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CREATIVITY 3.0
A PLACE FOR DIALOGUE, LINGS AND FURTHER DISCUSSION FOR THE UNIVERSITY OF WASHINGTON SCHOOL OF LAW IP INNOVATIONS CLASS - E589 - SPRING 2011. TAUGHT BY STEVE DAVIS. PLEASE POST AND COMMENT FREELY.
Thursday, April 21, 2011
Group 4
Looking for Group 4. Several of us will be meeting Monday, April 25 at 11am in the law school cafe to discuss ideas and approaches to the problem.
The consensus seems to be that since we've been given time to meet in class, we will not be meeting in the cafe today. However, I am still available to meet anyone that wants. Just send me an email, micahchaimthomas@gmail.com
First of all sorry if I seemed pushy today, I did not mean to offend any. It was nice to have an initial talk and I am sure it will be fun.
My initial idea of an outline and some questions we need to answer:
The case What is the technology? Did we agree on YouTube or Artwork? My argument for YouTube is that other groups represent other stakeholders and use YouTube as case,but I have no preference, since the basic issues will be the same.
Presentation: How do we want to present? 2 parts – blog and class presentation
Issues in our argumentation : Policy: The consumer POV free flow of ideas/information Free speech – constitution Law: Case law about the issues, DMCA, Fair use Other stakeholders: Who are the opponents and what are their arguments?
Here is a rough outline of the various factors that we should look into in order to give our "client" a brief overview of any risk involved in his or her website. To properly evaluate the risk, it would be helpful to review the cases addressing these factors to decide where the line is/should/will be drawn between safe harbor protection and liability.
I. DCMA safe harbor requirements A. Looking at interpretations of “ISPs” II. Secondary Liability cases 1. Contributory Infringement 2. Inducement
FACTORS Contributing to Risk: III. Technical requirement (notice/takedown) IV. Financial requirements (no direct benefit) V. Right and Ability to Control A. The mechanics of the content submission B. Search databases/sorting/organizing content VI. Capable of Substantial Non-infringing Uses VII. Actual and Apparent Knowledge VIII. Fair Use A. Whether Transformative (thumbnail picture case) ---nature and purpose of website
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. As a business website, Youtube has to pursue the profit maximization. I think it is impossible to order a searching engineer website to get all the licenses of the copyright works that posted on their site. It is time-consuming and costly. So, from the view of fair use, I’d like to give these website some advises: 1. First, website should just 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. 2. To deal with some important and profitable videos which with no license but necessary to post, 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. 3. The website sometimes post a whole content of an unlicensed vedios, under the requirement of the fair use, they must fulfill the requirement as follows:(1) users must sign a agreement of notice of the limitation of the purpose of the use before they approach the vedio; (2) prohibit the download of these copyright works; (3) add the information of authors as a watermark in the vedio; (4) Time-shifting as possible to reduce the effect of the use upon the potential market for or value of the copyrighted work.
"Substantial non-infringing use" is an effective defense to claim of contributory infringement. (Sony case) If the new technology has the function of or actually within substantial non-infringing use, it is immune from contributory infringement liability even though it somehow may also lead to infringing use.
Everyday, Youtube receives 100 million video views and 35 hours of new videos are uploaded to the site every minute, among which 75-80% come from copyrighted material. Howeverm, the original intention and sole purpose by creating Youtube is non-infringing use, to encourage creating and sharing audiovisual works, to promote the progress of art and increase the societal wealth, not the illegal works.
Youtube was “capable of substantial non-infringing use” as well as infringing use, and in fact, the non-infringing use substantially exceeds the infringing use. So we advise our client to collect evidence of the actual substantial non-infringing use: So far, how many videos have been uploaded totally and how many of them have been notified and further proved as infringing use?
Please see the summary from my part, ability and right to contral.
To be eligible for safe harbor protection, our clients must satisfy the specific requirements enumerated under § 512(c). In order to do so, they must establish that the online storage occurs at the direction of the user and that the company does not have actual knowledge of infringement, responds expeditiously to DMCA take-down requests, and lacks financial benefits and control over the copyright infringement. Our clients should prove that their revenue was not from the infringing activity. In determining whether the financial benefit criterion is satisfied, courts should take a common-sense, fact-based approach, not a formalistic one. In general, a service provider conducting a legitimate business would not be considered to receive a “financial benefit directly attributable to the infringing activity” where the infringer makes the same kind of payment as non-infringing users of the provider’s service. The “right and ability to control’ the activity requires knowledge of it, which must be item-specific. Our clients could assert that, they did not aware any copyright infringement existed before right owner notification. If “red flag” identify infringing material with sufficient particularity, it must be taken down. So, the service provider must know the infringement before he can control it. Besides, it will be costly for service provider if it is forced to proactively seek out copyrighted videos to keep them from their website.
Micah,
ReplyDeleteI too am in group 4 and will plan on joining you all on Monday. Thank you for posting!
