Friday, June 3, 2011
Wednesday, May 25, 2011
Updated slides from Team 1-Congress Team
I would like to repost the updated slides of Team 1-the Congress team.
Monday, May 23, 2011
GROUP 3-BIG BUSINESS Presentation May 23 2011
Viacom CEO: Mudit Kakar
Viacom President: Joe Canfield
SONY: Jomo Thompson
APPLE: ZhongYang Shu
BING: Pongtawat Uttravorarat
YOUTUBE: Ying-Yin Tsai
COMCAST: Hiroshi Okazawa
Group 3 - Pitch Meeting Slides
Joe Canfield,
Mudit Kakar,
Hiroishi Okazawa,
Zhongyang Shu,
Jomo Thompson,
Lilith Tsai,
Pongtawat Ultravorarat.
Video to follow:
Sunday, May 22, 2011
The Freelance Artist Coalition
In general, the artist coalition is attempting to provide solutions that will balance the seemingly contradictory goals of providing strong copyright protection while also allowing for 'transformative' fair use.
The artist coalition is comprised of, in order of appearance: John Gregory, Krista Ayers, Yuan-Chuan Chen, Jaekweon Seo, Vikran Duangmanee, Sunhee Ahn, Jeonggyo Kim, Changkwon Kim, and Chris Hurley.
Thanks!
http://www.docstoc.com/docs/80197751/Freelance-Artist-Coalition-POWERPT
Group 4 – Small business
As a small business, you have to deal with a lot of different issues. On the one hand, you try to introduce your great new business model, that hopefully not has been developed somewhere else in the world wide web yet. On the other hand, you struggle with all the legal boundaries and traps. We want to address at least some of the most important issues in copyright law that affects a new small business that tries to enter the internet market and show, how these issues deal with different business models – and vice versa.
Contribution belongs to (in order of appearance in-class):
David; Mette and Lidan; Xiao and Shosuke; Micah and Kristen; Travis and Wang
Class Presentation- Congressional Committee
Overview of Proposed Changes
• Clarify that YouTube-like sites fall within the safe harbor of §512(c).
→ New §512(c)(2): “Any activity relating to the indexing, aggregation, presentation, access, or sharing of protected material, stored at the direction of a user, shall not forfeit the application of this Section insofar the service provider does not engage in the selection or modification of the content stored.”
• Increase the burden on YouTube like sites to provide information about repeat infringers when requested by content holders (§512(h))
→ Definition of “repeat infringers”: “Any user whose uploaded material has been
repeatedly notified as infringing material by the service providers based on the
content owner’s notification made pursuant to §512(c)(4) [former §512(c)(3)]”
• In 512(h)(2)(D): Require content owners requesting a subpoena of “repeat infringers” identity to make a prima facie showing of an absence of fair use.
• Under §512(c), if apparent (& continuous) infringement is present, only allow sites that have implemented reasonable filtering measures to remain protected by the safe harbor.
• A defendant can show reasonable filtering measures by demonstrating a good faith effort of reducing infringement.
Policy Justifications
• The system needs minor tweaks not major overhauls: the existing scheme of the DMCA is sufficient
• Preserving the openness of existing YouTube-like sites to prevent the law from forcing sites into closed, subscription based services and obliterating anonymity.
• We do not want to discourage businesses and users from participating in these markets.
• Encourage cooperation amongst stakeholders: the burden stays with the content owners but ISPs should facilitate copyright holders’ policing activities, acting in good faith according to the degree of technical and contractual control they might retain on the material.
