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.

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)

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)