Ali Sternburg

DJ and mashup artist Girl Talk, who has “repeatedly stated that if he’s sued he believes he has a strong fair use defense,” released a new EP yesterday, along with a video for one of the songs, for which he cleared the samples, explaining “I think about each work separately and consider whether it qualifies for fair use or not. In this case, we needed the clearance.”  This exemplifies that copyright questions over works which use parts of existing works, such as music sampling, generally have to be analyzed on a case-by-case basis.

Exactly a year ago (total coincidence) I wrote a post entitled Can You Infringe Copyright In Six Seconds?, about then-new service Vine and potential copyright considerations for six second clips of content.  I discussed some key music sampling cases (Bridgeport and Newton v. Diamond), to see what we could draw from those precedents, but that law is far from settled, as there continues to be litigation over music sampling.  On the issue of how much of an existing work can be lawfully used in a new work, it’s clear that it’s still very much an open question.  I’ll explain some recent cases below.

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This post is part of the Disruptive Competition Policy Forum recap series.

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This post is part of the Disruptive Competition Policy Forum recap series.

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DMCA Month Continues

by Ali Sternburg on March 19, 2014

Lately it seems like it’s all DMCA all the time.  In addition to last week’s hearing on Section 512, and yesterday’s announcement that Viacom and Google settled their seven-year copyright litigation involving the safe harbors, tomorrow the PTO and NTIA are holding a multistakeholder forum on the notice and takedown system.  (Eric Goldman also informs us about a CafePress suit over Section 512 safe harbors, and Eriq Gardner reminds us that there is a verdict forthcoming in the MP3Tunes case.)

Tomorrow’s PTO/NTIA event comes out of last summer’s Commerce Department Green Paper, and is not a rehash of the hearing; the timing is merely coincidental.  Despite the similarity in subject matter, the goals of these inquiries are very different.  Whereas the hearing explored policy questions about the design and effectiveness of the DMCA, the PTO and NTIA’s stated objective is different.  The Federal Register notice explains the Commerce Department’s intentions:

[T]he Task Force stated its intention to establish an open multistakeholder forum aimed at improving the operation of the notice and takedown system for removing infringing content from the Internet under the Digital Millennium Copyright Act (DMCA).

. . . .

The goal of the open multistakeholder forum is to provide a collaborative forum through which stakeholders will identify best practices and/or produce voluntary agreements for improving the operation of the DMCA notice and takedown system.

Thus, Commerce is focused on improving the operation of the existing statute and the existing processes under the law, rather than changing them.

As agencies, Congress, and courts consider the DMCA notice and takedown provisions, it’s important to keep in mind that no amount of enforcement is going to work if there aren’t easily-accessed lawful alternatives.

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It’s been a while since DisCo has reported on Uber, the startup that is known equally for its app that connects passengers with drivers and for doing a remarkable job engaging its users to challenge local governments and incumbent taxi companies.  One of the cities in which Uber is currently facing an existential threat is Houston.

On Sunday, Team Uber Houston wrote a blog post calling Houston to action, including a petition (which was signed by more than 10,000 people) and information on a City Council hearing on Tuesday.  And yesterday, Team Uber Houston put out another post with the shocking information that the City of Houston is trying to silence its citizens.

Please consider this as a formal demand that your client, Uber, cease and desist from transmitting or aiding in the transmission of form e-mails to City officials regarding the adoption of an ordinance to accommodate their enterprise. Despite my informal request to you by telephone on Monday, the excessive number of e-mails has gone unabated, to the point that it has become harassing in nature and arguably unlawful. Failure to cease and desist will be met with appropriate action by the City.

Elected officials censoring their constituents for complaining about an ordinance that affects them is a little bit ironic.  (Their job, in theory at least, is to legislate and serve their constituents… which entails people telling them what they are upset about.)  And by sending Uber this letter, which Uber fortunately publicized, the City of Houston is only further emboldening Uber and its customers to fight for competition.

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Today is the thirtieth anniversary of the Supreme Court’s landmark decision in Sony v. Universal (popularly known as Betamax).  As my DisCo colleagues Matt Schruers and Jonathan Band put it upon the retirement of Justice Paul Stevens, who wrote the opinion: “[the Betamax] decision is the legal foundation of the Digital Age.”  The case paved the way for innovation, because the Court recognized that just because a product or service can be used to infringe, it’s not necessarily infringing.

The fair use doctrine played a big role, as the majority found that users’ time-shifting was fair use, and that respondents did not demonstrate likelihood of harm to the value of their works.  And in fact, the VCR ended up creating a significant new market for copyright holders.

And to absolve Sony of liability for contributory infringement, Stevens’ 5-4 opinion applied patent law’s “staple article of commerce” doctrine (codified in 35 U.S.C. 271(c)) to copyright law, holding that

the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.

While the Betamax case came out the right way, many cases don’t.  As I recounted in my post on 15 technologies that the content industry has sued in the 15 years since they sued the first MP3 player.  In fact, as the Washington Post explained, the Supreme Court was originally poised to come out the other way, before the case was reargued and Justice O’Connor switched sides.

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Last night’s primetime lineup was filled with stories about copyright: (1) 60 Minutes interviewed the indicted Megaupload founder Kim Dotcom at 7, (2) the Simpsons played out a scenario of movie piracy at 8, and (3) the Good Wife litigated unauthorized derivative works at 9.

