Saturday, January 31, 2009

Bloomberg: 'White House Lawyers Look to Limit Commercial Use of President'

The White House better hurry up and hire an IP Czar - it may have some enforcing to do! Bloomberg reports that the counsel's office is gearing up to start dealing with all the corporations trying to cash in on Obamamania by incorporating the Presidents' -- and even his daughters' -- likeness into their advertising campaigns. Reports Bloomberg:

White House lawyers want to control the use of the president’s image, recognizing the worldwide fascination about Obama’s election, First Amendment free-speech rights and easy access to videos and photos on the Web.

“Our lawyers are working on developing a policy that will protect the presidential image while being careful not to squelch the overwhelming enthusiasm that the public has for the president,” White House spokeswoman Jen Psaki said.

Bloomberg lists a few examples of Obama ad campaigns that even we here at C&C HQ weren't aware of:
Obama’s calls for change and his “Yes We Can” campaign mantra are being evoked to sell assembly-required furniture in Ikea’s “Embrace Change” marketing campaign, bargain airfares during Southwest Airlines Inc.’s “Yes You Can” sale and “Yes Pecan” ice cream at Ben & Jerry’s Homemade Inc. shops.
Additional examples cited by Bloomberg include the National Education Association, McKinstry Co., the lobbying group American Coalition for Clean Coal Electricity, and J. Crew, whose clothes famously adorned Malia and Sasha Obama at the inauguration.

Good luck to the counsel's office on dealing with the tricky trademark, right of publicity, and First Amendment issues raised by these ad campaigns. I have a pretty good guess as to who will get this assignment. That is, unless the White House's own advertising law expert keeps this one for herself.

IP lesson of the day: Don't mess with Gene Simmons

The NY Times has a hilarious story about a Swiss ski company that had the bright idea of putting images of Kiss frontman Gene Simmons on its skis. Without a license. The company, The Faction Collective S.A., apparently tried to get a license, but got no response from Simmons' people. So it went ahead and slapped a painted image of Simmons, "his red tongue hanging," on the tip of its skis and headed to a big ski trade show in Vegas. Well, imagine the surprise of The Faction Collective's booth-manners when Simmons -- there to promote rival snowboard and ski accessory line MoneyBag -- himself showed up at the Faction booth:
“My friend said, ‘Oh my God, it’s Gene,’ and then he bolted — he just left,” said Ross Janzen, who was manning the booth for the Faction Collective. “I turned around and it was Gene. People were standing three-deep around him. I was completely dumbfounded. He’s an imposing figure.”
Company founder Tony McWilliam knew the risk of proceeding without a license but, hey, in the extreme sports world, you gotta take extreme risks:

We knew there might be a risk, but we wanted to get some impact.

Well, he certainly got that:

“If you’re a bootlegger, and you think you’re going to get by and put something out illegally, it will cost you more to defend that than simply getting a license,” Simmons said in a telephone interview Friday. “They think they can get by being a nuisance, just pests, until they meet Gene Simmons, who kills pests dead.”

Janzen offered to give Simmons the skis. Instead, Simmons gave Janzen his lawyer’s contact information.

And Simmons gets results:
For now, Faction is playing it safe. It is trying to license the image. If that fails, it will not sell the ski with that graphic.

“We’re not selling the ski,” said Billy Miller, Faction’s head of marketing. “We’re a small ski company.

Friday, January 30, 2009

Tech Daily Dose: 'Was IP Part Of Obama's Chat With China?'

National Journal's Tech Daily Dose asks that intriguing question. But then doesn't give us the answer:
What is unclear is whether intellectual property protection factored into the conversation [between President Obama and Chinese President Hu Jintao]. The U.S. business community -- particularly those in the entertainment, software and manufacturing industries -- have urged the new administration take hard line against piracy and counterfeiting.
It's like promising candy to a baby -- and then failing to deliver! Torture!

Tenenbaum files First Circuit brief in support of webcast; takes spare, pious approach

Joel Tenenbaum's legal team has now filed its own First Circuit brief opposing the record labels' effort to block the webcast of an important upcoming motion hearing in Federal District Court in Boston. It's one of the oddest, and shortest, appellate briefs I've ever read. The brief cites the Bible (“And all Israel heard of the judgment of Solomon; and they feared the king: for they saw that the wisdom of God was in him, to do judgment." (cited in the brief as 1 Kings 3:16, though I believe it's actually 1 Kings 3:28)) -- but not a single legal case. Good thing Tenenbaum has some very persuasive friends backing him up.

Brief of Respondent Joel Tenenbaum

Techdirt errs on DMCA notice-and-takedown process

I could -- and sometimes do! -- spend all day doing nothing but correcting news organizations' errors about the DMCA's notice-and-takedown procedures. Many of the mistakes stem from the false belief that the DMCA requires service providers like YouTube to act in a certain way. It doesn't. Rather, the statute merely provides a "safe harbor" (i.e., a defense) to a claim of copyright infringement. Service providers are under no obligation to seek that safe harbor by following the DMCA's notice-and-takedown procedures -- and there's a good argument that they should not when they face no real threat of copyright liability in the first place.

Case in point is today's Techdirt post on the dispute between Progress Illinois and Fox O&O WFLD-TV about WFLD footage that the liberal news web site posted to its YouTube account and embedded in several stories. Techdirt writes:
thanks to the way the DMCA works, even with a counternotice, YouTube is required to keep the video down for at least 10 business days.
Wrong. As I explained above, the DMCA does not "require[] [YouTube] to keep the video down for at least 10 business days," or even to take it down at all when it receives a notice from the copyright owner. The DMCA simply says that if YouTube (or any service provider) wants a safe harbor from a claim of copyright infringement, it must follow certain steps (including keeping the video down for at least 10 business days). But YouTube is perfectly entitled, upon receiving the notice, to say, "We believe the video at issue is a fair use. Thus, we decline to take it down." If YouTube is indeed correct that the video is noninfringing, then it has no need for the defense the DMCA's safe harbor provides. The only way to actually force YouTube to take a video down would be to have a court so order.

Techdirt also says:
Fox gets to take this video down at a time when it's most useful for commentary purposes...
Wrong. Fox doesn't "get[]" to take anything down. It sends a notice to YouTube, and it's up to YouTube to decide how to proceed: take the video down, leave it up, negotiate a solution with the relevant parties, or something else. But Fox can't unilaterally take down a video from YouTube.

A few other things bear mention. Techdirt writes:
Earlier in January, the EFF and Public Citizen called attention to a local Fox affiliate using a DMCA takedown notice to remove a video...
But it was not just "a" video; it was actually three (links to the stories in which they were embedded here and here). Of course, Progress Illinois' account never would have been disabled had a takedown notice been sent on just one video; YouTube has a "three strikes" policy.

Next, Techdirt writes:
It was almost certainly fair use...
But I am far from sure it's such an open-and-shut case. Progress Illinois and its defenders appear to be focusing solely on the use of the clips as embedded on the site (here and here), surrounded by news and commentary -- a context suggestive of fair use. However, that is not the only context in which the videos posted by Progress Illinois appear. The videos also appear entirely without commentary on the regular YouTube "watch pages": here, here, and here. It's much harder to argue convincingly that those clips sitting on the watch pages, unadorned by any commentary, criticism, or other socially beneficial features, qualify as fair uses. Also, Progress Illinois' uses at least raise the question: is it using this footage truly to comment on it? Or, rather, is it just cheaper for Progress Illinois to take footage shot by WFLD's camera crews and reporters than to hire its own? Fair use is not simply a license for those who don't have a lot of resources to free ride on the work of those who do.

