Thursday, April 30, 2009

Removal of Lessig video apparently NOT a DMCA takedown

It was inevitable that reports of a "DMCA takedown" allegedly issued by Warner Music Group on a video presentation by Larry Lessig would garner lots of attention. I've refrained from commenting so far, because I strongly suspected that initial reports of a "DMCA takedown" were inaccurate, and I wanted to wait until some true facts emerged. Well, they have, and, as I suspected, this is a lot less dramatic than it seemed at first glance. In sum, it appears that initial reports were wrong; WMG apparently did not issue a DMCA takedown notice on the Lessig video.

Professor Lessig explains on his blog what happened:
As you may have read me tweet, the organization that hosted me for this talk... [r]eceived a notice that Warner Music had objected to its being posted on copyright grounds. Apparently, YouTube's content-ID algorithm had found music in the video that they claimed ownership to. The organization is apparently responding by disputing the claim. I'll report back when I hear more.
The key is Lessig's statement that "YouTube's content-ID algorithm had found music in the video." Here's what that means: YouTube employs an automated system for identifying music uploaded to its system. The major music companies, in cooperation with YouTube, have uploaded digital "fingerprints" of their songs to YouTube's content ID system (which uses AudibleMagic's technology). When a user uploads a video, the content ID system checks the music against the database of fingerprints, and applies a "business rule" set by the copyright owner: 1) block, 2) track, or 3) allow, and share revenue. Most major record labels participate and use option 3. WMG did so until late last year, when its agreement with YouTube broke down, and the setting for WMG's music flipped from "allow and share revenue" to "block."

So today, when a user posts WMG music to YouTube, its content ID system identifies it, blocks it from being displayed, and sends a notice to the user. At this point, the user can dispute the block through a simple online form. This is not the DMCA notice-and-takedown (and counternotice) process. Rather, it is a private system -- totally outside the DMCA -- that YouTube established to allow it to monetize videos (and mollify copyright owners, who are relieved of some of the burden of policing YouTube for infringing copies of their works).

So, assuming that Lessig accurately described what happened here (and I have no reason to doubt him), the video of his presentation was not the subject of a DMCA notice. (Indeed, Lessig's initial Twitter report did not claim this was a "DMCA" takedown.) Rather, the video was identified by YouTube's filter and blocked, and the copyright issue can probably be resolved by the poster (an organization that Lessig does not identify) taking 5 minutes to fill out an online dispute form. If, at that point, WMG still believes that the use of its song was infringing, it can then issue a true DMCA takedown notice (and, if necessary, the poster can file a DMCA counternotice).

As to the underlying issue: was Lessig's use of WMG's music a fair use? The problem I have in answering that question is that I'm not even sure which music triggered the video's removal. Lessig lists the music incorporated into his presentation, but the list makes no mention of WMG. (Was there simply a malfunction in the content ID system?) However, having watched the video, it does seem that Lessig used only brief excerpts of music to illustrate his arguments about "remix culture." In other words, probably fair uses (though, again, I'd want to know for sure which song was the subject of the claim before saying so for sure).

So what will happen? If the poster disputes the takedown through YouTube's system (which Lessig indicates is occurring), my guess is that WMG will not press the case, and the video will get re-posted. YouTube's content ID system isn't perfect, but it does have a feature that permits disputes like this to be resolved quickly, and without much hassle -- if that's what the parties actually want.

UPDATE: Lessig reports on his blog that "the protest filed by the uploader to the block was successful." Should be the end of the story.

Should Ray Beckerman keep covering the Tenenbaum case?

Cast your vote here!

First Circuit denies Tenenbaum's en banc petition on webcast

As expected, the First Circuit has denied Joel Tenenbaum's petition for rehearing en banc of its decision barring the webcast of district court proceedings in his high-profile copyright case. The First Circuit also denied Tenenbaum's motion to stay the district court motion hearing that was to be webcast -- a hearing that was set for today (April 30). However, District Judge Nancy Gertner had already postponed the hearing until June 5, so that date will stick, unless one of the parties persuades her to move it up.

UPDATE: The labels have indeed asked Judge Gertner to move up the motion hearing, possibly to next week. The parties are also tussling over a deposition of a third-party witness that the labels would like to conduct by phone (which is permitted under Rule 30(b)(4)). Tenenbaum's counsel, Harvard Law School Professor Charles Nesson, says he's OK with a phone depo -- but only if he can record it. The labels object to recording, fearing that Nesson's team will post it to the Internet. Sound familiar? (h/t Recording Industry vs. The People)

UPDATE 2: The issue of the identity of the potential phone deponent (called a "mystery witness" by Recording Industry vs. The People) is a bit silly. While the labels chose not to name him in their motion "out of respect for the deponent’s privacy," I was able to figure out his name by spending fewer than 10 minutes on PACER and Google. His name has been mentioned in other court papers in this case, on Tenenbaum's own web site, and on at least one anti-RIAA blog. There's no real secret here.

Wednesday, April 29, 2009

Labels cite academics' emails in Tenenbaum case; note rejection of fair use defense by defense experts

When Harvard Law Professor Charles Nesson posted to his blog an email chain that featured his potential expert witnesses -- top copyleft academics -- criticizing his plan to mount a fair use defense, it was an amusing and highly unusual sideshow: a rare behind-the-scenes look into internal legal discussions that usually remain secret. But now, those emails have become part of the Joel Tenenbaum case itself.

In a brief opposing what by the labels' count is Tenenbaum's effort to file a fourth version of his answer (I believe "fourth" is right, though the proposed amendment is styled as "Second Amended Answer"), the record label plaintiffs have made ample use of those emails, in support for their argument that the addition of fair use as an affirmative defense would be futile:
The legal scholars Defendant has relied on unanimously agree that an affirmative defense of fair use fails as a matter of law and would refuse to testify that Defendant’s actions constitute fair use. Indeed, in a series of emails made public by Defendant’s counsel, Defendant’s scholars explain that fair use does not – and should not– encompass filesharing.

First, William Fisher, professor of intellectual property law and faculty director of Mr. Nesson’s own Berkman Center for Internet and Society proclaimed, “I cannot, however, testify that Joel’s activity constitutes a fair use under current copyright law, because I don’t think it does.” (March 29, 2009 email from William Fisher to Charles Nesson. Exhibit D). He further explained: “In my view, the fair use doctrine has other, important functions in the copyright scheme [ . . .] which would be impaired by twisting it to address this particular problem.” (March 29, 2009 email from William Fisher to Charles Nesson. Exhibit E).

Similarly, Lawrence Lessig, founder of Stanford Law School’s Center for Internet and Society opined to Defendant’s counsel, in no uncertain terms:

"I am surprised if the intent is to fight this case as if what joel did was not against the law. of course it was against the law, and you do the law too much kindness by trying to pretend (or stretch) 'fair use' excuses what he did. It doesn’t."

(March 29, 2009 email from Lawrence Lessig to Charles Nesson, Exhibit B). Professor Lessig also proclaims that “P2P filesharing is wrong and kid’s shouldn’t do it,” and informs Defendant’s counsel that there is no “honest frame for joel’s case” other than jury nullification. Id.

