Organization of Second Life Article

I decided to organize the article as follows-

• Introduction to Second Life and the health of its economy
• Creation in Second Life-
  
• no copy, no transfer rights within the world
• users retain full intellectual property rights
• The Architecture of Second Life-
• similar to an MMORPG
• client program and host/server program
• how actions inputted into client program are processed by the host/server program
• Second Life Copyright problems and Lawsuits-
• Copybot
• the use of rollbacks
• Thomas Simon/Rase Kenzo lawsuit by six copyright holders that resulted in a
  
• the Alderman vs. Volkov Catteneo/Robert Leatherwood lawsuit
• Linden Labs' usage of contract law to resolve copyright disputes-
• discussion of clauses 4.2, 4.1 and requirements to comply with the DMCA
• Copyright Analysis of Second Life-
• two-tiered nature of these items- graphic representation and the underlying software code
• fixation requirement-
• MAI v Peak
• conceptual separability-
• splitting function of SexGen bed from its appearance?
• substantial similarity-
• abstraction filtration comparison test of Computer Associates International v Altai
• derivative works analysis-
• Microstar v Formgen

Virtual Legality- Copyright in Second Life

The link to my article about Second Life is now in the upper right hand corner of the blog. I am going to be finishing up the copyright analysis sections today. If anyone has any feedback or suggestions, please shoot me an email.

Second Life Panel with the Copyright Society

After my enjoyable experience of coordinating panels at my school last year, I joined the New York Chapter of the Copyright Society's Planning Committee. As part of my responsibilities, I have been coordinating a panel about the virtual world Second Life.
The roster for the panel is excellent and includes-
-Professor James Grimmelmann of New York Law School (who specializes in virtual world law)
- Mark Fischer (of Fish & Richardson, who will moderate)
- Stevan Lieberman (a lawyer who practices on Second Life) and
-Frank Taney Jr. (the lawyer who is representing the plaintiffs in both Second Lief copyright infringement lawsuits)

For those interested, the event will be held at the Princeton Club in New York, on February 27th at high noon. I am also working on an article about Second Life, and I will post a link to the in-progress article at some point soon.

Great New Feature

I am proud to announce a useful new feature that I have added to the blog. On the upper righthand corner I have inserted a feed of interesting blog posts that I have tagged in my Google Reader. The feed will only show the most recent items that I have shared. If you are interested in seeing the entire list of shared items, I have inserted a link in the section entitled "More about Me" called "My Shared Items." If you want to subscribe to a feed of this so I can do all the searching for content for you, there is also "My Shared Items Feed" right here. Now when I find an interesting post somewhere I don't need to put it up in the blog itself, and I can just tag it in my Google Reader. Thanks Google.

Oddly enough...

Mere days before my posting about trademarks as keywords, my chosen example American Airlines actually filed suit against Google over the practice.

A Thought on Trademarks as Keywords

On my Advanced Trademark final during my last semester at Cardozo, there was a question regarding the use of trademarks as keywords for purposes of banner advertising. The cases that exist hinge on whether or not such a sale constitutes a "use in commerce" for the purposes of trademark law. If it is a "use in commerce" then the practice should be considered trademark infringement. When thinking about the issue, I decided to take a step back and ask what the possible effects would be if the practice was prohibited. One of my conclusions was that banning this practice would result in favoring fanciful marks above all other kinds of trademarks.

To illustrate, let's take a fanciful mark like a drug name such as Viagra. In a world where TM as KW sales are illegal, you would type "Viagra" into Google and no banner advertisements would exist. Pfizer would possess a monopoly over the upper portion of the search results because no one could buy advertisements. However, a company that uses a non-fanciful mark, like American Airlines, could clearly not prevent the sale of "American" as a keyword considering the other uses of the word. This example also proves the difficulty of the implementation of such a plan. Would it just be prohibited to sell the words "American Airlines" in conjunction as a keyword? Could competitors buy the rights to have advertisements pop for the word "American" by speculating that a majority of the searchers will be looking for American Airlines? I have of course picked a grossly oversimplified illustration, but I feel that it demonstrates the issues with such a prohibition and its implementation.

From my perspective, it is preferable to retain the TM as KW practice for several reasons. First, as I demonstrated, a prohibition would result in unequal treatment of trademarks. Second, I believe the practice is a direct analogy of the real-world practice of placing generic products next to their legitimate counterparts on a CVS shelf. This is one of the contexts where the Internet should not be treated differently than its closest real-world analogy. Third, just like the CVS scenario, this encourages more direct competition which is theoretically supposed to benefit consumers.

Report on RIAA's Litigation Campaign

The Electronic Frontier Foundation (EFF) has published a report on the RIAA's four year litigation campaign waged against college students and other alleged copyright infringers.

Douglas v Talk America Case Regarding User Agreements.

In July, a case called Rogers v Talk America came down in the Ninth Circuit regarding user agreements that I find pretty interesting. In the Cyberlaw class I took my last semester at Cardozo, we discussed how user contracts govern the actions of people online, and can sometimes be used to overcome copyright rights held by users (like first-sale principles.) The ability of contracts to trump other forms of law is important considering the complexity of the contracts that exist nowadays to download an application or use a website. People are often unaware of the terms that they have bound themselves to, because they are unwilling to spend 30 minutes reading a contract just so they can download a simple computer application.

