Copyright Part 2: Enforcement and Balances

March 12

Digital technologies spawned the proliferation of sharing of media and music, which has led to a number of controversial legal and technological strategies for control and copyright enforcement. “Controversial” may be putting it lightly; the ongoing fight between copyright owners and Internet evangelists is one of the most popularly debated fights surrounding Internet control.

This class focuses on how copyright is enforced online, with particular emphasis on the "notice-and-takedown" provisions of the Digital Millennium Copyright Act ("DMCA"), which 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 class will also look to the now-famous fight concerning SOPA and PIPA, and other attempts to more strictly regulate against online piracy.

Special guest speaker this week is Adam Holland, a project coordinator here at Berkman who runs Chilling Effects.

Readings/Watchings

• Digital Media Law Project, Claims Based on User Content and Protecting Yourself Against Copyright Claims Based on User Content

• Electronic Frontier Foundation, Takedown Hall of Shame (peruse)

• Chilling Effects, About and peruse the weather reports.

• Matthew Ingram, Paid Content, How Google did the right thing with the NASCAR crash video, and why it matters

• Erin McKeown, A Perspective On the Complexities of Copyright and Creativity from a Victim of Infringement

Case Study: SOPA/PIPA

• Jonathan Zittrain, Kendra Albert, and Alicia Solow-Niederman, A Close Look at SOPA
• Ethan Zuckerman and Joi Ito, MIT Media Lab Opposes SOPA, PIPA

Case Study: ISP "Six Strikes"

• Brooke Gladstone, On The Media, Interview with Jill Lesser of Center for Copyright Information
• Jonathan Bailey, Plagiarism Today, The 6 Likely Impact of Six Strikes

Optional Readings

• Andy Sellars, Seized Sites: The In Rem Forfeiture of Copyright-Infringing Domain Names

• Wendy Seltzer, Super Bust: Due Process and Domain Name Seizure

Class Discussion

Please remember to sign your postings by adding four tildes (~~~~) to the end of your contribution. This will automatically add your username and the date/time of your post, like so: Asellars 15:29, 21 January 2013 (EST)

Google's decision concerning the horrific video posted in Matthew Ingram', Paid Content, How Google did the right thing with the NASCAR crash video, and why it matters, raises an interesting question. Google has now assumed the role of immediate arbiter in terms of determining what is and is not copyright infringement. I understand the point that the student who took the video at the NASCAR event created his own copyrighted document when he created the video, but NASCAR's counter, that it had a contractual right to the content of the video pursuant to the valid contract on the ticket the customer purchased would seem to have some merit to it. Google in accepting the customer's rights over NASCAR's contractual rights has effectively made a legal decision that will cause brand damage to NASCAR. I can see how NASCAR could claim these damages against Google in a suit. I suppose this is just another example of how powerful Google has become in determining what average Westerner's will see on the internet. A quick Google search for the word 'nude' will have google proffering you thousands of images and videos of porn, which is easily accessible by minors. Google IS the way that we all access the internet, given its prevalance in our lives I'd be surprised if the government doesn't create more formality in Google's decision making processes with regards to copyright, freedom of speech, protection of minors, and all sorts of other legal issues that Google is now deciding for society. Joshywonder 10:35, 3 March 2013 (EST)

Thanks again for the great comments, Josh. The specific question about the validity of any "back of the ticket" attempt to assign copyright is an interesting one. My read on it, based on this section of the Copyright Act, would be that a total assignment to NASCAR would be invalid in the United States, as assignment of copyright requires a signed writing. This applies only to assignment however, (i.e., a total transfer of copyright ownership, which in the US would also mean the loss of rights in the original videographer). It could be that this ticket grants NASCAR a non-exclusive license to use the video, but the copyright owner would remain the videographer - meaning both that the original videographer would have the right to post the video on YouTube and NASCAR would not have standing to assert copyright in a lawsuit or through the DMCA. asellars 09:33, 11 March 2013 (EDT)

