This project is about the future of the Pirate Party, whether their recent attainment of an EU Parliament seat launches them into a promising future or if their strength is simply the tenuous reaction of young file sharers to the Pirate Bay trial. I would also like to address the party's focus on the retention of privacy and what the party could be capable of should they prove a tenable force in influencing internet policy.

    IO is a company that holds and owns a number of registered copyrighted for a variety of adult entertainment products.  IO alleged that it found its own copyrighted clips from IO films on the Veoh website.  None of the alleged clips contained copyright notices except one.  Veoh is a site that relies on content contributed by users. Veoh is similar to a site like YouTube.  IO made the case that Veoh had to break protection codes to upload videos into the Flash format that the site uses.  By doing this, IO argued that Veoh became a direct infringer. 

The judge determined that Veoh was still protected by the safe harbor provisions.  Veoh does not actively oversee the uploading of content.  Veoh has an established system where the software reformats user content automatically once uploaded.  The system makes the content accessible immediately to other users.  Veoh has default parameters for the submission of content by a third party.  The automated system is started with the Veoh user.  Everything is put into motion with the user.  Veoh does not preview videos before they are uploaded.  The uploading is due completely to the users.  The court gave a summary judgment for Veoh.  Based on the DMCA, the judge said that Veoh was in fact protected by the Safe Harbor Provision, and the site complied with the statutes.   

The key detail about this case is that IO did not send any takedown notices.  This is critical to my thesis that there is a severe violation and abuse of power.  IO did not even follow proper procedures.  There was no take down notice sent.  Instead, IO went straight to court.  The notice and take down course of action was completely skipped.  Instead of stopping piracy, the DMCA in this case ended up limited consumer choices for a period of time.  The videos were taken down and  content made unavailable.

Rashmi Rangnath serves as a Staff Attorney at Public Knowledge.  Her topics of interest and expertise are in patent law and copyright.  She discusses where we are now after 10 years of the DMCA.  The two main provisions of the DMCA are the anti-circumvention measures and ISP (Internet Service Provider) liability provisions.

The anti-circumvention provisions ban circumventing locks on digital material.  It also makes it illegal to market and/or sell technology that would help people get around the locks on digital content.    The ISP liability provisions give a “safe harbor” to ISPs as long as they fulfill certain requirements.  They must “maintain a policy of terminating the internet access of repeat infringers.”

Rangnath points out that although the aim of the DMCA was make content available digitally while protecting the owners of this digital content.  It has actually had the opposite effect.  The effectiveness of preventing “piracy” is not questionable after 10 years of the DMCA.  Many of the fears that were being voiced by opponents to the DMCA, like museums and libraries, are now actualized.  Take down notices are being sent without just cause.  Fair use content is being removed unjustly.  With a lack of education about the DMCA, fair use is being violated.  
 
The design of anti-circumvention has created more problems then it has solved.  Anti-circumvention provisions are applied blindly most of the time.  Take down notices are sent regardless of it something is fair use or not.  Rangnath cites RealNetworks vs. Streambox.  Basically the Streambox technology permitted people to record music and movies that were being streamed over the Internet.

Rangath brings up a key point that I will discuss in my paper.  She says that “The provisions vest too much control in copyright owners over the design of devices.” After 10 years of the DMCA, it is apparent that there are certain abuses going on.  There is no system of checks and balances.  As a result, the rights of fair use are being violated.

Fair use is a term that originated in the United States.  It allows limited use of material that is copyrighted.  With fair use, permission is not required depending with appropriate circumstances. Fair use is defined and regulated with a four-factor test.  Using this test, one can tell if it violates copyright. A work must satisfy all four factors to pass the test.  Fair use is a tricky subject because it really does vary in every case.

The first factor says that a work is fair use depending on “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.”

The second factor concerns, “ The nature of the copyrighted work.”