There is a good discussion of the case on the Technology and Marketing Law Blog. In the case, an AOL user agreed to a contract with AOL regarding telephone service. AOL subsequently sold its telephony business to Talk America, which then posted amendments to the user agreement online. After a dispute arose, Talk America attempted to say that the dispute should be decided by arbitration because of a clause in the amended agreement. The Ninth Circuit did not buy the argument because "parties to a contract have no obligation to check the terms on a periodic basis to learn whether they have been changed by the other side."

The second question this raises is whether or not the parties can agree in the original contract to permit one party to unilaterally amend the contract. I think that it would be clear this shouldn't be the case, considering there should be new consideration for any amendments made to the contract. Yet after this case we might expect to see such a provision in similar contracts, as it does the companies no harm to insert the provision as insurance in the event that it is upheld.

Nobody Puts Lion's Gate in a Corner.

I am back from my Greekeyrael vacation (Greece+ Turkey + Israel), which was absolutely amazing. The measure of a good vacation is how difficult it is to return to normalcy, and I am having withdrawal symptoms already. The only blemish was having to scrounge from Internet cafe to Internet cafe just to check up on nytimes.com and my fantasy baseball teams. I now appreciate how amazingly reliant I am on the Internet. Well, absence makes the heart grow fonder, and so here I am ready to catch up on the interesting goings-on in the IP world.

First order of business is a case relating to the line "Nobody puts baby in a corner" from the Oscar-winning epic "Dirty Dancing." I take this case very seriously as this line has been a personal mantra for the past 10 years (don't worry, I am kidding).

The line has gained widespread notoriety, and was even included in AFI's list of top movie quotes. Lion's Gate supposeduly trademarked the line so it could sell merchandise based on it. After discovering that 15 companies sold merchandise using the line, Lion's Gate filed a trademark infringement lawsuit, Lion's Gate Entertainment v. The Urban Smalls Corp.

What is interesting in my mind about this case is that the line really isn't a trademark. It is not a mark used to designate source, but rather a phrase that has value in and of itself. The line cannot be copyrighted because it is too short, and so Lion's Gate decided to pursue trademark protection. Should Lion's Gate be able to trademark a movie line considering it is not the intention of trademark law to protect such an item?

The case certainly has some implications, as an entire industry exists based on using movie quotes for T-shirts, as evidenced by the following T-shirt immortalizing Steve Carrell's quote from the movie "Anchorman."

Why exactly is he wearing a headband with the Japanese flag on it?

There is an interesting discussion of this topic on the Blawg IT by Brett Trout. First, he says that he conducted a trademark search and could not find anything relating to cornering Baby. Second, he calls our attention to Section 1202.03 (f)(i) of the Trademark Manual of Examining Procedure-

1202.03(f)(i) Slogans or Words Used on the Goods Slogans or phrases used on items such as t-shirts andsweatshirts, jewelry, and ceramic plates have been refused registration as ornamentation that purchasers will perceive as conveying a message rather than indicating source of the goods. See Damn I'm Good Inc. v. Sakowitz, Inc., 514 F. Supp. 1357, 212 USPQ 684 (S.D.N.Y. 1981) ("DAMN I'M GOOD," inscribed in large letters on bracelets and used on hang tags affixed to the goods, found to be without any source-indicating significance); In re Pro-Line Corp., 28 USPQ2d 1141 (TTAB 1993) (BLACKER THE COLLEGE SWEETER THE KNOWLEDGE primarily ornamental slogan that is not likely to be perceived as source indicator); In re Dimitri's Inc., 9 USPQ2d 1666 (TTAB 1988) ("SUMO," as used in connection with stylized representations of sumo wrestlers on applicant's T-shirts andbaseball-style caps); In re Astro-Gods Inc., 223 USPQ 621, 624 (TTAB 1984) ("[T]he designation 'ASTRO GODS' and design is not likely to be perceived as anything other than part of the thematic whole of the ornamentation of applicant's shirts."); In re Original Red Plate Co., 223 USPQ 836 (TTAB 1984) ("YOU ARE SPECIAL TODAY" for ceramic plates found to be without any source-indicating significance).

However, each of these cases seemed to revolve around a phrase that the maker of the goods had no real claim of right over. Lion's Gate, on the other hand, owns the underlying work from which the quote was taken. It certainly has a more legitimate claim over the line than someone who peddles a T-shirt saying "Damn I'm Good."

This begs the question, when can we expect a lawsuit by Bobby McFerrin over the "Don't worry, be happy" T-shirts?

Harry Potter Gets Scribd.

The bar exam is kaput, and I have rejoined the land of the living after a drearily monastic summer. Unfortunately, JK Rowling had to add insult to injury by releasing the final Harry Potter book 3 days before the bar exam. This was quite a dilemma for me, because I have been waiting for some closure in Harry's life for about 7 years, and I am one of those unfortunate people who needs to know how stories end before I see them.