Next, Techdirt argues that there's something wrong with the fact that Fox issued the takedown notices but then didn't immediately sue:
Fox could still sue Progress Illinois at a later date, despite its failure to do so during the counternotice response window. Again, the whole scenario is problematic. Fox gets to take this video down at a time when it's most useful for commentary purposes, and then retains the right to sue at a later date without ever having to make a case for why the takedown was legitimate. It seems like there should be clarity that, if a company that issues a takedown does not sue following a counternotice, it should be seen as approval that the video is not infringing.
But there are plenty of good reasons Fox could decline to sue other than "approval that the video is not infringing." For example, it could come to the conclusion that Progress Illinois' uses, while infringing, were relatively minor, and not worth (literally) making a federal case over (which, I suspect, is was what happened here). Copyright owners are under no obligation to sue every alleged infringer, nor should they be. Nor, given the volume of infringement on the web, could they ever.

Lastly, Techdirt's suggestion that a copyright owner should lose the right to sue for infringement after the 10-day counternotice window closes would constitute a fairly radical change in copyright law, effectively reducing the statute of limitations from its current three years to "10 days after submission of a counternotice." There are plenty of legitimate reasons that it takes much longer than 10 days to file an actual infringement suit: locating and retaining counsel, factual and legal research, determining the proper forum, drafting the complaint, obtaining the necessary client approvals, etc. Such a dramatic shortening of the statute would deprive copyright owners of their legitimate right to sue infringers.

Progress Illinois and Public Citizen crow over fair use win; propose copyright reforms

Liberal web site Progress Illinois and its counsel at Public Citizen are taking a victory lap after their win over Fox's WFLD-TV in a fair use battle regarding the site's posting of news footage to its YouTube account. And they're calling for a few changes over how similar disputes are handled in the future. Writes Progress Illinois Editor Josh Kalven:
We hope that, if and when FOX or any other outlets have a problem with our use of their content, they'll reach out to us with their objections, rather than take the heavy-handed approach of having our YouTube account shut down.
While I understand Kalven's frustration, I see a few problems with this proposal. Kalven's suggestion that copyright holders directly contact the alleged infringer when their works are posted to user-generated content ("UGC") sites like YouTube is impractical and would seriously frustrate the legitimate interest copyright owners have in combating infringement. One positive aspect of the DMCA is its centralized registry of agents designated to receive infringement notices. Copyright owners can search this list whenever they need to send a notice to a UGC where they find their works being infringed; they need not frantically scour the web looking for contact info for each alleged infringer (not all are as easy to find as Progress Illinois). For large copyright owners, whose works are unambiguously pirated countless times each day, the burden of finding each individual alleged infringer would be crippling.

Also, it's not quite fair to say that Fox "ha[d] [Progress Illinois'] YouTube account shut down." Fox sent takedown notices to YouTube on what it believed were infringing videos, and I don't have any reason to doubt that it did so in good faith. But it was YouTube -- following its own terms of service and its interpretation of the DMCA (e.g., how many notices qualifies a user as a "repeat infringer" and what are the "appropriate circumstances" that merit termination) -- that suspended Progress Illinois' account. YouTube, in fact, could have declined to remove the videos or suspend Progress Illinois' account -- but it chooses not to make such case-by-case determinations.

Progress Illinois' counsel at Public Citizen, Paul Alan Levy, has some harsh words for Fox:

Fox contends that if a non-commercial bloggers wants to make fair use of excerpts from its news broadcasts is that an otherwise non-commercial blogger must allow Fox to run advertisements on the blog as part of the excerpt. That is an outrageous imposition on fair use.

Specifically, Fox is negotiating with a third-party video-hosting service, which bloggers who want to use Fox excerpts would be required to use (rather than bloggers making their own choice between YouTube, or other services). The third-party service would then incorporate ads from Fox advertisers into any excerpt made from Fox material and Fox would receive the proceeds from the ads. It appears that Fox is preparing to argue that, because it has the capacity of charging advertisement revenues for excerpts posted by bloggers, any blogger who does not use these services fails the “fourth” factor in the fair use test – “the effect of the use upon the potential market for or value of the copyrighted work.”

The details of this possible arrangement with the "third-party video-hosting service" are not yet known, but this apparent effort to guide those who wish to make use of Fox footage into specified Fox-approved online hosts will bear watching.

Lastly, Levy calls for a fairly significant re-write of the DMCA's notice-and-takedown process:
Meanwhile, this controversy serves as a reminder of the need to amend the DMCA so that political commentary is not put on hold while the procedure of notices of copyright infringement and arguments of noninfringement plays out. The presumption should be that material remains online until either the blogger fails to object to the takedown after receiving notice, or, if the blogger objects, a judge decides whether there was fair use.
Without getting into the merits of Levy's call for amending the DMCA, I do think it's pretty safe to say that this will not happen any time in the foreseeable furture. The two biggest stakeholders in the notice-and-takedown process -- copyright owners and ISPs -- appear to have come to an uneasy détente over web video issues -- and have little appetite for opening up a new, giant legislative battle, where each side fears ending up in a worse situation than before. Occasional flare-ups like the Progress Illinois/WLFD dispute (which constitute a tiny percentage of all takedowns) are unlikely to change that calculus.

UPDATE: interesting (at least to me) back-and-forth here.

LA Times skips right to Web 4.0

The LA Times is dropping its stand-alone local news section from its print edition. You think the Times would mention this in its own paper, possibly even explain and elucidate? Presumably Times reporters could walk down the hall or ride an elevator and interview the responsible parties themselves. Are you crazy? It's old-fashioned thinking like that that's sinking the newspaper business! Instead, the Times' "LA Now" blog simply cites a report about the death of its own "California" section in the LA Observed blog. (This is the same blog that the Times has tried to ban its employees from talking to, and even tried to block some employees from reading.)

But my favorite part of the Times' report is its headine:
Hollywood papers struggle; L.A. paper loses local news section

"L.A. paper"? Who could that be?

UPDATE: the Times explains and elucidates.

Songwriters Guild's Carnes on piracy and 'Cyber-Somalia'

Music attorney Chris Castle's blog has a terrific interview with Rick Carnes, President of the Songwriters Guild of America. The interview, which is both informative and highly entertaining, covers piracy, music industry business models, and the fantasies of the copyleft/"free culture" movement (Castle himself favors the even more colorful term "EFFluviati").

Proponents of strong copyright protection are often accused of being nothing more than shills ("running dogs," if you prefer) for giant corporations or their trade associations. Carnes -- whose mission is simple: "Protect Songwriters” -- provides a very effective refutation to that line of attack. His organization represents actual human beings who start with a blank piece of paper and create art -- and simply want to get paid for it, and not have their work stolen. And Carnes makes clear that he's not a big fan of the recording industry, which is often on the opposite side of the table from songwriters and publishers on business issues (though they both despise piracy).

