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.

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.

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.

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.

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.

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.

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)

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.