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)

During class, Chris Bavitz referenced the following materials:

• The U.S. Constitution (Art. I sec. 8 cl. 8)
• 17 U.S.C. § 102 (the subject matter of copyright)
• 17 U.S.C. § 106 (the exclusive rights of copyright)
• 17 U.S.C. § 501 (infringement of copyright)
• 17 U.S.C. § 504 (remedies for copyright infringement)
• 17 U.S.C. § 107 (fair use)
• Feist Publications Inc. v. Rural Telephone Service Co. (the phone book case)
• Newton v. Diamond (sampling a musical composition without permission)
• Bridgeport Music, Inc. v. Dimension Films (sampling a sound recording without permission)
• Anthony Lupo et al., "Photographer Claims Made-for-TV Movie Infringes His Copyrighted Photo," Arent Fox LLP, Oct. 13 2010 (story on the Clark Rockefeller case)
• Harney v. Sony Pictures (the Clark Rockefeller case opinion)
• Campbell v. Acuff-Rose (fair use and "Oh, Pretty Woman")
• Perfect 10, Inc. v. Amazon.com, Inc. (fair use and image caching for search engines)
• 17 U.S.C. § 512 (the Digital Millennium Copyright Act's "safe harbor" provisions)
• Viacom v. YouTube, Inc. (DMCA safe harbor case regarding YouTube's response to copyright complaints)

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

After the readings, it sounds that the model based on the notion of copyright is not sustainable anymore. A new one is needed. However, nothing satisfying is coming out. Maybe, the only option is a big bang, an Internet revolution or the abolition of the copyright. A parallel could be made with the luxury trademark where illegal copies are made with no real solution to stop it. What will be an economic model founded on something different than the copyright notion? --Sab 22:20, 28 February 2012 (UTC)

Wanted to share this informative article from Life Hacker "How You’re Breaking the Law Every Day (and What You Can Do About It)" that gives a general overview of copyright law, how to protect yourself, (with an illustration of "derivative works" featuring Hitler) & talks about Lessig's bit on Breitz, Girl Talk, and "quoting." Aberg 18:47, 28 February 2012 (UTC)

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)

Something I found interesting and didn’t know about regarding the copyright topic is that registration is not a requirement for protection. Although registration gives some advantages, especially when claiming copyright, it’s really worth to note that copyright is secured automatically when the work is created. I’d like also to discuss about a specific point of the readings: The role the copyright plays in the education system. This is because in the 17 USC 107 it says that it’s not an infringement of copyright when a work is reproduced for some purposes, including education. My concern here is how can an author claim copyright when students from an educational institution are making copies of his or her material if they argue that the purpose is educational? Although one of the conditions of fair use of the work is the portion used in relation to the whole work, I personally think this wouldn’t be sufficient for the author to prove infringement and protect his or her work. Fabiancelisj 20:56, 28 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

It is interesting how things that apply in the real world become born-again in cyberspace. We are now dealing with an entire generation of people who have grown up in a digital age.

A brand is copyrightable. So you could argue that the architecture of a website is held under copyright. However, the ideas generated within it are like the phone book. For example, Facebook is a website, and the users generate the content. Yet, Facebook attempts to turn relationships into a brand. Users who join and meet other users become Facebook Friends. Even if you know this person in the real world, you are now in a virtual existence. Facebook Friends are held under the TOS of Facebook. Although, it's not really a cultural norm yet to regulate friendships or relationships.

Then there is the element of fair use. As a member of a website, I can publish my work and hold the copyright on it. Although, my ideas may have been generated from the architecture of the website and its users. However, since the ideas are fair use, then anything is fair game.

So, let's examine this in terms of a service provider: (a) Transitory Digital Network Communications.— A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider’s transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections ...

The service provider cannot be held liable for anything. There is a loop aspect generated with content and users when it is posted on a website.

When it comes to the element of content sharing, we really have to determine if the material is held under copyright.

So, it is the responsibility of the website to remove the content, which is mostly protected under the reporting options available to users. In comes in the Viacom and Google case. If someone really wanted to be a prat then they could just ban every upload.

So, we have to go back to the norms reflected through the architecture and look at the contribution or content being shared. And we have to decide if it is a benefit or a detriment. If it is a benefit, then we may want to include it because it adds to the evolutionary process already taking place. 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)

@Gregor: Going back to Barlow, do you think copyrightable material is applicable here? I don't think it extends on The Pirate Bay, because a bit torrent is not the original file. It is similar to a black hole that only points to a location. Try quantifying that with the concepts of yours and mine. It doesn't apply. In order to enforce copyright laws on something like this, we are talking about mass violations of civic rights within the United States. So corporations are left to make idle threats. However, I think to a certain degree that The Pirate Bay is a public good. So too are libraries. Except here, we have a community of people sharing information. So, instead of going to the library and borrowing a DVD, book, CD, or whatever, I can share a copy of it with fellow community members. When I am done, I can delete the file. If I like it, then I can go and buy it. It's similar to going to the library and borrowing a copy of The Terminator, holding on to it for a while, then returning it. Except here, we have a community of people sharing information. Imagine throwing a party with your friends who bring some movies and albums over, and then everyone shares. You're not going to listen to an album 24/7 x 365. And if you like it, then you buy your own factory issued album along with the nice packaging and everything. And that's why we need companies in the first place, right? It's because they deliver a superior product that we as individuals cannot manufacture on our own. The real weapon, for consumers, is choice. And I think that is what corporations are sweating over. Look, they just need to start giving consumers actual reasons to buy their products, not use coercion or sneaky or unethical tactics like those posted on the site. Just because I am sharing a file does not instantly mean that it is held under copyright. Just Johnny 13:51, 7 March 2011 (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)

