An Analogy between Website Search Engine and Book Search Engine

I’d like to expand my point of view in today’s class a little bit. It's something re Google Books Project.

As is known to us, Google divided the all the books in the project into several groups: the ones already in public domain could be fully viewed online or downloaded; as to the ones still under copyright but the author opts in as a partner with Google, the viewable pages is decided according to the contracts; for books that may be covered by copyright and where the owner has not been identified, the full text is searchable but only "snippets" (two to three lines of text) are shown in response to customer’s search requests.

There is no problem with the first two groups. It is the third group that brings some trouble. The authors (or the Guild) allege it is copyright infringement because Google makes copies of copyrighted works by scanning them and store the digitalized copy in its database.

This made me think of the regular search engine, which is conducting almost the same copying behavior as Google book. It seems difficult to find a sound legal basis to argue industrial practice in the dispute, but it confused me that same behavior leads to two results.

According to my knowledge, the way most search engines work is that a robot keeps crawling through thousands of hundreds websites every minutes and coping the web pages into a big database. When a customer submits a search request to the search engine, the engine would search for the terms in its own database and respond with the results.

Many of the web pages are actually carrying copyrighted works, but nobody objects to be crawled and copied by the search engine. The reason is that it is a default that all the web pages want to be searched and viewed by the customers. Being crawled and searched by search engines greatly increases a webpage’s chance to be found and viewed by a customer. If a page doesn’t want to be searched by the search engine, it could easily adjust its metatags or other technical feathers to “opt-out”.

So it seems to be a wide accepted custom or rule in the search engine industry that copying copyrighted works for the sole purpose of building a database to be searched instead of displaying the contents is allowed.

The Google Books Project is in a similar situation. Digitalizing the books is just a process of building a search engine database, like the robot crawling through the websites. Google doesn’t substantially display the contents to the public. On the contrary, people are able to know certain books contain the information they need by searching the full context and could be directed to buy the hard or digital copies. So Google Book is actually increasing the sale of books.

Intuitively, mass scanning books is more acceptable and easier to be regarded as an infringement. However, when we think it over, we can see there is no essential difference between the website search engine and book search engine. If Google Books is copyright infringement, most of the regular search engines should also be.

Could anybody explain why the same behavior leads to two totally different results? One is OK while the other is copyright infringement? The only reasonable answer I could think of, though I still doubt it, is regular search engines are actually infringing. People can sue the regular search engines if they want, though nobody actually sues them because it is an industrial practice which has peacefully existed for more than ten years and the copying process is not as visible as scanning so that it is not as acceptable by ordinary people.

Both legal and technical comments are welcome!

Cheers,
Lawrence

GROUP 3-BIG BUSINESS-May 2 in class discussion

Concerning the losing of copyright infringement lawsuit with YouTube, Viacom, the owner of Comedy Central, MTV and Nickelodeon, decides to invite representatives from other big companies to discuss the issue and come up with the solutions to balance the impacts of technology development and interests of copyright holders.

Roles:
Viacom-Two Representatives
YouTube (Google)
Apple
Sony
Cable
Bing (search engine)

What would a fair balance look like?

In my opinion, the You Tube case hinges on whether general knowledge is sufficient to trigger an obligation to act under the DCMA. Because the legislative history is not clear on whether general knowledge or specific knowledge constitutes “actual knowledge” of infringement, there is a need to clarify this point so that emerging technology business models will understand the risk they are undertaking in making user generated content available to the public. Given the wide-spread use and acceptance of websites such as You Tube, there is strong motivation to continue to enable these sites to perform their services without incurring liability. On the other hand, there is an equally strong policy for ensuring that content holders can effectively protect their intellectual property against the wide-spread unauthorized dissemination of the content. While requiring specific knowledge of an infringing video (or any protected content for that matter) appears to strike a balance at first blush, a closer look reveals that the balance falls heavily on the side of the consuming public and the technology providers (and not for content providers). The You Tube opinion seems to suggest that turning a blind eye (i.e. willful blindness) to the actual use of a website is sufficient to maintain DCMA safe harbor protection, even though there is testimonial evidence that You Tube knew and in part wished to capitalize on the general infringing uses on the website. To me, I think a better balance would be to impose some burden on the internet provider (read here to mean a provider that does something more than merely providing a channel; for example, providing a viewing platform or searchable database would be sufficient to trigger the additional step for obtaining safe harbor protection) to implement some type of filtering technology on the website. Perhaps an even more equitable balance between the competing interests of ISPs and content holders would be to split the cost of developing and applying the filter? Either way, the current distinction between general and specific knowledge seems insufficient to adequately protect content holders' rights in their work.