Comparison to Other Proposals
• Adding new safe harbor categories is not necessary: “sharing sites” already fall within §512(c)
• Might restrict the business models that could develop in the marketplace
• Case law has developed around the existing framework
• New definitions will remain inadequate as technology develops; perpetuating litigation
• Anonymity has its benefits; the Internet has facilitated the free and open exchange of ideas
• It is one thing to expose ‘repeat infringers’, it is entirely different to remove anonymity altogether
• A public agency overseeing copyright disputes is too much for too little
• Increased burden on tax payers; there is still room for tweaking the law before it is necessary to create an entirely new system
• ALJs wouldn’t impact existing litigation given the constitutional issues that arise in modern disputes
Proposal Two: Andrew Asplund, Jin Han, Lawrence Wang
Overview of Proposed Changes
• Clearly define “sharing sites” such as YouTube as separate from ISPs
• Add provisions that grant safe harbor for sharing sites only if they require non-anonymous identification information from submitters
• Require sharing sites to ban repeat infringers
• Grant copyright owner access to identity of repeat infringers for litigation
Policy Justifications
• Allows sharing site to ban repeat infringers more effectively
• Creates method for copyright owner to more readily pursue direct infringer
• Shifts more burden of responsibility to the infringer
Comparison to Other Proposals
• Preserving anonymity limits copyright owner's ability to pursue infringers
• No need to create new government organizations
• Automated filters ineffective in both stopping infringing content and allowing fair use content
Overview of Proposed Changes
• Create New Section within the Department of Justice
• Review and amend the Copyright Act:
a) Public graduate response system
b) Statutory clarification of contributory, vicarious, and inducement liability
• Filter implementation duties of ISP
• Education campaigns
Policy Justifications
• Balance of interests
• Collaboration
• Creativity
• Flexibility
• International harmonization
Overview of Proposed Changes
• More balanced (pro-owners, pro-ISPs)
• Removes uncertainty
• Privacy issues
• Defined system for appeals
Wednesday, May 18, 2011
Challenging the balance
Tuesday, May 17, 2011
Article Sharing Time
From the abstract:
Content owners claim they are doomed, because in the digital environment, they can't compete with free. But they've made such claims before. This short essay traces the history of content owner claims that new technologies will destroy their business over the last two centuries. None have come to pass. It is likely the sky isn't falling this time either. I suggest some ways content may continue to thrive in the digital environment.http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1656485
(Click the link "One-Click Download")
Monday, May 16, 2011
New model, and new issue
F.B.T. signed Eminem in 1995, and transferred Eminem’s exclusive recording services to Aftermath. Under the agreement between F.B.T. and Aftermath, the “Records Sold” provision provides that F.B.T. is entitled to receive between 12% and 20% of the adjusted retail price. In addition, F.B.T. is entitled to receive 50% of Aftermath’s net receipts on masters licensed to others for their manufacture and sale of records or for any other uses.
In a 2006 audit, F.B.T. found that "Aftermath had been applying the Records Sold provision to calculate the royalties due to F.B.T. for sales of Eminem’s
recordings in the form of permanent downloads and mastertones." F.B.T. brought a lawsuit in the district court, and the jury's decision is in favor of Aftermath. F.B.T appeal and the Ninth Circuit reversed.
It is necessary to review all agreements and make essential amendments while adopting new business model. This case indicates that Apple may raise prices of iTunes song, if the labels have to pay more to performers.
Tuesday, May 10, 2011
US Copyright Holders to World: "We [Dis]Like [In]Consistent Laws"
W.r.t. adding mandatory exceptions to WIPO copyright treaty (e.g., compulsory licensing to content providers for the blind):
The uniform approach within this global framework has been to set minimum standards of copyright protection, subject to certain exceptions or limitations which are permissible, but not mandatory. ... The draft treaty would turn this long-standing principle on its head, demanding that signatories limit copyright protection to an extent not even permissible under the existing treaties... Link.Yet when it comes to well established legal principles in the US that: (1) do not fall within the realm of a treaty; (2) have created new markets and technologies; and (3) are being considered in other countries which would produce a more "uniform approach"...
In the US, laws and court cases provide Americans with the freedom to "format shift" their music from CDs to a computer to an iPod, and the freedom to "time shift" video has allowed digital video recorders to flourish. But when other countries try to encode similar copyright exceptions into law, the US government frowns on the practice, saying it "sends the wrong message." Link.
The "Disney Vault" and Other Ridiculous Content Control
Back in 1997/1998, I thought that everything was fair game. If I didn't own it, I could download it. Sure I purchased stuff, but that was limited to computer upgrades paying for a DSL connection with the profits from my summer job at an ISP (<ping + >fps = >frags!). As far as content, I didn’t think twice about how or where I got it. Not much changed in the next 8 years. College was file sharing paradise. Enter the real world where I found a risk-averse mindset.
Things changed after I realized:
(1) a ton of people were being sued;
(2) I no longer had a ‘perceived immunity’ as a college student; and
(3) I generally found better things to do than consume content.
The problem is I went back to college (OK, law school, college part deux). Now that I’m back I realize:
(1) people are still being sued;
(2) I definitely lack any ‘perceived immunity’ as a law student; and
(3) I generally try to find anything to distract me from my homework.
And that is what has led me to my modern mindset.
If I can’t find a cheap and easy way to access content, I either won’t bother, will lose interest, or will forget about it. For example, I’ll see a movie trailer that I think looks decent, but not the kind of movie I’ll spend $13.00 to see in a theatre (reserved for visually stunning pictures, no comedies or dramas). Months will pass; the DVD will release. I’ll never notice.