“The amount and substantiality of the potion used in relation,” is the third critical factor

The final factor says that a work is fair use depending on “ The effect of the use upon the potential market for or value of the copyrighted work.” 

IT would be ridiculous if you had to ask for permission everytime you were going to use a copyrighted work.  This is the purpose of fair use.  Fair use was created in tune with the goal of copyright: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

This information lays the foundation for my paper.  It provides the background information for me.  My claim is that the DMCA violates fair use and copyright.  By outlining the purpose of copyright and the factors of fair use, I can then tell how DMCA violates.

The DMCA is an amendment to title 17 (Copyright Act).  Bill Clinton signed it into law on October 28th, 1998.  The DMCA actually implemented treatises from the World Intellectual Property Treaty (WIPO).  The goal of the act was to give copyright owners protection with the oncoming digital advances.  It enforced the treatises in the international treaty.

The DMCA is split up into five different titles.  They are

Title Io WIPO Copyright and Performances and Phonograms Treatises Implementation Act of 1998
This put the treaties from WIPO into action.
Title IIo Online Copyright Infringement Liability Limitation Act
Gives Internet Service Providers protection from copyright infringement under certain circumstances.
Title IIIo Computer Maintenance Competition Assurance Act
Outlines Exemptions:  In the case then you need to copy a computer program by activating a computer because of a repair.
Title IVo Miscellaneous Provisions
Title Vo Vessel Hull Design Protection Act
Created a new form of protection for the design of vessel hulls

This summary of the DMCA is critical to my paper.  My paper is reallly centered on the DMCA and its affects on fair use and free speech.  In order to discuss the problems with the DMCA I must discuss its provisions and how it is supposed to work.  Then I will outsline what should be changed.

 

This article by Glickman and Holleyman provide a different opinion on the affects of the DMCA.  Holleyman serves as the CEO and president of the Business Software Alliance.  Glickman serves as the chairman and CEO of the Motion Picture Associate of America.

In 1998, Congress signed the DMCA in preparation for the digital revolution that was taking place.  The goal was to provide access to information and material digitally.  The DMCA allowed and supported the digital revolution.  Copyright owners would never have put their works into digital form had it not been for the protection that the DMCA afforded them.  By passing the DMCA, Congress encouraged the owners of copyrighted material to take that risk.  Without an actual written law, hesitancy would have replaced the risk that the owners were willing to take.  Within the last ten years, since the DMCA, new technology has been consistently bursting onto the scene.  PlayStation, iPods, smartphones, YouTube, and Facebook are only a few examples.  Tons of sites have emerged which encourage interaction of users and their creativity.  The DMCA ushered in this technological progress.       

The success of the DMCA has been amazing.  It has afforded consumers of digital content a multitude of choices about how, where, and when they access this content.  The balanced nature of the DMCA encourages innovation and propagation.  The benefits that consumers have gained from the work made available by the DMCA are massive. 

I will be using this article as a contrasting view to my own.  I think this gives a really interesting spin on the DMCA.  I agree that it has had a positive effect.  It did in fact usher in a digital revolution.  However, this article really ignores problems that the DMCA has created.  It praises the DMCA as the savior to all that is digital.  What is so interesting to me is to keep in mind the authors.  The authors are those people that issue the take down notices.  This point of view will give a contrasting perspective.

In his blog, Michal Geist discusses the adverse effects of the Canadian DMCA.  The Candadian DMCA is closely modeled on the U.S. DMCA.  Geist, after only perusing the Canadian DMCA made five main points during this blog entry, three of which I will be using

Although there are seemingly positive provisions in the Canadian DMCA, there are undermined by fine print, digital lock provisions.  Provisions such as the private copying of music now become illegal with these digital lock provisions.  One everyday situation is putting your favorite DVD onto your new iPod touch, now becomes copyright infringement.

The digital lock provisions are one addition to the Canadian DMCA that is not in the U.S. DMCA.  There is a ban on giving out technology that can be used for circumvention.  Even buying an unlocked cell phone would be considered infringement.