Anna's opinion re: Viacom v. Youtube

Technologies are transforming our society. The development of technologies goes very speedy, and the pace of the transformation and number of issues it creates are very high. Moreover, the pace of the legal development is much slower than the pace of technology development. In result, cases like Viacom v. YouTube/Google, copyright owners v. social media occur.

New business models, technologies, and social media create mass copyright infringement. Therefore, there is a need to either reduce the level of copyright protection, or increase the control on media, or both of them. We cannot diminish interests of neither copyright holders nor technologies. We need to find the right balance between them.

These are my proposals:

1. A patent owner should police its patent rights (Wanlass v. General Elec. Co. 148 F. 3d. 1334, 1338 (Fed. Cir. 1998). Similarly, a copyright owner, who wants to enjoy its monopoly and revenue, should police its copyright too. Based on this principle, the owner must review its copyrights and realize a notice of infringement.

2. A copyright organization or society will collect these notices, provide legal services, negotiate with infringers, and litigate.

3. A special copyright court, such as the Federal Circuit, will handle the copyright infringement cases only. It could relieve the district courts and be more specialized.

4. Establish mandatory copyright registration in the U.S. Copyright office.

5. Create a consolidate database of all copyrighted works accessible to the public, including ISPs.

6. ISPs will develop new control and filtering software for avoiding infringement as much as possible.

7. Extend boundaries of the Fair Use doctrine.

8. Licensed music, video, and digital services should be cheaper.

9. Promote legal education of society about copyright law.

YouTube Litigation in Italy - The RTI v. YouTube case before the Rome Tribunal

(...sorry definitely more than 200 words for me too!)

Italy has had its Viacom too. And even though, unlike in Germany, a decision has not yet been issued on the merits, a summary judgment and an injunctive order have been granted to the plaintiff against YouTube, anticipating a likely different outcome from the one endorsed by the S.D.N.Y. in the U.S..

A closer look at the Italian case may be interesting in order to draw a basic comparison between the approaches taken by the two Courts when dealing with substantially the same issues sorrounding the current ISP liability debate and, maybe not surprisingly, with substantially the same arguments and defenses raised by the parties.

In fact, although some issues are specific to the European (and Italian) legislative framework, the liability rules are substantially similar (and indeed modeled onto) to those framed by the US DMCA, and so are the fundamental considerations that have to be made with respect to the policy choices currently available to face the challenges of the Web 2.0-3.0 environment.

The case we are talking about is the RTI v. YouTube case which was brought before the Rome Tribunal in late 2008 and so far resulted in two Court Orders of December 16, 2009 and February 11, 2010.

The suit was filed by the Italian media giant RTI, a company which owns three national tv channels and has multiple interests in the content producing and broadcasting industry.

RTI alleged that hundreds of clips and video-excerpts of its proprietary or exclusively licensed broadcasts had been made available online on a daily basis by YouTube without any authorization. Interestingly, the clips specifically in dispute were excerpts of the “Big Brother” reality show episodes which were at the time being televised on both national and satellite tv channels as well as stream-casted 24/7 on a pay-per-view basis through the RTI website.

RTI sued YouTube for copyright infringement based on the Italian Copyright Act, arguing that the safe-harbor provisions enacted in Italy to the benefit of ISPs in compliance with the EC e-Commerce Directive n. 31/2000 (namely, Articles 14 to 17 of the Italian e-Commerce Act) were inapplicable to the facts and circumstances of the case.

A brief note about the EC Directive and its Italian implementation: unlike the DMCA, the Directive is silent about "notice and take-down" procedures started by the content owner's notification of infringement, leaving to the single Member States the decision to implement such prcedures. And the Italian legislator decided not to implement a specific “take-down” procedure and failed to identify the necessary elements for a notification capable to trigger the ISP’s “actual knowledge” of the infringement, thus leaving to the Courts the task of assessing it on a case by case basis.