The end result was that I found myself last Thursday night scouring the web for Harry Potter spoilers so I could continue studying in peace. I learned quickly that a copy had leaked and someone with a very clear calendar had taken a photo of each page of the book and posted it online. Upon some further investigative research, I stumbled upon Scribd, a website that caught TechCrunch's eye some time ago, which has been billed as the YouTube for documents. Apparently another person with very little to do had transcribed the ENTIRE book from the photos and posted it on Scribd days before its official release. I was able to return to studying now that I knew who laughed and who cried, and more importantly, who lived and who died.

Scribd is inevitably (unwillingly?) following in YouTube's footsteps as a haven for copyright infringement. Apparently, certain people are scanning in magazines with photos as well. The website makes it remarkably easy to download any document you find in either Word or PDF format.

If you have a moment, go to www.scribd.com and type in names like "Stephen King" or "John Grisham." You would be surprised how many books pop up. You would be even more surprised as to how many infringing copies are listed in other languages (international copyright issues, anyone?) If Sony's Reader ever gets off the ground and people stop lugging around books and start having these electronic readers the situation will get much worse. Early leaks of books would have the same effect as early leaks of albums.

Where does Scribd find itself? Hiding behind the same legal protection of the DMCA Safe Harbors as its cousin YouTube. At some point we either need to reevaluate the Safe Harbors, or perhaps technology will come and save the day again with filters to prevent piracy.

On a side-note, this reaffirms my professor's contention that Microsoft Word might be the single greatest instrument of copyright infringement ever.

Summer Hiatus

While I should have posted this a long time ago, I just wanted to announce that the blog is on hiatus for the summer as I prepare for the bar exam. As there have been no reported fatalities from the bar, I am confident that I will be able to pick things back up come September, once I have nursed myself back to health. Luckily, BarBri was worth every penny, though at times it was about as invigorating as water torture.

Brooklyn Law Professor Teaches the NFL a Lesson About the DMCA

Recently, Brooklyn Law School professor and EFF attorney Wendy Seltzer posted a video on YouTube of the NFL's ridiculous copyright notice from the Super Bowl. Overzealous NFL lawyers subsequently sent a takedown notice to YouTube which was forwarded on to Professor Seltzer. YouTube enthusiastically complied. She then filed a proper counter-notification, making it very clear that the video had been posted as a fair use. Even a cursory examination of the fair use factors reveals this falls under the umbrella, especially considering that there is no market for videos of NFL copyright notices (4th factor). YouTube put the video back up on the site.
Then the NFL misstepped. According to 512 (g)(2)(c), the NFL should have went to court after receiving the counter-notification to get an order preventing the user from infringing activity. Instead, the NFL lawyers filed a second notice of copyright infringement, and stepped into legal hot water.
The problem is that in DMCA Section 512 (f)(1) a copyright owner is not allowed to "knowingly materially misrepresent" that some content is infringing. Here, Professor Seltzer made it abundantly clear that the video was intended as a fair use. On her side there is the precedent of a case we covered in my Comparative Copyright class called Online Policy Group v Diebold (337 F.Supp.2d 1195). In it, a couple of students at Swarthmore College obtained internal emails from the Diebold company about the malfunctioning of their voting booths, and posted the materials on a server operated by Swarthmore College (placing it under the cover of Section 512 (c)). Diebold sent a takedown notice to Swarthmore to get the materials removed. The students put up a fight, claiming fair use, and took the matter to court. In relevant part, the court said:

The Court concludes as a matter of law that Diebold knowingly materially misrepresented that Plaintiffs infringed Diebold's copyright interest, at least with respect to the portions of the email archive clearly subject to the fair use exception....The misrepresentations were material in that they resulted in removal of the content from websites and the initiation of the present lawsuit.

In comparison, Professor Seltzer's case is even stronger, because she made it clear that this was a fair use, and the NFL still sent a second takedown notice. A court should have no problem finding that the NFL materially misreprented that the material was infringing when they sent the second notice.

For the NFL, which has been overzealous in enforcing its copyrights, this will hopefully be a lesson learned.

Cyberlaw Central » General Media v. Crazy Troll: Not reverse domain name hijacking to bring ACPA case for expired domain

Cyberlaw Central » General Media v. Crazy Troll: Not reverse domain name hijacking to bring ACPA case for expired domain

Viacom v Gootube

So welcome to the main event. Viacom has sued Gootube for over $1 billion in damages and injunctive relief. Viacom made 6 claims-- the first 3 were for direct infringement, the fourth was for inducement liability ( a la Grokster), the fifth was contributory, and the sixth was vicarious liability. This will be the real test of how inducement interacts with the Safe Harbor provisions, as I discussed in my article.