$500 fine per infringement; $5,000 after one notice; 10,000 after
If you can’t afford this, then it’s jail time.                                                                

This blog offers a different perspective.  Geist offers a contrasting DMCA that is even worse than the U.S. DMCA.  I will be using this perspective as a reference point.  Measuring the effectiveness of the Canadian DMCA to the U.S. DMCA.  Would a stricter DMCA, similar to Canada’s, be more affective at preventing copyright infringement?  Or Would the New Zealand, more balanced approach be more affective?  What changes could be more affective for the U.S. DMCA?  I will use this Canadian perspective as a means of helping to answer these questions.  I will be looking at the effectiveness of a stricter DMCA in this digital age.

This is a public policy report that offers important research for my paper.  It discusses how “free” expression really is in this new age with strict copyright control like the DMCA.  The Brennan Center for Justice conducted a research project in 2004.  The objective of the project was to see how the people, artists and scholars, directly affected by fair use were dealing with it.  These are the people who make significant contributions to culture and will definitely be affected by an amendment like the DMCA.  The Brennan Center used interviews, online surveys, focus group discourse, and most importantly, an analysis of about 153 of 300 take down letters.  The most interesting to me and the method that I plan to discuss in my paper is the analysis of the take down notices.  The 153 notices were aimed at materials that were actually fair use or had a weak IP claims.  

 

The research showed a strong positive correlation between the strength of fair use claim and the likelihood that the material would be removed.  There was also a troubling finding that even when there were weak IP claims, more than half of trademarked words or phrases were removed.  Even though it was fair use, the weak IP claims won.  Overall, the take down notices really are distinctly violating the first amendment. 

 

The other methods, interviews, online surveys, and focus group discussion found two common, major themes.  The research project found that there is a great deal of confusion about fair use and the DMCA.  Also, there is an enormous need for a legal support base to deal with gatekeepers.  The paper suggests possible improvements: a clearinghouse for information like how to reply to take down notices, legal support base, and decreases to the penalties.

 

I plan to use this paper’s research to support my claims 

1. People have inadequate knowledge about DMCA, fair use, and their first amendment rights

2. Gatekeepers are abusing take down notice rights

3. How effective are the take down notices at eliminating copyright infringement? 

4. Who are the innocent bystanders being caught up by the take down notices?

 

This is an article explaining the tactics used by the RIAA in obtaining information and evidence on illegal file-sharing, from information given by an RIAA worker himself. The RIAA hires a third party company, MediaSentry, to track down illegal file-sharers. That company then runs different peer-to-peer file-sharing programs and searches for songs specifically owned by the RIAA. They are then able to track down the specific IP address and the ISP from which the songs they find came from. They do not actually download the song however, using a digital handshake instead to let them know that the song is available for download. This complicates the matter because it is hard for me to believe that the RIAA can use a so called "digital handshake" as their main evidence when no actual download occurred. The fact that the file was in a shared folder and was ready to download does not mean the person themselves shared the file. The court case Atlantic v. Howell is a great example of this situation in which the court rule that "If the owner of the shared folder simply provides a member of the public with access to the work and the means to make an unauthorized copy, the owner is not liable as a primary infringer of the distribution right, but rather is potentially liable as a secondary infringer of the reproduction right." Also in that case the judge stated, "Unless a copy of the work changes hands in one of the designated ways, a "distribution" under ... 106(3) has not taken place," thereby negating the RIAA's claim. However, not all cases are even taken to court, and the RIAA is able to slip by with this lack of evidence by presenting it like it is their primary proof of infringement.

The article then goes on to talk about cases of a more serious nature and how the RIAA deals with it. They start off with the digital handshake but then MediaSentry personnel actually do download the songs in question. This to me seems backwards and wrong that the RIAA downloads the same songs, in the same manner, from the same programs, as the pirates they are trying to catch.