Here’s a simple cause and effect table I think sums it up:
| Big content decides to... | So I... |
|---|---|
| Limit the streaming of a television series to the three most recent episodes | Won't bother. |
| Allow access to five random episodes from season 3 | Won’t bother. |
| Not offer a movie in a streaming format | Find something else. |
| Charge 30 bucks for a single season on DVD that I will watch one time | Find something else. |
| License one out of ten seasons to a streaming service | Lose interest. |
| Force me to go to their site rather than a site with aggregated content | Become annoyed. |
| Periodically change what episodes are available | Won't bother. |
Conclusion
There’s simply too much good stuff out there to get stuck waiting. More restrictions on content result in shrinking audiences and the continuation of piracy. If my anecdotal story is at all representative, as old school content owners and distributors continue to resist change, they will begin to see that easy access to alternative quality content erodes their bottom line.
Monday, May 9, 2011
Another YouTube's DMCA case raising fair user concern
As the DMCA requires content owners to make certain showing of infringement to ISPs for the ISP to remove the alleged infringing material from its network, the problem arises as there is no guarantee that the alleged infringing material is an actual infringement. Rather, the DMCA only requires that the copyright holder has a “good faith belief” that the use of material has no legal ground. Therefore, most notices to takedown lack precision and are “commonly faulty.”
Before the California District court landed it decision in Lenz v. Universal Music,[1] content owners only have to determine whether their rights are violated. However, after Lenz content owners have a responsibility to consider whether the alleged infringing material is a fair use before issuing a takedown notice. This case involves online service provider YouTube.com and its user Lenz, who sued a record label (Universal) after her video posted on YouTube.com was removed due to the takedown notice claiming copyright violation in the song “Let’s Go Crazy” own by Universal. After YouTube had received a DMCA takedown notice, it removed the material on the following day and sent Lenz an email informing that the video had been removed and warning that repeated copyright infringement incidents could result in removal of her account and contents. Lenz field a counter-notice claiming that the material was wrongfully removed and remanding that it be reposted. Six weeks later YouTube reposted the video.
Subsequently, the lawsuit was brought against Universal claiming that the DMCA requires the copyright owner to consider fair use doctrine. Universal counterclaimed that there is no requirement that copyright owners has to determine whether the material is fair use before sending a takedown notice. However, the court did not buy this argument and ruled for Lenz that a copyright holder is required to consider whether there is fair use involve before formulating a good faith belief because a content owner must “make an initial review of the potentially infringing material prior to sending a takedown notice.” The court further held that sending takedown notice without proper consideration of the fair use doctrine deems acting in bad faith which is may be held liable for misrepresentation under §512(f) of the DMCA.
Questions about Digital First Sale and Future Business Model
As to the iTunes Music Store, it had created 10 billion dollars market in the past seven years. Apple has adopted the “win-win” business model to provide the DRM-free digital music files and to encourage consumers pay less, and download more. The average price of one song is 0.99 dollars or less. According to Electronic Frontier Foundation (EEF), if most of sixty million Americans who have been downloading music from legal Internet service platform pay $5 monthly downloading music, the market value will grow an additional 3 billion market value in revenue annually. The enormous market value expressly illustrates that the music downloading business has increased drastically. However, as Steve Jobs said, piracy is the big enemy to music industries. Illegal digital files sharing and reproduction by digital dissemination has threatened the copyrighted owners.
Privacy and the "Safe Harbor"
The article talks about what responsibility providers have to investigate privacy concerns of people who have pictures posted of them online. The case here is of a woman who had nude pictures posted of her online - pictures that were taken under duress by her ex-boyfriend - along with her contact information. The ex-boyfriend denied that he posted them, but did tell the police that he had circulated the photos. The woman asked the provider, Private Voyeur, to take down the pictures, and Private Voyeur did. A few months later, however, the pictures were back up.
The governing Act is the Communications Deceny Act, which has a similar sort-of "safe harbor" provision like the one Google and YouTube are taking advantage of (you'll note the article implies that once a provider is given notice of a copyright infringement that provider has all the liability...which we all know isn't really true!). A provider has to police comments and take down offensive material, but the free speech implications involved in policing internet content mean their liability doesn't extend much beyond that.
The article goes on to suggest that anonymous plaintiff suits would be a good way to privately police these sorts of actions. A person who has indecent content of him/her posted online may not want to drag his or her name through the courts, but doing so privately, without the name of the plaintiff open to the public, could provide extra protection.
