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)

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With so much copyrighted material out in cyberspace it is helpful to have provisions like the DMCA takedown and notice provisions to help combat copyright infringement. I think it is a reasonable approach to helping prevent abuses of copyright. On the other hand, instances like the Akon takedown do appear to fall into abuse of the DMCA. Nevertheless, I would argue that the DMCA actually worked in that instance because the material was taken down, but appealed and re-posted. However, if the political satirist in the Akon incident did not have legal counsel, the takedown probably would have remained. So there, I think is a flaw in the system, in that, companies with large pockets, and legal teams may be able to enforce their own form of censorship. With the proliferation of user generated content like blogs, with bloggers commentating and re-mixing copyrighted content, what constitutes infringement is more difficult to see. The good thing is that for the most part DMCA does not impose any prior restraint on expression. Posters are allowed to post without restraint, and for the most part they are not liable as long as the material in question is taken down quickly (as least I think that last part is true?). The class readings about chilling effects dig deeper into the problems that cease and desist letters, and DMCA takedowns have for expression on the Internet. The Chilling Effects website talks about the harm that these C&D letters can have on expression. Internet bloggers, satirists, and others may takedown their content on their own, causing a sort of self censorship for fear of prosecution from powerful adversaries. SOPA, and PIPPA also would have caused a chilling effect, and probably out and out prior restraint on many users expression on the Internet. I think that a robust activist element from groups like the Berkman Center(shameless plug lol), the EFF, and Chilling Effects, help Internet users to know when new laws are being introduced to curb expression, and even help represent users who have had their material wrongfully censored or removed from the Internet. Yet, it concerns me a little bit that without such advocacy groups the little guys on the Internet would be at an even bigger disadvantage to the bigger fish on the internet. One question I have was about the Bit torrent article, I didn't understand the importance of Bit torrents decline in use in the US. Was it that the decline might signify that users are avoiding bit torrent for some reason? Also, I saw that bit torrent and youtube, and netflix use disproportionate amounts of space on the system. Is this sustainable? Is it fair that a few applications and companies use up so much of the space? Does that cause harm, or take from other uses that the space could be used for? I'm not really sure how that "space" works. Is it unlimited?Mikewitwicki 08:13, 4 March 2014 (EST)

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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)

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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)

Hi Castille I have a hard time discussing this without letting it get personal, because I've faced off with Language Police, was beaten up as a kid in Quebec for being Anglophone (I was born in USA), and grew up following Quebec's laws which are at odds with the UN's Charter of Human rights (once again, WHY do Americans steriotype Canada as 'nice'??!!). So now, hearing that the Language Police are trying to control Facebook, which is an American company, I just get so mad. Side-note: My own mother just received a letter from another Quebec Gov't agency, stating that she must delete any comments from users/customers on her company's Facebook page. Here is a link to the laws in question, in case anyone is interested Erin Saucke-Lacelle 12:32, 4 March 2014 (EST)

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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)

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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)

The Hill reported that an annual report should be expected soon on Six Strikes. (It just passed its first anniversary since implementation.) We're still waiting to see if that will have a level of analysis like this. Andy 10:26, 4 March 2014 (EST)

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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)

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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)

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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)

I should also note that this is very low on the government's agenda. Most of the pirated entertainment comes from the USA. There’s no motive or benefit for the Australian Government to fight against illegal downloading on behalf of the American entertainment industry. In addition, most websites used by Australians to pirate, like BitTorrent and Pirates Bay, are American-based websites, which adds another disincentive for them. Unfortunately, a lot of piracy goes on here all too easily without intervention or blocking; almost makes me wonder if (per capita), more piracy happens here. Unless it becomes a political issue or the Australian government loses money over it, they’ll remain reluctant to spend the time or energy to fix it. Marissa1989 00:03, 4 March 2014 (EST)