In March 2007, Viacom (Visual and Audio Communications - an American media conglomerate), sued YouTube, claiming extensive infringements of Viacom's copyrighted material. YouTube, as an online service provider, argued that it had limited liability to any damages or charges under the safe harbor provision of the Digital Millennium Copyright Act (DMCA) of 1998. The court case held focused on whether YouTube qualified to receive that protection as defined by the DMCA. In my paper, I plan to introduce the framework and business model of YouTube and then tie in Viacom lawsuit as a discussion of the amount of liability that rests on YouTube. Using the original decision from the case, in addition to arguments and opinions of various other sources, I hope to provide a more definitive answer to YouTube's liability for infringement, and in the process examine arguments for both sides.

Fred von Lohmann
Aritcle: July 10, 2006
http://www.hollywoodreporter.com/hr/search/article_display.jsp?vnu_content_id=1002802746

    This article, written by Fred von Lohmann, briefly overviews the YouTube company and its legal liability as an online host of material, specifically videos.  Lohmann attempts to explore how YouTube stands under protection by the Digital Millennium Copyright Act (DMCA) from copyright infringement cases.  He outlines and gives examples of how YouTube could be violating copyright laws but also explains why its existence might be a protected under fair use.  YouTube could be responsible for countless charges, as it hosts infringing copyrighted and unlicensed material, but as an online-service provider, it is protected by the DMCA from the habits of users.
    The author then goes on to explain the terms under which online hosts are protected from damage costs, if their users do infringe copyright laws.  These services must be able to notify users and remove from the system any material claimed to be of copyright infringement by an owner.  YouTube must also terminate users deemed to be repeat infringers.  Additionally, protection will be removed if YouTube is aware of any associated piracy or illegal activity.  Finally, if there are any revenue-generating ads closely tied to infringing activity, protection would be lifted.
    This poses a problem, as much revenue is generated for YouTube by ads.  As a result, ads can only be placed on search result pages and not those of clips.  YouTube must use caution as a growing business by specifying the placement of ads before, during and after videos.  Lohmann also provides a few examples of how YouTube could generate revenue through careful advertising, such as the use of the “featured videos” section. 
    Relating to my paper, this article articulates points crucial to the understanding of the simple arguments on both sides of whether YouTube exists as a safe and legal organization.  It outlines the business concerns on which YouTube’s liability dependent.  This article shows how it is important to explore the many aspects of the company that would affect it’s status under the DMCA’s requirements.

This is the case, long awaited, between Viacom and YouTube.  In this case, Viacom makes a number of requests compelling YouTube to release information as well as media and content.  While there are eight motions, they are not all granted; five are denied.  This is interesting, as we must note the reasoning behind Judge Louis L. Stranton’s decisions on July 1, 2008.
    In favor of YouTube, the motion to compel production of search code is denied, and the cross motion for a protective order of the source code is granted.  This is based on the reasoning that such a disclosure would expose a trade secret (that costs thousands of man hours) and that there is no evidence that such a tool could even filter out infringing videos.  The motion to compel production of the source code for the Video ID program is also denied on the grounds that it is also a trade secret and Viacom doesn’t make a significant showing of need.  Also, YouTube claims that they could figure it out by using it.  Judge Stranton does grant the motion to compel production of all removed videos.  Viacom claims that access to all of these files is necessary to identify any infringing videos (but burden of such a task lies on Viacom).   It is also granted that YouTube produce all data from Logging databases concerning each time a video is viewed on the website or on a third-party website.  This passes because of the insufficiency of an IP address to identify personal information.  The motion to compel production of all those data fields which defendants have agreed to produce for works-in-suit, for all videos that have been posted to the YouTube website is denied because “No sufficiently compelling need is shown to justify the analysis of “millions of pieces of information” sought
by this request.”  He also denies the motion to compel production of the schema for Google Advertising databases, but grants for the schema regarding the Google Video Content database.  This is because the plaintiffs have already been promised the only relevant data in the database, they do not need Google’s confidential map of how it runs its advertising business.  Viacom is also denied the ability to access all private videos, except the data related to these videos that is not the actual content.  
    This is essentially the main case that I will use as an example in my paper in determining whether or not YouTube’s business violates copyright laws.  I hope to explore my other sources as well to see if there are any rulings that I do not agree with.  It is important to note that the Judge’s decision is not to shut down YouTube, but to assure that any infringement is addressed, while maintaining YouTube’s ability to function as a unique video sharing network.