Finally, Wendy Seltzer, professor of information privacy and intellectual property at Washington College of Law and fellow with the Berkman Center, shared her opinion that Defendant’s conduct is not fair use. “Add me to those puzzled by the ‘fair use’ arguments. I understood the argument to be that statutory damages are inappropriate and unconstitutional in response to personal-use copying, not that such copying was within the bounds of existing law.” (March 29, 2009 email from Wendy Seltzer to Charles Nesson. Exhibit C). Professor Seltzer further explains: “I fear that we do damage to fair use by arguments that stretch it to include filesharing.” Id.

In addition to Defendant’s scholars’ conclusions that Defendant’s infringement does not constitute fair use, a member of Defendant’s own legal team concluded that fair use is “an argument which has no real basis in case law or moderate academic scholarship.” (March 29, 2009 email from [REDACTED] to Charles Nesson, Exhibit F).
I suspect that the case law on delay in amendments and the futility of the fair use defense in the p2p context will have the largest impact on the court. But the emails released by Nesson certainly provide some powerful rhetoric that will aid the labels in keeping fair use out of this case -- where it belongs.

(h/t Recording Industry vs. The People)

Tenenbaum seeks rehearing en banc on webcast

Joel Tenenbaum has filed a petition for rehearing en banc in the First Circuit, once again asking the court of appeals to permit the live webcast of an upcoming district court motion hearing in the record labels' copyright suit against him. The move follows the First Circuit's April 16 decision holding that District Judge Nancy Gertner lacked the authority under the District of Massachusetts local rules to permit an Internet broadcast from her courtroom.

Tenenbaum petition for rehearing en banc re webcast
I consider the petition for rehearing by the full First Circuit very unlikely to be granted. As I've previously explained:
Under Federal Rule of Appellate Procedure 35(a), taking a case en banc requires a vote of a majority of the circuit's active, non-recused judges. There are only five such judges in the First Circuit, two of whom -- Juan Torruella and Kermit Lipez -- were on the Tenenbaum panel. So, the likeliest scenario to get to a majority would be for all three of Chief Judge Sandra Lynch, Judge Michael Boudin, and Judge Jeffrey Howard to vote for en banc -- a long long-shot. (Even unlikelier would be for either Torruella or Lipez, who just signed on to the no-webcast opinion, to flip.)
On substance, FRAP 35(a) says that rehearing en banc is "not favored," and is only supposed to occur where: 1) "necessary to secure or maintain uniformity of the court’s decisions" or 2) "the proceeding involves a question of exceptional importance." It's very tough to argue that the decision conflicts with a prior First Circuit decision (and Tenenbaum does not appear to rely on this prong). And, as much as I'd like there to be a webcast, I think it's a stretch to say that this is a "question of exceptional importance." Remember: the courtroom will still be open to the public and press, and cameras are virtually never allowed in federal courtrooms, so the First Circuit's decision does not represent a departure from normal practice.

Back in the district court, Tenenbaum has filed a motion to stay tomorrow's important motion hearing, at which Judge Gertner will consider numerous issues, including a constitutional challenge by Tenenbaum to the Copyright Act's statutory damages provisions, and the viability of Tenenbaum's abuse of process counterclaim against the labels. Tenenbaum asks the district court to postpone the hearing until the First Circuit acts on the petition for rehearing on the webcast. The motion indicates that the labels oppose such a stay. Will Judge Gertner grant it? I'm not sure. On one hand, the issue becomes moot (at least as to this hearing) as of Thursday, so she may view a short delay to permit the First Circuit to rule as reasonable. On the other hand, Tenenbaum filed his petition for rehearing on April 28 -- just 2 days before the scheduled district court hearing. I could certainly envision Judge Gertner saying, "If you wanted a ruling from the First Circuit before the 30th, you should have filed your petition much sooner."

UPDATE: Judge Gertner today postponed the April 30 hearing until June 5, which will give the First Circuit plenty of time to rule on the petition for rehearing.

(Disclosure: I signed on to an amicus brief in support of the webcast.)

Tuesday, April 28, 2009

Mercury News Op-ed: Hollywood innovates — and litigates when it must

For the latest news on the RealDVD preliminary injunction hearing, read Greg Sandoval's report in CNET. (In sum, things seem to be going well for the studios and the DVDCCA.) And for a dose of opinion, I have written the following op-ed piece, which will appear in tomorrow's San Jose Mercury News:

Major movie studios are battling software maker RealNetworks in a San Francisco federal court in a case testing the legality of Real's "RealDVD," a "ripper" that enables the copying of prerecorded DVDs.

RealNetworks and its allies on the "copyleft" portray this fight as yet another attempt by Big Content to crush any "innovative" new technology that challenges the way the "dinosaurs" in Hollywood do business.

But that facile description ignores what has actually been happening in computer labs and negotiating sessions from Silicon Valley to Santa Monica: Entertainment and technology companies are realizing that the long-term solution to their rivalry lies in licensing, not litigation.

The evidence abounds. Studios now offer their works on more than 275 legal web sites, almost all of which didn't exist a decade ago, including Hulu, YouTube, Amazon's streaming and download services, and Netflix.

And then there's RealDVD, which last fall became the first mainstream product to evade digital locks on DVDs, enabling consumers to "rip" movies to their computer — or a friend's. A court blocked sales shortly after RealDVD's premiere, and now must decide whether the ban should remain.

Other DVD-rippers have existed for years, but they are either "open source" creations with limited appeal, or are peddled by obscure foreign operators who can't get their boxes onto the shelves of well-known retailers.

RealDVD threatens to bring DVD ripping out of the shadows. Advertised as "legal" and "100 percent legit" — though "trafficking" in ripping tools is illegal under the 1998 Digital Millennium Copyright Act — RealDVD threatens to mainstream DVD copying.

What's wrong with that? At least three things. First, RealDVD enables "casual copying" of DVDs that will harm the market for all the legitimate services, as well as new ones like special DVDs that include an authorized "digital copy" that one can transfer to a computer or iPod — not to mention new business models that no one has dreamed up.

Second, RealDVD invites users to rent a movie, and then copy the DVD for one's permanent home library (or one's friend's). But by facilitating "rent, rip and return," RealDVD menaces a revenue stream that finances those very films.

Finally, the availability of a DVD-ripping tool from a "real" company like Real would signal to consumers that copying DVDs is OK — a message that is contrary to the law and that will undermine the market for legal content. Despite pleas from Real and its allies on the copyleft, no court has ever held that it is "fair use" to copy a prerecorded DVD.

What does Real say about all this? When in 1999 a company called Streambox launched a product that evaded Real's own digital locks, Real ran to court, argued against fair use — and won. When a customer wants an additional copy of RealDVD, Real demands another $19.99. But when the studios assert their rights and argue that RealDVD enables unauthorized copying of their movies, Real CEO Rob Glaser sniffs that it's not his job to stop digital theft, even as he enables it: "If you want to steal, we remind you what the rules are and we discourage you from doing it, but we're not your nanny." The studios don't expect Real to play nanny, but they do insist that it not sell digital lock picks to break into their most valuable products, and take them for free.

So, yes, Hollywood will litigate when it must, against companies like Real that won't respect creators and the law. It does so not for the sake of "crushing technology," but to ensure that real, legal innovations have the space to thrive.

Ben Sheffner is a copyright attorney in Los Angeles who has represented movie studios, television networks, and record companies. He blogs at He wrote this article for the Mercury News.