Definitely read the whole thing, but here are a few of the highlights:
[T]he internet has turned into a Cyber-Somalia.
That description of the lawlessness of certain corners of the web definitely resonates with anyone who has chased pirate sites around the globe from the US to Australia to Malaysia to places unknown.
Professional songwriters used to live on advances from their music publisher. These advances were to be recouped from record sales only (“mechanicals” is the industry term for these revenues). Music piracy killed record sales so that made it impossible for music publishers to recoup the advances they paid songwriters so they stopped signing writers and let go of the ones they had when their contracts ran out.
That's a pretty grim picture of the songwriting and publishing world. I'm curious as to how Carnes squares that with the rosier picture painted in this recent Forbes article.

Castle: Anti-copyright organizations often try to tell musicians and the music industry that they have their eye on the wrong ball, that they can offset the decline in CD sales by selling another T-shirt to fans who it would be easy to find because they were all on email.

Carnes: Songwriters don’t sell T-shirts. We’re too ugly and we dress funny. Songwriter fan clubs meet in phone booths so the email lists are too small to monetize effectively.

But seriously folks, songwriters don’t sell concert tickets, or ancillary merchandise. We make our money on record sales and radio airplay. Or, we USED to make our money on record sales. Illegal downloading ended that. Now we are looking for new jobs.

And finally, Carnes on the copyleft:

The most infuriating thing about being lectured to by anti-copyright groups about how songwriters need to get a new ‘business plan’ is who gave them the right to tell us how to make a living? Who are they to say we shouldn’t fight to defend our rights? In truth, I find their suggestions are unbelievably arrogant and self-serving.

Thursday, January 29, 2009

Courtroom View Network files amicus brief in support of Tenenbaum webcast

Courtroom View Network, which District Judge Nancy Gertner authorized to provide the webcast of the upcoming motion hearing in the Joel Tenenbaum case, has itself weighed in with an amicus brief to the First Circuit. The CVN amicus, drafted by Boies, Schiller & Flexner, LLP, focuses largely on the issue of interpretation of the District of Massachusetts local rule that covers cameras in the courtroom.

Major news organizations join call for webcast of Tenenbaum hearing

A coalition of major news organizations has filed an amicus brief in the First Circuit in support of webcasting a Feb. 24 District Court motion hearing in the record labels' copyright suit against accused peer-to-peer infringer Joel Tenenbaum.

According to an AP report:
The news groups filing the brief also included [in addition to the NY Times and the AP,] Courtroom Television Network, Dow Jones & Co., Gannett Co. Inc., The Hearst Corp., Incisive Media, National Public Radio, NBC Universal Inc., Radio-Television News Directors Association, The Reporters Committee for Freedom of the Press, The E.W. Scripps Co., Tribune Co., and Washington Post Digital.
The biggies' brief, drafted by Levine Sullivan Koch & Schulz, LLP, is the second amicus I'm aware of filed in the case. Earlier today, EFF, several other organizations, and yours truly signed onto a separate amicus brief. I am unaware of any anti-webcast amici.


WFLD v. Progress Illinois: Fox declines to sue in face of fair use claim; YouTube restores videos

In a victory for Progress Illinois, YouTube has restored the liberal web site's account, which had been disabled after Fox Television Stations, Inc. sent DMCA takedown notices on 3 videos that incorporated footage from WFLD, Fox' Chicago O&O. That third notice constituted a (temporarily) fatal third strike, causing YouTube to label Progress Illinois a "repeat infringer" under the DMCA and terminate its entire account, which now holds 132 videos.

Progress Illinois had contested the takedowns by filing a DMCA counternotice, claiming that its posting of the WFLD footage as a basis for political commentary was a non-infringing fair use under copyright law.

Under YouTube's policies -- which seek to track the DMCA -- the service "may" restore videos 10 business days after receiving a counternotice, as long as the copyright owner doesn't sue in the meantime. Fox never did sue, so today YouTube reposted the contested videos -- as well as all the others that had been disabled when the account was suspended.

Progress Illinois editor Josh Kalven had previously stated that the two sides were in negotiations regarding possible "guidelines" for the posting of WFLD footage. However, the site's counsel, Paul Alan Levy of Public Citizen, tells C&C that his client and Fox never reached a deal.

While Fox declined to sue within the 10-14 day DMCA window, that does not mean Progress Illinois is completely out of the woods. I'm not aware of any legal obstacle to Fox suing the site for copyright infringement after the counternotice window closes (as long as the suit is filed within the usual 3-year statute of limitations). I also believe that Fox can still seek an injunction ordering YouTube to remove the videos under 17 USC § 512(j), even if YouTube complied with the requirements necessary to fall within the § 512(c) safe harbor from a claim for monetary damages.

But for now, it's a clear win for Progress Illinois.

Why debate on copyright issues frustrates

Over at attorney Ray Beckerman's Recording Industry vs. The People blog -- which I have previously praised -- I raised in the comments to this post what I thought was an interesting legal question: under federal law, is illegally obtained evidence admissible in a civil case (i.e., is there a civil equivalent to criminal law's exclusionary rule)? UPDATE: the answer appears to be yes, illegally obtained evidence generally is admissible in a civil case (or, rather, it is not made inadmissible by having been obtained illegally).

I did not get an answer to what I still think is a pretty interesting question. I did, however, get called "the record companies' point man," a "running dog," a "pal[]" of the recording industry, "a point man for the content cartel," a seeker of "legal business of [my] own from that cartel, trying to show that [I] know better than their attorneys what is best for them," a supporter of a "factually bankrupt campaign of extortion by sham litigation," a "sophist[]" with "the crassest of commercial motives," a "pretend[er of] disinterest," and, best of all, a "ruin[er of] real peoples' lives." And we're only 8 comments in.

Off to confession...

'Pirate Party aims to siege California'

We're a ways off from the Jolly Roger flying over Sacramento, but the US branch of the Pirate Party -- which apparently received 34,918 votes in the Swedish general election of 2006 -- has set its sights on California, hoping to become an officially registered political party:

The Pirate Party of the United States is pleased to announce that California will soon be joining the fleet. Hoepfully soon, we will be recognized by the State Secretary, and have voters be able to affiliate with the party. Currently, we are still drafting a constitution outlining our policies and structure.

We are seeking volunteers. We need to collect 88,991 signatures in order to be recognized by the Secretary of State of California. On top of that, we need people to fill officer positions; anyone interested please get ahold of me.

Frankly, we feel that the RIAA and MPAA's rutheless campaign of suing their own customers out of their livelyhoods must cease immediately. The terrible litigation facing international bodies (ACTA) must see the light of day, and the DMCA must be repealed.

We also feel that when a government cannot operate in an open, free environment, it does not work for the people, and most importantly, Democracy. California needs to adopt, encourage, and promote greater transparency in all forms and branches of government.

The US Pirate Party endorsed Barack Obama in the recent election, though appears to have had minimal effect on his conduct in office. Whether they can change California -- let alone get on the ballot -- remains to be seen.

What might have been...

Props to Ad Age and designer Michael Thibodeau, a managing partner at Verse Group.

Jackson Browne v. John McCain et al.: no oral argument on pending motions

Federal District Judge R. Gary Klausner, assigned to Jackson Browne's lawsuit against John McCain, the Ohio Republican Party, and the Republican National Committee, has issued the following order:

C&C editor Sheffner asks First Circuit to allow Tenenbaum webcast; joins with EFF to urge courtroom electronic media access; hell freezes over

C&C is pleased to announce that its editor has signed onto an amicus brief authored by the Electronic Frontier Foundation, urging the First Circuit to affirm an order by Judge Nancy Gertner permitting a live webcast of an important upcoming hearing in the record labels' copyright infringement against accused peer-to-peer infringer Joel Tenenbaum. The labels have sought a writ of mandamus or prohibition from the First Circuit, asking the Court of Appeals to block the webcast. The labels cite District of Massachusetts local rules they say disallow such a courtroom webcast, as well as their fear that if the webcast is allowed, "statements may be taken out of context, spliced together with other statements and []rebroadcast as if it were an accurate transcript."