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Exciting-- I was just searching Google for an episode of Girls that I accidentally deleted from my DVR and found the following notification at the bottom of the search page: In response to a complaint we received under the US Digital Millennium Copyright Act, we have removed 1 result(s) from this page. If you wish, you may read the DMCA complaint that caused the removal(s) at ChillingEffects.org. Castille 00:22, 4 March 2014 (EST)

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It was interesting to read more on DMCA. I've never been too familiar with the specifics of the law but have faced it's effects constantly on YouTube as so many videos are removed over copyright claims. Reading more on it, I found this article very interesting: http://www.wired.com/threatlevel/2008/10/ten-years-later/ It portrays DMCA in a positive light, going as far as saying it "saved the web." I don't completely agree with the article, but I do think that content creators should have some safety net to ensure that their content cannot be used without proper credit or consent. And so, some safety net needs to be present but a filter that is too large is very concerning. The list of Takedown Hall of Shame is an alerting example of filtering gone wrong for the wrong reasons. It would interesting to see the solutions we come up with in the future. Will greater efforts of copyright regulation always be followed by an internet protest as large as the SOPA/PIPA one?

Lpereira 20:45, 3 March 2014 (EST)

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Piracy is a major issue in Australia. The copyright laws are more loose than compared with other countries such as the US and it is relatively easy to download content illegally. Before watching a movie, an advertisement airs with the line “You wouldn’t steal a car, you wouldn’t steal a handbag, you wouldn’t steal a movie. Downloading pirated films is stealing. Piracy - it’s a crime!”. I understand this commercial has a moral angle in hopes to minimise illegal downloading. However, If someone steals a car, handbag or wallet, a physical object that belongs to someone else has been removed without permission or payment. That would be theft. In one sense, if you download something illegally, it is a digital copy that changes hands. (‘Copy’ being the operative word). With piracy, nobody is physically deprived of anything, which is why I think most Australians don’t have a moral conflict when downloading illegally, which makes the advertisement’s suggestion that you are ‘stealing’ seem ludicrous.

Of course, this pirate ‘thief’ can make the work available to anyone for profit. However, not all online piracy is done for profit. Those profiting from piracy are the people selling copied films and CDs out of the back of their car, and people selling software ‘compilation’ disks.

Which brings me to the point, while the original creator might not be deprived of something, they ARE missing potential earnings. This is the difficult problem to solve. The past 10-odd years, we have seen a large value transfer from studios and publishers to those who will illegally download. However, I question whether or not the aspect of lost income from the entertainment industry is accurate. How is this measured? Are these estimated numbers exaggerated, or is this an honest reflection of loss for the entertainment industry?

One of the main objectives of the Copyright Alert System is to return the earnings to the entertainment industry and original owners of content. But in the end, will this system end up throttling the internet and the principles associated, i.e. free speech, that we believe the internet should stand for? Marissa1989 00:24, 4 March 2014 (EST)

Marissa --

What a wonderful post! I think you excellently encapsulate the problem both in terms of in terms of monetary quandaries when dealing with the entertainment industry online (assessing profit lost) and the moral dilemma both the user and publisher must confront. With iTunes charging $1.29 per song and most people having at least a few hundred songs on their iPod, the temptation is high to illegally download - especially amongst college student communities. iTunes has increased their prices probably to offset the lost profit from illegally downloading.

Prominent musicians have also responded in conflicted ways with some actually embracing the idea. Artist Shakira is a known supporter of illegally downloading and has stated so in several interviews. Likewise, Beatles legend, John Lennon once said, “Music is everybody’s possession. It’s only the publishers who think that people own it" (Vignos 2012). On the other hand, Stevie Wonder fears that illegally downloading will lead to music being treated like "garbage" in the streets. The music industry has drastically changed with big business taking over as evidenced from the history of "Motown" music and the rise and fall of the father of Motown records, Berry Gordy.