Monday, April 27, 2009

Beckerman likens subpoena procedure to 'Nazi Germany'

When the record labels want to sue an individual peer-to-peer infringer, they face a problem: they have an IP address, but not a name -- and they can't sue an IP address. How to get that name, which only the ISP knows? The original plan was for the labels to avail themselves of the DMCA's special, expedited subpoena process found in 17 U.S.C § 512(h). That plan, however, was thwarted by the D.C. Circuit, which held in RIAA v. Verizon that a Section 512(h) subpoena is not available in the p2p context, where the allegedly infringing material resides on the user's computer -- not the ISP's.

So on to Plan B. What the labels decided to do instead was file lawsuits against "Does" -- placeholder defendants whose true names they don't yet know. They then ask the court to issue subpoenas to ISPs, requesting that the ISP turn over information (including the names) of the subscribers associated with particular IP addresses. Once the ISP reveals the names, the labels substitute in "Joel Tenenbaum" or "Jammie Thomas" for "Doe." The process is cumbersome, but it's the labels' best option for finding defendants after RIAA v. Verizon, and it's permitted by the rules.

Ray Beckerman, proprietor of the Recording Industry vs. The People blog, and a vocal RIAA critic, does not like this process. In this recent podcast on This Week in Law, Beckerman argues that it affords the Doe defendants insufficient opportunity to move to quash the subpoenas that seek their identity. And just how horrific is this subpoena procedure that federal courts all over the country have approved? Proclaims Beckerman:
Welcome to Nazi Germany, not the United States of America.
It's been a while since I've seen Schindler's List, but I do recall Nazi crimes a bit more serious than allegedly depriving anonymous accused copyright infringers of the chance to keep their identities hidden.

Hilariously, This Week in Law host Denise Howell, complimenting Beckerman toward the end of the show on his Twittering etiquette, calls Beckerman "one of the most polite and diligent online denizens I've ever met." Howell must hang out with a pretty rough crowd...

Sunday, April 26, 2009

'Obama Dog' hits Irvine; 'smothered with pork'?

What is it with fast food joints and President Obama? The Orange County Register reports that a place in Irvine called Haute Links is now serving an "Obama Dog":
For $2.99, here’s what you’ll get on a poppy seed bun: an all-beef hot dog, tomato, onions, neon green relish, pickle spear, sport pepper, mustard and celery salt.
Judging from the comments in the Register piece, opinions on the Obama Dog are heavily influenced by one's political views.

The White House right-of-publicity cops are going to have a very busy four years...

Saturday, April 25, 2009

'Piracy' as copyright infringement: nothing new under the sun

Up until a few months ago, life was pretty simple: when I saw a headline referring to "piracy" or "pirates," I could be pretty sure it was an article about copyright that I'd want to read. No longer. Now, of course, those articles could just as well be chronicling the return the other kind of pirates: you know, the guys with guns who take ships by force.

Which got me thinking: where does the use of "piracy" to refer to copyright infringement come from? Was the term appropriated from the "ay, matey" pirates in a secret 1999 meeting of RIAA flacks, as they girded for battle with Napster? Hardly. When I started looking into it, I was somewhat surprised to learn that "piracy" has been used as a synonym (or near-synonym) for copyright infringement for about 350 years. In his exhaustive etymological study of the terms "piracy" and "intellectual property," Professor Justin Hughes of Cardozo Law School traces the equation of "piracy" with infringement to an English bishop named John Fell, who lived 1625-1686. Explains Hughes (page 1009):
It is worth noting that during this pre-Statute of Anne period, “piracy” was widely used to describe unauthorized printing of books. Adrian Johns traces “piracy” as a description of unauthorized copying to John Fell, the Bishop of Oxford who resuscitated the fledgling Oxford University Press after the Restoration. According to Johns’s exhaustive study of book publishing in England, The Nature of the Book, piracy had a “technical meaning” in the seventeenth century: “a pirate was someone who indulged in the unauthorized reprinting of a title recognized to belong to someone else by the formal conventions of the printing and bookselling community.” Beyond this technical meaning, piracy “soon came to stand for a wide range of perceived transgressions of civility emanating from print’s practitioners.”
(footnotes omitted; links mine). The first use of "piracy" in this sense by a court was apparently a 1798 English decision called Beckford v. Hood; the first example noted by Hughes in the US was Moody v. Fiske, 17 F. Cas. 655, 656–57 (C.C.D. Mass. 1820) (patent case). Writes Hughes (page 1043):
In the nineteenth century and the first half of the twentieth century, there is a rich history of American courts and commentators referring to all kinds of copyright infringement as “piracy.” The broad usage of the word “piracy” shows that it was generally equated with infringement: there seemed to be no requirement either that the infringement be a “nontransformative” use or that the infringement entail reproduction and distribution on a massive scale.
And Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841) -- generally considered the first fair use case (it found that the defense didn't apply, by the way) -- refers to "piracy" as well.

The Hughes article -- Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 S. Cal. L. Rev. 993 (2006) -- also traces the origins of the term "intellectual property." That phrase appears in legal usage no later than the mid-1800s, and "property" was used in the original title of the bill that became 1710's Statute of Anne. For a more concise treatment of the etymology of "piracy," see K. Matthew Dames, The Framing of 'Piracy': Etymology, Lobbying & Policy (2009).

Friday, April 24, 2009

District court rebuffs effort to alter local rule on cameras; Tenenbaum will seek en banc review and stay of hearing

The federal judges of the District of Massachusetts have decided, at least for now, to keep in place their local rule banning cameras in the courtroom, rejecting an entreaty by Harvard Law School professor Charles Nesson that they amend the rule in advance of an important April 30 motion hearing in the Joel Tenenbaum case. The court's refusal follows an April 16 ruling by the First Circuit that reversed an order by District Judge Nancy Gertner permitting a webcast of the upcoming hearing, where the court will hear argument on legal issues including the constitutionality of the Copyright Act's statutory damages provisions.

In an email request to Chief Judge Mark Wolf, Nesson wrote:

To the Honorable Mark Wolf, Chief Judge:

Pursuant to our phone conversation just completed (and not recorded), I send you email urgently requesting that you circulate to the judges of the district court my request on behalf of Joel Tenenbaum and the digital nation of people who want access through internet to the proceedings of his trial that local rule 83.3 be amended to permit a judge of the district court to exercise the discretion shown by Judge Gertner in our case. We request this urgently on our understanding of FRCP 83 and 28 USC 2071(e) that the district court bench is empowered to make its own rule and to defer the required period of notice and comment in cases of immediate need. The immediate need in this case is the hearing scheduled for April 30, 2009 before Judge Gertner on motions challenging the constitutionality of the recording industry's litigation campaign against noncommercial copiers and asserting that the prosecutions are abusive. Restricting our ability to make this judicial process accessible to the digital nation of which Joel is representative irreparably harms our case by encasing it a building that is a fortress and a recording only in text which cannot be immediately accessed and which my client and his digital generation cannot afford. I invite you to visit these links as demonstration of the potential that will be lost if the judges of your court fail to act, and as suggestion of what can be gained by acting.

