valuable resource for leveling the playing field.

One thread through a lot of the articles was the way that this new frontier sometimes flip-flops or skews the traditional power dynamics. In one article we saw a big company bullying individual bloggers for profit, but in another we saw Google and Youtube triumphing over Viacom in a very similar way that also benefited the little people of the internet... not least the average users who so constantly depend on Youtube for the service it has come to dominate. In other cases, Google is the giant invading our privacy, and at other times an individual, a blogger or a group actually spend their whole time online spreading lies or spewing hatred, or even just writing viruses to ruin everyone else's day. Depending on the issue, and the exact circumstances, it can be hard to see who is David and who Goliath... and who we should be rooting for. AlexLE 01:46, 28 February 2012 (UTC)

Copyright, intended to protect creative work by giving authors or creators exclusive rights, in some cases hinders creativity. Well put by Lessig, obtaining legal permission is a time consuming process, which impedes collaboration and generation of new ideas. I feel that copyright should protect from stealing, such as direct piracy of music and sharing those files with others. However, I agree with the idea that fair use should be “transformative,” taking an original work and adding new ideas and opinions to it. The use of original work as the “raw material” promotes creativity, as in Girl Talk’s remixes and SilviaO’s voice. Another example is by Neuburger, who believes that inventing a Barbie doll requires more creative work than editorial opinions, and posting of such on a website increases “discussion and exploration.” Qdang 18:07, 28 February 2012 (UTC)

Lessig really laid out a great example of the ridiculous extremes a money-driven corporation will go to, in order to protect their “bottom line” of profit. It evades common sense, as he made clear by his pointing to the fact that the lawyer fees incurred in warning the mother who shared the video far excelled any possible damages or loss of profit she could have caused. The example of Beitz and the reactions of different copyright holders really shines the light again on human nature. Some people just care about business, seeming to have little concern for art, creativity, or what the artist probably really cared about in the first place, while others are just more human, as could be seen in the difference between Yoko Ono and Rita Marley. Obviously new possibilities for creativity, free from the constraints of the traditional controlling powers, is considered an exciting new horizon by some, and a menace by those who have controlled the entertainment industry until now. It seems to me that trying to stop this new movement is like trying to stop the rain. You might stop a few drops only, and anyway, the rain is beneficial. I was glad that Google stood up to Viacom. I do agree that copyrights have their place, and that the concept of asking someone permission to use their material is right, but the voice that Youtube and other such media provides for individuals to express themselves, is also an important new element in society, and should be protected. There must be a balance. If control is too extreme, we lose elements of freedom of speech. About the SOPA/PIPA debate, it does seem apparent to me that those who have been on top, making the money, want to stay there, and as often happens, have ways to manipulate the lawmakers to favor them. I find it hard to trust someone like Cary Sherman, who is good with words, but does not seem to tell the whole story or distorts it to the public. Of course there should be reasonable copyright protection for artists and intellectual property owners, but looking at those laws and Jonathan Zittrain’s comments on them, it seems that the intention of those laws is not to protect anyone, but to control everyone.Mike 17:39, 28 February 2012 (UTC)

I too enjoyed the article responding to Sherman's piece. I recently came back from a conference on leadership and innovation where nearly everyone in the audience was in agreement that government has been unable to keep up with not only the generativity of the internet, but also the generativity of entrepreneurship as a whole. There was a large cry for government to step up to the plate and get ahead of the curve in order to create structures and frameworks within which the internet and entrepreneurs can grow. At present, we either lack structures, have antiquated structures or have created forwardlooking structures that undercut much of what innovators are trying to accomplsih. This must be addressed before larger issues and collapses occur. Cfleming27 18:24, 28 February 2012 (UTC)