Under the current statutory system, some Courts in Italy have proved comfortable in holding that a mere notification by a private party (such as, for example, the copyright holder) may not be deemed sufficient to establish a duty to activate on part of the ISP, that instead should be prompt to respond only to a specific Court order eventually obtained by the party seeking the content’s removal. Such interpretation has been mainly supported by the constitutional concerns related to the possibility that a private entity would de facto make a final determination about infringement in the absence of due process and in violation of the freedom of speech. Still, in other cases various types of notifications (with a varying degree of detail required from each case to another) were indeed accepted as triggers to liability.

In this perspective the RTI lawsuit is particularly interesting because the Rome Tribunal expressly chose to re-discuss thoroughly the issue.

Significantly, the plaintiff’s core argument in this Italian lawsuit was built around the very same fundamental assertions made by Viacom in the U.S. case: YouTube could not qualify for the safe-harbors because its activity is not limited to the mere passive “hosting” of the videos uploaded by the users, because it filters, organizes, streams the content for commercial purposes; even qualifying for the coverage of Article 16, YouTube had failed to activate notwithstanding its actual knowledge of the ongoing infringement, due to the massive number of notifications that RTI had sent out with respect to the specific content in dispute; and, at the very minimum, YouTube had the reason to know about the infringement because it was alerted by several “red flags”, that is to say that the infringing activities or the illegality of the content was patently apparent for excusing a failure to activate on the part of the ISP.

YouTube of course claimed to benefit from the full shield of the safe-harbors because it plainly qualifies as a hosting provider under Article 16 and, on the specific occasion, it did not have any knowledge of the infringing activity or content (due to the insufficiency of the notifications received by the plaintiff); the defendant also asserted that it does not have any right or technical ability to control the content uploaded from its users and accordingly did not have any duty to monitor and to activate for preventing the infringements or removing the files. Importantly, as it did in the U.S. YouTube also raised - as a sort of “last resort” defense - a “fair use” defense under the very narrow Italian fair use doctrine (under Article 70 of the Copyright Act), arguing that the allegedly infringing videos were not made available in their entirety and for a commercial purpose, thus trumping the very existence of the users’ direct infringement and, consequently, any secondary liability claim against the ISP.

The Court found for the plaintiff and issued an injunctive order requiring YouTube to take-down the videos.
Here's the Tribunal’s legal analysis on the question of the applicability of the safe-harbors.
First of all, the Court endorsed the plaintiff’s view according to which YouTube acts over the internet as a “sui generis” ISP whose activity does not fit with the statutory definition of the “hosting providers” as identified by the Directive and the Italian e-Commerce Act.
The Court specifically held that YouTube “didn’t limit its activities to providing the users the mere availability of server space where they could independently upload and organize content onto” . Rather, the Court found “undeniable” that the ISP acted as a “digital broadcaster” operating in direct competition with the RTI tv channels and with RTI proprietary website, given the provider’s evident efforts devoted to the indexing, the aggregation and the organization of the uploaded material which granted the users the possibility to access to the content through a quick search of the title of the work, of the specific episode and the original “on air” date .
The Court indeed noted that YouTube business model was based on the very “programming of the content for the fruition of the users”, activity which was undertaken for patent commercial purposes, being the indexing, aggregation and organization of the content strictly functional to the triggering of key-word-based advertisement revenues.

Interestingly the Tribunal went on holding that the content uploaded by the users was to be deemed in fact "owned and controlled" by YouTube since the ISP “predisposed a system for the control of the data flow at many levels”, binding the users and the viewers to Terms of Use and Service which plainly gave it the full right and ability to filter and remove it to its absolute discretion, either before and after the upload.

In the view of the Court, such degree of involvement of the ISP with the content carried was not the degree of involvement the European and Italian legislators meant to shield from liability claims.