While I'm not sure if I agree with this approach, legally or morally, I thought the article highlighted how this sort of safe-harbor provision is problematic not only in copyright, but for internet content overall.
Inducement
In looking at the issue of whether to punish the inducer or the direct infringer, my first thought is that there is a very similar market where there is an unmanageably large class of violators, developers who market devices with non-infringing and attractive, marketed infringing uses, but where the direct infringers are the only one’s punished. My analogy is to vehicle manufactures, particularly of sport cars. Nearly every automobile manufactured has the mechanical capacity to exceed maximum speed limits in any jurisdiction. Manufacturers include the top speeds in their marketing materials, but despite this, only the individual speeder is prosecuted for the offense. In the US, traditionally, when a product has legitimate legal uses, but users choose to use the thing to break the law, the liability should stay with the bad actor. No gun maker, nor car manufacturer, nor internet site should be responsible for the individual’s bad choices. Further, there is already law in place for criminal inducement without a court created amendment to the Copyright Act.
A common strawman argument against individual prosecution is that the numbers of infringers make it an impracticality. Back to my analogy, the number of speeders must be at least as substantial as copyright infringers, but despite this, deterrence is maintained by the selective enforcement of only a small fraction of direct violators. The change made to abandon individual infringers in favor of the court created cause of action ‘inducement’ was wise in the court of public opinion because of the astronomical value attached to the infringed media and the pity factor of the college kid defendants. However, if and when Big Media discovers a remedy to again punish individuals, any direct liability is far from absolved by the concurrent prosecution of the inducers of the world.
The problem is that permitting (or burdening) industries with the enforcement of what is becoming more like a regulatory issue is leading to strange, confusing, and possibly, bad law where liability and enforcement are not matching up.
Speak for VDO creators : Should we have clear rules for "Fair Use" of online videos?
Sunday, May 8, 2011
Obligation to block re-uploaded infringing contents
In Viacom v. Youtube, Viacom alleges that even they send out a take-down notice to Youtube to ask them to take the infringing contents down, the infringing contents are always re-uploaded in minutes. This is one of the reasons that Viacom argued Youtube intentionally allow copyright infringement and build their business on it.
I’m thinking of proposing to amend ISP’s obligations in DMCA “safe harbor”. That is, to put an additional obligation on ISPs to block re-uploaded identical or similar infringing contents after receiving a take-down notice. I have two reasons as follow:
First, blocking identical or similar content to be re-uploaded is technically feasible.
Second, this is consistent with the original Congressional intent.
The Congressional intent of the DMCA safe harbor was to achieve a balance between the copyright holder and the ISPs, to some extent promoting continuous expansion of the Internet. In order to achieve it, the DMCA waived ISP’s duty to police the sharing forum, which means you can keep your eyes closed if nobody tells you that you have something infringing. However, it is obligated to take infringing contents down if the copyright holder sends out a notice. The rule of obligation allocation appears to be fair that one has the duty to police and the other has the duty to make sure to prevent infringement if told. It is also a requirement of “clean hand”.
According to the underlying rule of obligation allocation, it seems to be against the legislative purpose if the copyright holder has to send notice regarding the identical or similar content again and again to protect itself. This tends to break the balance the legislature tried to achieve. Therefore, once the ISP is told, it is fair to require ISPs to establish an infringement database to prevent the specific content from being re-uploaded and infringing again.
Lawrence
ISP should be released from the obligation to monitor its site
In the past, there is no doubt that the copyright holders bore the burden to patrol others’ illegal activity. For example, to eliminate counterfeit goods, the copyright holders had to detect such goods and take appropriate legal steps. Even though, today, ISP actually contributes to infringe copyrights by providing with a huge platform, in my opinion, there is no reason to shift such burden to patrol illegal activity from the copyright holders to ISP.
Additionally, if mere knowledge of prevalence of infringing activity in general is enough, most ISP should take down illegal materials to fill the requirements of DMCA, but it is materially difficult to find out such materials because ISP has no concrete idea about infringing activity, and it seems too hard for ISP.
Google, Just go with Opt-In; it's the right thing to do!
One would find it hard to contend that digitizing books is a great idea. It is beneficial for both the consumers and the authors. Indeed it allows for easier and faster access to books anywhere in the world. On the other hand, authors get an exposure devoid of any territorial restrictions. Sounds like a win-win for all; so why is it that the writer’s guild and other authors do not want Google to engage in such “philanthropy?” Because it is far from it!