Hi Andy, you might be right that the copyright wasn't transferred in the situaution. But if NASCAR paid a bunch of wall-street lawyers to argue that it was, you can bet that they would at least put the student through his paces in proving that he owned the copyright. Off the top of my head, I would investigate whether he purchased the ticket with credit cards and signed the receipt and whether that qualifies as a signature for the purposes of the act. I'd also note that a competing broadcaster would almost certainly be banned from setting up a high tower and televising the races without a licence, one would think similar legal arguments would apply. If he tried to record and broadcast the entire event on Youtube there would likely be some law against that. In any event, the point was that Google immediately decided the dispute between the parties without guidance from the Courts, and given how often they do this I'd be surprised if the government doesn't step in to monitor them more in the future. Joshywonder 16:26, 12 March 2013 (EDT)

Were NASCAR to do that expect me to argue the case for the student pro bono. :-) (By the way, the credit card slip argument was the best I could come up with as to a writing, but I think it's a failure as well.) More seriously, NASCAR can always exercise the rights of trespass law and remove someone once their presence was no longer welcome – and that right is what keeps NBC from cutting into Fox's exclusive coverage by buying a ticket and showing up. As to Google's role, it's worth nothing that Google's decision was not without a risk – by exercising its own discretion there what they did was remove their chance to benefit from the DMCA safe harbor, and thus exposing themselves for a potential contributory liability claim by hosting the material. Their decision to take that risk is very interesting, and not unlike how they would approach any other liability question outside of the DMCA world – they are immune from suit either way, and opt to decide based on their own interests. asellars 17:00, 12 March 2013 (EDT)

I find the legislation and history on copyright law and infringement extremely confusing. It seems as if SOPA and PIPA would have completely negated major aspects of the Digital Millennium Copyright Act. I share the belief that the propositions of those bills would have limited innovation. Had SOPA/PIPA have passed, I think the case of Vietnamese accessing Facebook shows that there exists markets in foreign regions that will engage in illegal means of accessing those domain names. I also was interested in the "backdoor" that sites like youtube have for content providers to remove infringed material. What other "backdoors" exist regarding copyright law and content infrastructure? AaronEttl 18:24, 10 March 2013 (EDT)

That's a really good point, Aaron. Thanks for mentioning it. You should definitely ask Adam about the YouTube ContentID system that they have used as an overlap to the DMCA, and what sort of problems he's seen in its implementation. asellars 09:33, 11 March 2013 (EDT)

As we study copyright, it is important to note that copyright and in fact all intellectual property laws ... patents, trademarks, trade secrets along with copyrights are in fact limitations of free speech. But the latter is not open and unlimited. Free speech has been called the core all truly democratic nations. What qualifies as a democracy is but another issue difficult if not impossible to determine depending on the definition and myriad of points of view. One estimate is 132. Regardless, given there are an estimated 350-500 million Internet users in China alone, more than every man, woman and child in United States combined, designing and controlling an Internet as a vehicle for democratic nations alone will guarantee it will reach less than half of the world's population. But even in so-called democracies free speech is not unlimited. It is qualified and limited by the need for national securities and compelling interests, the the universal rather than the individual interest, moral fiber, sensititivity, defamatory laws and the damages that can often occur by uncontrolled exposure and disclosure of information that can do more damage than good. Some control is necessary to maintain order and prevent a disorganized free for all in an attempt to exercise free speech which many do only to exercise the principal and fight to assert their own freedom of expression, regardless of the consequences.

Intellectual property laws are intended to reward those who have created things with the sweat of their brow, the absence of which will quell any incentive and to enrich the social. Without intellectual property laws mankind over the last few ages of the Industrial and now Information Revolutions would have been relegated to pre-18th century technological, communication and transportation breakthroughs. Art and science would have been inhibited. So what is needed is a proper balance between individual freedom and the good of society.