Robert Tur is an award-winning helicopter pilot and journalist who does business licensing and selling videos, photographs, and a variety of other products found useful by all kinds of media including Internet, television, radio, motion pictures and print.  
This case is of interest to me, because it shows an interpretation of the legislation that opposed YouTube.
    On July 14, 2006, Tur filed this action for copyright infringement and unfair competition against YouTube claiming that his videos were uploading to the YouTube server and made available to the public without his permission.  In October of the same year, YouTube claimed safe harbor protection under the DMCA as codified in 17 U.S.C. 512(c), which states that “In general, a service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if...”
    The DMCA applies this protection to internet service providers on the condition that certain requirements are met (These requirements are explained in my other articles and cases.)
    In this particular case, the court makes its decision on the criteria that the DMCA requires the provider to have the “right and ability to exercise control over the infringing activity on its site.”  As defined by other cases (mentioned in this particular case), this right and ability is more than just the ability to remove or block access to content that has been flagged.  The requirement includes some antecedent ability to limit or filter copyrighted material.
    The court denies YouTube’s motion.  I cite this case in order to show a case that looks like it will be a problem for YouTube if any other cases appear.  With such a high expectation for the ability to prevent infringing material from going public, YouTube is pressured to develop some technology to allow this screening, otherwise their liability may put them in a hole, financially.  I find this case to be a different interpretation of the DMCA legislation than my previous sources.  This should provide a basis for a counter-argument.

Vanderbilt University – Law School

Vanderbilt Law Review
Trevor Cloak, The Digital Titanic: The Sinking of YouTube.com in the DMCA’s Safe Harbor, 60 Vand. L. Rev. 1559 (2007).

    In this article, Trevor Cloak begins by introducing the start-up of YouTube and how it soared in popularity to eventually be purchased by Google for its advertising revenues.  He then continues by describing how it is potentially protected by the DMCA given its status as a qualified ISP.  Cloak devotes a section to describe copyright law prior to the DMCA and how issues were dealt with before the safe harbor provision could be applied toward the liability of certain companies (ex case: Playboy Enterprises, Inc. v. Frena, p. 1567 and Religious Technology Center v. Netcom Online Communication Services, Inc. p. 1568.)  Netcom was ruled not directly liable for infringement because it didn’t directly facilitate the infringement.  Automated processes did so without the knowledge and deliberate uploading of the operators.  Questions were raised howeer, if it received and financial benefit from the infringing material.
    YouTube may or may not have been considered to be a Direct Copyright Infringer depending on how the legislation is interpreted (prior to the DMCA) (p.1572 – use Netcom case as example).   In addition, however, YouTube could be guilty of Vicarious Copyright Infringement (p 1573-1576).  The DMCA as a result, allows these charges to be lifted and for the promotion of creativity.
    This article provides a few new interpretations on the ability of YouTube to seek safe harbor protection.  I hope that the historical cases that it provides as examples will be of aid in determining how the courts have traditionally viewed the copyright issues.

This case provides an example of when a service provider was not granted the safe harbor protection of the DMCA.  Perfect 10, a nude-women-photos website and magazine, claim copyright, trademark, and rights of publicity violations against Cybernet Ventures, an age-verification service (AVS).