The EFF brief that I joined points out that the record labels themselves have said that they launched their lawsuits against individual p2p infringers in part to generate awareness of the legal consequences of copyright infringement on the Internet, and RIAA President Cary Sherman has said he "welcome[s] [a] national conversation" on the issue. What better way to foster that conversation than to allow the public to listen to the legal arguments themselves, and let them draw their own conclusions as to who's right?

Just so there's no confusion: I support the labels' lawsuits, and think their legal arguments should, and will, prevail at the upcoming District Court hearing (now set for Feb. 24). I just think everyone who can't attend the Boston hearing in person (like me!) should have the opportunity to watch as well.

Thanks to the attorneys at EFF, including Kurt Opsahl, Cindy Cohn, and Fred von Lohmann, for their excellent work on the brief, which was also joined by, the Media Access Project, Internet Archive, Free Press, and the California First Amendment Coalition. I'm usually on the other side of EFF on copyright issues, but was very pleased to be able to cooperate with them here.

My additional Tenenbaum coverage is here.

And with this love-in out of the way, we can now return to our regularly scheduled disagreements over copyright law...

Graduated response: yes in Ireland, no in UK, maybe in the US

The record labels have settled their copyright suit against big Irish ISP Eircom, with the pipe purveyor agreeing to a "three strikes" regime that will result in the termination of users who continue to distribute songs after warnings to stop. The settlement came 8 days into a trial that had kicked off with the release of embarrassing emails in which an Eircom exec seemed to condone illegal downloading and wrote, "Think of it [piracy] as helping the health and good living of rich cocaine sniffing rock stars by leaving them with less free money to spend on sex and drugs." The usual suspects are not pleased, claiming that the agreement lacks "due process" for users. (I'm no expert on Irish law, but how does "due process" apply to a private contractual relationship?)

The Irish agreement comes on the heels of word that ISPs Comcast and AT&T may enter into similar "graduated response" programs with major labels in the US. And news that the UK will not mandate a similar program.

We're just at the beginning of implementation of graduated response programs on a large scale. Frankly, no one has any idea how this will play out in the real world. All eyes are on now on Eire.

Pepsi to Obama: we were here first!

Advertising Age's daily video feature has a very interesting piece featuring denials from a top Pepsi marketer and admaker that the soft drink company copied the Obama campaign's logo.

Frank Cooper, PepsiCo's Vice-president, Portfolio Brands said of the charges, "I don't know if it's rooted in reality," and made the obvious point that Pepsi's red, white, and blue color scheme has been around longer than The One. "I'm not sure who followed whom," he said. Peter Arnell, CEO of Omnicom's Arnell Agency, also denies copying, distinguishing between Obama's "ground plains, the fields, and the sun rising," and Pepsi's "smile."
In trying times like these, President Obama must be relieved he has a lawyer with experience in advertising law around the house.

LA Times: when we enforce our copyrights, it's a 'suit'; when the record labels do it, it's a 'rampage'

Commenting on the reincarnation of Muxtape, the LA Times Technology blog notes:
Months ago, the Recording Industry Assn. of America went on a rampage, shutting down websites that encouraged users to upload songs -- many without the required permission from record labels -- and create Web-based playlists.
(my emphasis). The Times has big problems. Need it exacerbate them by depicting the trade association for one of the most prominent industries in its city as a group of violent maniacs, when it does nothing more than communicate its legal position to an alleged copyright infringer?

And one more question for the Times: was this lawsuit a "rampage," or just a "copyright infringement suit"?

Wednesday, January 28, 2009

Blackstone Group accused of being too cheap to buy multiple FT subscriptions

Wow -- Wall Street is even worse off than we knew. According to a new copyright suit filed against famed private equity firm The Blackstone Group -- 2007 net earnings of over $1.5 billion -- Blackstone was too cheap to pay for more than a single web subscription to the Financial Times.

Here's the story, as alleged in the complaint, filed today in federal court in Manhattan: unlike all but a few newspaper web sites, the FT charges for nearly all its content, somewhere between $179 and $299 per year. The FT offers both personal subscriptions and corporate "digital licenses" whose rates are based on the number of users within the corporation. Sometime in 2002, a senior Blackstone finance and compliance officer bought an individual FT subscription with a corporate credit card. (For those unfamiliar with the lingo, a "compliance" officer is charged with making sure people inside a corporation follow the law. Oops!) But, charges the FT, the officer didn't just use the account himself; multiple others within the company -- in its offices all over the world -- accessed the FT through that one account.

The FT sued 100 "Doe" defendants (the Blackstone employees who allegedly accessed the FT site without authorization); the theory is that by accessing the site without authorization, those users made copies in violation of the FT's exclusive right to reproduce its works. The claim against Blackstone itself is for vicarious and contributory infringement, based on Blackstone's computer systems being used for the alleged infringement, and its employees allegedly furnishing the single personal user ID and password to multiple others. The FT also alleges that the Does and Blackstone violated the Computer Fraud and Abuse Act, which provides civil damages for certain forms of unauthorized access to a protected computer system. (It was the criminal provisions of the CFAA that formed the basis of the prosecution of Lori Drew in the MySpace suicide case.)

I am aware of at least one court to have held that both a copyright and a CFAA claim are viable where multiple users accessed a publication's web site where the subscription was limited to a single user. See Theraputic Research Faculty v. NBTY Inc., 488 F.Supp.2d 991, (E.D. Ca., January 25, 2007) (analysis here). A similar suit was also recently filed by CoStar Realty Information.

One last interesting note: the FT is represented by Andrew Bridges of Winston & Strawn, who is best known for representing defendants in copyright suits, including StreamCast Networks in the Grokster case and MasterCard in the suit brought by Perfect 10, the copyright plaintiff that moonlights in porn.

(h/t The Licensing Plate) 'Being Obama: Products Rip Off the Obama Mystique'

Fascinating post at on all the companies - including Pepsi, Ty, Inc., and Audi, seeking to cash in by using Obama inconography.


Top Senate IP staffer Susan Davies to White House Counsel's office; another poke in the eye to the copyleft?

Susan Davies, Chief Counsel to Senate Judiciary Committee Chairman Patrick Leahy (D-VT), is moving down Pennsylvania Avenue to the White House as Associate Counsel to the President, bringing yet another IP expert -- on the good side! -- to the Obama Administration. Prior to taking the top staff job on Judiciary, Davies was Minority Counsel to the IP Subcommittee, whose ranking member was Sen. Leahy. While C&C isn't familiar with Ms. Davies' personal views on the subject, one suspects they aren't too far from those of her former boss, who is one of copyright owners' staunchest Hill allies and even filed an amicus brief helpful to the plaintiffs in the Grokster case.

Another poke in the eye to the copyleft?

Tuesday, January 27, 2009

ABA Journal's "Copyright in the Age of YouTube": C&C's first fisking!