--I agree with AlexLE that it is sometimes difficult to know who to root for. It seems to be more clearly divided right now between old media and new media, but I think that will change in upcoming years with some of the new media becoming more "evil." What do you guys think about Google's massive bundling of products/services and new service terms? Are they the next "evil?" A throwback to our first class meeting: Google's new privacy policy may violate EU rules Aberg 18:39, 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)

Prior to this week's readings, I assumed that the blogging convention of excerpting and linking to an original source was not only the polite and proper behavior but that it was also legal. While the Righthaven example clarifies that "fair use is a fact-sensitive evaluation that can't readily be made on a class-wide basis", it doesn't establish that excerpting and linking is protected as fair use. I also assumed that mash-ups of clips, music, etc were also generally protected but the U.S. Code on the "Limitations on Exclusive Rights: Fair Use" does not describe these scenarios. I appreciated Professor Tim Wu's comment that "it is time to recognize a simpler principle for fair use: work that adds to the value of the original, as opposed to substituting for the original, is fair use" because mash-ups and reappropriation do result in new work with new meaning and, as Lessig writes, we need to consider "the harm to a generation from rendering criminal what comes naturally to them". Aditkowsky 18:55, 28 February 2012 (UTC)

Just like everyone else here, I too really enjoyed Masnick’s article, which criticized Sherman’s opinion of the public response to PIPA and SOPA. I think everyone agrees with Masnick’s opinion that the industries are frugally trying to recover themselves by hiding behind legislation that infringes upon the rights of neutral parties. I wish he would have spoken more about Section 230, and how internet providers are protected by it, as well as the Limitation of Liability that we also read. These to contradictory laws provide more fodder for opponents to the two bills. But I think Zittrain gave the best analysis of SOPA and PIPA, in that they hold the internet content providers liable in direct contrast to Section 230. Thus the backlash to these bills centers around not copyright, but rather the right to free speech of a neutral party who happens to be an intermediary. While Section 230 gives content providers greater freedom than any other form of press, I think content providers still see themselves as a form of press (which is arguably true), and thus these bills are a direct infringement on First Amendment rights.

Additionally, Masnick had another article on the site in which he explores the idea that the industries’ business model is outdated. His analogy was that of horse carriages versus cars. Carriage manufacturers though they were in the horse carriage business rather than personal transportation business, thus their surprise when carriage sales fell off with the advent of cars. Similarly, the MPAA and RIAA are not in the making film/music business, but rather the delivery business, being theaters, cds, and digital downloads; the general gist is the easy and manner of conveyance of the film or music (including concerts). Masnick points to their business model as being outdated. He indicates that rather than continue to promote theaters, radio and cds, they should adapt to the emerging new digital medium and conveyance through the internet, just as they did when tapes and vhs came out.Nthib 19:55, 28 February 2012 (UTC)

Mashnick's article was especially compelling and further evidence to his point could be substantiated from what Renee Marie Jones said in the response section to Zittrain's article: "And the Swiss government just finished a study that shows that unauthorized downloading for private use costs the media industry exactly nothing, and that the downloaders typically spend more real money on media products than the general public. So, in Switzerland, at least, acts that the RIAA, MPAA and others classify as “stealing” will remain EXPLICITLY LEGAL. The Swiss are telling the media companies that they should embrace the new technologies and accept them as an opportunity. In the US we are trying to stamp out the new technologies so the media companies can go back to selling vinyl records and movie tickets without competition." Mvalerio 20:55, 28 February 2012 (UTC)

Looking forward to tonight's discussion. Did I overlook any of the readings because (besides the laywers and heads at RIAA & afilliated industry) it appears these articles are obviously against SOPA --- but the commentarys about infringement vs. theft are interesting because I don't see anything besides the above mentioned for being pro-protecting media companies. The devil's advocate in me tends to agree that infringement is theft. Beyond the technicalities of what is actually considered infringing versus stealing I believe the intent is the same. And regardless of what you call it, the law has also determined that both carry a criminal penalty (after a certain line is crossed with infringement with mass downloading, profiting or stolen code). Like Mvalerio, I too noticed the article where the swiss person said that the money used by piraters went into media that would have otherwise gone into the software or files. Am I too extreme to say this is akin to saying that the money that would have gone into buying cars was used to rent industrial shops to operate chopshops for stolen cars? The similarity being the otherwise legal medium (discs/drives and garages) was used to store something that was "infringed" or stolen. I believe there is a larger argument about art itself: that it should be free (but don't steal paintings!). Since music and software is able to be copied it is justified reversely to be acceptable to swipe. I believe the current laws are adequate and that fair use for news, commentary or fun have worked until recently. Shifting from media, I am happy to hear people's thoughts on this --- and can also go into incentives of profit versus incentives of contribution with open source vs private software as well. Brendanlong 21:18, 28 February 2012 (UTC)

@alberg - I also found the Lennon installation story an interesting case. This is a great example of how the entertainment industry laws have not caught up to the digital world. It took Breitz years to get permission ("Permission was vital, legally.") to legally display this art installation. It shouldn't be this difficult for users to display such works publicly. Many of the articles for this week critiqued vague language and over broad/strong rhetoric. I hate to say it but Zittrain using Justin Beiber was a great example. The same laws that are trying to prevent artists such as Beiber are trying to protect them once they become famous. When will we reach a happy medium? --Hds5 21:39, 28 February 2012 (UTC)

@Aditkowsky thanks for sharing a great article, very interesting... @Gregor the C&D letters on TPB are hilarious. Also enjoyed Masnick's article, looking forward to class discussion this evening.JennLopez 22:25, 28 February 2012 (UTC)