Eric von Hippel in Internet, Law and Politics

Prof. Eric von Hippel has written one of my favorite books: Democratizing Innovation. Prof. von Hippel teaches at MIT’s Sloan School of Management and runs the Innovation Lab there. Our class of Harvard Law School students focused on Internet, Law and Politics have created a wiki page of questions for Prof. von Hippel in advance of his visit here.

We at Harvard have amazing neighbors at MIT, with whom we do not do enough collaboratively. I’m hugely grateful to Prof. von Hippel for coming through the rain to guest-lecture at HLS and help bridge the unnatural gap between 02138 and 02139.

The challenge for this class today is to find the connect points between von Hippel’s findings from the business world and Benkler’s findings in The Wealth of Networks and to draw conclusions from this intersection about the core themes of our course.

iTunes and EMI Breaking the DRM Barrier

Good news from Steve Jobs, Eric Nicoli, and company: EMI’s music now to be available without Digital Rights Management. A great move for consumers, innovation, interoperability and, one hopes, creative re-use of digital works. (Cory Doctorow at Boing Boing has the definitive post and list of links. Cory suggests that we help out with a thank-you gift for Mr. Jobs.)

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.

A Voice from Outside the US on the Viacom-YouTube Matter

Jaegercat” writes in a discussion board on this topic: “I don’t live in the US. I’ve already responded with the counter-notification via fax, but I have no idea how to proceed from here if they don’t respond. The video that they pulled was an original work that took me around 5 months to make, that has been shown in a film festival, and I feel violated at the public accusation that this wasn’t my own work. … I’m definitely interested in collective action, even though I don’t even know if I’m entitled to be part of it.”

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?

Community Organizing Around Takedowns

Jim Moore has reposted, on Google Video (heh), the “offending” work that prompted the nastygram from Viacom today. It’s hard to imagine what might have prompted the take-down. As JZ asks in the comments from an earlier post, what can we surmise about the tactic in getting to 100,000 take-downs? Was some bot scanning for keywords in titles, say “Redbones”?

Perhaps we can get to the bottom of it by aggregating other misfires from in this massive take-down push. At TopTenSources (please see my disclosures), here’s a page where you can add a link to your video or enter comment about the take-downs, as well as an e-mail address — — to which you can send word of your taken-down video. Is Jim’s video the only one that shouldn’t have been flagged? Or are there others out there — possibly with no offending content, or possibly where a fair use defense might apply?

How Many Jim Moores Are Out There? Viacom's Cease and Desist Letters … for Home Videos?

Jim Moore has received a cease and desist letter from Viacom for a home video that he shot. (I love Jim, but the video’s pretty bad. Highly unlikely to be affecting any market that Viacom cares about, among other things.) The DMCA’s Section 512 has a provision that allows for counter-notification for people, like Jim, who believe that their works that do not infringe copyright have been taken down without cause. Of course, there might be *something* in a home video that is infringing someone else’s rights; perhaps; but no court is making this decision. It’s one company (Viacom) writing to another company (Google/YouTube) and poof — the video is gone, off the web. No judge, no jury. I have to say that I don’t blame YouTube for complying quickly with the demand, as the law makes them more or less blameless if they do so, even if that policy hurts their users.

The operative question related to this 100,000 c&d day: How many Jim Moores are out there?

And take a look at the page where the video used to be. The take-down notice results in language that reads: “This video has been removed at the request of copyright owner Viacom International Inc. because its content was used without permission.” Really? Watch the video for yourself. It sure looks like that assertion is untrue.

Viacom should recall what happened to Diebold when they over-reached on copyright. The DMCA can also provide for damages back to the legitimate copyright holder when someone’s cease-and-desist letter falsely accuses them. The relevant language reads:

“(f) Misrepresentations.— Any person who knowingly materially misrepresents under this section—

(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.”

Stipulate that Jim Moore holds all rights in his video, and Viacom none. And stipulate further that Jim Moore is far from alone. One presumes that Viacom’s argument is that they did not issue these misrepresentative notices “knowingly.” I wonder how many home videos have to have been caught up — and taken down — in this sweep before one could say that it was “knowing” on the part of Viacom? Combine that with the mash-ups that may include some of Viacom’s material, but where a fair use analysis will vindicate the alleged infringer. Could a human being have looked at each of these 100,000 videos? Might a court say: “You ought to have known that if you crank these notices out automatically and not checking each one, you must know there’s some non-infringing material in there”?