Sam Bayard on MediaDefender, Chill Letters

Sam Bayard of the CMLP has a thoughtful post on the MediaDefender controversy, the Diebold matter of a few years ago, chilling effects (the project and the concept, both), and the DMCA. Sam’s post is good lawyering, in its way. It made me think about how, in the copyright field, the usual arguments sometimes get twisted around themselves, and we need to think hard about how to untangle them.

Sorry, Coop, You Can't Have Our IP

The Harvard Cooperative Society — also known as our campus bookseller (also a Barnes & Noble) — has been claiming that it has an “intellectual property” right in the ISBN numbers and/or prices of the textbooks that we as faculty assign to our students. We’ve got an op-ed in The Crimson this morning disputing their IP claims. It’s fairly certain that The Coop can kick students out of their store for many reasons, but the claim of IP in the facts of what books I and others are assigning to our students is off the mark. I for one certainly never conveyed such a right to the Coop.

And the stated concern that “if we don’t have a monopoly on selling textbooks to Harvard students, we won’t sell them at all” seems unlikely to be right. I suspect someone, if not the Coop, (which, to be clear, has a long and storied tradition — starting with few students getting together to sell books in the late 19th century — and from whom I have bought many books as an undergrad, law student, and otherwise), will be willing to sell books to Harvard students.

CNET Touches on Blogs and Copyright Issue

It’s extraordinary to me that, several years into the blogging-and-RSS phenomenon, we still have the issue of a lack of clarity around the permissible re-use of user-generated content, as reported by CNET’s Elinor Mills (“Please don’t steal this Web content“). Fair use is part of the answer; Creative Commons licenses are another part of the answer; social norms are part of the answer; but there’s a layer missing, on top of Creative Commons licenses, to allow for the paid re-use of user-generated content. (Previous posts on this topic linked from here.)  Mills points to Lorelle on WordPress for more.

Three Conversations on Intellectual Property: Fordham, University of St. Gallen, UOC (Catalunya)

Three recent conversations I’ve been part of offered a contrast in styles and views on intellectual property rights across the Atlantic. First, the Fordham International IP conference, which Prof. Hugh Hanson puts on each year (in New York, NY, USA); the terrific classes in Law and Economics of Intellectual Property that Prof. Urs Gasser teaches at our partner institution, the University of St. Gallen (in St. Gallen, Switzerland); and finally, today, the Third Congress on Internet, Law & Politics held by the Open University of Catalonia (in Barcelona, Spain), hosted by Raquel Xalabarder and her colleagues.

* * *

Fordham (1)

At Fordham, Jane Ginsburg of Columbia Law School moderated one of the panels. We were asked to talk about the future of copyright. One of the futures that she posited might come into being — and for which Fred von Lohmann and I were supposed to argue — was an increasingly consumer-oriented copyright regime, perhaps even one that is maximally consumer-focused.

– For starters, I am not sure that “consumer” maximalization is the way to think about it. The point is that it’s the group that used to be called the consumers who are now not just consumers but also creators. It’s the maximization of the rights of all creators, including re-creators, in addition to consumers (those who benefit, I suppose, from experiencing what is in the “public domain”). This case for a new, digitally-inspired balance has been made best by Prof. Lessig in Free Culture and by many others.

– What are the problems with what one might consider a maximalized consumer focus? The interesting and hardest part has to do with moral rights. Prof. Ginsburg is right: this is a very hard problem. I think that’s where the rub comes.

– The panel agreed on one thing: a fight over compulsory licensing is certainly coming. Most argued that the digital world, particularly a Web 2.0 digital world, will lead us toward some form of collective, non-exclusive licensing solution — if not a compulsory licensing scheme — will emerge over time.

– “Copyright will be a part of social policy. We will move away from seeing copyright as a form of property,” says Tilman Luder, head of copyright at the directorate general for internal markets at the competition division of the European Commission. At least, he says, that’s the trend in copyright policy in Europe.

* * *

Fordham (2)

I was also on the panel entitled “Unauthorized Use of Works on the Web: What Can be Done? What Should be Done?”

– The first point is that “unauthorized use of works” doesn’t seem quite the relevant frame. There are lots of unauthorized uses of works on the web that are perfectly lawful and present no issue at all: use of works not subject to copyright, re-use where an exception applies (fair use, implied license, the TEACH Act, e.g.s), and so forth. These uses are relevant to the discussion still, though: these are the types of uses that are

– In the narrower frame of unauthorized uses, I think there are a lot of things that can be done.