I read the opinion of first circuit panel as an invitation to you to act. I include below Judge Lipez concurring. Please note along side in re providence journal the supreme court opinion in Kleindeinst v. Mandel, 408 U.S. 753 (1972), which recognizes the people's first amendment right to see and hear.
But Chief Judge Wolf wrote Nesson in an email earlier today:
I have circulated your request to my colleagues and received their responses. The District Court has decided not to take any action on the expedited basis that you request. In view of the imminence of the April 30, 2009 in your case, I am providing you this response by email.
Tenenbaum's team also announced that they will seek en banc review of the First Circuit's decision, which held that Judge Gertner lacked the discretion to permit the webcast. En banc review appears to be a near-impossibility here. Under
Federal Rule of Appellate Procedure 35(a), taking a case en banc requires a vote of a majority of the Circuit's active, non-recused judges. There are only five such judges in the First Circuit, two of whom -- Juan Torruella and Kermit Lipez -- were on the Tenenbaum panel. So, the likeliest scenario to get to a majority would be for all three of Chief Judge Sandra Lynch, Judge Michael Boudin, and
Judge Jeffrey Howard to vote for en banc -- a long long-shot. (Even unlikelier would be for either Torruella or Lipez, who just signed on to the no-webcast opinion, to flip.) Almost certainly not going to happen. [Corrected: the original article incorrectly said there were 4 active judges.]

Tenenbaum's team says they will file their en banc petition, as well as a motion to stay the April 30 hearing, on Monday morning.

RealDVD preliminary injunction hearing gets under way; NPR explores important DMCA case

The preliminary injunction hearing in the studios efforts to keep in place the ban on RealNetwork's "RealDVD" ripping software got under way in San Francisco today before Judge Marilyn Hall Patel -- the same judge who shut down Napster almost a decade ago. Good summaries from the New York Times and Wall Street Journal.

For those who prefer to listen rather than read all about it, earlier today I discussed the case on "The Conversation" on Seattle's NPR affiliate KUOW; my pro-DRM arguments are followed by a rebuttal from EFF's Fred von Lohmann. The audio is available here (including through RealAudio).

My earlier coverage is here. Many of the important documents have been collected by EFF here. The hearing is expected to continue through the middle of next week.

Founding Bloggers v. CNN: counternotice submitted; countdown to re-posting -- or a lawsuit

Founding Bloggers, the conservative web site that had its video critical of CNN's reporting on a Chicago "tea party" removed by YouTube after the cable network sent a DMCA takedown notice, is not backing down. On Thursday, Founding Bloggers submitted a DMCA counternotice to YouTube, starting the clock ticking toward a possible re-posting by YouTube -- or a lawsuit that could establish important legal precedent regarding the contours of copyright law's fair use doctrine, especially as it applies to use of news video by political bloggers. "We're not going to let this just go away," Andrew Marcus of Founding Bloggers told C&C in an interview earlier today.

As I've previously argued, the video at issue -- which includes about 1 minute, 20 seconds of CNN footage of reporter Susan Roesgen conducting contentious interviews with protesters at an April 15 Chicago rally, as well as about 2 minutes, 30 seconds of footage shot by Founding Bloggers -- is a non-infringing fair use of CNN's material; thus I believe the DMCA notice was improper. CNN owns copyright in its own footage, but its rights are limited by the Copyright Act's fair use provision, which specifically mentions "criticism, comment, [and] news reporting" as protected uses that are "not an infringement of copyright." Founding Bloggers' incorporation of the CNN footage was clearly for the purpose of criticizing and commenting on Roesgen's reporting, which has come under heavy fire in the conservative blogosphere (and even from a former CNN reporter) for her hostile interactions with tea-partiers.

So what happens next? Here's how YouTube explains the process:

After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement.... After we send out the counter-notification, the claimant [here, CNN] 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.

In my experience, YouTube does indeed re-post videos 10 business days after receiving a counternotice, unless the copyright owner initiates a lawsuit.

So, CNN could sue Founding Bloggers for copyright infringement -- but I consider that unlikely. CNN's lawyers know the law of fair use, and that they would be unlikely to prevail in an infringement suit against Founding Bloggers. And remember: CNN -- like all TV news organizations -- relies heavily on fair use every day, using clips from competitors, and even YouTube, in its own broadcasts. So even a "victory" over Founding Bloggers would result in long-term damage to CNN's own interests.

Founding Bloggers could also sue CNN. Section 512(f) of the DMCA allows the target of a takedown notice to seek damages, including costs and attorneys’ fees, against the sender for "knowingly materially misrepresent[ing] ... that material or activity is infringing." While such cases are difficult to win, one court has held that the sender must take into account fair use when deciding whether to issue a takedown notice. Founding Bloggers can also sue for a declaratory judgment, asking a court to issue an order stating that its video is a non-infringing fair use.

As a practical matter, it may not matter all that much whether Founding Bloggers' particular copy of its video is re-posted by YouTube. Urged on by Patterico, numerous others have re-posted the same video, making it exceedingly difficult for CNN to scrub the net of the offending video. And today Founding Bloggers posted a new, longer video critical of the mainstream media's (including CNN's and MSNBC's) coverage of the Tea Parties. Founding Bloggers' new video incorporates some of the same CNN footage of Roesgen that was in the earlier, removed video -- but this time that footage was cleverly taken from an episode of Glenn Beck's show on Fox News, which (like Founding Bloggers) was making fair use of the CNN footage to criticize Roesgen's coverage (starting about 27 seconds in):

Here's Founding Bloggers' counternotice, prepared by its attorney David Adler of Adler & Franczyk in Chicago:

While this does appear to be a sufficient counternotice, I must admit I'm confused by the letter's statement that, under the Io Group v. Veoh Networks decision, "YouTube had an affirmative duty to investigate the availability of the Fair Use defense." I do not read Io Group as imposing such a duty on YouTube, but am open to hearing arguments to the contrary.

Founding Bloggers' Marcus does not seem like the type walk away quietly; he told me he's motivated by "principle," and not just the desire to get his video re-posted. If this dispute does make it to court, I wouldn't bet against him.

Thursday, April 23, 2009

Craigslist CEO: the Baghdad Bob of Boston

Craigslist CEO Jim Buckmaster, quoted in the Boston Globe:
"I would not describe any section of our site as 'sex related.'"
Craigslist Boston "Erotic Services" section (this morning):

Let Me Help You RelaXXX! - w4m - 27 - (Incall Only Nashua, NH) pic

There's Nothing Like a Little Afternoon Delight..... - w4m - 25 - (outcalls) pic

!!!!HOT YOUNG COED ACTION 24/7 BACK IN TOWN!!! - w4m - 21 - (INS/OUTS) pic

Smoking Hot girls found here****POST YOUR (confidential) ADS WITH US - (all over) pic img

GAME TIME!!!!~~SPECIALS!!!! - w4m - 23 - (BOSTON/IN & OUTCALLS) pic


Sharon must go to Vegas - w4m - (Near Waltham) pic

sheer perfection young college student BArbie - t4m - 19 - (downtown boston) img

!!..BOOTILICIOUS KRISTEN..!! - w4m - 21 - (OUT CALLS ONLY!!) pic

XXX Film Star Roxxanne Bliss with Southern Lover - mw4m - 28 - (Outcall/incall) pic

Etc., etc., etc.....

Craiglist is almost certainly immune from civil or criminal liability for the acts of Boston's alleged "Craigslist Killer," thanks to Section 230 of the Communications Decency Act. However, the near-comical, head-in-the-sand, Baghdad Bobbish denialism from Buckmaster is going to lead to enormous political pressure to amend, and perhaps gut, Section 230 -- which would be a bad thing. As I've argued before:
[H]ow long will it be before Congress starts getting pressured to amend Section 230 to carve out from immunity cases involving prostitution services, or racist roommate-seekers, or rape wishes? And then does so, after hearing emotional testimony from battered prostitutes, anti-discrimination advocates, and women subject to vicious verbal abuse on law school message boards? And then the next group of victims demands its own exceptions, and then the next, until Section 230 is left in shreds.

