Jim Moore says “we need a true Creative Commons for patents.” Two substantial posts on patent reform, Microsoft, IBM, and power relationships.
Jim Moore's chapters 14 and 15, on a CC for Patents
1
Debating the Internet's Impact on Democracy around the World
Students in the HLS course Internet, Law and Politics are staging a debate today. The two sides of the argument are posted to the course wiki. The overall debate page is here, including today’s resolution: “Resolved: The Internet enables citizens to have a greater voice in politics and is, on balance, already a tremendous force for strengthening participatory democracies around the world.” The affirmative argument is here; the negative argument is here. The required reading this week was to follow the news from a single region of the world on Global Voices. We’re blessed to have Ethan Zuckerman sitting in for the class as a special guest, as well.
My notes from class are here.
Digital Natives in Montreal
Today, I’m in Montreal for La Boule de Cristal, talking about Digital Natives and Digital Identity — or, apparently, La gestion des identites, en francais. It’s quite a venue and a huge event, including Apple co-founder Steve Wozniak and lots of Montreal-based researchers and entrepreneurs.
Pushing Back on Internet's Impact on Politics
Today, in Internet, Law, and Politics at Harvard Law School, we’re taking up some counter-arguments to the strong form of the argument that Internet can transform politics. I’m building a short outline of some of the key concerns, here, as I prepare for class. It occurs to me to point out that there’s a wonderful and challenging book out, called Reformatting Politics, that Routledge published in 2006, which has a number of essays that prompt hard thought, two of which are assigned for today (my chapter, much later in the book, is plainly the last of the reasons to read the book!). I am such a total fan of Yochai Benkler’s The Wealth of Networks as the key text in this field, on which I rely very heavily in my own thinking and teaching; and/but I am indebted to Jon Anderson, Jodi Dean, and Geert Lovink, the editors of Reformatting Politics, for presenting a number of counter-points to the Benkler line of reasoning.
EFF Wants Your Viacom Stories, Too
Fred von Lohmann has a post and a video request for your stories of Viacom take-downs.
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.”
Yale ISP's Open Standards Conference
I’m with our friends at the Yale Information Society Project today for a fine conference called the Open Standards International Symposium. Eddan Katz and company have assembled a group from many of the places around the world where this issue is raging, along with representatives of many of the key industry players and stakeholders, like CDT. My notes for the Law panel are here. My focus is on the relationship between open standards and interoperability.
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?
John Palfrey 