Here is a link to the complaint. It is gorgeous drafting, and perfect in all the ways the Tur complaint was lacking. Last night I coordinated a panel at Cardozo where about 40 lawyers showed up to discuss the future of the music industry. Needless to say, we ended up discussing the Viacom suit, and one of the speakers (though I can't remember who) made an interesting point, that Mark Cuban has also touched upon. It boils down to the fact that YouTube relied upon the Safe Harbor provisions for protection but also as a sword to a certain extent. When negotiating deals with content providers, YouTube would tell them that it wouldn't pre-screen for infringements of their copyrighted materials until they made a licensing deal with YouTube. YouTube clearly pre-screens, as evidenced by the fact that porn never ends up on the site. This basically comes off as a threat, saying "Either make a deal with us where we will protect your content, or we will keep on letting people infringe your material and make you go to the effort to find infringement."

My former boss who is now at Viacom told me that they have a room where 15 people search full-time through YouTube for filtered content. 15! If the filtering technology doesn't improve or the DMCA isn't changed, that is certainly going to be a growing form of employment.

Will post more when time permits.

Section 230 of Communications Decency Act Shielded MySpace

From my classes and readings I am quite familiar with the DMCA and how it governs intellectual property online. A law that I am less familiar with, but has turned out to have an impact as well is Section 230 of the Communications Decency Act.

Last month a case was resolved in favor of MySpace on summary judgment on the basis of this law. MySpace was sued by the mother of a 13 year old girl who lied about her age to gain access to the site, and was subsequently assaulted by a 19 year old male she met through MySpace. The court cited a section of the statute that says "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." The plaintiffs said that this was not relevant, because they were faulting MySpace for its faulty screening process that permitted a 13 year old girl to get onto the site. The court didn't buy it. The court also failed to accept the plaintiff's argument that the operators of a site such as MySpace are liable for the actions of their users because they operate "virtual premises."

So here is a brief analysis of Section 230, and how it impacts IP law. First off, Congress actually states in Section (b)(3) that one of its policies is to-

“to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services”

Unfortunately, it is pretty clear that the more latitude that is given to end users, the more copyrighted content will find its way online.
The act then goes on to say that it is not intended to limit or expand any IP law.

What I find interesting about the law is the definitions it creates for "information content provider" and "access software provider." In my paper about YouTube, one of my problems with the DMCA is the outdated definition of Internet service providers, and I proposed a new classification for websites hosting User Generated Content. Here, the definitions are-

(2) Interactive computer service

The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

(3) Information content provider

The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

and

(4) Access software provider

The term “access software provider” means a provider of software (including client or server software), or enabling tools that do any one or more of the following:

(A) filter, screen, allow, or disallow content;

(B) pick, choose, analyze, or digest content; or

(C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.

What is evident is that Congress is having a really hard time defining and differentiating between the different types of entities online. The fact that the definition of interactive computer service is reliant upon the definition of access software provider (which occurs nowhere in the actual statute) just shows some really sloppy drafting.

Viacom Hops into Bed with Joost

So after Viacom and YouTube could not settle on an agreement, Viacom turned around and licensed their content to Joost, which was created by the same people who brought you Kazaa. It tells you something about the current morally relative climate when one of the biggest content providers will hop into bed with the same parties that enabled the systematic pilfering of loads of their content. I was surprised to find that YouTube requires content providers to sign licensing agreements before they will employ filtering technology. If Congress were to step in and amend the DMCA to impose a burden on sites like YouTube to pre-screen their content, as I proposed in my paper, then this conflict wouldn't exist.

Network Neutrality Cyberlaw Wiki Post

For my most recent wiki post, I reacted to a reading in our casebook in which Tim Wu and Christopher Yoo debated over network neutrality. Here is what I came up with-

To a certain extent, I felt that sometimes Christopher Yoo and Tim Wu were arguing non sutto voce, when there was room for common ground. All one needs to understand is that Yoo and Wu were debating about different types of network discrimination. The two types of network discrimination are blocking and access tiering, which can be further subdivided into Most Favored Nations discrimination and efficiency-maximizing discrimination. For purposes of clarifying my own understanding, I want to set out definitions for each of the types of discrimination. Blocking occurs when a network prevents a service from being carried over it that would compete with the services that it is offering. The example utilized by Wu is when a network blocks VoIP because it compete with its telephone service. Most Favored Nations discrimination is a less extreme form of blocking in that it discriminates against competitors by slowing their service down rather than stopping it completely. Efficiency-maximizing discrimination occurs when a network prioritizes the data being delivered. The example discussed by Yoo is having three networks coexisting—one that delivers time sensitive data such as streaming media and VoIP, a second that helps security measures, and a third route that is relegated to traditional Internet content such as email.