As Marissa, notes the term "stealing" is perhaps not the appropriate verb for the act because you are not physically depriving someone of something; however, it is the actual profit lost that is at stake. The problem is how this would-be profit would be calculated. How many people would have actually bought the song instead of downloading? I would guess the number would be much lower that those who went ahead and downloaded. Clearly, illegally downloading and copying music is immoral but how can we prevent this widespread practice most effectively? As it stands, very seldom are people prosecuted. Perhaps this is because the crime is not taken as seriously as other types of theft or is not as despised or looked down upon in our society. On the other hand, it might be just too difficult to catch all of the downloaders and trace their activity to a point where it would hold up in court with reasonable cause.

http://www.michigandaily.com/opinion/viewpoint-illegal-downloads-music-industry

--AmyAnn0644 10:50, 4 March 2014 (EST)

You guys are hitting on some great points! The question of whether to call infringement "theft" or "stealing" is about as controversial as they come. On the one hand, and to borrow from Jefferson, sharing an idea/expression/discovery is by its inherent nature nonrivalrous - I can share with you an idea without diminishing my possession of the same idea. On the other hand, if I give you something in lieu of you buying it yourself, I may not be diminishing my own possession, but I may be interfering with the author's income, and thus risking their incentive to create in the first place. But on the other, other, hand, the studies that have looked at piracy's effect on sales are wildly divergent as to whether a download can be translated to a lost sale - some, including Felix Oberholzer-Gee and Koleman Strumpf have found that there is actually no correlation between downloads and lost sales. That sounds totally insane at first, but when you consider the possibility that a large margin of people download music they would never buy (if required to obtain the music in that way), it is much more plausible. (The study still has many other critics, of course.) Andy 11:01, 4 March 2014 (EST)

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The recent Federal Appeals Court ruling ordering Google to remove the inflammatory film "The Innocence of Muslims" from YouTube.com, appears to stretch the copyright interpretation. The ruling certainly sets a precedent for both basic copyright law, eectronic distribution and the First Amendment. Not being a lawyer, Kozinski's ruling appears troubling. In reading the copyright interpretation, I get the impression we've exceed copyright law and entered in to some troubling precedents. Any thought?VACYBER 10:12, 4 March 2014 (EST)

We'll be talking about the Garcia v. Google case for a while in the second half of class today. Stay tuned! Andy 10:26, 4 March 2014 (EST)

Thanks for sharing this, Vacyber. I find this to be a dangerous, unconstitutional precedent and appalling ruling! If anyone has seen the video, it did not incite violence of any kind. Simply because someone interpreted a video to be insulting does not warrant its removal. If everything posted online that someone (or some group) deemed offense were to be removed, the court would never have a day off and the internet as we know it may cease to exist (at least in terms of its vast information-sharing capabilities). By catering to one group and limiting freedom of speech, we are not doing anyone any favors and are only foolishly destructing our own liberties. It will be interesting to see how future cases will be handled and I look forward to the class discussion! --AmyAnn0644 11:01, 4 March 2014 (EST)

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Erin McKeown's article rises a very important point that is common too most of the legal system, not just copyright: Most laws claim that they intent to protect those most in need, but in fact favour the big and powerful, usually rich as opposed to poor, and groups and corporations as opposed to individuals. Now, I'm not one of the people who believe poor individuals intrinsically deserve more that rich corporations, but I do believe they deserve to have equal protection in our legal system, and not just on paper. The problem is, the way copyright law, and many other laws work, it is usually not viable for individuals to sue infringers because it takes too much time, money, knowledge (for starters, the knowledge that you can sue at all) and other resources. Especially given that most individuals do not have the knowledge or a legal team behind them who could provide them with the knowledge related to copyright law, they are much less likely to benefit from it as they cannot easily estimate whether any action will be worth the investment. This is a major problem that that needs to be resolved, lest the copyright law benefits more those who infringe, than their victims. --Seifip 11:50, 4 March 2014 (EST)

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This just in... The Russian court in Khabarovsk forced Rostelekom to block internet access to Wikipedia (!!), Yandex (largest Russian website) and Kinopoisk (Russian IMDB). The pretext is that the three websites contain anti-semitic content, in case of Wikipedia a link to Mein Kampf in the article on Hitler. --Seifip 13:18, 4 March 2014 (EST)