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.