            Cybernet Ventures is the largest web AVS and it create revenue from users registering their website, usually getting there via links from affiliated sites, to whom Cybernet pays commission.  In response to Perfect 10’s  claims, Cybernet attempted to hide its direct financial interest or relationship, claiming that even 10,000 infringing images wouldn’t establish significant worth (pg 25 of pdf).  In doing this, it attempted to cover up a strong argument that wouldn’t allow it to afford DMCA protection.  In addition (on pg 25), we see that Cybernet failed to quickly take action in removing infringing material after Perfect10 produced a copyright infringement notice.  This conflicts with the DMCA’s “notice and take-down” provision. 

            The court refused to apply the DMCA safe harbor protection on Cybernet, due to those mentioned reasons.  Cybernet simply did not meet the requirements as stated in section 512(c) regarding financial benefits and immediate takedowns.  Between these two ideas, the financial benefits test will be of most relevance to YouTube’s standing, as we know much of its revenue is based off ads and user visits.  Just as the infringing pictures helped boost Cybernet’s revenues, the infringing videos probably increases YouTube advertisement revenues.  I think this could provide a historical case for the determination of YouTube’s legality, depending on what is found concerning YouTube’s ad placements.

 

Hendrickson v eBay et al
165 F. Supp 2d1082 (C.D. Cal. 2001)
U.S. District Judge Robert J. Kelleher
September 4, 2001

            In this case, Hendrickson is the copyright owner of a movie and wants to sue Ebay, an Internet auction website along with two employees, claiming that they infringed copyright laws.  Ebay moved for summary judgment, relying on the safe harbor provisions of the DMCA (Section 512).

            It seems as if the case was decided based on the actions (or lack of) of Hendrickson.  Ebay did not have actual knowledge of the sale of infringing items, as Hendrickson’s notice didn’t match the requirements of the DMCA.  It didn’t contain a statement adequately identifying the infringing material.

            There was also an issue concerning Ebay’s right and ability to control infringing activity.  Ebay didn’t have the right and ability to exercise control, and so was immune to liability under the safe habor provisions of the DMCA.  Richter and Ebay were determined to be innocent infringers, not knowing that any type of infringement was resulting from the sales.

            This case serves as a reminder to the importance of procedural effects and its impact on decision.  This case was chosen to go along side with my source from YouTube’s Terms of Use and their procedural explanation of a Notification of Copyright Infringement.  It highlights the importance of awareness of all parties of the legal facts.  It’s interesting that this ruling can almost be followed by the idea that ignorance and nativity influenced the decision of an interpretive system on technical terms.

In defense for YouTube’s legality, I find this to be an important source.  An analysis of YouTube’s Terms of Use will serve to really understand how this company views its own existence as a creative content-sharing forum rather than one with the goal of distributing infringing material.  In these Terms of Use, we can see that YouTube explicitly states its policies regarding the posting of unauthorized copyrighted works, repeat infringers, and the termination of such users’ accounts.  Users are not permitted to upload illegal content as doing so will result in penalty by law.  Any uploading of risky material would be done at the user’s risk, as YouTube will assume no responsibility for any illegal or offensive content. 
    In dealing with content control, YouTube states that it reserves the right to determine if User Submissions (video or text) are appropriate by their own discretion and to remove these User Submissions if deemed necessary without the prior notice to the user.  This shows how YouTube has put forth the effort to prevent or stop infringing videos, unlike the case of Grokster, which explicitly attempted to spread unlicensed material. 
    Taking these policies and actual enforcement of these policies into consideration, we have a better idea of YouTube’s goals.  It is important to also consider the actual enforcement, as evidence of YouTube not taking action would be detrimental in its protection by the DMCA.  The DMCA is also mentioned in the agreement, explaining how to submit any copyright infringement notices if necessary. 
    These Terms will serve, in my paper, to provide evidence that YouTube in fact promoting legal and acceptable behavior.  It serves as a strong point to show that YouTube includes these Terms in order to seek safe harbor by the DMCA.