The February 2009 edition of the ABA Journal has a long article by attorney Steven Seidenberg titled "Copyright in the Age of YouTube." (He could have cut to the chase and called it "C&C bait"!) There's a lot of interesting and accurate information in Seidenberg's piece, and I do commend him for his effort at a fair and accurate account of the current state of legal play in the web video world. Nonetheless, I think he gets some significant things wrong. Thus, C&C's first fisking. Here goes:

Seidenberg writes of the Lenz v. Universal suit over Universal Music Group's DMCA notice to YouTube regarding a video of a baby dancing to Prince's "Let's Go Crazy":
This clip, however, drew the ire of the world’s largest music company—Universal Music Group—whose international operations garnered more than $6.9 billion in 2007.
"Drew the ire"? Frankly, I doubt anyone at UMG actually had any ire -- at least before Ms. Lenz and her pals at EFF sued! As far as I'm aware, UMG hasn't offered a detailed account of what led it to issue the takedown notice. My own strong suspicion is that it was either a mistake, or was done as a result of some sort of automated search, without adequate human review (which is a type of mistake in itself). But I think it's extremely unlikely that some UMG lawyer or exec saw the dancing baby video and screamed, "Dammit! Get that infringing piece of *&#$(@* off YouTube this second!" In fact, I bet the ire inside UMG is directed at whoever approved the takedown.
On June 4, 2007, Universal sent YouTube a takedown notice pursuant to the Digital Millennium Copy­right Act, asserting that the home movie of Holden infringed the multinational’s copyrights in Prince’s song.
Well, that's Lenz's (and her attorneys at EFF's) position. But Seidenberg should have at least acknowledged that UMG has taken the position that the notice was not sent pursuant to the DMCA. Rather, UMG asserts that the notice was sent only pursuant to YouTube's terms of service. See this brief at 1:15-19 ("In fact, Universal sent the notice pursuant to YouTube’s Terms of Use and expressly disclaimed any reliance on Section 512."). The court has not yet definitively ruled whether UMG's notice was in fact a "DMCA notice."
YouTube ordinarily responds to counternotifications fairly quickly, reposting the videos in a day or two.
Wrong, wrong, wrong. YouTube has stated repeatedly that is follows the DMCA's procedure, and keeps the videos down 10-14 businesness days after receiving a counternotice, and only then (assuming no lawsuit has been filed) reposts. As YouTube explains:
After we send out the counter-notification [to the copyright owner who sent the takedown notice], the claimant must then notify us within 10 days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on YouTube. If we receive such notification we will be unable to restore the material. If we do not receive such notification, we may reinstate the material.
Indeed, it was this 10-14 day period during which YouTube keeps the video down that motivated us at the McCain campaign to send this letter to YouTube last October, requesting that they repost videos sooner under certain circumstances. YouTube politely declined.
“I decided my First Amendment rights were being violated, and I decided to hit them where it hurt—let them know they couldn’t do this to people anymore.”
Seidenberg should have pointed out that Ms. Lenz's reliance on the First Amendment is misplaced. Surely he knows that the First Amendment only restricts the actions of the government -- not private actors like UMG or YouTube.
The judge denied UMG’s motion to dismiss the suit, enabling Lenz to attempt to prove in an upcoming trial that UMG filed the takedown notice in bad faith.
This gets way ahead of itself, and is highly misleading. In fact, the court strongly indicated (see page 8) that the case would never make it to trial, and that he would grant summary judgment for UMG:
Although the Court has considerable doubt that Lenz will be able to prove that Universal acted with the subjective bad faith required by Rossi, and following discovery her claims well may be appropriate for summary judgment, Lenz’s allegations are sufficient at the pleading stage.
Seidenberg writes:
So content owners are seeking alternatives.... They are asking the courts to impose liability on YouTube and other online companies if these companies fail to vigorously police the material posted by their users.
This isn't technically "wrong," but it's very misleading. Read this passage of Seidenberg's article, and you'd think a huge number of copyright owners have sued YouTube. They haven't. Only one major US copyright owner, Viacom, has sued YouTube. Admittedly, Viacom is a big one, but it seems to me that the real story is all the dogs that haven't barked (i.e., all the major US copyright owners who haven't sued YouTube.) None of the major record labels have sued. None of the major movie or television studios (other than Viacom) have sued. In fact, many have indicated their willingness to approach the web video infringement issue through more cooperate means, such as the UGC principles (which Seidenberg ignores).
And the content owners are lobbying Congress for tougher laws against infringement.... Internet and technology companies fiercely oppose these changes, fearing they would impair innovation and drive many of them out of business. Civil rights organizations also oppose these changes, arguing they would damage an important new avenue of public communication.
This implies that content owners are lobbying for changes to the DMCA's notice and takedown procedures. But I'm aware of no such effort. None. While both sides gripe about the DMCA (and Viacom has done far more than gripe), I think the real truth is that neither side is crazy about the law, but both sides realize that the alternative -- in either direction -- could be a whole lot worse, and no one is eager for the WWIII that would erupt if the issue of UGC (user-generated content) sites' liability for users' infringement were the subject of a big new legislative battle.
The battle over online copyright infringement was supposed to be resolved a decade ago.
Ha! Ha, ha, ha! Yes, the passage of the DMCA in 1998 set some basic ground rules. But I don't think anyone who was involved in the legislative process that culminated in the DMCA's enactment was really so naive as to believe that it would "resolve[]" "[t]he battle over online copyright infringement." We'll still be "resolv[ing]" for quite a few more years, probably decades.
When an online company removes allegedly infringing material that was posted by a user, that company is statutorily required to notify the user of what happened and why.
I'm not sure where Seidenberg gets the "why" requirement. I don't find it in the DMCA. Rather, the DMCA simply requires that, for a service provider to maintain its safe harbor, it must "take[] reasonable steps promptly to notify the subscriber that it has removed or disabled access to the material." 17 USC § 512(g)(2)(A).
Once this counternotification is received, the online company must put the disputed material back online within 14 business days, unless the company receives notice from the copyright owner that it has filed an infringement suit against the person who posted the material.
Wrong. What the DMCA actually says is that if YouTube wants to maintain its safe harbor from liability in a copyright suit by the copyright owner, it must keep the video off the site for at least 10 business days following receipt of the counternotice. (And it can't replace the video without losing the safe harbor if the copyright owner files a copyright suit over the video within those 10 days.) But, contrary to what Seidenberg says, YouTube has no obligation to put a video back. (Read Section 512(g) itself if you want a good headache.) As I've explained before, "YouTube has no obligation to host or broadcast anyone's video, and its terms of use make clear that it 'reserves the right to remove Content and User Submissions without prior notice.'"
Copyright owners have tried mightily to work with­in the existing law. They have sent out hundreds of thousands of section 512 takedown notices.
I can't cite precise numbers, but, taking my experience at Fox and extrapolating out among the many other major copyright owners, I think "hundreds of thousands" is way, way, way on the low side.
That’s far too many notices, according to some attorneys, who assert that copyright owners often do not bother to check whether an online item is truly infringing.
Ridiculous. My rough guess is that the ratio of legitimate to erroneous DMCA notices is somewhere around 1,000,000:1. The "baby dancing to Prince" takedowns get all the attention; the millions of rock-solid infringement claims get virtually none. Given the huge numbers of takedowns, are there mistakes? Of course. But again, they are a minuscule percentage of the whole. And "copyright owners often []not bother[ing] to check whether an online item is truly infringing"? I'm sure that has happened. But in my experience, major copyright owners have at least one set of eyes -- and often more -- review each video before sending a DMCA notice. The notion that they're sending huge numbers of notices without proper checks is, as far as I'm aware, just plain false.
Automated programs search for titles of copyrighted works and fragments of copyrighted songs or videos. If anything is found, the work is hit with a takedown notice—frequently without any real examination of the allegedly infringing item.
I don't believe this is true. I think Seidenberg may be confusing takedown notices submitted by content owners with automated blocks generated by YouTube's content identification system. As I've said, I believe major content owners -- even if they do use automated tools to help locate content -- have at least one human review the video before they send a takedown notice. As for videos blocked by YouTube's content ID system, my understanding is that those are not considered as having been subject to DMCA notices.
If an attorney for Uni­versal had examined the video, says Gratz, counsel would have recognized that the snippet of a Prince song in the video was almost certainly not infringement, but fair use.
This seems to accept Gratz's surmise that no UMG attorney reviewed the video before the notice was sent. But I don't believe UMG has stated one way or the other whether this actually happened. I don't know whether a UMG attorney reviewed the video before a takedown notice was sent, and I don't believe Seidenberg or Gratz know either.
The automated nature of many takedown notices also may explain why the International Olympic Committee ordered YouTube last August to take down a video titled Beijing Olympics Opening Ceremony.
Again, I'm not aware of any major content owner sending actual DMCA notices in a purely "automated" fashion, without any human review. Seidenberg does not definitively identify any company alleged to be doing so.
These are not isolated examples of copyright owners being overly vigilant. “There’s no question that takedown notices get overused,” says Jessica Litman, who teaches copyright law at the University of Mich­igan Law School.
Where's the evidence that the "isolated examples" Seidenberg cites -- the dancing baby and the Tibet video -- are anything but "isolated examples"? I'm confident that a rigorous study of DMCA takedown notices would confirm that all but a tiny percentage of the videos subject to notices are unambiguously infringing. That was certainly my experience when I was actively involved in the process for a major copyright owner (and I still believe that even after the McCain campaign, on which I worked, was subject to several takedown notices I believe were unfounded).