– The first and most important is to work toward a more accountable Internet. People who today are violating copyright and undermining the ability of creators to make a living off of their creative works need to change. Some of this might well be done in schools, through copyright-related education. The idea should be to put young people in the position of being a creator, so they can see the tensions involved: being the re-user of some works of others, and being the creator of new works, which others may in turn use.

– A second thing is continued work on licensing schemes. Creative Commons is extraordinary. We should invest more in it, build extensions to it, and support those who are extending it on a global level (including in Catalunya!).

– A third thing, along the lines of what Pat Aufderheide and Peter Jaszi are doing with filmmakers, is to establish best practices for industries that rely on ideas like fair use.

– A fourth thing is to consider giving more definition to the unarticulated rights — not the exclusive rights of authors that we well understand, but the rights of those who would re-use them, to exceptions and limitations.

– A fifth area, and likely the discussion that will dominate this panel, is to consider the role of intermediaries. This is a big issue, if not the key issue, in most issues that crop up across the Internet. Joel Reidenberg of Fordham Law School has written a great deal on this cluster of issues of control and liability and responsibility. The CDA Section 230 in the defamation context raises this issue as well. The question of course arose in the Napster, Aimster, and Grokster contexts. Don Verrilli and Alex Macgillivray argued this topic in the YouTube/Viacom context — the topic on which sparks most dramatically flew. They fought over whether Google was offering the “claim your content” technology to all comers or just to those with whom Google has deals (Verilli argued the latter, Macgillivray the former) and whether an intermediary could really know, in many instances, whether a work is subject to copyright without being told by the creators (Verilli said that wasn’t the issue in this case, Macgillivray says it’s exactly the issue, and you can’t tell in so many cases that DMCA 512 compliance should be the end of the story).

* * *

St. Gallen

Across the Atlantic, Prof. Dr. Urs Gasser and his teaching and research teams at the University of St. Gallen are having a parallel conversation. Urs is teaching a course on the Law and Economics of Intellectual Property to graduate students in law at St. Gallen. He kindly invited me to come teach with him and his colleague Prof. Dr. Bead Schmid last week.

– The copyright discussion took up many of the same topics that the Fordham panelists and audience members were struggling with. The classroom in Switzerland seemed to split between those who took a straight market-based view of the topics generally and those who came at it from a free culture perspective.

– I took away from this all-day class a sense that there’s quite a different set of experiences among Swiss graduate students , as compared to US graduate students, related to user-generated content and the creation of digital identity. The examples I used in a presentation of what Digital Natives mean for copyright looking ahead — Facebook, MySpace, LiveJournal, Flickr, YouTube, and so forth — didn’t particularly resonate. I should have expected this outcome, given the fact that these are not just US-based services, but also in English.

– The conversation focused instead on how to address the problem of copyright on the Internet looking forward. The group had read Benkler, Posner and Shavell in addition to a group of European writers on digital law and culture. One hard problem buried in the conversation: how much help can the traditional Law and Economics approach help in analyzing what to do with respect to copyright from a policy perspective? Generally, the group seeemed to believe that Law and Economics could help a great deal, on some levels, though 1) the different drivers that are pushing Internet-based creativity — other than straight economic gains — and 2) the extent to which peer-production prompts benefits in terms of innovation make it tricky to put together an Excel spreadsheet to analyze costs and benefits of a given regulation. I left that room thinking that a Word document might be more likely to work, with inputs from the spreadsheet.

* * *


The UOC is hosting its third Congres Internet i Politica: Noves Perspectives in Barcelona today. JZ is the keynoter, giving the latest version of The Future of the Internet — and How to Stop It. The speech just keeps getting better and better as the corresponding book nears publication. He’s worked in more from StopBadware and the OpenNet Initiative and a new slide on the pattern of Generativity near the end. If you haven’t heard the presentation in a while, you’ll be wowed anew when you do.

– Jordi Bosch, the Secretary-General of the Information Society of Catalonia, calls for respect for two systems: full copyright and open systems that build upon copyright.

Prof. Lilian Edwards of the University of Southhampton spoke on the ISP liability panel, along with Raquel Xalabarder and Miquel Peguera. Prof. Edwards talked about an empirical research project on the formerly-called BT Cleanfeed project. BT implements the IWF’s list of sites to be blocked, in her words a blacklist without a set appeals process. According to Prof. Edwards’ slides, the UK government “have made it plain that if all UK ISPs do not adopt ‘Cleanfeed’ by end 2007 then legislation will mandate it.” (She cites to Hansard, June 2006 and Gower Report.) She points to the problem that there’s no debate about the widespread implementation of this blacklist and no particular accountability for what’s on this blacklist and how it is implemented.