Craiglist may think it's standing up for Internet freedom by fighting for its "right" to maintain a section that clearly advertises illegal activity. But by doing so, it risks jeopardizing that freedom for all the responsible actors out there.

Doctorow disses Democrats

Copyleft activist and EFF fellow Cory Doctorow, reacting to Vice President Joe Biden's Tuesday speech to entertainment executives:
I would have voted Dem in the last election, if I got a vote, but make no mistakes: the Dems are the party of stupid copyright laws. From Hollywood Howard Berman on down, they've got a terrible track record on technology and copyright policy.
Doctorow is Canadian and thus can't threaten to vote for the other guys, or even withhold contributions.

Wednesday, April 22, 2009

BREAKING: IP Czar will be...'the right person'

More from yesterday's MPAA-sponsored "Business of Show Business" event in Washington yesterday. From a speech by Commerce Secretary Gary Locke:

Let me state further that when U.S. goods and services containing intellectual property arrive in world markets, they should benefit from basic safeguards similar to those they enjoy at home.

The cost of counterfeiting and piracy to your companies and to our nation is billions of dollars in losses and hundreds of thousands of American jobs.

The recent revelation that an illegal copy of the upcoming movie “Wolverine” had been posted on the Internet prior to its theatrical release underscores the problem the industry faces.

I’ve seen examples of this sort of piracy on the streets of China during my many visits there each year. I’ve walked past the stands of counterfeited movies.

Our ability to trade in a rules-based system around the world is critical to your success and our economic success as a nation. And as a former prosecutor, I believe in the full and impartial enforcement of the law.

The Obama administration is well aware of the impact of counterfeiting and piracy on our industries and workers, and we’re working to combat it.

And from CNET's Declan McCullagh:
Vice President Joe Biden lauded Hollywood at a gala dinner in Washington, D.C. on Tuesday evening, assailed movie piracy, and promised film executives that the Obama administration would pick "the right person" as its copyright czar.
"It's [piracy is] pure theft, stolen from the artists and quite frankly from the American people as consequence of loss of jobs and as a consequence of loss of income," Biden said, according to a White House pool report.
McCullagh also writes, "On copyright, President Obama has signaled a more pro-industry approach than his predecessor, which has alarmed advocates of less restrictive laws," citing the appointment to top DOJ slots of several attorneys who represented copyright owners while in private practice, and its intervention in the Joel Tenenbaum case to defend the constitutionality of statutory damages. As I've explained before, I think this notion that the Obama Administration is somehow taking a new, pro-copyright tack that was missing from previous administrations is about 99% pure hype. The former entertainment industry litigators appointed to DOJ simply won't be spending much, if any, time on copyright matters (and were probably appointed for reasons that have nothing to do with copyright), and the Obama administration's position on statutory damages is exactly the same as the Bush Administration's.

Still, I can't imagine that some of these people were too thrilled about the rhetoric at yesterday's events.

Tuesday, April 21, 2009

Labels respond to Free Software Foundation amicus brief in Tenenbaum case

In the Joel Tenenbaum case, the plaintiffs have filed a response to the amicus brief filed by the Free Software Foundation, arguing that the cases cited in the FSF brief do not support Tenenbaum's claim that the Copyright Act's statutory damages provisions are subject to the limitations on punitive damages established in BMW v. Gore. (But you already knew that.) The plaintiffs' brief also takes issue with Tenenbaum's (and FSF's) assertion that their damages are at worst 35 cents per song:
To support its proportionality argument, FSF contends that Plaintiffs’ lost profits in the case should be based on a per/download loss of “approximately 35 cents.” Apart from the fact that the argument relies on “facts” not in the record in this case, the contention ignores the nature of Defendant’s infringement. Defendant has not only infringed Plaintiffs’ works through downloading, he has also distributed Plaintiffs’ works for years to potentially millions of other file sharers. The harm to Plaintiffs from such massive distribution over a period of many years is incalculable – and undeniably worth exponentially more than 35 cents. Indeed, the cost of an unrestricted license to distribute Plaintiffs’ copyrighted works for free on the Internet would be astronomical. Thus, Defendant’s suggestion that Plaintiffs’ lost profits total 35 cents per download misconstrues the nature of Defendant’s infringement and should be rejected.
Technically, the plaintiffs' brief won't be considered by the district court unless it first grants this motion for leave to file. The hearing on Tenenbaum's motion to dismiss the claim for statutory damages on constitutional grounds is set for April 30.

(h/t Recording Industry vs. The People)

Hatch scares liberal studio machers with tax talk; soothes crowd with Mormon joke

Today was the "Business of Show Business" confab in Washington, at which movie industry machers descended on the nation's capital -- in private jets, reports Nikki Finke -- to remind the solons of Hollywood's contribution to the economy. Sure, it's propaganda, but it's perfectly legitimate for representatives of any industry to meet with political leaders, and if the MPAA is better at it than most trade associations, well, kudos to them.

I'm sure the MPAA's Washington staff did a great job organizing the day's events. But even they would admit they can't plan for everything. Especially not for Sen. Orrin Hatch (R-UT) (a great friend to copyright owners) using the opportunity of a lunch speech to try to drive a wedge between the (largely Democratic) entertainment execs and the Obama Administration. In a delicious post titled "Hatch reminds Hollywood it's rich," ContentAgenda's Paul Sweeting reports:
Senator Orrin Hatch (R-UT) on Tuesday reminded a luncheon crowd of studio chiefs and other Hollywood heavyweights here in Washington for the day that they're rich--and the rich pay taxes. Lot's of them. And they will soon pay even more taxes under the Obama Administration, which intends to raise the top marginal income tax rate for individuals who earn more than $250,000 a year, a category that included a good portion of Hatch's audience (although, sadly, not Media Wonk).
Hatch's goal, presumably, was to remind the heavily Democratic Hollywood crowd that they're going to take a hair cut under the guy many of them helped elect, and that it is Republicans (although he didn't say so directly) who can be counted on to look out for the fortunate.

"Contrary to what the Obama Administration is promising, they will not be cutting taxes for 95 percent of Americans, they'll be raising taxes for 100 percent," Hatch said, pointing to the huge fiscal stimulus that will eventually have to be paid for and higher taxes planned for many industries.
Getting more personal, Hatch noted that "the film-making industry has not received very good treatment from this Democratically controlled Congress, which seems to want to punish success."

And by implication, the successful.
According to Sweeting, Hatch's words were met with "awkward silence and silverware fidgeting against china." But not to worry; he broke the tension with a Mormon joke, "which seemed to make everyone happy." (Note to self for next speech: study up on Mormon jokes.)

Who is to blame for bogus DMCA takedowns? Not the DMCA. Not the host (well, maybe a little). Instead, shame the sender.

Whenever controversy arises over an allegedly improper DMCA takedown notice to YouTube, a the fingers start pointing. "It's the copyright owner's fault." "No, it's YouTube's fault." "Actually, it's the DMCA's fault." Which is right?

Let's look at a typical case of an improper DMCA notice: the one CNN recently sent YouTube over a conservative web site's video that I think is a clear example of a non-infringing fair use. While I have my quibbles about the way YouTube handles such situations, and the DMCA is not perfect, I think virtually all of the blame should be directed at the party that sent the notice: CNN. Let me explain.