Nevertheless, the ruling may pose serious problems for copyright owners, forcing many to spend significant time and money on legal analyses of large numbers of potentially infringing online items.

“What the court is asking doesn’t sound like much, but ... determining whether something is a fair use can take a goodly amount of time,” Goldstein says. “When you pick a doctrine as protean and indeterminate as fair use, asking people to make snap judgments often isn’t feasible.”

This implies that copyright owners are not currently engaging in legal analysis, including fair use analysis, before issuing DMCA notices. But that is just plain false. I personally have reviewed thousands of videos before deciding whether to send takedown notices (or not), and there are plenty of others employed by content owners who have done the same. With all respect to Professor Goldstein (whose work in this area I much admire), lawyers employed by copyright owners make "snap judgments" on fair use issues countless times every day. I can't claim that we get it "right" 100% of the time, but we do our best, which I think is very good, and certainly what the law requires.
However, sending takedown notices to some UGC sites is often akin to playing a frustrating game of Whac-­a-Mole.
Hooray! I'm a fan of anyone who spells "Whac-a-Mole" correctly.
Judge Howard R. Lloyd held that although Veoh had the ability to control its own system, it did not have the ability to control the infringing activity. He concluded that the DMCA protects online companies like Veoh that work in good faith to limit copyright infringements committed by their users.
Small point, but it's Magistrate Judge Howard R. Lloyd. No disrespect to Magistrate Judge Lloyd, but the fact that the Io v. Veoh opinion was written by a magistrate judge, rather than by an Article III judge, does somewhat reduce its precedential weight.
According to Viacom’s complaint, YouTube has filtering technology that can identify and possibly remove copyrighted material, but this technology is used to protect only works that are licensed to appear on YouTube—such as music videos of Sony BMG artists, clips from HBO shows and segments from MGM movies. Unlicensed works don’t benefit from this technology, and their copyright owners thus face a flood of infringing posts.
I don't believe Seidenberg's characterization of YouTube's filtering technology (i.e., that it applies only to "works that are licensed to appear on YouTube") is correct. As YouTube says, "Copyright holders can choose what they want done with their videos: whether to block, promote, or even—if a copyright holder chooses to partner with us—create revenue from them, with minimal friction." Which implies that the system is available both to YouTube "partners" (i.e., those who license their content), and non-partners. More info here.
If the courts eventually determine that the DMCA’s safe harbor protects most service pro­viders against liability for their users’ posts of infringing works, online companies and their users would benefit. Copyright owners, however, would find themselves in a difficult position. They would be forced to continue their Whac-a-Mole efforts to curb online infringements, and could bring infringement suits only against those people who upload or download the infringing works.
Actually, I don't think the situation would be nearly so dire "if the courts eventually determine that the DMCA’s safe harbor protects most service pro­viders against liability for their users’ posts of infringing works." Automated content ID systems will continue to improve, and many content owners will choose to share revenue with YouTube -- which YouTube claims 90% of its content ID system users are already doing.

In addition, the law clarifies when civil forfeiture can be used against those allegedly involved in copyright infringement. It empowers U.S. attorneys to get ex parte orders from courts to seize “any property used, or intended to be used, in any manner or part to commit or facilitate” criminal copyright infringement.

This poses new risks for YouTube, ISPs and other online intermediaries. “Prosecutors could use this provision to seize servers of Internet companies, or threaten to seize them, in order to get these companies to cooperate,” says Jonathan Band, a Washington, D.C., attorney who represents NetCoalition, an advocacy group for major Internet companies, including Google, Yahoo and CNet.

I think this is really, really farfetched. While it's possible to imagine abuses of the PRO-IP Act's seizure provisions, I can't conceive of prosecutors rushing in to seize the servers of any remotely legitimate company, even one engaged in a serious civil copyright infringement suit. I could be proven wrong, but I strongly suspect that the seizure provisions will be employed only in cases like a bootleg DVD replicator, or a criminal warez group. "Google, Yahoo and CNet" probably have little to fear.


Again, my quarrels with Seidenberg's article are not based on any belief that he is biased, or failed to make a good faith effort to get his facts right. But a reader of his piece who hasn't lived and breathed these issues is likely to come away with the impression that rapacious copyright owners are issuing vast numbers of meritless DMCA notices, completely indifferent to fair use or common sense. From my personal experience -- both at a major content owner and as the recipient of flawed takedown notices myself -- I don't believe that is a fair assesment of the facts.

More IP Czars? Or 'Tsars'?

The Guardian reports that some in the UK are apparently envious:
Premier League lawyers want the culture secretary, Andy Burnham, and the business secretary, Lord Mandelson, to crack down on copyright infringement by making internet service providers responsible for the actions of their subscribers, and appoint an "IP tsar" to coordinate action across government.
Interesting article on live sports TV stream piracy, by the way. The problem exists here, too.

Did YouTube users actually have 'permission' to upload Warner Music Group songs?

CNET's Greg Sandoval has more on the Warner Music Group takedowns of YouTube videos containing its music. Sandoval focuses on the case of Corey Vidal:

On YouTube, Vidal posted a humorous video tribute to John Williams, the man who scored the soundtracks for such blockbuster films as Indiana Jones, and Star Wars. In his clip he included some of Williams' music. By now, everybody knows that YouTube removes videos that violate copyright law. What's different about Vidal's work getting pulled is that when he posted it in October, he was permitted to use Warner's music.