    This is essentially what most of my paper is about – the application of the DMCA to YouTube’s existence as a business hosting thousands of copyright-infringing videos.  Without this, YouTube would be liable for costs that would probably put it to bankruptcy.  In the case between Viacom and YouTube, YouTube claims protection by the DMCA in Section 512(c), which was designed to protect commercial Web-hosting services, which feared they might be held responsible for posting habits of users.  YouTube essentially serves as storage of content at the direction of its users, it is able to find shelter in the same safe harbor that Web-hosting companies do.
    The Act lists the requirements under which YouTube must fall in order to have limited liability for infringing material on their servers.  These include that the provider not have prior knowledge of infringing activity, is able to control any infringing activity , not receive a financial benefit directly attributable to infringing activity.  Also if service provider receives a proper notification of claimed infringement, action must be taken to either remove or block access to that content.  
    In my paper, these criteria will have to be applied to the Viacom v. YouTube case to determine if YouTube in fact, is liable.  The idea of apparent knowledge must be determined, as it is obvious that YouTube is aware of the activity, but what is to be done about this?  While there should not be any financial benefit to the service provider related to infringing activity, YouTube is known to be a platform for many ads, which leads to the question if these ads a truly independent of the content.  Finally, YouTube’s method of addressing copyright notifications is important in determining the legality of its operations.

Jason Breen – UCLA School of Law

    In this article, Jason Breen briefly examines how YouTube would fare under different theories of copyright infringement and then discusses if the DMCA would be able to provide a safe harbor if YouTube is determined to be liable for infringement.  The article reviews YouTube based on the different criteria as listed in the DMCA.  The article goes through the different requirements as listed by a few of my other sources.
This includes technical and logistical issues such as how it operates or notifies its users of copyright law.  It also assures that YouTube is, in the aspects of the DMCA, considered a qualified service provider, because nothing else is protected under section 512 under Title II.  The topics of not knowing of the infringement or not having the ability to control infringement also lead to the belief that YouTube will be defendable.  Additionally, as YouTube relies on advertisements to generate revenue, the close associations between ads and infringing videos throughout the website could render YouTube disqualified for the safe harbor provision. 
    While this article is much longer, it should serve as a great source that goes into more detail in the subtopics that should be analyzed in determining its protection.  It also takes YouTube and compares it to a number of older services that suffered under copyright infringement law, such as Aimster, Grokster, and Napster. 

Name: Branwen Buckley (J.D. Candidate, Columbia Law)

            Branwen Buckley, a J.D. Candidate (2008) at the Columbia Law School, analyzes the possibility of YouTube defending itself under the protections the Digital Millennium Copyright Act (DMCA) against Viacom’s claims of copyright infringement.  In this article, Buckley discusses the criteria of the DMCA in first, an objective manner.  In doing this, she also shows how these points support and go against YouTube’s position. 

            She then provides several cases including Religious Technology Center v. Netcome, and Costar Group, Inc v. Loopnet, Inc. to show how YouTube could be a passive conduit for content posted by users.  It goes into detail how YouTube operates as a business, generates revenue and financial benefits, manages links, and deals with notifications of infringement.  It also describes the automatic user generated system which operates the websites.

            It gives a Fair Use Analysis, descriptively going through the four criteria as stated by the Copyright Law. 

            In the case that YouTube loses the case, she describes both Primary and Secondary liability and is likely or unlikely to happen in regards to that.

            This article will be helpful, simply by providing all of the information outlined above, in addition to some opinions and possible outcomes.  She recognizes that while there is much copyright infringement, the website seems to be made to promote a sharing of original, transformative, and creative videos.  YouTube’s user agreement shows this.

            This is probably the most helpful article I’ve gone through so far, as it provides facts, opinions, and gives both an objective and subjective view to the case.