– Prof. Edwards’ story has big implications for not just copyright, but also the StopBadware (regarding block lists and how to run a fair and transparent appeals process) and ONI (regarding Internet filtering and how it works) research projects we’re working on. Prof. Edwards’ conclusion, though, was upbeat: the ISPs she’s interviewed had a clear sense of corporate social responsibility, which might map to helping to keep the Internet broadly open.

For much better coverage than mine, including photographs, scoot over to ICTology.

Wendy Seltzer's NFL Experience: Just Half-Time, or Game Over?

Prof. Wendy Seltzer, one of the original Berkman team and still a fellow, is our honored guest at lunch today. She’s telling the story of her back-and-forth with the NFL over the 30-second clip she posted to YouTube, as chronicled in the Wall Street Journal’s law blog, her own blog, and elsewhere. Wendy’s claim is that the clip is fair use. She has a strong case on the four-factor test. She’s being asked here about whether the NFL is materially misrepresenting their position in this matter. Wendy points to the second take-down notice, at which point a human being had to have reviewed the clip. She notes also the Diebold case, in which the judge concluded that no reasonable copyright holder could have believed that fair use did not attach in that instance — and that this case certainly meets or comes very close to this standard. (The video of Wendy’s lunch talk will be posted on MediaBerkman if you missed it live or on the webcast.)

Viacom Believes Fewer Than 60 Take-Down Mistakes

I’ve been e-mailing with Michael Fricklas of Viacom since I posted about Jim Moore’s home video that got caught in Viacom’s 100,000 take-down push on Friday. Mr. Fricklas wrote to me a few times during their process of assessing how many errors they made out of 100,000. Today, he wrote: “… we’re achieving an error rate of .05% – (we have under 60 errors so far)” and that “we’ll know more as users respond to communication from YouTube”. He noted also: “Wish it was zero.”

So, let’s take Viacom at its word for the moment. A few interesting questions of law pop out from here:

1) If Viacom is right 99,940 times out of 100,000. What rights do those 60 people have when they choose to push back? Just to have the file put back up? Do they have a further claim against Viacom? Or against YouTube, for that matter?

2) Mr. Fricklas asserts that “Under DMCA, I believe that YouTube needs to retain the material and repost it if an individual believes that the copyright notice was in error.” I suppose that Section 512(g) does include the presumption that YouTube (or similarly situated party) must hold on to the allegedly infringing material once taken down, since they may have to put it back up pursuant to counter-notification. But the process of what the intermediary has to do is not explicit.  What happens to the analysis if YouTube has retained nothing, and the original person who posted it retained nothing but has a very strong fair use case or an outright winner on copyright grounds? Does DMCA need to say more than it does by way of a process to protect users?  There’s also the question of what policy is required to handle repeat infringers, which has caused a lot of confusion on university campuses.
Some good exam questions buried here.

Another Video for the Put-Back-Up List?

As with Jim Moore’s video — now famous thanks to Cory Doctorow at Boing Boing — you can decide for yourself whether Viacom’s cease-and-desist letter should have resulted in Jaegercat’s video being taken down at YouTube.

In an e-mail from .sg, (which she said I could republish), Jaegercat writes: “My video ‘Beat Police’, an original work, was one of the ones on which Viacom is claiming copyright. … My video used to be here but is also here (and clearly not Viacom copyright). … The video itself took me 5 months to make. It containes 3D models made by third-parties, each of which is used with permission. … The song was written and performed by my husband and has no third-party components. … And yes, I can prove all of this as I have all original working files, and all of the licences giving right-to-use. … The video itself was shown in a film festival last year, as an original work, and the defamation in the Viacom/Youtube statement could therefore cause me real damage.”

One does wonder about the statement: “This video has been removed at the request of copyright owner Viacom International Inc. because its content was used without permission”. In some cases, it sounds like that’s not true with some of these take-down notices. I suppose you run up against a damages question, but it certainly seems like a user might have a valid concern about defamation.

What's the "Day 2" Story on the Viacom-YouTube Tussle?

Google News suggests that there have been about 500 stories so far written in this news sources that they scan on the topic of Viacom’s 100,000 take-down notices to YouTube users. Most of the stories focus on the business dynamics of the matter, understandably: 1) why Viacom did this; 2) the possibility (or likelihood, or unlikelihood, depending upon whom you ask) of a license deal in the offing between the two entities; 3) the response from YouTube/Google to the take-downs; 4) the status of the enhanced tools for copyright owners who want to track their works that they believe to be illegally posted; and so forth.