Indeed, even assuming that YouTube was a “hosting provider” qualifying under Article 16, it could not be excused since it had sufficient knowledge of the ongoing infringement.
In fact, in the Court’s interpretation, the knowledge standard required by Article 16 is met when an ISP receives any kind notification from the content owner which is sufficient to reasonably establish the ownership of the content and reasonably identify the allegedly infringing material, the law certainly not requiring an URL-specific notification.
Under the facts of the case, RTI had sent YouTube a massive number of cease-and-desist letters properly identifying the material with the title of the works - which was embedded in almost all the titles and the search tags connected to the uploaded videos – and yet the ISP did not activate in any way to verify the “suspect content” or even to cooperate with the owner to verify the alleged infringement, a situation that persisted also after the filing the lawsuit. According to the Tribunal, based on these facts YouTube had at least reason to suspect that an infringing activity was going on and that apparently illegal content was present on its servers and its website.

Therefore the Court found it was “totally unreasonable” to hold YouTube to be extraneous to the infringement and exempted from any duty of diligent activation. The Tribunal recalled that no duty of active prevention is owed by a truly neutral ISP, but all ISPs are legally bound to effectively activate post-factum, diligently and expeditiously, to remove the cause of harm; in the view of the Court, a different solution "would overburden the content owners", which do not have any right or technical ability to disable the access to the content made available online.

The take-away of the case? Also in Italy Courts are struggling with the qualification of typical Web 2.0 ISPs within the statutorily defined categories which were built in the Web 1.0. reality and are putting into question the current effectiveness of that "outdated" legal framework.
It seems that the very business model carried on by YouTube is being delegitimated.
But who has the solution? And is it really the cure better than the disease?

Law suit versus YouTube in Germany - LG Hamburg 308 O 27/09

(At the end the posting is a little bit longer than 200 words...). In a recent ruling by the District Court (“Landgericht”) Hamburg (Decision of September 3rd 2010, 308 O 27/09) the court assumed a direct responsibility of the video platform YouTube for publication of copyrighted content. This content had been uploaded by users of the platform on www.youtube.de (the German YouTube platform).

The judges dissent from former decisions of the same court (for example LG Hamburg 324 O 197/08, 324 O 565/08). In these decisions the court adopted liability of platform providers only if they had actual knowledge of the infringing action and failed to remove the infringing content in time. The latest dissenting decision would significant raise the risk for platform provider.

In this case, plaintiff is owner of various copyright protected materials. Users of the YouTube platform uploaded copies of the protected materials to the platform, for example video clips, pieces of music and artwork, and live recordings.

The court held that YouTube has adopted the user generated infringing content as its own. Thus, any privilege for ISPs is waived and YouTube is not only liable for omission but also for damages. At the end a non-exclusive license was YouTube’s undoing. YouTube’s users have to agree to a license allowing YouTube to use the uploaded content, this provision is necessary to run the service properly. But the Hamburg court assumed that this license grant causes YouTube to adopt the licensed content – even beside any promise of the users that the uploaded and licensed content would not infringe any copyright. On appeal of the Viacom law suit in the U.S., Viacom seems to argue on a similar base as the court in Hamburg (Appeal Brief page 52).

At least, the decision in Hamburg was made by a lower court and should now be on appeal (actually, there is no file number known at the moment). The District Court of Hamburg is known for its (sometimes) strange outcomes in lawsuits dealing with new technologies. But in another case the German Supreme Court (“Bundesgerichtshof”) affirmed a decision of the Hamburg Court of Appeal (“Hanseatisches Oberlandesgericht”) regarding another case related to user generated content (“Marions Kochbuch”, BGH I ZR 166/07, provider is liable for user generated content under certain circumstances).

At least, YouTube could maybe change its business model in a way that its users broadcast their own content using the technical platform/services of YouTube. That would prevent the necessity of a license and also reduce the contribution of YouTube to a true Hosting and Access Provider.

Studios partnering with Youtube to rent movies?

Saw this story tonight, apparently Youtube is trying to woo major studios into posting movies for consumer to rent and view through Youtube. Interesting, I like the move. I think more can be accomplished by people getting along and thinking together than by everyone trying to dig moats around their content and technology.

Click here for the story.

I saw it through my twitter feed of @techcrunch. For the twitter minded, it's a pretty good source of information.

Cheers!
Jomo