Rich 08:05, 11 March 2013 (EDT)

The balance between copyright and free speech is a fascinating one. There are two very significant Supreme Court cases on point - and in general the conclusion of the Supreme Court is that copyright itself does not violate the First Amendment (Justice O'Connor in another case famously called it the "engine of free expression"), but only as long as it includes the "traditional contours" or fair use and the idea-expression dichotomy. While this does mean as a practical matter that substantive challenges to copyright laws will not win in US courts, we tend to impose procedural protections for categorically unprotected speech that had a serious role to play in the SOPA/PIPA debate, as well as "Operation in our Sites" mentioned in the additional reading. As to whether copyright is meant to reward the "sweat of the brow," I think that it certainly informs the desire to make copyright laws, but we know from other Supreme Court precedent that labor alone is not enough to obtain copyright protection in a work - it is instead the contribution of original expression that merits protection under the American system. Thanks for sharing! asellars 09:33, 11 March 2013 (EDT)

The DCMA and Safe Harbor Act seem a useful alterternative to the report of Germany blocking for example the meteor video from Russia because there was music playing faintly in the background. Being able to post that you do not own the copyright, make no money off of it, and simply are posting for entertainment is a very familiar story on YouTube when perusing for videos. The NASCAR accident video seems a matter of due diligence so they could protect themselves from liability from the victims claiming NASCAR did not try to stop people videoing their injuries while on NASCAR property during an event. The Slung Lo example showed me the difficulty of implementing copyright infringement in court when not represented by a large company, as the commentary on the Copyright Alert System and Six Strikes alluded to and in other commentaries online regarding Six Strikes weaknesses. SOPA and PIPA I understand wish to protect property, but how many people have links to copyrighted material? On YouTube, Facebook, and blogs? What if you send a copyrighted link by email? SOPA and PIPA would send a chilling effect throughout the internet that would actually drive down the amount of internet use. CAS would keep track of violations, and a user would have to be so careful to not get six strikes as employers could access who is some type of "criminal" copyright infringer according to a extra-judicial body such as CAS. There has got to be a better way. Ultimately, those who wish to profit off of internet content and sharing must post some type of copyright mark on their creation that says to all users with a symbol, this can never be shared without permission, for any reason. However, when one enters the public space, one has to understand that some type of sharing and infringement of ideas is going to occur for non-profit reasons. This should be encouraged. Perhaps the line should only be drawn when content is used for profit. In any case, if one puts out material publically for their own gratification, one should expect that it is going to be copied. If one wishes to protect those creation rights, a bundle of legal rights through copyright law is already available through access to the courts, without over regulating the internet that is literally opening an entire new world to a global population that has lived in isolation for too long. Daniel Cameron Morris 03:18, 12 March 2013 (EDT)

The First Amendment is an American legal concept,albeit free speech is global. Intellectual property rights are infringements on free speech, albeit necessary to accomplish the purposes of patents, trademarks, copyrights and trade secrets which are to encourage advancements in the arts and scientists while assuring and creating incentives for those who create new ideas and products. The antithesis of organization and control is total independence and free will. If there are not safeguards in place to organize and monitor free speech chaos will follow. I think it was once said that more deaths and injuries have been caused by the written and spoken word than all the guns every made.

On last week's discussion board I posted my comments on this subject in ore depth, so I will not repeat them here, other than to again empathize that free speech is part of global communication that the Internet provides and all societies do not welcome it with open arms so if we are to get the rest of the world to coordinate the great potential of the Internet, we need to compromise even our most cherished personal right. Rich 08:18, 12 March 2013 (EDT)