Until last month, YouTube had an agreement with Warner Music--one of the four largest recording companies--that allowed video creators to include the label's content in their clips. Last month, talks to renew the deal broke down and that means YouTube and its users no longer have access to Warner's library. For this reason, the case is much different than YouTube's high-profile fight with Viacom or run-of-the-mill piracy that once flourished on the site.

But I'm not certain Sandoval is quite right when he says that when Vidal posted his video, "he was permitted to use Warner's music." Here's what I mean: it's true that back in 2006, YouTube and WMG entered into a deal. My understanding of the way the deal worked is that when a user uploaded a video containing WMG music, YouTube employed an automated content identification system (Audible Magic, I believe) that recognized the audio. Instead of blocking or taking down the video, the system enabled some form of revenue sharing between YouTube and WMG.

The interesting existential question is this: though YouTube and WMG worked out a deal such that YouTube wouldn't be liable for copyright infringement for keeping the video on its site, is the uploader himself still an infringer? One way of looking at it is that no one gave him permission to upload it; YouTube and WMG just worked out a way to both profit from his act of infringement. Another way of looking at it (which seems to be Sandoval's take) is that the deal basically gave permission to anyone to upload WMG music; with such permission, there's no infringement at all.

I'm not sure which view is correct; the YouTube/WMG deal probably contains clues as to how those two view the status of the uploader's actions, but it isn't public. Keep in mind that YouTube's terms of service provide:

you further agree that you will not submit material that is copyrighted ... or otherwise subject to third party proprietary rights ... unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant YouTube all of the license rights granted herein.

Again, did WMG, by entering into its 2006 agreement with YouTube, grant permission to everyone to upload its music? Did WMG inform them that they did? Does it matter?

The Licensing Plate: 10 Music Licensing Tips for Producers of Independent Films

A site called The Licensing Plate has an excellent list of tips for independent filmmakers to help them avoid the situation in which Nina Paley finds herself: her film completed, but unable to get distribution because she hasn't cleared the music, and reduced to pimping herself out (metaphorically, to be sure) via eBay.

In a nutshell, The Licensing Plate urges filmmakers to behave like responsible adults rather than spoiled brats who whine about their "artistic vision" being crushed when they can't reach a deal with the owners of music copyrights. Among the tips: plan ahead, don't fall in love (with a particular piece of music), and ask questions. My personal favorite:
Licensing People Are People Too: And finally, the people who work in licensing departments at music publishers and record labels are not out to make your life miserable. I know a lot of them. They’re good people. But like the rest of us, they have jobs to do and bills to pay. And their job is to make money for their company and their artists. That’s what they get paid to do. It is how they earn a living. They realize that you are self financing your film and they will do their best to work with you. They would rather have your money than have nothing. Try not to yell.
Read up, Nina.

BREAKING via Twitter: Joel Tenenbaum seeks friends

Monday, January 26, 2009

Record labels win major discovery rulings in case; judge rules expert didn't do adequate work, defendants didn't preserve evidence

The recording industry won a major victory today in its fight against, as a federal magistrate judge granted discovery sanctions that will significantly impair the service's ability to defend itself against a copyright suit brought by the major labels. As CNET explained when the suit was filed in late 2007:
The lawsuit claims encourages its customers to pay up to $19 a month by enticing them with copyrighted music, and asks for a permanent injunction barring the company from "aiding, encouraging, enabling, inducing, causing, materially contributing to, or otherwise facilitating" copyright infringement.

There are some differences between and some of the other newsgroup providers that will help the RIAA. boasts that signing up for an account "gives you access to millions of MP3 files and also enables you to post your own files the same way and share them with the whole world."

Clearly they didn't run that language by their lawyers first.

Yesterday's extremely detailed 73-page order in the case included two major rulings. First, Magistrate Judge Theodore Katz of the Southern District of New York struck much of an important declaration by's expert David Farber, a computer science professor at Carnegie Mellon University (and EFF board member). In what must be an embarrassing blow to the professor, Katz found that Farber relied on "misleading and erroneous" information supplied by one of the defendants, and did not do sufficient independent investigation of facts that he relied on in his declaration:
Farber does not simply rely on erroneous data; his opinions are merely a restatement of Defendant Reynolds' views and are not the product of independent analysis.... An expert who simply repeats the hearsay of the client who retained him, without any independent investigation or analysis, does not assist the trier of fact in understanding matters that require specialized knowledge. That, in fact, is what Professor Farber has done in offering opinions about Defendants' system.
Such harsh words from a judge can deal a devastating blow to an expert's career; the court's words can be expected to dog Farber in all future cases on which he is retained.

In the other significant ruling, the court found that the defendants failed in their obligation to preserve large amounts of highly relevant information stored on its servers, "destroyed highly incriminating promotional materials," "provided misleading information" -- and did so intentionally, in "bad faith." As a sanction, the court ordered that the jury (assuming the case goes to trial) will be instructed that it may draw certain adverse inferences against defendants, including the inference that the missing evidence would have been unfavorable to the defendants. In addition, defendants will be precluded from challenging certain evidence presented by the labels establishing the amount of infringement facilitated by defendants' system. Lastly, defendants will have to pay plaintiffs' attorneys' fees and costs incurred in determining that the spoliation had occurred, and in litigating the sanctions motion.

Congrats to the team at Jenner & Block (home of C&C's favorite Obama appointee so far) for litigating, and largely winning, this difficult motion. Then again, they have plenty of practice dealing with similarly misbehaving defendants.

(h/t Recording Industry vs. The People)

BREAKING via Twitter: Tenenbaum legal team stays up late

I've got some news for them: it doesn't change once you graduate.

LA Times Tech Blog flubs the DMCA

The LA Times Technology blog has an interesting item about videos removed from YouTube following copyright claims by Warner Music Group. The Times focuses on:
a Web developer who does contract work for the U.S. Air Force filmed himself playing the "Star Wars" theme song on his banjo.

The banjo player, Will Chatham, from Asheville, N.C., posted the video to YouTube. It amassed 1.5 million hits, 8,000 comments, numerous blog-post references and an offer to play a gig at Lucasfilm's 30th anniversary "Star Wars" party. Oh, plus one notice of copyright infringement.

But Chatham isn't rolling over for WMG. Reports the Times:

Chatham, who plays in a bluegrass group called the Whappers (no, they're not signed to Warner), is fighting back. Since receiving the e-mail from YouTube regarding Warner's claim, Chatham has filled out copyright counterclaim papers. If Warner doesn't respond within 10 days, YouTube is obligated to put the banjo video back online, Chatham has learned.

But the Times gets the DMCA and YouTube's own policies wrong. What the DMCA actually says is that if YouTube wants to maintain its "safe harbor" from liability in a copyright suit by WMG, it must keep the video off the site for at least 10 business days following receipt of the counternotice from Chatham. (And it can't replace the video without losing the safe harbor if WMG files a copyright suit over the video within those 10 days.) But, contrary to what the Times says, YouTube has no obligation to put Chatham's video back. (Read Section 512(g) itself if you want a good headache.) As I've explained before, "YouTube has no obligation to host or broadcast anyone's video, and its terms of use make clear that it 'reserves the right to remove Content and User Submissions without prior notice.'"

As YouTube further explains the counternotice process:

After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter-notification, it includes your personal information. By submitting a counter-notification, you consent to having your information revealed in this way. We will not forward the counter-notification to any party other than the original claimant.