To do that, we need to step back more than a decade, to the dawn of the Internet era, as the relevant players were devising the rules that would govern this new world. One of the many issues to be addressed was this: under what circumstances -- if any -- should a host of material provided by a third party be held liable if that material infringes on a copyright owner's rights? Consider some of the options available to lawmakers as they drafted the law that would eventually be known as the Digital Millennium Copyright Act of 1998 (or, more precisely, the portion of the DMCA known as the "On-Line Copyright Infringement Liability Limitation Act"):

Option 1: Hosts are never liable. Under this option, if, say, someone posted an entire pre-release copy of Wolverine to YouTube, Fox would have no recourse whatsoever against YouTube. Fox could send YouTube an angry letter, demanding that YouTube remove the video, but YouTube could simply ignore the letter, safe in the knowledge that it would prevail in any copyright suit brought by Fox. Fox could theoretically sue the poster and get an injunction forcing him to ask YouTube to remove the video, but that person might be anonymous, or in Mongolia, or impossible to find, or even dead -- and thus it would be exceedingly difficult, expensive, time-consuming, and often impossible to go this route. This option would provide no practical way for copyright owners to vindicate their legitimate rights under the Copyright Act, and was properly rejected. (I should, however, point out that the "never liable" option is pretty much exactly the rule Congress adopted for non-copyright torts like libel. Under Section 230 of the Communications Decency Act, YouTube simply cannot be held liable for a libelous video posted by a third party, and cannot be ordered to remove it -- even after a court has definitively determined that it is indeed libelous.)

Option 2: Hosts are always liable. Under this option, YouTube would be automatically liable for copyright infringement as soon as someone posted Wolverine to the site. A quick response to a takedown notice from Fox might limit damages, but isn't a defense. What would be the result of such a rule? A site like YouTube (or Fox's corporate cousin MySpace and countless others) that hosts material provided by others without human pre-review would likely not exist. The volume of user-posted material is simply too great to permit human pre-review, and making the wrong call could result in a fatal damages award. "Always liable" is just as untenable as "never liable," and was properly rejected by Congress as well.

Option 3: Hosts are sometimes liable. The right solution, of course, involves balancing the legitimate interests of copyright owners against the benefits of sites that host user-posted material (benefits that accrue to both the sites and society at large). Sites that make reasonable efforts to combat copyright infringement are protected from ruinous lawsuits; sites that tolerate and profit from it, aren't. To be sure, the devil is in the details. In the DMCA, Congress set up a system (about 7 years before YouTube even existed) that says basically this: if a site registers with the Copyright Office, and promptly removes material upon receipt of an infringement notice from a copyright owner, and terminates the accounts of repeat infringers, and doesn't specifically know about and profit from infringement, then it won't be held liable for copyright infringement based on material provided by others. Like most legislation, the final result was an imperfect compromise, but the dirty little secret is that neither major copyright owners nor big hosts are eager to for a re-write, as they fear that any new law could turn out to be much worse than what we have today.

So back to the CNN video posted by "Founding Bloggers": Some claim that the DMCA forced CNN to remove the video. That is false. Don't take my word for it; here's what the House Commerce Committee DMCA Report (page 54) actually says:
The Committee emphasizes that new Section 512 does not specifically mandate use of a notice and take-down procedure.... [T]he service provider is free to refuse to ‘‘take down’’ the material or site—even after receiving a notification of claimed infringement from the copyright owner. In such a situation, the service provider’s liability, if any, will be decided without reference to new Section 512(c).
(my emphasis). Well, say some as a fall-back, the DMCA may not technically require YouTube to take down videos whenever it gets a DMCA notice, but it provides a strong incentive to take down those videos, even when the DMCA notice is bogus -- which is just as bad. To which I respond: yes, there's a strong incentive to comply -- but compared to what? The DMCA did not invent the concept of a demand letter. Nor did it invent the concept of a bogus demand letter. Lawyers have been sending demand letters (both legitimate and bogus) for centuries -- probably millennia -- and they send them today in every area of law, not just copyright. And recipients often have a strong incentive to comply, even in the case of meritless demands, because it may be cheaper and less of a hassle than fighting. That's unfortunate, and the law has ways of addressing that, although often unsatisfactorily.

To further illustrate this point, imagine what the world would look like today if the DMCA had never been enacted. If Fox found a copy of Wolverine on YouTube, it would probably send an infringement notice -- it just wouldn't be called a "DMCA notice." And what would the law look like if the DMCA hadn't passed? Obviously this is speculation, but I think it would look pretty much like what we have today: a set of judge-created rules somewhere between "the host is always liable" and "the host is never liable." Hosts who cooperated with copyright owners in combating infringement would probably fare OK; hosts that tolerated and encouraged it, wouldn't. And that is just how the law was shaping up before the DMCA was enacted in 1998. See Religious Technology Center v. Netcom On-line Communications Servs., Inc., 907 F. Supp. 1361 (N.D. Cal. 1995). The safe-harbor provisions of the DMCA are indeed viewed as a codification of the Netcom decision; as the House Report (page 11) put it: "the [DMCA] bill essentially codifies the result in the leading and most thoughtful judicial decision to date: [Netcom]." (Admittedly, this oversimplifies things a bit; Netcom is more relevant to the 512(a) safe harbor for ISPs as opposed to the one in 512(c) for hosts like YouTube, but it remains true that, on the whole, Section 512, which contains the safe harbors, was much more a codification of existing law than a departure from it.)

I'm the first to admit the DMCA isn't perfect. For example, as to the counternotice process, I think the 10-14 business day re-posting window is too long (especially in certain circumstances), and I could come up with a few other tweaks. And -- though they are rare compared with the vast number of perfectly valid takedown notices -- bogus notices no doubt exist. They should be exposed; public shaming works wonders.

But the bottom line is that the DMCA is not the cause of bogus takedown notices, or takedowns themselves. Copyright owners who send bogus notices -- whether by ignorance or arrogance or overreaching or simply mistake -- are the ones at fault, and the ones who should be held responsible for their errors.

What about YouTube: do they bear blame for complying with a meritless notice like CNN's? I don't think so, or at least not very much. They're a big company, and they have every right to try to minimize their potential liability. (They are fighting off a billion-dollar copyright suit, after all.) YouTube provides a valuable service, to millions, for free; it's a bit churlish to look this gift horse too hard in the mouth. And, given the vast number of DMCA notices (again, the vast majority of which are valid) that YouTube receives, I have sympathy for their argument that it is impractical to have lawyers review each notice before determining whether to comply. However, the number of counternotices it receives is small. It would be practical for YouTube/Google lawyers to review each video that is subject to a counternotice, and, if they determine that the video is non-infringing (because, for example, it's a fair use), YouTube could re-post it right away, without waiting for the 10-14 business day window to close.

Even after more than 10 years of living with the DMCA, there's still a lot of uncertainty about what exactly it means, and who gets to benefit from its safe harbors. Viacom v. YouTube may bring some welcome clarification, if it results in a judicial opinion rather than settlement. But I do think we know enough to conclude that the sender -- and not the statute -- is the proper target of criticism when a bogus takedown notice results in a bogus takedown.

Don Henley's 'Boys of Summer' suit: a DMCA first?

Don Henley's complaint against Chuck DeVore is now public, providing additional detail about the California GOP Assemblyman's use of "The Boys of Summer" and "All She Wants to Do Is Dance" in videos promoting his 2010 campaign against Sen. Barbara Boxer (D-CA).