When broken up into these categories, it seems pretty clear that efficiency maximizing discrimination should be permitted, whereas blocking and Most Favored Nations discrimination should not be. Assuming that we lived in an ideal world where lobbying didn’t drive political outcomes, we could judge the value of each category by its impact on consumers. Efficiency-maximizing discrimination is clearly beneficial because as laid out by Yoo, it doesn’t seem to have any negative effects, but rather benefits everyone. It doesn’t interfere with people getting their email, and it permits them to watch video without hesitation and conduct phone conversations online more easily. This appears to be a clear case of Pareto efficiency, because no one is harmed and everyone is helped. In regards to blocking, I don’t see who is helped outside of the network providers. Consumers clearly would be benefited by the ability to choose a cheap, effective program like Skype rather than being restricted to choosing a land line. New technologies and services should be tested on their utility to consumers, rather than having their fates decided because they compete with network providers’ own goods. The same conclusion is met when considering the practice of Most Favored Nations discrimination, though the circumstances are less egregious. Most Favored Nations discrimination would result in behind-the-scenes jockeying for the best deal with the best network provider. I can’t help but think that in the end this would result in higher transaction costs as consumers would end up having to make their choice of network provider dependent on not just the price, but also the innumerable services that they offered.

While I don’t feel that the government should be doing the networks’ job for them, I think it should be understood that the networks serve a higher purpose, and as such have to understand that the greater good will be valued over their desire to maximize profits. While engaging in Most Favored Nations discrimination and blocking might favor their bottom line, I fail to see how it will really help consumers, considering it is an anti-competitive action. If legislation could be crafted that clearly delineates which types of discrimination are permitted and which aren’t along these lines, then I think the dispute could be resolved fairly easily.

I am still mulling over whether or not I came to the right result in relation to Most Favored Nations discrimination. In another writing, Wu analogized it to how KFC carries only Pepsi products, whereas McDonald's carries Coke. Different networks could offer different VoIP products and different video services. I guess my objection to this type of discrimination is that the choice is made by the networks rather than the consumers.

Keith Urban vs. Keith Urban

This piece, entitled "Al Bundy for President" is by the artist Keith Urban from New Jersey
This is Keith Urban the singer (also known as Mr. Nicole Kidman)

So this is a bit amusing, but there is a trademark cybersquatting dispute brewing between Keith Urban, the Aussie country singer, and Keith Urban, the New Jersey painter. Apparently, Urban the painter beat Urban the singer to the punch in registering www.keithurban.com.

Here is a quick review of what Urban the singer will need to prove in order for Urban the painter to be found to be cybersquatting. The Anti-cybersquatting Consumer Protection Act (ACPA) was enacted in 1999. Cybersquatting was becoming an increasingly common problem in the early days of the Internet, as random people were snatching up .com domain names of gigantic trademark owners, and holding them for ransom.
Under the act, Urban the singer needs to prove-
1. that Urban has a bad faith intent to profit from the registered trademark and
2) that Urban the painter registers, traffics in, or uses a domain name that is identical, confusingly similar, or, in cases of famous marks, dilutive of a mark that is distinctive or famous at the time the domain name was registered.

Interesting enough, one of the factors considered when determining whether there has been "bad faith intent" is if the domain name consists of the legal name of the registrant. That is one point in Urban the painter's favor.


However, this is not a clear case by any means. Other blogs have focused on the fact that the site says "You have reached the site of Keith Urban. To those who don't know, oil painting is one of my hobbies." This potentially implies that the singer is a Renaissance man of many talents.

What people haven't commented on and I find interesting (despite being unsure of its evidentiary value) is that Urban the painter enlisted Google Adwords to do advertising on the site. Being the intelligent program that it is, the end result is that the advertising displayed prominently front and center on keithurban.com consists of three ads for "Keith Urban Tickets" and one for "Keith Urban Concert Tour."

Will post later with a suggestion for Keith Urban The Singer's legal team. Over and out.

Correction!

A couple of posts ago I mentioned how Viacom's DMCA notices had led to YouTube pulling down some innocent videos, including one by a "Harvard student." I stand very corrected, because apparently this "Harvard student" is actually Dr. James F. Moore, whose contributions to society include being:

The founder and former Chairman and Chief Executive Officer of GeoPartners Research, which he led from 1990 to 1999. GeoPartners invested in and consulted to companies whose strategies required change in large scale systems, including AT&T, AT&T Bell Laboratories, Intel, Intel Capital, Hewlett-Packard, Softbank Group, Qualcomm, Motorola, Johnson & Johnson, Jim Henson Productions, GE Capital, and Royal Dutch Shell.

A Senior Fellow at Harvard Law School in the Berkman Center for Internet & Society for four years.

Now this could get interesting because Dr. Moore is quite angry and quite capable of causing a ruckus. We shall see what develops.

To be honest, the most startling thing about this sordid tale in my mind is that it proves that YouTube is not just used by 15 year olds recreating Pokemon videos...but also Harvard Law School professors. wow.

Update on Universal's Lawsuit Against Bolt

As I mentioned in my article, after YouTube's acquisition Universal Music sued two of YouTube's competitors for copyright infringement, including Bolt.com. According to this post on Mark Cuban's blog, the lawsuits were intended to help solidify YouTube's market share, in consideration for the $500 million Google placed in escrow for the content providers for past copyright infringement on the site.

Recently, a settlement was ironed out between Universal and Bolt, as discussed here. Bolt conceded infringement of Universal's copyrights and agreed to pay several million dollars, as well as making royalty payments if Universal videos are uploaded in the future.

As a consequence of the settlement, Bolt.com agreed to sell itself to a smaller competitor GoFish for approximately $30 million in GoFish stock. So apparently the little fish can sometimes swallow the big fish...