A few possible Day 2 stories that have not been discussed extensively in the MSM coverage, and of greater interest to me:

– How many of the 100,000 notices were mis-fires, like the one to Jim Moore? A few hundred, a few thousand? (Is this person one of them?) And what is the impact of those mistakes? Is there any pushback against the copyright holder who made these mistakes? Any liability, say under DMCA Section 512(f)? (Top10Sources, with which I work, is seeking to aggregate these stories and links to the clips that are put back up so we can all judge for ourselves.)

– Does it matter under the law whether YouTube provides the enhanced copyright protection tools that are bandied about in many of these articles? Could they release them selectively, say to those who license with them and not to those who do not?

– Why isn’t Viacom doing what CBS has done, for instance (as a Forrester analyst is asking on Charlene Li’s blog)?

– Who will build a service to compete with YouTube? Will the policy for handling copyright matter, one way or another, in terms of customer adoption of competing services?

– Is there a copyright reform strategy, and/or one or a series of business ideas (like Lisensa, e.g., with which I am involved) or extensions to NGOs like Creative Commons, that can help address the copyright crisis that continues to rage on the web?

Tom Rubin comes to the Berkman Center and Practical Lawyering class

The chief copyright, trademark and trade secret lawyer for Microsoft, Tom Rubin, has been a consistent contributor to our teaching program at the Berkman Center for the past three years. He’s been enormously generous with his time, meeting with Berkman-related students, faculty and fellows over several years. We’ve learned a great deal from Tom and his colleagues, like Ira Rubinstein and Jason Matusow and Annmarie Levins during their respective visits.

One of the topics for class today (Practical Lawyering in Cyberspace at HLS) is what it took for Tom and his colleagues to arrange for Creative Commons licenses to be built into the next release of Microsoft Office. Tom’s leadership was essential to making this integration possible. The importance of this move is that it enables people to apply Creative Commons licenses very simply to Word documents. As Lawrence Lessig put it at the time of the announcement earlier this year, “This is important to us because a huge amount of creative work is created inside the Office platform. Having a simple way to add Creative Commons licenses obviously helps us spread those licenses much more broadly.”

This class, which I’m co-teaching with my colleagues Jeffrey Cunard and Phil Malone, is a ton of fun to participate in — certainly as one of the teachers, anyway. The idea is to use real-world examples of cyberlaw matters as a means of teaching also the procedure, strategy, and tactics that go into the practice of law in this field. Jeff, who is a partner at Debevoise (and in fact the managing partner of their DC office), seems to have worked on every major matter in our field over the past two decades. Phil was one of the lead lawyers who brought the DOJ’s protracted action against Microsoft (and Tom still talks to Phil when they are at Berkman together!). We’ve also has Scott Harshbarger here in class last week to do the HP case and some of the spyware matters from the perspective of a government lawyer. It’s a highly applied means of teaching and not the usual HLS fare, which has good and challenging aspects to it. But fun, to be sure.

Interview with Urs Gasser

The Berkman communications team has been conducting a series of interviews with our fellows. The interviews are written up and posted to the Berkman website. The most recent interview is with Prof. Dr. Urs Gasser, a faculty fellow and the director of a research center at the University of St. Gallen. His center — along with a few others, like the OII, the Citizen Lab in Toronto, Dan Gillmor’s citizens’ media center — has become one of the key international partners to the Berkman Center in carrying out our mission.

An excerpt from the interview:

“Q: Have European markets taken a different approach than the U.S. towards regulating digital copyright? Is there an attempt being made to approach digital rights issues from a global perspective as opposed to a nation/market-specific point of view?

“Urs: Painted in broad brushes, it is fair to say that the U.S. and European copyright frameworks follow similar approaches as far as digital rights issues are concerned. This doesn’t come as a big surprise, since important areas such as, for instance, the legal protection of technological protection measures have been addressed at the level of international law – e.g. in the context of the WIPO Internet Treaties. However, the closer you look, the more differences among the legal systems you will find, even within Europe, where copyright laws and consumer protection laws, to name just two important areas, vary significantly if you move from – say – Germany to the U.K. as our Berkman/St. Gallen studies have demonstrated. But from the “big picture perspective” you are certainly right, there is a global trend towards convergence of digital copyright law, driven especially by TRIPS and the WIPO treaties, but also (and equally important) by bilateral free trade agreements.”

For more on Urs’ center and his colleagues, check out the Research Center for Information Law at the University of St. Gallen (I am proudly a member of its Board), as well Daniel Hausermann’s blog.