While I am all in favour of free speech, I guess I have to add - "to a point". In the article about the Nascar video being reinstated, it seemed to be touted as some great victory for copyright and free speech that it was re-released after being pulled. Here is my issue with that and all other like situations. What about the right of the victim (or any individual) that has been hurt or worse and is then immortalized on video or in pictures trapped under a burning tire etc. In the interests of full disclosure, a member of my family was killed in a serious car accident which resulted in a building partially falling on top of his vehicle. It was bad enough to see the pictures of the car after he had been pulled out, but I can't imagine how horrible it would be to be the relative of that person and see pictures of him. Freedom of speech is a gift and a wonderful thing, but in this age of instant pictures and video should we not be more sensitive to the lives attached (specifically) to tragedy? What good does it do in the broader debate about freedom when the rights of the individual, who may not be able to speak for themselves, are not consulted. I suggest that maybe that isn't freedom of speech as much as sensationalism although I am sure others would argue differently. Life seems to swing in a pendulum. Maybe my descendants will move back to a more closed society if one major event that I can't project pushes the value system of the majority to say enough. I'm not sure and I would welcome any comments. Caroline 09:43, 12 March 2013 (EDT) Caroline

That's a great point, Caroline. We'll be turning to privacy in more depth in April. The decision to post something like that or not is certainly one that has some precedent - and every time there is a horrific event captured on camera there are extensive discussions concerning whether it should be posted. And, for what it's worth, YouTube does reserve the right in its community guidelines to regulate those things on its end - that said, we've already seen and will see again the weaknesses in relying on intermediary censorship to solve content issues. asellars 11:46, 12 March 2013 (EDT)

I, too, was going to make Caroline's point regarding the treatment of the footage of a violent injury or death. It seems to me that the fact that it depicts somebody's death would be sufficient justification to take the video down, assuming there was nothing newsworthy about the incident. Are we really surprised that NASCAR driving is dangerous? Do we need to see someone's grisly and gruesome death for evidence? Wouldn't words suffice? Doesn't Google, through YouTube, get to determine what they do and do not host on their servers? Are we confusing editing and good taste with censorship?Raven 13:17, 12 March 2013 (EDT)

This is a small point, but I don't think the video actually depicts a person's death. There were a few serious injuries in the crash, but no one was killed. (At least my search of the news finds no such reporting.) And while the crash is troubling to watch (we certainly aren't requiring you to watch it, but it is embedded in the article for today's reading), it also is highly informative. The public outcry from the NASCAR video's wide circulation resulted in reform to spectator conditions at NASCAR events. Would words have sufficed? Possibly. And is Google serving as the ultimate arbiter right now? Definitely. But there are scores of examples in our history of when it took the world seeing a horrific situation in order to motivate action, so regardless of who makes the decision there are compelling reasons on both sides for having it disseminated or not. asellars 13:40, 12 March 2013 (EDT)

It's totally possible that the fact that it wasn't the scene of a death was evident to anyone viewing the clip closely. I just didn't watch closely. And I do appreciate the need to pressure event sponsors to ensure adequate public safety, especially if the attendees lack the good sense to manage that aspect of self-preservation for themselves. But must Google earn advertising revenue from the repeated viewing of another's misfortune? Or must Google pay for the hosting of such a video, if they cannot or will not earn revenue from hosting it? I don't think your point about whether we are viewing a death or a severe injury or merely a prolonged hospital stay is a minor one. I also don't think that we've been given enough evidence that Google has an obligation to host the video. However, I am willing to learn that that is because I haven't been paying sufficient attention. I don't mean to take censorship lightly, I hope that I don't. Nor do I mean to say that we should have some public morals squad, out removing videos that offend. I wouldn't want that either. I just would like to understand more clearly why it is in our best interests to tell Google what they can and cannot host on their servers, when what they are hosting could be offensive to many and the value the content provides to anyone is not clear. If you say that the existence of that video on YouTube saved lives, or provided some other public good, and you also say that we, the public, have given Google something other than our time and attention, something valuable that gives us the right to insist that they provide bandwidth to save lives, then ok. I can get behind that. Raven 14:51, 12 March 2013 (EDT)