New Article about UGCs- Organizing thoughts by looking at Interests and Capabilities of Content Providers and End Users

My boss at MasurLaw and I are going to co-author an article about User Generated Content websites, in which we are going to outline the various solutions for the current gridlock and highlight their strengths and weaknesses. I have started to work out certain ideas, and am going to post my progress step-by-step hopefully.

The preliminary action, for the benefit of the uninitiated, is to sketch out the involved parties. First, there are what I shall call the producers (sometimes known as content providers), which include such companies as Viacom, Universal, and NewsCorp. Then there are the consumers, who listen and watch whatever content they choose. Included in the general class of consumers are those who are willing to flaunt whatever laws exist, either because they don't care or don't think they can be caught. For a long time, these two parties dealt directly with each other, but since the dawn of the Internet a new group, the distributors (i.e. iTunes and YouTube) has entered the fray to intermediate between the producers and the consumers. However, distributors are not relevant to the immediate discussion.

In my mind, the best way to evaluate possible solutions to the gridlock is to first understand what the interests of the producers and consumers are. So here are the interests of the parties, as I see them:

Producers' Interests-
1. to maximize profits (through direct sale or advertisement, depending upon the format). In reality, all the following interests of subsets of this prime capitalistic motivation.
2. to time the release of their content (so they can charge separately for each level)
3. to obtain either a license or fee for each conversion from one format to another.
4. And one very large interest that can really be considered a counter-interest-- marketing and promotion. All media companies want to get their shows or music into the public consciousness, and so at first some infringements might be permissible. However, once the word has spread about good content, they then want to make money off of it. ("Lazy Sunday" on YouTube is a great example of this)
Consumers-
Interests-
1. to get things cheap (free, if possible)
2. to get things fast
3. to get things easily
4. to get things in the highest quality possible
5. to get things they can take anywhere- from their computer, to their iPod and to their TV.

So when you examine this framework what becomes very apparent is that the two parties are at odds over virtually every interest. The producers and consumers (the ones who don't care about participating in illegal activity) are at war. Think about the dance of the past 10 years. Consumers flock to Napster, and then producers drag it into court and neuter it. iTunes turns into a force, and AllofMP3 outsells it. This is a duel where each thrust is met with a parry. The sides take turns winning battles, but it remains to be seen if anyone can actually win the war. The next step is to examine what capabilities permit each side to win each battle.
Here are their capabilities:

Producer Capabilities-
1. Set prices (different ones for each format)
2. Digital Rights Management tools (digital locks)
3. Controlling the quality of the content (e.g.- what is formatted for an iPod can't be blown up to look good on a 50-inch plasma.)
4. use the existing law (DMCA 512 (c) relating to liability of ISPs, DMCA 1201 relating to digital locks, Grokster, Real Networks v Streambox, A&M v Napster...)
5. lobby for new law

Consumer Capabilities-
1. digital lockpicks
2. tools permitting conversion from format to format
3. relevant legal defenses (Sony v Universal, fair use...)
4. using the territoriality issues engendered by the construct of the Internet to circumvent the native law (American users could not be prevented from using AllofMp3, which was a Russian site that was legal under Russian copyright law)
5. a higher level of interaction with content (democratized tools of production have resulted in the idea of "mash-ups")

Now that these have been set out, I think it will be easier to evaluate the strengths and weaknesses of each possible solution.

MPAA Sues Company that Loads Your DVDs onto iPods

In an absolutely fascinating new case, the MPAA is suing Load'N Go, a company that loads people's DVDs onto their video iPods for them. There is a great discussion of this case on the IP Law Blog. To give a quick summary, the MPAA is alleging that the company violates the DMCA because it circumvents the digital lock CSS ( Content Scramble System) that the studios place on their DVDs. Load N Go's contends that it is using a process that does not involve breaking the encryption, and alternately relies on the fair use defense. As the IP Law Blog says, there is some precedent for fair use in the realm of private copying, when it comes to CDs and software.

What I think this case raises are some larger issues that are becoming more and more important as technology develops different ways for people to process the same original content. It used to just be that people went to the movies, and that market was completely protected. Then VHS entered the mix, and a second market was created for movie studios. However, the very machines that could play VHS tapes were capable of copying them and copying original content from TVs. The picture grew exponentially more complicated as soon as digital formats enterred the fray. While studios rejoiced that the DVD market could slide in and replace the VHS market, the new danger was that DVDs could be ripped and placed online. Last, but not least, portable video players such as the iPod have entered the mix to further complicate matters.