First, let's sort out the parties, the works, and the causes of action, because it's a bit complicated. The plaintiffs are Henley and Mike Campbell, a songwriter and guitarist for Tom Petty and the Heartbreakers. According to the complaint, Henley and Campbell wrote the musical composition for "The Boys of Summer" and jointly own the copyright. They are both suing DeVore and his campaign's Director of New Media and Internet Strategies, Justin Hart, for direct, contributory, and vicarious copyright infringement over the use of the "The Boys of Summer" in what DeVore has termed a "parody" that substitutes a new set of lyrics attacking Boxer for the original. In addition, Henley (but not Campbell) asserts claims for false association or endorsement under Section 43(a) of the Lanham Act, and a similar claim under California Business & Professions Code section 17200.

As for "All She Wants to Do Is Dance," neither Henley nor Campbell claims to own the copyright. (The composition was written by Danny Kortchmar.) The only claims on "All She Wants" are by Henley under the Lanham Act and 17200, on the theory that DeVore's video falsely implies that Henley -- a well-known liberal activist -- endorses the conservative Republican's campaign against Boxer. (I count at least $9,000 in contributions by Henley to Boxer's campaigns over the past decade.)

One interesting bit of legal history (I think): according to the complaint, Henley sent a DMCA takedown notice to YouTube on the "The Boys of Summer" video on April 3, and DeVore responded with a counternotice April 7. This lawsuit was filed April 17 -- 8 business days after the counternotice. As far as I am aware, this is the very first time a copyright owner has filed a lawsuit based on a YouTube video within the DMCA's 10-14 day window during which the content owner may inform the host that he has initiated an action, signaling that it should not re-post the material (if it wants to maintain its safe harbor). If anyone knows of an earlier example, please let me know in the comments.

Henley and Campbell are represented by a team at Morrison & Foerster that includes Stanford Law School professor Paul Goldstein, who is Of Counsel to MoFo. The case has been assigned to Judge James Selna, who sits in Santa Ana.

UPDATE: I have learned that DeVore and Hart will be represented by Chris Arledge of Turner Green Afrsiabi & Arledge LLP. This case is turning into a mini O'Melveny & Myers reunion. Judge Selna is a former OMM attorney, as is Arledge (and I). And OMM previously represented Henley and the Eagles in a lawsuit (since dismissed) brought by former Eagles member Don Felder. (For the record, I do not believe the relevant statute requires Judge Selna's recusal.)

(h/t THR, Esq. and Courthouse News Service.)

Monday, April 20, 2009

Who is this masked anti-DMCA activist?

Words fail me:

Actually, if you can ignore the fact that you're being lectured to about the DMCA's notice-and-takedown provisions by some dude wearing a Mexican wrestling mask, you'll actually be impressed by this non-lawyer who calls himself the "Masked Analyst" and understands the DMCA better than most attorneys I know. And he's even come up with a novel and not-totally-crazy argument that the DMCA is unconstitutional insofar as it requires anyone who files a counternotice to reveal his identity, in violation of the right to speak anonymously.

Tenenbaum team 'remixes' First Circuit oral argument

I gotta admit: this is pretty cool. "This" is a remix that Joel Tenenbaum's legal team has made from the official recording of the April 8 oral argument in the First Circuit over whether district court proceedings in the record labels' copyright suit against Tenenbaum could be webcast. The remix (that's what Tenenbaum's team called it on their Twitter feed; on the site it's a more pedestrian "slideshow") consists of the audio from the appellate argument, illustrated by pictures of the judges and counsel, and the text of the relevant local rule. It's also interspersed with video of Tenenbaum's counsel, Harvard Law School professor Charles Nesson, interacting with his students in a fairly traditional -- and quite cogent -- Socratic dialogue over the interpretation of Local Rule 83.3, and the meaning of the judges' questions. The team has only posted Part 1, which features the argument of the labels' attorney Dan Cloherty; Part 2 will presumably cover the presentation by Nesson and Jonathan Sherman, counsel for the amicus Courtroom View Network.

One can certainly see the potential for this remix/slideshow format to be a very effective teaching tool, and a way to explain the proceedings to the world. Unfortunately, the First Circuit's opinion disallowing the district court webcast will not permit Tenenbaum's team -- or anyone else -- to similarly illuminate and explain the proceedings there.

UPDATE: here's Part 2 and Part 3.

'Everyone Hates DRM'; podcast explains why, and why they shouldn't

There's a new podcast up at the "Intellectual Property Colloquium," the series of podcasts hosted by UCLA Law School professor Doug Lichtman. The topic: "Everyone Hates DRM."

This podcast features interviews with two leading DRM experts, Princeton computer scientist Ed Felten, and the University of Chicago Law School's Randy Picker. Felten, a prominent DRM critic, describes some of the technical details behind DRM techniques including watermarking and fingerprinting, and highlights some of the main anti-DRM arguments, such as concerns about privacy and computer security. And Felten's arguments are bolstered by exerpts of testimony before the Federal Trade Commission by DRM opponents including EFF's Corynne McSherry and Boalt's Jason Schultz.

Lichtman's interview with Picker focuses on a topic that gets much less attention than it deserves: how DRM enables pro-consumer business models. The discussion of how the Microsoft Xbox gaming console's business model -- artificially low console subsidized by a Microsoft-only games -- is particularly interesting. And Picker takes the public's dislike of DRM head-on: "They hate it, but that doesn't mean anything." Picker explains that much of the "hatred" comes from looking only at the downsides of DRM, but ignoring the benefits: fostering business models that would be either more expensive or nonexistent if not for DRM. Listen to the whole thing.

CLE credit is available in California, Texas, Illinois, Washington, and reciprocating states.

Copyright owners and advocates appeal to Obama; hail economic value of creative industries

A coalition of copyright owners, unions, trade associations, and think tanks has written a letter to President Obama, hailing the value of IP-dependent industries in creating jobs and "driv[ing] innovation and creativity" in this troubled economy. The letter is a direct response to an April 2 letter from a coalition of groups on the opposite end of the copyright policy spectrum, expressing chagrin over the numerous administration appointments of attorneys who previously represented copyright owners while in private practice. The pro-copyright letter does not request specific action, instead stressing the economic importance of IP:
Enforcement of copyrights and patents and protecting the freedom to create and be compensated for it are essential components of promoting the progress of sciences and arts, as articulated so clearly by our Founding Fathers in the U.S. Constitution, when they enumerated it expressly among the powers granted to Congress. Indeed, the “Progress Clause” is the only place in which the word “right” occurs in the unamended Constitution. Similarly, enforcement of trademarks protects consumers while providing incentives to create better products.

The authors of the April 2 letter would have you believe that you must choose between safeguarding IP protection on the one hand and promoting innovation on the other. This supposed conflict is itself an invention, and we must avoid the false dichotomy that suggests that there is a conflict between the rights of authors and inventors and the need for innovation or creativity. Intellectual property drives innovation and creativity, from the production of new creative works to the development of consumer electronics and medicine.

