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...