The real issue is who should pay for what when, or, stated more eloquently, to what extent should private copying be permissible? What right does someone have to buy something on DVD, then rip it to be saved digitally and viewed on his computer, and then convert the digital file into a format readily viewable on an iPod? And what about the reverse? In my eyes, Hollywood's weapons in this mortal combat are its ability to set price depending upon the format, digital locks (and the protection the DMCA affords them), and the video quality of the content. In the lawsuit, Load'N Go contends that if a person wants to watch a movie they own on DVD on their iPod, they shouldn't be forced to pay for it a second time on iTunes. Definitely a legitimate point, though it is irrelevant if they are breaking locks in a manner prohibited by the DMCA. As I think of it now, the whole issue depends upon the quality of the content. A DVD can be ripped, sent to other people on torrent sites, and put into a format that looks good on an iPod. Hence, Hollywood needs as much protection as possible and so they charge more, put digital locks on, and lobby for Congress to protect their precious content. From the reverse, Hollywood is protected from people putting a movie downloaded on iTunes onto their TV or a DVD because the quality just wouldn't look good, so they don't need to charge that much (not that they really could).

Anyways, very good food for thought.

Initial Interest Confusion Online- Cyberlaw Wiki Post

Here is my Cyberlaw wiki post that initially discusses the Brookfield Communications vs West Coast Video case (summary here). I then posit a new framework for thinking about initial interest confusion online

I find the decision of the court in Brookfield Communications to be slightly troubling. The highway analogy employed by the court was at first blush a convincing argument that West Coast had acted unfairly. However, if one considers the decision in relation to the real world concept of generic products the decision becomes less firm. Trademark law has deemed it appropriate for Duane Reade to place a generic form of Advil right next to Advil on a product shelf. The Duane Reade generic box is permitted to have similar coloration and to even have a similar shape. The box is even allowed to include the brand name Advil on it and say that consumers should compare ingredients to the original Advil. Clearly this analogy can be applied to the online world. While it admittedly doesn’t seem appropriate for one company to use a competitor’s brand name in their metatags, let us think about the result of such an action. Compare Google search results to a product shelf. If a person googles “moviebuff”, Brookfield’s webpage would presumably pop up next to West Coast’s. Each page would have a description below it including the terms moviebuff, from which it could or could not be clear which one was which. Assuming it was clear which one is Brookfield’s then there is no question that West Coast has not caused any confusion and should prevail. Assuming there is some confusion as to the website and a person clicks on West Coast’s site, it would either become apparent to them that they were at the wrong site (and they would click “Back” and find Brookfield’s site) or choose to stay on West Coast’s site with similar services. I don’t really see that much of a difference between this and staring at a product shelf. When a customer is choosing between an original and a generic juxtaposed with each other in the physical world, one can think of the thought process as an economic equation:

Perceived difference in quality (Qual Diff)+ strength of original brand name (Brand S.) WEIGHED AGAINST the difference in price between the two products
If
(Qual Diff) + (Brand S.) > (Price Diff) then the consumer would choose the original.
And if the opposite holds true
(Qual Diff) + (Brand S.) < (Price Diff) then the consumer would choose the generic product Now let’s think about how to apply this to the online context when comparing sites where the product is information, and the consumer has mistakenly clicked on the competitor’s website rather than the original. Here the ultimate act is not purchasing a product but rather viewing the site. So in my opinion the equation would look something like this: (Perceived difference in quality) + (Brand strength of original) WEIGHED AGAINST (The cost of finding the original website) If the viewer has any attachment to the original site or any estimation of its quality they would presumably take the couple seconds necessary to click back to the search engine and find the original. This equation also reveals the shortcoming of the highway analogy. As constructed by the court, the price difference/cost is to get back in the car and drive another exit. This really isn’t an appropriate comparison to the seconds necessary to find the desired website, and so the court really shouldn’t have attempted the analogy in the first place. Now, comparing the real-world equation versus the online equivalent leads me to a couple of conclusions: 1. The cost in the online world appears to be less than the cost in the real world. This is of course a gross generalization. But if one takes the time to stroll down the aisles at Duane Reade there is generally a significant price discrepancy between the original and the Duane Reade equivalent. While it doesn’t seem fair to compare dollars to seconds, I think that it isn’t patently unfair to come to my first conclusion. (If you really want to make this a mental exercise, you would have to figure out
2. The smaller the cost/price difference, then the less likely the generic will steal market share from the original. This is relatively straightforward from the equation.
3. If 1 and 2 hold true, then online competitors should be permitted to compete in this fashion. In the real world, generics take significant market share from the original because they can produce similar products at a much lower price. In the online world, the “generics” face a much stiffer obstacle when competing with the originals, because the cost of finding the originals is so small. If generic products are allowed to compete so efficiently in the physical world it is a double standard to not permit placing competitor’s brand names in metatags when the only practical consequence is landing next to the original in a search engine result. This whole discussion doesn’t even factor the idea of nominative fair use into the analysis, which I feel would further strengthen the argument that such practices aren’t antithetical to the principles of trademark law.

Construct of the Internet- Cyberlaw Reaction Paper

In the reading, I was particularly interested in how the Internet’s origins as a military project resulted in an architecture that has presented problems for would be regulators. As the book discussed, the Department of Defense initially used ARPANET and then switched to the TCP/IP protocol suite, which due to its functionality and lower costs resulted in the expansive and unruly Internet we know today. The casebook mentions two specific architectural features of the TCP/IP protocol that appealed to the military as it made the switch—decentralized control and packet-switching.