Google, although, started the Google Books project on a smaller scale providing snippets of copyrighted books, now wants to provide complete text without letting the publishers or authors of such works have any say prior to making the text available. In other words, Google wants to create an “opt-out” system where it gets the authority to scan and make available online all copyrighted (and of course, non-copyrighted work which is already in the public domain) work and if an author does not want his/her work to be made available online they can contact Google and “opt-out” of the system. Indeed, any sale that Google will make of the books, two-thirds of it will go to the authors and/or publishers.
In fairness to all – Google, authors, publishers, consumers, other e-book competitors and orphans – “opt-in” is the way to go. If Google is going to use the argument that making digitized “copies” of copyrighted work by scanning in the first place was “fair-use,” it cannot say that letting authors/publishers “opt-in” is unfair. Google cannot act like a whinny five year old who wants it all. Because an inapposite system is unfair to us!!
Big Companies and Fair Use
As an example, I have a link to an event from two years ago when a large company sent a cease & desist order to a website that collected images, reviews, discussions, and un-official variants for tabletop (board) games. When the company sent the C&D, they requested that essentially *all* content for their games be removed from the website. This resulted in a lot of legitimate fair use (users' transformative works, non-commercial expressions, etc) being removed from the public sphere.
http://boardgamegeek.com/thread/467096/gw-one-step-forward-two-steps-back-file-remova/page/1
Why did the website remove the content? Because the website is composed of two gentlemen from Texas who don't really know much about intellectual property law and they do not have the money to hire lawyers. Easy solution? Remove the content.
YouTube has a lot of legitimate fair use. In general, it appears that most of it stays up there. However, I am certain that Viacom would welcome taking down anything and everything that remotely resembles their copyright protected content. Because fair use is usually vague enough as to only be really discussed when it goes to litigation, it is something that small groups and individuals cannot effectively raise in response to a DMCA C&D.
YouTube v. Viacom - An attempt at a very limited business perspective
Let's Go Back to the Beginning - Reflection on Viacom v. YouTube case
Let's go back to the beginning where the intellectual property law was first adopted. Copy Right Act, one of the intellectual property legislation, was all about “contributing to the improvement and development of culture and related industry.” (Korean Copy Right Act, Art.1)
However, I am concerned about too much restriction on intellectual property. Too much restriction is not helping the development and improvement of new ideas. Rather it causes “chilling effect.” I do agree that the creator of any intellectual property should be awarded, but this is not primary goal of the protection.
The biggest concern is excessive privatization of "knowledge". The protection of intellectual property has crossed the line. Public use of knowledge has been more and more restricted. For instance, the Bayh-Dole Act enlarged the scope of private knowledge too much, and actually blocked the spread and creation of new ideas. . Again, the intellectual property legislation aimed to enhance motivation of creator in order to spread and create the knowledge.
In this perspective, I think the recent decision of Viacom case was in a right direction. Free use should be more encouraged, and there has to be more duties to the IP owners, not users.
Suggestions Learned From Viacom Case
How to protect their right? First, they should register their work before upodading it. This provides them with the prima facie evidence of a valid copyright. If they do not register their work within three months of uploading it onto the Internet, they will not be eligible to sue for any damages. Even if they do manage to register their work within three months period, they would not be able to recover damages for any infingement that takes place prior to copyright registration.
Secondly, Youbube could maintain archived viewing histories for each video. This would enable the users to subpoena Youtube's history in trying to prove access by production sompanies that have 'stolen' their precious works. Again, Google already has the technological capability to do this, as shown through its Google Desktop pplication. Also, provingassurances to its users in Youtube's best interest because it will strengthen brand loyalty and further compliment Google's other service.
The outcome of the Viacom case could have extreme implications for Youtube. it will be costly for Youtube if it is forced to proactively seek out copyrighted videos to keep them from their website. The suggestions proposed here will not cost Youtube much, besides providing the extra space for the archiving histories. Overall, it seems clear that the benefits greatly outweigh the costs for Youtube and Google.
Is safe harbor loophole for conduit provider?
In 1984, the Sony Court adopted the “staple article of commerce theory” which stands for the proposition that the sale of an article of commerce capable of substantial non-infringing use does not constitute contributory copyright infringement. But we are now in new world.