Kristen
The consensus seems to be that since we've been given time to meet in class, we will not be meeting in the cafe today. However, I am still available to meet anyone that wants. Just send me an email, micahchaimthomas@gmail.com
ReplyDeleteok
ReplyDeleteHi group 4
ReplyDeleteFirst of all sorry if I seemed pushy today, I did not mean to offend any. It was nice to have an initial talk and I am sure it will be fun.
My initial idea of an outline and some questions we need to answer:
The case
What is the technology? Did we agree on YouTube or Artwork? My argument for YouTube is that other groups represent other stakeholders and use YouTube as case,but I have no preference, since the basic issues will be the same.
Presentation:
How do we want to present?
2 parts – blog and class presentation
Issues in our argumentation :
Policy: The consumer POV free flow of ideas/information Free speech – constitution
Law: Case law about the issues, DMCA, Fair use
Other stakeholders: Who are the opponents and what are their arguments?
Regards, Mette (425 922 7641)
To contact me just write an email to kleindw at uw dot edu.
ReplyDeleteHere is a rough outline of the various factors that we should look into in order to give our "client" a brief overview of any risk involved in his or her website. To properly evaluate the risk, it would be helpful to review the cases addressing these factors to decide where the line is/should/will be drawn between safe harbor protection and liability.
ReplyDeleteI. DCMA safe harbor requirements
A. Looking at interpretations of “ISPs”
II. Secondary Liability cases
1. Contributory Infringement
2. Inducement
FACTORS Contributing to Risk:
III. Technical requirement (notice/takedown)
IV. Financial requirements (no direct benefit)
V. Right and Ability to Control
A. The mechanics of the content submission
B. Search databases/sorting/organizing content
VI. Capable of Substantial Non-infringing Uses
VII. Actual and Apparent Knowledge
VIII. Fair Use
A. Whether Transformative (thumbnail picture case) ---nature and purpose of website
Adding IX. Policy
ReplyDeleteI: David
II: Travis
III: Mette
IV:
V:
VI: Xiao
VII: Sho
VIII: Chen
IX:
Micah, Kristen & Lidan: please choose one of the topics left or change with someone if you would prefer to pick another topic.
ReplyDeleteI will do "V. Right and Ability to Control
ReplyDelete", thanks.
I will do the financial requirements (no direct benefit). That leaves Micah with the policy points, if that is ok with him?
ReplyDeletesounds fine.
ReplyDeleteIn determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
ReplyDelete(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
As a business website, Youtube has to pursue the profit maximization. I think it is impossible to order a searching engineer website to get all the licenses of the copyright works that posted on their site. It is time-consuming and costly. So, from the view of fair use, I’d like to give these website some advises:
1. First, website should just 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.
2. To deal with some important and profitable videos which with no license but necessary to post, 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.
3. The website sometimes post a whole content of an unlicensed vedios, under the requirement of the fair use, they must fulfill the requirement as follows:(1) users must sign a agreement of notice of the limitation of the purpose of the use before they approach the vedio; (2) prohibit the download of these copyright works; (3) add the information of authors as a watermark in the vedio; (4) Time-shifting as possible to reduce the effect of the use upon the potential market for or value of the copyrighted work.
"Substantial non-infringing use" is an effective defense to claim of contributory infringement. (Sony case) If the new technology has the function of or actually within substantial non-infringing use, it is immune from contributory infringement liability even though it somehow may also lead to infringing use.
ReplyDeleteEveryday, Youtube receives 100 million video views and 35 hours of new videos are uploaded to the site every minute, among which 75-80% come from copyrighted material. Howeverm, the original intention and sole purpose by creating Youtube is non-infringing use, to encourage creating and sharing audiovisual works, to promote the progress of art and increase the societal wealth, not the illegal works.
Youtube was “capable of substantial non-infringing use” as well as infringing use, and in fact, the non-infringing use substantially exceeds the infringing use. So we advise our client to collect evidence of the actual substantial non-infringing use:
So far, how many videos have been uploaded totally and how many of them have been notified and further proved as infringing use?
Please see the summary from my part, ability and right to contral.
ReplyDeleteTo be eligible for safe harbor protection, our clients must satisfy the specific requirements enumerated under § 512(c). In order to do so, they must establish that the online storage occurs at the direction of the user and that the company does not have actual knowledge of infringement, responds expeditiously to DMCA take-down requests, and lacks financial benefits and control over the copyright infringement.
Our clients should prove that their revenue was not from the infringing activity. In determining whether the financial benefit criterion is satisfied, courts should take a common-sense, fact-based approach, not a formalistic one. In general, a service provider conducting a legitimate business would not be considered to receive a “financial benefit directly attributable to the infringing activity” where the infringer makes the same kind of payment as non-infringing users of the provider’s service.
The “right and ability to control’ the activity requires knowledge of it, which must be item-specific. Our clients could assert that, they did not aware any copyright infringement existed before right owner notification. If “red flag” identify infringing material with sufficient particularity, it must be taken down. So, the service provider must know the infringement before he can control it.
Besides, it will be costly for service provider if it is forced to proactively seek out copyrighted videos to keep them from their website.
Please check your emails...
ReplyDelete