The Internet does not exist on any central servers, and at this point the mass of the Internet makes the thought seem absurd. Instead, information travels over the internet hopping from place to place, in a feature known as redundancy. Like a hydra, if one path (or head) is disabled, three other paths can serve the same purpose. This was of course appealing to the government because any enemy attempting to infiltrate or collapse the Internet could not attack one specifc server. At the same time, this also makes it increasingly difficult for a regulator to chase down and disable access to an illegal software program, like DeCSS for example. If there were one server that a government exercised greater control over, then it would be easier than chasing down a program that is posted on one website and then replicated a thousand times by Internet users trying to prevent regulation. However this would create clear political issues because the questions would become who would maintain the server and who would have the power to regulate it.

The second issue relates to packet-switching, whereby pieces of information transmitted over the Internet are broken up into packets that are reassembled on the computer of the recipient. This system is preferable because it expedites transmission, and affords greater privacy. The military approved of this feature because it made it difficult to intercept or interpret messages (p16), but for this same reason it has become incredibly difficult for content owners to monitor files exchanged on P2P networks or torrents. If certain entities like governments, ISPs, or Hollywood were allowed to intercept and decode packets, it would do irreparable damage to people’s security on the Internet and their trust of the government.

However, the casebook also said that the “technical architecture of the Internet is always subject to change.” (p14) While there are certainly illegal activities, particularly copyright infringement, that would justify a reshifting of the Internet construct, these changes should not be made lightly because they would undermine the principles that have resulted in the amazing force for good that the Internet has become today.

Cyberlaw Wiki

My Cyberlaw professor Susan Crawford, the author of her very own popular blog, has required each student in her class to post a one-page reaction paper to the next week's readings by every Sunday at 5. While I was initially apprehensive since I felt that I would be doing my reading solelyto come up with something wiki-worthy, I have been pretty happy with some of my posts. So I am going to start editing them and putting them up here on the blog. These of course will not be related to any recent news, but will hopefully serve as some food for thought on interesting issues in cyberlaw.

Viacom's YouTube Notices Ensnare Innocent Videos

After negotiations recently broke down between Viacom and YouTube, Viacom requested that 100,000 videos be taken down. Sounds fine, but apparently at least a fair number of the videos didn't infringe any Viacom copyrights. For example, a Harvard student recently received a notice from YouTube that a video of some friends and him chowing down at a local restaurant had been removed due to a notice from Viacom. He posted the notice. Even worse, people who provide totally original content to YouTube, such as Atrios and PoliticsTV, have found that 95% of their material has been removed.

This illustrates an issue with the notification proceedings. When there is rampant infringement and the burden is placed on the content owners to notify the ISP, then it makes more sense for the content provider to be overinclusive with notices. I have no idea how content providers such as Viacom search for infringing videos (whether it is 3 guy sitting in a room just combing through videos or if there is software that does it for them). But by being overinclusive, the content providers just shift the burden so that each little guy whose video has been removed wrongly will have to file a counter notice. At least YouTube helps matters by providing the proper procedure for a counternotification in the notice.

I still believe that the DMCA is ripe for redrafting, as was stated in my paper.

Are Uniforms Copyrightable?

Recently, The Fifth Circuit Court of Appeals resolved a case about infringement of uniform designs for employees of Harrah's casinos. When trying to determine if the uniforms were copyrightable, the 5th Circuit imported the "marketability" test from the 9th circuit in relation to garments only. The test is "conceptual separability exists where there is substantial likelihood that even if the article had no utilitarian use it would still be marketable to some significant segment of the community simply because of its aesthetic qualities." Since the uniforms served no commercial purpose outside of being uniforms, the court affirmed summary judgment for the defendants.

However, one can think of examples where the opposite result would occur. There is a whole niche for "mechanic" T-shirts. They are apparently quite popular with people who are far cooler and more trendy than me. Mechanic T-shirts would be an example of uniforms that are marketable outside of their utilitarian function, and hence could be copyrightable.

Official name and cite of the case-
Galiano v. Harrah's Operating Co., 416 F.3d 411 (5th Cir. 2006)

Judge Posner in Second Life

Recently, Judge Richard Posner put in an appearance in Second Life, the virtual world that now has 1 million inhabitants. He discussed some cases that he had decided, and survived a couple terrorist attacks. He also repeatedly commented on how much he liked the tail of a racoon avatar. Interesting, and surprisingly amusing.

My Paper on YouTube

After much blood, sweat and tears, here is my final paper on "The Copyright Implications of YouTube"
Brief overview:
1. I first discuss how YouTube has blown up.
2. Then I give a brief overview of the DMCA section that YouTube is using as a defense in the lawsuit against it by Robert Tur, and problems in YouTube's DMCA defense
3. I talk about the ambiguous inducement theory set up in MGM v Grokster by the Supreme Court
4. How the inducement theory and Safe Harbor provisions interact.
5. I discuss how the market is shifting to deal with the problem, and propose legislation to help protect the little guys like Robert Tur from copyright infringement.

I hope that it is more enjoyable and informative than droll and soporific.