Source: TorrentFreak http://torrentfreak.com/the-simpsons-cleverly-cover-the-pirate-bay-anti-piracy-enforcement-140106/

While copyright may be on the minds of television writers and media producers more than most industries, this isn’t some industry conspiracy.  (Note that the MPAA’s new in-house anti-piracy lawyer Steve Fabrizio recently told The Hollywood Reporter that “our industry is not seeking any legislation, and we don’t see any legislation on the horizon.”)  Rather, producers have evidently concluded that the subject of copyright is relevant enough to resonate with viewers who have choices about what to watch.  Perhaps the public outcry about SOPA—nearing its second anniversary—may have been a catalyst for these issues entering our national conversation.  Regardless, these issues today play a greater role in people’s lives.

A few weeks ago, the USPTO and NTIA held an all-day public meeting on the Green Paper that they released in July.  There were panels on statutory damages, the first sale doctrine, remixes, notice and takedown, and the government’s role in the online marketplace.  A collection of DisCo’s live tweets from the event is available here.  To some of our readers, these may be familiar terms and doctrines; to many others, they may seem highly arcane and technical.

The Green Paper public meeting directly touched all of the issues covered on TV last night.  First of all, 60 Minutes interviewed Kim Dotcom, who potentially faces millions in statutory damages.  CDT’s David Sohn pointed out on the first panel that statutory damages multiply risk, are often arbitrary, penalties can be cartoonish, and they complicate innovation, among other things.  Without taking a position on the legality of the Megaupload service, these statutory damages are a significant deterrent to intermediaries and service providers.

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Today, the long-awaited Google Books opinion is out.  And it’s a winner.  The New York district court dismissed the case, writing that “Goggle’s [sic] motion for summary judgment is granted and plaintiffs’ motion for partial summary judgment is denied.”  Although the failure of a federal class action in this case caused the potential mammoth settlement to fall apart, the outcome has been a far stronger validation of the copyright fair use doctrine than any settlement could be.

Jeff Roberts at GigaOM has a helpful post with more background on the case’s eight-year history, and a link to the opinion.

The opinion would be remarkable if written by anyone, but it is particularly noteworthy that it was by Judge Chin, who you may remember as the judge who (having been elevated to the appeals court) dissented from the Second Circuit’s denial of broadcasters’ petition for en banc rehearing of Aereo, saying “Aereo’s reliance on Cablevision is misplaced because, in my view, Cablevision was wrongly decided.”  (Judge Chin had also dissented from Cablevision.)

There was much discussion in the opinion of the public benefits of Google’s undertaking.  These include the fact that Google Books “provides a new and efficient way for readers and researchers to find books” and “has become an essential research tool,” promotes data mining research, “expands access to books” to “traditionally underserved populations” such as the print-disabled and “remote and underfunded libraries,” that it “helps to preserve books and give them new life,” and also “by helping readers and researchers identify books, Google Books benefits authors and publishers” and thus “Google Books will generate new audiences and create new sources of income.”  The court concluded at the end of its fair use analysis:

In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers.  Indeed, all society benefits.

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While patent reform seems to be the top IP-related priority for most US policymakers, copyright reform discussions in the US are also forthcoming in response to this summer’s green paper from the Department of Commerce.  A (shutdown-delayed) meeting on the paper will be taking place in December at the USPTO, and pre-meeting comments are due next week, with post-meeting comments due in January.  There has also been speculation of Congress holding additional hearings to follow up on the two the House Judiciary held this summer.

The US is not alone in considering updating its copyright laws.

I wrote in August about the Australian Law Reform Commission contemplating adding fair use to Australian copyright law.  The reform efforts continue, and a new site just launched called Creationistas which provides useful information on existing copyright laws and proposed reforms—particularly fair use—anchored around some entertaining explanatory videos, such as the one below:

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Today, more briefs were filed in the Second Circuit appeal of the long-running Viacom v. YouTube litigation, from several public interest and technology organizations.  These organizations – YouTube’s amici curiae – include (a) EFF and Public Knowledge; (b) CCIA; (c) several major Internet platforms (eBay, Facebook, IAC, Tumblr, and Yahoo); (d) CEA; (e) National Consumers League, Consumer Action, Human Rights Watch, Access, and Freedom House; (f) more than 30 IP and Internet law professors; (g) National Alliance for Media Art and Culture and Alliance for Community Media; and (h) the Anaheim Ballet, the Learning About Multimedia Project, Inc., and several prominent YouTube users.

Previous briefs in this round have been helpfully collected by Michael Barclay at IPDuck here.

Viacom, who sued YouTube back in 2007, maintains that YouTube should not receive the benefits of the DMCA’s “notice and takedown” safe harbor, despite having satisfied that statute’s requirements, an argument that the Second Circuit was not persuaded by when this case was last in this court a few years ago.  In addition to disputing Viacom’s interpretation of the DMCA, YouTube’s amici discuss the importance of the safe harbor and the platforms it has enabled.

The DMCA represents a complex and careful bargain that provides both content owners and Internet service providers with benefits—and both with burdens.  Congress carefully crafted this safe harbor to encourage innovation and limit liability.  As CCIA’s brief explained:

Congress could not have intended to protect service providers from secondary liability for user infringement, only to subject them to millions of dollars in legal fees spent on protracted litigation over that very protection.  A safe harbor that is merely an invitation to years of costly litigation is no safe harbor at all.  Given Viacom’s single-minded insistence on monitoring and filtering, which flies in the face of express language in the DMCA, and given that Viacom itself bemoans the interminability of its own litigation, Viacom’s intended message is clear:  the DMCA safe harbor notwithstanding, new startups wishing to avoid years of litigation purgatory must either monitor third party content and install filtering apparatuses, which few can afford, or pay a license to the entertainment industry.  To avoid giving credence to this message and casting a pall over an increasingly important sector of the U.S. economy, this litigation must be brought to an end.

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