DMCA gave a safe harbor to the ISP under the circumstances of Sec 512(i). But it was 1998 when the Congress’s expectancy did not reach this top notch interactive technology circumstance. It seems that U.S. Supreme court considered over and over adverse effect of technology and gave us more or less reasonable standard through Grokster. However, in this time, court gave an advantage to big godzilla ISP without thinking the ideal which cannot be for real, but should be kept pursued. Safe harbor in Sec. 512 is meaningless when it is construed as a loophole for conduit provider like Google. Google earned money by using other’s copyrighted work without payment, and now it also has justification on what it has done through this court finding.
A respond of the Youtube case
1. Try to distinguish the user’s own original “user generated” video content and “un- user generated” copyrighted works.
2. As that “user generated” video, when the users upload the video, they ought to sign a contract to license the website saving and distributing their works.
3. As that “un- user generated” copyrighted works, I think there are many ways to do. First, website can order the users to get the licenses of the copyright owners. If not, website should prohibit the upload to prevent the infringement of the copyright. Second, base on the principle of fair use, website can post the link of the video(website cannot save the videos) with a notice of the limitation of the purpose of the use and prohibit the download of these copyright works. Third, website can weight the balance of the business profit and infringement remedy to dicide whether post these copyright works without license( this is not a analusis of the law, but it sufficient in the analysis of the economy).
4. Snippets-post. To deal with some important and profitable videos, website also can has many ways. First, website can get the license of these videos and just post snippets online, if the user want to get the whole vedio, they should pay to the website. Second, just post a very short snippet as a search outcome and provide the link of copyright owners for users.
Confusing Youtube ruling
Accordingly, I thought Youtube would have the same result with above cases without hesitancy. In my opinion, it has actual knowledge internet users upload and download copyrighted work. Notwithstanding taking more strong precautionary actions to prevent user’s infringement, it hasn’t. Besides, it gains monetary benefits from advertising which seemed to me as exceeding eligibility of safe harbor provision.
However, it was concluded as sheltering from the copyright infringement liability because Youtube followed the DMCA rule as notice and taking down. I don’t mean that the Youtube should be liable for the copyright infringement. At least, I believe the majority of the Youtube video was generated by users’ own creativity(UGC) which does not consist of the copyright infringement. Also, I don’t want to devaluate the positive function of the Youtube as such facilitating new technology innovation and social functions to build networking and sharing information.
However, my confusion seems to be caused by there might be something to miss in applying the DMCA rule consistantly. Isn’t there any way to satisfy both IP technology innovator and the copyright holder? How about remanding the DMCA with more clear line? Is it impossible to establish thorough filtering system to block distributing copyrighted work in advance? How about changing Youtube service to subscribed bases and then distribute the revenue to copyright holders?
Saturday, May 7, 2011
How to Adapt on the Internet Age
Now, no one can stop people from sharing music, video and other information over the Internet. If anyone or any governments try to stop it, internet users will share them through other ways and means. Even before the dissemination of Internet, people were always trying to exchange information regardless of illegality. Today’s difference is that such exchange of information is only conducted faster and more extensively on the Internet. Internet has been associated with all of people’s lives. The internet is decentralized, networked series of computers through which people can communicate with one another. In particular, a website which hosted so that the site is accessible to Internet users has a ubiquitous electronic presence, viewable anywhere and at any time. A lot of business activity is performed by Internet such as web promotion, electronic payment, and subscription.
I think that DMCA’s safe harbor provision will be considered the role and function of such Internet. If so, the owners of copyright such as movie work and music work also have to adapt to the Internet age. To protect own copyright work from distributing and copying, they have to pull personnel to monitor illegal activities and shall pay the more cost to crack down on illegal activities on Internet. Is this for copyright holder how to adapt Internet age?
Online Copyright Enforcement and ISPs
The DMCA provides the framework for ISPs liability for online copyright infringement. Section 512 creates limitations on that liability and clearly distinguishes between ISPs that store materials or content on their systems and ISPs that merely act as a data conduit, meaning only passively routing information from one place to another.
Although the DMCA does not require ISPs to engage in graduated response, it does require them to take specific actions in order to comply and enjoy the safe harbor provisions under section 512 of the DMCA. Both types of ISPs are subject to section 512(i) and thus are required to adopt and implement a policy of terminating users’ accounts in appropriate circumstances and inform their users about that policy. The requirements of section 512(i) are very loosely defined and courts have been left to fill the gap. The language of section 512 (i) provide no definition for repeat infringer and no guidelines as to when it will be appropriate to terminate users’ accounts.
