Copyright Part 2: Enforcement and Balances

March 4

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.

Joining us will be Adam Holland, who works here at Berkman on the Chilling Effects project.

Assignments

The second half of assignment 2 (commenting on prospectuses) is due before class today. Information on the assignment can be found here.

Readings/Watchings

The DMCA Notice-And-Takedown Process

• 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

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

The big picture

• Ernesto Van Der Sar, BitTorrent Traffic Drops in America, Grows in Europe

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

Optional Readings

Case Study - ISP "Six Strikes

• Brooke Gladstone, Interview with Jill Lesser of Center for Copyright Information (On The Media)

• Jonathan Bailey, Plagiarism Today, The 6 Likely Impact of Six Strikes

Case Study - Operation In Our Sites

• 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: Andy 15:12, 7 November 2013 (EST)

---

Yet again, related to an earlier class, but another interesting write-up was just published on The Verge: The Internet Is Fucked (but we can fix it) --Seifip 19:05, 26 February 2014 (EST)

---

Ditto, not related to Copyright, but the theme of the class in general, politics & control of the Internet. The Quebec government started fining businesses for not writing in French on their Facebook pages. I've never understood why Canada has such a stereotype of being 'nice'. Erin Saucke-Lacelle 23:37, 26 February 2014 (EST)

Erin, thanks for sharing this. Seems like a really interesting example of the ways in which the Internet and digital technologies are a new place for old and ongoing debates to play out. With so much of our lives now taking place online, it makes sense that concerns about language, heritage, and culture have to be grappled with anew. I wonder if some of the push-back from business owners-- like the one in this article who says "Facebook has nothing to do with Quebec"-- stems from the idea that the Internet is a malleable and border-less place and confusion over what laws govern speech on a global forum run by a US-based company. And yes, I have heard some Quebecois friends get a little less than "nice" when it comes to discussing their francophone heritage... Jkelly 15:16, 2 March 2014 (EST)

Wow! That's crazy. Do you know what justification they have (or are using) to fine the businesses? Is it a case like the ADA, which prohibits discrimination against disabilities by such measures as requiring all public establishments to follow building codes to ensure disabled individuals are accommodated? By this I mean, is Quebec doing this so that French-speaking people are not excluded?Castille 15:51, 3 March 2014 (EST)

---

The highly controversial Section 512 of the DMCA, 17 U.S.C. § 512 provides a “safety zone”, where online service providers could operate shielded from liability charges on account of copyright infringement. Service providers function by allowing people to modify, post, and search content on their servers. By hosting foreign content that is not generated by the OSP or ISP, they were placing themselves into position of being held liable on infringement charges. This changed in 1998, because as long as roughly three essential steps were taken, an OSP could take advantage of the “safe-harbor” clause. One of those steps is the “expeditious” removal of infringing content. On the other side, the alleged offender can send a counter-notice disputing the copyright holders claim. This might seem in favor of the public domain with an anti-copyright agenda, but it does not diminish the copyright holders privileges in any way. This provision also allows the first step of prosecution in the form of takedown notices. While these measures are beneficial for the public good and provide a degree of protection, they seem utterly inefficient in situations like Erin McKeown experienced. In an attempt to control infringers and pirates, the ICE has engaged in domain seizures, which resulted in tens of thousands of innocent websites being shut down. Emmanuelsurillo 22:26, 1 March 2014 (EST)

The Electronic Frontier Foundation’s Takedown Hall of Shame has excellent examples of cease and desist letter offenders, even citing unusual claims such as one over the copyright privileges of a monkey’s photos! That is where major companies should take and follow Google’s example of standing up for users rights. The Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA), MIT points out that to stop pirating has many dangerous side effects including but not limited to being unconstitutional in violating certain aspects of free speech. Emmanuelsurillo 00:06, 3 March 2014 (EST)

---

I was unable to find out anything about how many actions have been taken under the Copyright Alert System. Are there any known statistics on how many of these notices have been sent out or how many consumers have been affected? (whether centrally managed, or done by a third-party watchdog like EFF?) Jradoff 13:48, 3 March 2014 (EST)

---

I'm in a creative industry where intellectual property is important (software / online games). Yet I think that criminalization of intellectual property violations is ridiculous.