All of these products of creative minds in the United States are valued the world over and make an outsized contribution to our balance of trade. Research by Public Policy Professor Richard Florida concluded that the creative industries, including copyright and patent industries, employ 38 million U.S. workers and that those workers’ annual wages and salaries total more than those of the manufacturing and service sectors combined. Simply put, intellectual property is the engine of the U.S. economy.
Signatories include: Advertising Photographers of America; American Federation of Musicians; American Federation of Television & Radio Artists; American Society of Composers, Authors and Publishers; American Society of Media Photographers; American Society of Picture Professionals; Arts+Labs; Association of American Publishers; Association of American University Presses; Broadcast Music, Inc.; Business Software Alliance; Center for the Study of Digital Property at The Progress & Freedom Foundation; Church Music Publishers Association-Action Fund, Inc.; Copyright Alliance; Directors Guild of America; Entertainment Software Association; Graphic Artists Guild; Independent Film & Television Alliance; Information Technology & Innovation Foundation; International Alliance of Theatrical Stage Employees; International Association of Scientific, Technical & Medical Publishers; Magazine Publishers of America; Motion Picture Association of America; NBC Universal; National Music Publishers’ Association; News Corporation; Picture Archive Council of America; Professional Photographers of America; Property Rights Alliance; Recording Industry Association of America; Reed Elsevier; Screen Actors Guild; SESAC; Software & Information Industry Association; Songwriters Guild of America; Sony Pictures Entertainment; Time Warner, Inc.; U.S. Chamber of Commerce; Viacom; The Walt Disney Company; and Writers Guild of America, West.

More from the Copyright Alliance here and here.

'Founding Bloggers' writes 'open letter' to CNN; asks network to withdraw DMCA notice

Founding Bloggers, the conservative site that has its video critique of CNN reporter Susan Roesgen removed from YouTube following a DMCA takedown notice, has written an "open letter" to the network, asking that the DMCA notice be withdrawn:

Dear CNN,

We at Founding Bloggers are somewhat bemused by your recent conduct. We are also incredulous, irritated, and amused – in short, our reaction is complicated. We note, with some bemusement, that your main competitors have all aired the controversial Susan Roesgen segment with abandon, and that, moreover, dozens of other YouTube stations continue, to this very moment, to air this same segment without any evidence of your having objected in any way. We regret, with some incredulity, your self-serving, if not entirely convenient, interpretation of the First Amendment. We suspect, with some irritation, that your inconsistent application of copyright theory is informed by two factors: 1) that you are aware that your main competitors, i.e., MSNBC and FOX, have teams of salaried attorneys to vigorously defend their right to fair use, a case for which might very easily be made, and that, by way of contrast, you are also aware that Founding Bloggers has comparatively meager resources at its disposal and is ill-equipped to mount such a vigorous defense; 2) that you were substantially alarmed by the frequency at which our video was being viewed – internationally. In short, we suspect that you are harassing us because our product was popular, because we are small, and because you can. We conclude, with some amusement, that your conduct tends to lend validity to the least flattering stereotypes associated with your organization. We live in the era of the internet – it is not so easy to silence people these days, as you will discover. In the final analysis, you will have become the butt of your own joke.

Should you prefer to avoid this fate, we will, of course, welcome the return of our production to its rightful spot – and the 3000+ viewer generated comment-opinions, both in support and in opposition, regarding it. Alternatively, should you prefer to continue on your current course of intimidation and censorship, we will endeavor to counter your actions.

In short, withdraw your fraudulent DMCA claim against our production, and instruct You Tube to restore the clip.

Most Sincerely,
Your Founding Bloggers

No word yet on whether Founding Bloggers will file a formal DMCA counternotice.

Sunday, April 19, 2009

CNN, YouTube, and fair use: a copyright advocate's perspective

CNN's DMCA takedown notice directed at a YouTube video criticizing reporter Susan Roesgen's contentious interviews at an April 15 "Tea Party" rally in Chicago has ignited a firestorm in the conservative blogosphere. Led by Patterico, multiple bloggers have re-posted the video at issue, which includes CNN footage of Roesgen interviewing protesters, as well as footage shot by the blog "Founding Bloggers," in which rally participants confront Roesgen and take issue with her reporting. Given the prominence this incident has achieved, I wanted to elaborate a bit on the legal issues it raises.

It bears repeating that one can be a strong supporter of copyright and still respect the fair use doctrine; there is no contradiction. Anyone who takes five minutes to peruse this blog will see that I am an unambiguous supporter of copyright. I have worked as an anti-piracy lawyer at a large law firm and a major movie studio, and I did it not just to pay the rent, but because I believed in what I was doing (and still do). And I write this blog, pro bono, as an honest expression of my opinions. So when I see a copyright owner making what I believe to be a mistake, I have no problem saying so.

Fair use exists. It is an important part of copyright law. It allows a reviewer to quote a few sentences of a book in his review, or a blogger to quote from a news story, or a parodist to lampoon a song. It allows copyright to coexist with the First Amendment, and for critics to use a work that the owner would never license. Reasonable people can, and often do, disagree about the scope of fair use. No doubt I have a narrower view of the doctrine than some others. But it's indisputable that fair use is a vital aspect of copyright.

Those who say major media companies don't believe in fair use simply don't know what they're talking about. Major media companies rely on fair use every day. Movie and TV studios do. So do news organizations. When network X shows a clip from network Y, sometimes it's licensed, but just as often it's not, and that's usually perfectly fine -- because of fair use. I watch a lot of CNN, and countless times I've seen "Internet reporter" Abbi Tatton incorporate just-posted YouTube videos into her pieces. Do you think CNN negotiates licenses for each one? Of course not; it relies on the fair use doctrine, as do all news organizations.

Many fair use issues are hard, close calls. Fair use has vast areas of gray. But there are also areas of black and white. Include a short clip of a movie in a video review or documentary? Fair use. Camcord a movie in a theater and put it out on BitTorrent? Not fair use. Incorporate 1 minute, 20 seconds of CNN footage depicting a reporter interviewing protesters in a hostile manner, juxtaposed with 2 minutes, 30 seconds of non-CNN footage in which protesters complain directly to the reporter about her interviewing techniques, interspersed with explanatory slides, and posted by a political blog for the clear purpose of media criticism and political advocacy? Fair use -- as I think just about anyone on any point of the copyright policy spectrum should agree. See 17 U.S.C. § 107 (mentioning "criticism, comment, [and] news reporting" as among core examples of fair uses).

This CNN incident is not about politics. Conservatives are understandably up in arms because they're angry over CNN's reporting on the Tea Parties, and they believe (with justification, I think) that CNN's takedown was an effort to suppress a video that made the network look bad. But liberals certainly weren't happy when YouTube took down an Obama campaign video at NBC's request during last year's campaign. When YouTube receives a facially valid DMCA takedown notice, it complies, whether the sender is liberal, conservative, or vegetarian. One can argue that YouTube should conduct legal analysis of copyright claims before acting on them, but it is understandable that they instead take the safe legal route and remove all videos promptly on request. One must remember that YouTube provides a valuable service for free, and it has its own First Amendment right to host, not host, or remove any videos it chooses. Criticism over this takedown is properly directed at CNN, not YouTube (or its parent Google).

How will this incident play out? I can't say for sure, but I do suspect CNN will soon realize that any effort to scrub the Internet of the footage at issue is futile. Thanks to Patterico and others, multiple copies of the the video are now hosted at multiple sites, and I'm sure the anti-piracy people at CNN and parent Time Warner have much bigger fish to fry than to chase after every last one of them. The best result from this imbroglio will be for cool heads to prevail, and for this incident to remind copyright owners that overly-aggressive YouTube takedowns, especially on hot political topics, are not just futile, but are contrary to their own interests. Major copyright owners are much more often copyright defendants than plaintiffs, and fair use more often their friend than their enemy.