The termination of users’ accounts by ISPs raises some major concerns. First, from the ISPs point of view, the graduated response, and especially the final step of termination users’ accounts, can be very expensive. By turning ISPs to an online police, the graduated response system forces ISPs to invest money in enforcement equipment, which normally one would not expect ISPs to practice. Besides the new “smart” technology that in most cases has already implemented in their systems, ISPs also need to invest in surveillance and data retention. Another aspect of the financial burden is the ability of ISPs to bear the great costs and at the same time to improve their services and to meet their users’ demands.
Second, the DMCA does not state which appropriate circumstances can lead to account termination by ISPs. From the internet users’ point of view this also raises majors concerns. Besides the fact that termination of users’ accounts could cause great damage to their everyday life, sending infringement notices to users, which in the case of large ISP can easily be more than million a year, ISPs, in the name of the graduated response system, deny due process to their users. Also, the process of sending the notices itself can be sometimes inaccurate and lead to unfortunate misunderstanding.
Whether ISPs should engage in graduated response is not an easy question. Enforcement online copyright infringement is definitely one of the “hot” topics in the past years, and thus should be addressed accordingly, but it is questionable whether ISPs are the ones to address it, let alone enforce it. I believe the enforcement role should be reserved for the government and the courts, as they are the only one who can do, or at least try to do, justice in this sensitive matter.
Technology changes the way of life
About 15 or 20 years ago the evolution of digitalization gains speed. In just a few years, almost all the new works have digital versions. For books, it could be pdf files. For musics, it could be mp3 files. At this stage, consumers usually pay to download a file to their computer and use some special software to view those files. Copyright infringement usually involves illegal exchange of digital files.
In the beginning of music digitizing era, people are still using computers to listen to the music. Although massive illegal download happens, it doesn’t really hurt the sales of CDs. Because compared with CD, it really isn’t very convenient to playback those digital music files. Things changed until the compact size digital player comes out. The digital music player is very small in size compared with CDs. Also it can contain thousands of music. Apple’s ipod bring this almost dead company back to the front line of the IT industry. Apply uses its itune store to sell musics. On February 24, 2010, itune store sold its first 10 billion songs.
However, traditional computer file system is too complicate to understand, and massive files are hard to manage also. In recent years, cloud computing gains attention. Cloud computing have all the files or data stored on a server, with wireless connections (usually 3G) we can access those files using different devices and at different locations. In this scenario, if you want to buy a book, just go to Google Book website, then there’re thousands and millions books ready for you. You can read and comment on it at home while using your home computer, then continue to read it at your office using your office computer. There’s no mess of moving files and remembering last location you’ve read.
People always want simple ways of acquiring information. And it is always new technologies which make the knowledge and information readily available to users win the competition and prevails. Surely, there are controversial legal issues around this area. Google make all the digital books available in their Google Library without permission from the Orphan Books’ authors—which is typically copyright infringement. Google urge to establish a mechanism to utilize all the Orphan Books among private, self-interested parties because it owns the No.1 search engine, and wishes to provide ways to grab all contents into its hand, so that it will be a one stop source of knowledge and information. I agree that we cannot let Google to take the whole cake, but also cannot stop the irresistible trend—though the ASA is creative and practicable, the main executor is not Google, but an independent basis-the unit of Rightsholders. Copyright law’s role is trying to balance between creative incentive and industrial competition.
Friday, May 6, 2011
Why the Fight?
Another line of thought, the converse of above, is why didn’t the copyright holders identify YouTube as an incredible and fast-growing technology that allowed them to easily advertise such things as upcoming movies, television shows, and the like? While it seems YouTube had a bit more incentive to work with copyright holders from the beginning, copyright holders may have missed some easy and profitable opportunities to market their products.
Thursday, May 5, 2011
Is the current situation of Viacom case meant by lawmakers?
On Google Books, also re Lawrence's comments
Thank you, Lawrence, for your insightful analysis and comparison between the website search engine and book search engine. Here, I have some ideas to share with you regarding your comparison and question.
First of all, I have an article which demonstrates the whole process of how search engine works for you: http://computer.howstuffworks.com/internet/basics/search-engine.htm. As describing in this article, the scrawling software called “spider” scrawls millions of web pages in a very efficient way, which means a search engine's spiders have to look at a lot of pages just like people read books. But “reading” alone doesn’t mean the spider is scanning every page that it has crawled and copying them into its database. In fact, what the spider has done is just taking some key content which later is used to build an index to match the words that users entered. It’s just like a person takes some notes when he/she is reading a book. So it's absolutely different from the process that scanning every single page of books and store them in a separate database. In this case however, what Google Books done is digitalizing the content of books, which is the exact meaning of “copy” defined by copyright law.