That's a great set of points. As to Google's right or reason for hosting it on YouTube, all I would add for perspective is the practical fact that having websites like YouTube substantially lowers the barriers to entry for participation online. (Imagine how tough a space this would be if everyone had to understand web publishing from DNS registration and CNAME setup through FTP through HTML in order to have a web page.) So all forms of online publication platforms - YouTube, Blogger, Twitter, Wordpress, Tumblr, Facebook, etc. – all serve an important value-added in that they lower the technical literacy necessary to get material online, and provide a platform that increases the likelihood that at least some network of people will see it. They, in effect, become the public squares of the online world. Should the profit, should they not, should they or the users decide what goes into the public debate – these are the really, really tough questions that we face now. What Section 230 does in the defamation/privacy world and Section 512 does in the copyright world is push a lot of the liability – and thus a lot of the legal pressure on the decisionmaking process, onto the user. But this doesn't mean the social media spaces will simply do what the user does – it can also mean that they can exercise their own editorial judgment based on their own values, and there's not much we can do as users to persuade them to change their mind. asellars 17:05, 12 March 2013 (EDT)

Interesting reading for today’s class. In my view, the right to a free speech is the right to express ones’ thoughts without any alternative censorship by the government. But main questions are: does the first amendment protect imply the right to hear the speech? The Copyright Clause itself is an expressional of First Amendment values that powers congressional rights under free speech principle. How to treat unexceptional impulse of copyright that embraces the coherence of the First Amendment? Copyright law includes a number of free speech accommodations that requires a scheme of originality, but what are the principles of copyright legislation? In my view, the questions should bot be whether the challenged law is consistent with unchallenged laws but instead whether the challenged law is consistent with the Copyright Clause (whereas consistency also comes with a priority of values). Intersection of these domains, have the same values that are conflicting with each other within their constitutional accommodations of law. user777 11:26, 12 March 2013 (EDT)

The First Amendment, as it has been interpreted by the courts, includes within it a degree of a "right to be heard," but that has been limited in most circumstances to making sure that free speech rights are not pyrrhic by being without an audience - it does not generally allow an affirmative right of access to a particular fora other than certain publicly owned spaces (of which the Internet is not one). The degree to which the judiciary will exercise oversight over whether legislative action is consistent with the Copyright Clause is very, very weak, as was established in the same case I flagged to Rich above. asellars 11:46, 12 March 2013 (EDT)

Most arguments calling for stronger copyright right enforcement - such as those that support SOPA, PIPA, and the 6-strikes Copyright Alert System - base their argument on the billions of dollars lost to piracy, which itself can be divided to estimate the number of jobs lost in the United States.The two questions I always wonder are: are these numbers being exaggerated by the entertainment industry? And do these numbers truly reflect the real loss of the entertainment industry?

Although what I'm going to say is going to be mainly based on peer observation, I think it's worth noting. For this comment, I'll focus on music. I know people who place a higher value on property rights and insists on buying their music in cd form or from iTunes. These people actually DO view internet piracy as stealing and frown upon it. But I shall be honest and point out that these people also have more leisure money to purchase what they want.

On the other hand, I have also met people who are taking advantage of the internet to discover and "own" music that they would otherwise not buy if piracy options were not available. These are people who may or may not have had the leisure money, but nevertheless would never have spent money to "own" the music if piracy was not an option in the first place.

Then there are those who have no financial obstacles at all but argue that it is foolish to spend money when there obviously are ways to get the music freely. I think this group can be divided into those who would buy music if there was no piracy option and those who would not have spent money in the first place.

I really wonder if ideas like the Copyright Alert System would really boost the earnings of the entertainment industry (which is their true objective after all) or whether in the end these systems end up throttling the internet and the principles, such as free speech, that we think the internet should stand for.

--Muromi 11:55, 12 March 2013 (EDT)

After reading the article A Perspective On The Complexities Of Copyright And Creativity From A Victim Of Infringement, one important idea surrounding this topic became clear: we acknowledge copyright infringement when it directly affects us. Many ignore online copyright, because it is often embedded in the actions that people take when using the Internet. In other words, some may be committing illegal acts without realizing it, while others do so purposely. Whether unintentional or intentional, one must contemplate both sides of the copyright law debate: protecting the creator or restricting one’s freedom of speech.