After we send out the counter-notification, the claimant must then notify us within 10 days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on YouTube. If we receive such notification we will be unable to restore the material. If we do not receive such notification, we may reinstate the material.

Note that, contrary to what the Times implies, YouTube does not say that it "will" reinstate -- merely that it "may." Though, in my experience, if YouTube does receive a counternotice, and the copyright owner does not follow up with a lawsuit within 10 business days, YouTube will indeed restore the video. Come to think of it, I am not aware of a single instance involving a YouTube video in which a copyright owner has filed a lawsuit within the 10-14 business day post-counternotice window. Anyone else?

One last thing. The Times writes:
The legal definition of "performance" in situations like these remains a gray area and may continue to be until YouTube hobbyists begin to bring these cases to court.
I actually don't think there's much doubt that someone who posts a video to YouTube of himself playing a song has "publicly performed" the song as defined in Section 101 of the Copyright Act:

To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.


To perform or display a work “publicly” means —

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

The more interesting, and more difficult, question, is whether videos like Chatham's qualify as "fair use" and are therefore non-infringing under Section 107.

UPDATE:  C&C gets results!  The Times has printed the following correction:
A previous version of this post said that YouTube was obligated to restore a video if Warner doesn't respond within 10 days. YouTube may choose to put the video back online after 10 days but isn't required to do so.

Found: campaign to urge Obama to appoint copyleft-friendly IP Czar

I've been waiting for the copyleft to organize a campaign to urge President Obama to appoint a Copyright Czar from the copyleft itself. Well, here it is, courtesy of Recording Industry vs. The People:

Here is the White House contact form

Here is a link to the White House's contact form.

Please urge President Obama not to appoint a representative of the content cartel as "copyright czar". To do so would be a continuation of putting the 'foxes in charge of the henhouse'.

Please also make the White House is aware of Judge Davis's remarks in Capitol v. Thomas, calling for congressional reform to protect against outlandish verdicts against noncommercial users.

Please pass this along.
I must say, I'm a bit confused by Ray Beckerman's fox/henhouse metaphor. The IP Czar is formally called the "Intellectual Property Enforcement Coordinator." Wouldn't naming someone hostile to enforcement -- which is what the copyleft apparently wants -- be the true case of putting the foxes in charge?

Meanwhile, the "Towards a Comprehensive, Balanced U.S. Patent and Copyright Policy" Facebook cause currently has 515 members (and a nice picture of Neil MacBride.)

'Skank' update: hearing on discovery motion 'adjourned' until Feb. 23

Looks like we'll have to wait another month before we know whether model Liskula Cohen gets to find out who's behind the "Skanks in NYC" blog that is not a big fan of Ms. Cohen. C&C admits it has little idea how the New York Supreme Court actually works, but it appears from its fancy online docket that the hearing on Cohen's effort to obtain pre-action discovery from Google under CPLR § 3102(c) has been "adjourned" until Feb. 23:

The suspense is killing us...

UPDATE: turns out there actually was a hearing today. Reports Daily Online Examiner:
Judge Joan Madden said in court she wouldn't unmask the blogger until he or she had been served with papers and given an opportunity to object. Madden ordered Google to email the blog creator with the court papers by Wednesday.
According to the Examiner, the judge punted on the issue of whether Skanks in NYC actually defamed Cohen:
The judge, to her credit, hesitated to rule that the statements were enough to support a defamation lawsuit. "I'm not comfortable signing this," she told the lawyers in an off-the-record bench conference.
More from Citizen Media Law Project.

Issue Oriented: 'The RIAA and Torture'

Just when I thought I had heard every loopy copyleft conspiracy theory comes a new one that has really got to be read to be believed. Or disbelieved. And exposed to public mockery.

Jack Sanders, Esq., of Nutley, New Jersey ("Certified as a Civil Trial Attorney by the Supreme Court of New Jersey"!) has an article on "Issue Oriented" that argues (and I use than term loosely) that the RIAA is somehow linked to "torture." Somehow.

Here's Sanders' "theory": the record labels' litigation against individual p2p infringers can be explained by the fact that RIAA CEO Mitch Bainwol used to work for former Senate Majority Leader Bill Frist (R-TN), who was a co-sponsor of the Military Commissions Act of 2006, which had something to do with torture, oh, and there was also a controversy about Frist's dissection of cats while in medical school, and "Frist was anti-choice, anti-embryonic stem cell research, anti-gay marriage, pro-teaching creationism in schools," so therefore the labels' lawsuits are really, really bad. Or something. Read it yourself. And weep.

Zut alors! 'Obama nomme des lobbyistes du droit d'auteur à des postes clés'

Quelqu'un en France lit Copyrights & Campaigns:

Le "Changement" promis par Barack Obama ne devrait pas avoir lieu sur le droit d'auteur. Le Président des Etats-Unis a nommé des anciens représentants de la RIAA et de la BSA à des postes importants du Département de la justice.

Lorsque Barack Obama a annoncé qu'il choisissait Joe Biden comme collistier pour sa candidature, nous avions prévenu que le nouveau vice-président des Etats-Unis était l'un des sénateurs les plus proches de la RIAA, le lobby du disque. Pendant toute sa campagne, Obama s'est montré très ouvert sur les questions technologiques et s'est attiré la sympathie des internautes, avec un soutien affiché des licences Creative Commons, de la neutralité du net ou des logiciels libres. Il a obtenu le soutien de personnalités reconnues dans le monde technologique, comme le professeur Lawrence Lessig ou le directeur de Google, Eric Schmidt. Mais les lobbys du droit d'auteur n'ont pas disparu pour autant de Washington, loin s'en faut.

Bonjour, mes amis...

Techdirt: up is down; black is white; speaking out is shutting others up

The low quality of "reporting" by the copyleft will never cease to amaze.

Here's the latest example. On Jan. 22, Digital Media News ran a short item reporting that ASCAP would host a lunch meeting "to discuss a number of top issues." Those issues include:
licensing and rate proceedings in the digital area, the new Congress, and working together to counter the growing prevalence of the "copy left/free culture" pontificators in the public discourse about creators rights.
Sounds exactly like what a group like ASCAP is supposed to do: advocate on behalf of its members. So how does Techdirt -- a copyleft-friendly group blog -- interpret this routine meeting? "ASCAP Working To Shut Up Free Culture Supporters." You got that right: "working together to counter" its ideological adversaries on copyright issues actually constitutes "working to shut [them] up." Of course, nothing in the original DMN story, in my follow-up, or in the lunch invitation itself (which I have read) contains the slightest hint that ASCAP is seeking to shut anyone up. Of course, ASCAP is simply saying that it wants its own voice to be heard in a world where the copyleft dominates the discourse in academia, "public interest" groups, and the blogosphere.

ASCAP deserves kudos for doing more to speak out on copyright issues from copyright owners' and creators' perspective. If the other side "pontificates," they should pontificate right back. (I'm a blogger, and therefore a big fan of pontification from all sides.) And Techdirt should correct their absurdly wrong headline.

One final point: Techdirt's story paints ASCAP -- which represents songwriters, composers, and music publishers -- as a "confused" group of music business neanderthals, fighting off all promising "new business models." Funny, when reputable journalists examine the music publishing business, they come to a quite different conclusion.

UPDATE: lively discussion here, featuring Techdirt's continued insistence that "counter" means "shut up."