I think the main opponent to Google Books are not authors, but the publishers. Digitalizing books doesn’t largely impact the interest of authors, who won’t care too much about how his books is presented to readers, but rather the publishers. It means people may read books through the computer and Internet, skipping the publisher who was traditionally the biggest winner in content market. Therefore, they become the main opponent of digitalizing books since Google Books is grabbing their market and profits. What’s more, Google Books is partly infringing the right of publishers when they scan books already have been published. This is a very important component in copyright system, which is also called neighboring rights in civil countries.
From the policy consideration, however, high technology, especially when it substantially promotes the progress of art and social wealth, has being consistently supported by congress and judicial branch. Technology development is an irresistible trend and inevitably brings a lot of challenge to copyright law, virtually to the traditional interest structure of the content market. In my opinion, we can not simply resist the new tech and the big change it brings, but think about how to reasonably allocate the interest in the new market. Of course, this should be largely accomplished by different application of copyright law. Thus when it comes to Google Books, I think the main practical issues is how to justify the copying of books in legal context and compensate publishers in a technical way.
Wednesday, May 4, 2011
The graduated response in online copyright enforcement
In France the French government passed the graduated response system in the Creation and Internet law (also known as Hadopi law after the administrative body) in 2009. The law included a requirement for judicial review and the due process was specifically addressed. United Kingdom passed its legislative version of a graduated response system for peer-to-peer copyright infringement, the Digital Economy Bill, in 2010. The bill included standards of evidence for the ISP to follow, when terminating Internet access. In Ireland the graduated response was implemented through case law, when the High Court in April 2010 in a lawsuit between the Irish Recorded Music Industry Association and the largest Irish telecom operator Eircom held that a private agreement about graduated response should be implemented.
In Germany a graduated response has been discussed with the industry but has not given any result, especially because the graduated response clash with the protection of privacy, since a graduated response will mean that communication data is stored.
Tuesday, May 3, 2011
Class Plan and Assignments for Rest of Quarter
So in the spirit of much more clarity, here is the gameplan, and associated assignments, for the rest of the quarter, including the readings for yesterday that you can review if you have an interest in knowing more....
May 2, 2011
A Closer Look at Google Books
Reading for this Class:
• See www.googlebooks.com
• For a good summary overview of the history of Google books and related issues, see Wikipedia - http://en.wikipedia.org/wiki/Google_Books
• For articles on the broader issues, see Jeffrey Toobin, "Google's Moon Shot," http://www.newyorker.com/fact/content/articles/070205fa_fact_toobin; or Robert Darnton, "Google & the Future of Books," http://www.nybooks.com/articles/22281
• For a discussion on the recent rejection of the settlement, see "Judge Rejects Google Books Settlement," The Wall Street Journal, March 23, 2011, http://online.wsj.com/article/SB10001424052748704461304576216923562033348.html
Next Assignment:
• Individual comments to be posted on Blog by EOD May 8th.
May 9, 2011
Creators’ Rights in the Digital Age
Reading for this Class:
• Explore Columbia University Kernochan Center on Law and Media’s project www.keepyourcopyright.org
• Explore www.creativecommons.org
• For an overview on Creative Commons, see Wikipedia, http://en.wikipedia.org/wiki/Creative_Commons
• For approaches to music downloading http://www.paidcontent.org/entry/419-music-roundup-starbucks-iphone-radiohead-fans-pricing-bebo-atlantic-imeb
Class Discussion:
• Explore and Discuss Artist Views and Issues, legally, economically and socially
• Keepyourcopyright.org; Radiohead, and other innovations
Next Assignment:
• Further Development of Stakeholder’s Position Papers – Final Presentations Due end of day May 22nd (powerpoint or other format from each of the four groups) for posting on Class Blog
May 16, 2010
International Dimensions of Content on the Internet $
Framing the Debate for the Role of IP in 21st C. Social Innovation
Reading for this Class:
• Reviewclass blog posts on German and Italian cases involving YouTube
Class Discussion:
• IP Innovations in other jurisdictions - context, outcomes and comparative issues
• Early lecture on IP Innovations as they relate to "Social Innovations" in global health, development and education in the 21st C
Next Assignment:
• Team Presentations due on May 22th – posted on blog ahead of class presentations
May 23 2011 (Final Session)
Presentations and Final Thoughts
No specific readings for this class, but come to discuss YOUR stakeholder’s point of view, with any appurtenant readings/articles/support
Presentations representing litigators, judges and lawyers, business coalitions, artist coalitions and others.
Caching v. Copying
Steve