I think one comment in Erin McKeown’s blog captures the essence of the other articles: “I'd also like us all to acknowledge that the current copyright system, the unmovable boulder in the stream, rather than protecting rights holders and acting as a deterrent to infringement, is in its very complications a shelter for those who use others' material without permission and an obstacle to those who would like to legally use or remix content.” Due to the complexity, loopholes, and associated legal processes surrounding copyright infringement, many can often remain unprotected. Some agree and others do not…what do you think?

SOPA’s enactment seems to make this environment even more convoluted. It gives tools to the U.S. Attorney General to combat “foreign infringing sites,” but sites with...“a domain name registered outside the U.S. seems to count as ‘foreign,’ even if it’s run by an American company and hosted on U.S. soil. Id., at § 101(5)-101(8)” (Zittrain et al., A Close Look at SOPA, 2011). This policy not only places a lot of companies in the line of fire, but it also puts an enormous amount of responsibility in the hands of corporate Executives. “The overwhelming controversy regarding SOPA’s public remedies regards the provision allowing a court to order a service provider–essentially an unwitting middleman–to take all 'technically feasible and reasonable measures' to block an infringing site” (Zittrain et al., A Close Look at SOPA, 2011).

The gray area of accountability that we read about a few weeks ago, in relation to the Anti-Muslim Youtube video, emerges again when analyzing online copyright laws. Who is ultimately held responsible? Why should Internet-related companies decide between freedom of speech and/or copyright infringement (vs. the government)? If the private sector is expected to assume new roles and responsibilities, how can companies truly play this role, in terms of time, resources, and judgment calls? “The burden of reviewing user-submitted content – every blog post, every video, every image – would be impossible for a company to manage, and companies would have likely stuck with the Web 1.0 model of publishing edited, vetted content instead of moving to a Web 2.0 model where users create the content” (Zuckerman and Ito, MIT Media Lab Opposes SOPA, 2012).

As a final thought, I’d like to second the statement above, by Asellas. I agree that the balance between copyright and free speech is an interesting controversy. I also agree with your final statement, illustrating the true definition of copyright protection, i.e., copyright defends original expression that merits protection under the U.S. legal system. The complexity and associated controversies surrounding “original expression” are ubiquitous—there are many “shapes and sizes” of original expression, which in many ways, makes this current debate so challenging to decipher. I look forward to hearing your thoughts! Zak Paster 13:24, 12 March 2013 (EDT)

Super Bust and The In Rem Forfeiture paper presented further disturbing evidence of the disconnect between how the internet operates and how it is governed. It seems to me that the judges may not have understood that the domain names were property with potential income streams attached, and that the crimes they were accused of were commercial and non-urgent. I'd like to think that because the alternative seems so much more disturbing. Possibly again I am being naive. I have seen those forums, though not the chat rooms, and I agree, that if you are looking for a quick way to stream or download free movies, books, music and TV shows, you'll find plenty there to help you. I was interested to learn that these discussions were protected by the First Amendment, I think I'd just assumed that there were too many of them to shut down. I am, however, coming around to believe that something effective should be done about the piracy of these works. We have, over the last ten years or so, seen a tremendous transfer of value from the movie studios and music publishers to those willing to download illegally. It seems to me it is time to capture that value and account for it. I think, if I thought about it at all, I justified arguing against devoting law-enforcement to controlling piracy to the assumption that these companies were shifting revenue outside the U.S. to avoid taxes. I think I found it distasteful that they would then turnaround and insist that we, the public, help them capture lost income. (I certainly am not willing to pay the taxes to support jail time for those downloading content illegally.) I understand that many people who download without purchasing would not purchase, as many who stream without paying would also not purchase. I do believe though, that they would do something else, and I'm wondering if we are capturing that aspect accurately. I'm also wondering if somehow, we were able to capture that value, it might pay for some or all of the needed up-grade to our internet infrastructure. Raven 15:29, 12 March 2013 (EDT)