I called all my U.S. senators and representatives back when SOPA/PIPA was in the legislative process--I found it highly offensive. It seems absurd to me that someone would be placed in jail for copyright infringement, or that we are making agencies of the U.S. government an arm of private industry by using them to enforce this (not to mention giving government broad control over shutting down content that some moneyed interest finds objectionable).

The argument used by the industry is that copyright violation is equivalent to theft. I agree that many cases of copyvio are totally wrong, but I don't see why it can't be handled entirely through civil systems. The fact is that intellectual property violations *are* different from stealing a physical good, simply because in the former case we're dealing with a nonrival good (i.e., if you steal my car then I can't use it anymore; if you copy my software package, I've lost some potential revenue from you but you haven't deprived my ability to sell it to others). Furthermore, intellectual property violations are way more complex--these are cases that just aren't as clear-cut as showing that a theft actually occurred when you are caught with my stolen car.

I listened to the songs mentioned in the "Touch the Sun" / "Slung-lo" controversy referred to in the reading materials. I empathize with the creator of Slung-lo if they really feel their creation was improperly exploited, but I simply don't see the basis for their claim. But upon my listening I found both songs to be different, and the lyrics were (as far as I could tell) totally different. Billions of songs get made--lots will be similar. I shudder to think that a large and well-funded copyright holder could use claims like this to abuse others with the threat of criminal enforcement. Jradoff 13:58, 3 March 2014 (EST)

---

It seems that SOPA, PIPA, and the DCMA all seem to be working towards the same goal, that of eradicating copyright infringement/piracy. Why is the DCMA not sufficient? Internet piracy is a huge issue for the motion picture and music industries (and I'm sure for plenty of other industries) as it is stealing. I agree with Jradoff that it's not quite as bad as actual theft of property and therefore might not warrant a jail sentence, but it is essentially the same thing. What is the difference between going into a Best Buy and stealing a DVD or CD and stealing it from home? It seems the primary difference is simply the ease of convenience for the thief. I think we have only been desensitized to this kind of theft because it is so prevalent in society. Anyways, if we agree that internet piracy is "wrong", what can be done to curtail it further than the rules currently in place (i.e. the DCMA)? Have SOPA and/or PIPA been revised? In this article that I found on Forbes [1], author Derek Broes claims to have testified before Congress to propose "many solutions, none of which violate our First Amendment Right to Free Speech", but he does not elaborate on any specific alternatives or amendments to SOPA/PIPA. What effective alternatives are there, which would go above and beyond what is already in place, but wouldn't be as "harmful" as SOPA/PIPA? Is there still talk of a new iteration of the legislature? I would imagine that with the onslaught of backlash from the initial bills, they would have to call them something different to mitigate any potential hate...Castille 15:51, 3 March 2014 (EST)

---

The former government in Australia tried for many years to implement a voluntary scheme to crack down on piracy through a series of discussions with ISPs, instead of having the government legislating enforcement of copyright. The meetings stopped happening, as the representatives from iiNet (large Australian ISP), would often get up and walk out of the meetings.

About 18 months ago, Australian Attorney-General George Brandis made a case against iiNet which attempted to hold them liable for their users on BitTorrent for piracy purposes, which was taken to the High Court. The entertainment industry was attempting to hold the ISP's liable because it is obviously not economically viable, (even if it is in fact possible) to prosecute each piracy user individually. iiNet was successful in their defense to which the High Court unanimously ruled the ISP is not liable for the acts of their users.

iiNet’s routine business of providing access to the internet will not, by itself, mean that they authorise their customers' acts of copyright infringement.  At the same time, iiNet is not obliged to contact customers or terminate their accounts in response to notices from copyright owners.  Although users are liable for copyright infringement, it is hardly enforced at all in Australia. Australia is needing legislative reform in regard to copyright laws, as their attempts to enforce it have been futile. Marissa1989 20:41, 3 March 2014 (EST)