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.