This article draws on theories of globalization, technology, and the struggles between trade agreements and copyright objectives to place international piracy into a global context. The author, Shujen Wang, examines the the role of Hollywood in shaping trade agreements and piracy policy as well as the interconnectedness of unilateral and multilateral solutions. Specifically, Wang documents the General Agreement on Tarrifs and Trade (GATT) which led to the creation of the WTO, the growth of U.S. trade policy from the WTO's agreement on trade-related aspects of intellectual property rights (TRIPS), and the Digital Millenium Copyright Act (DMCA). While analyzing the importance and role international piracy and copyright law play within the framework of these multinational trade agreements, Wang illustrates the necessity for copyright protection via the importance of the copyright industry in the U.S. economy. Moreover, Wang tracks the way techological developments like VCR's and DVD's have changed the moral landscape of the pirating industry and Hollywood's lobbying efforts to push for protect copyrights internationally.

This article incorporates many of the essential themes of my topic, including techology's ability to alter and push the boundaries of domestic and international copyright statutes, international piracy's role in shaping trade agreements, and the U.S.' ability to use these trade agreements to open up markets and ensure strict copyright protection for its goods. Furthermore, the article cites the specific legislation, trade organizations, and trade agreements that have been instrumental in shaping the two-pronged U.S. approach to copyright protection. Specifically with the passage of the Permanent Normal Trade Relations act with China in 1999. Overall, this article provides valuable insight into constrcting a fraework that encapsulates the complexity of Chinese piracy and how it has affected our bargaining and trade agreements and policies.

 

In this post from “The Blog Herald,” Jonathan Bailey proclaims that the X17, Inc. vs. Perez Hilton case has the “potential to drastically impact bloggers and small webmasters."  Bailey cites the copyright cases against Hilton, including the Universal Studios suit involving a topless photograph of Jennifer Aniston.  In discussing the X17 case, he purports that the blogger and the photograph agency were at a stalemate, as Hilton’s motion to dismiss the suit was denied, but he was allowed to “keep his site online while the lawsuit was pending.”  However, Hilton’s site temporarily went down when Crucial Paradigm, his Australian web host, blocked Hilton’s access “due to the volume of copyright complaints,” and subsequently, he moved his site to the Voxel Dot Net server.  The blog post discusses a separate lawsuit filed by Hilton against the photograph agency, an obvious vindictive move, “citing what [Hilton] called unfair competition.”  Hilton argues that X17 “does not pay its photographers properly” and “hires illegal immigrants” to maintain low costs.  In discussing “what was at stake,” Bailey asserts that the decision could establish guidelines for using others photographs on the Internet, especially in regard to published versus unpublished works.  He believes that if the ruling is broad enough, the decision could “impact the Youtube crowd, many of whom take copyrighted works and make humorous modifications to the video, and it could impact link blogging services that republish articles, such as Google Reader’s “Share” feature.” 
    For the purposes of my paper, this blog post introduces information not contained in the legal documents filed in court.  The fact that Hilton’s server terminated his service is representative of the highly contentious nature of the X17 lawsuit.  Although the case only involves one individual, Hilton seems to be at the forefront of the blog world; therefore, the outcome of this case may have broad implications for the whole cyber world.  The decision of the lawsuit may elucidate what constitutes a parody in regard to photographs.  Small alterations to the photographs, in the form of doodles, may be deemed a satire, rather than a parody, by a court of law, thereby making it harder for Hilton to claim fair use.  Additionally, the “unfair competition” lawsuit referenced in the blog post may reveal Hilton’s desire to retaliate against X17.  He obviously lacks standing in a lawsuit filed that alleges that X17 exploits its photographers, some with “criminal backgrounds and gang affiliations.”  The lawsuit is clearly a public attack aimed at damaging X17’s reputation.  Finally, this blog is the first source to reference Hilton’s procedure for a takedown request.  The existence of this procedure on his website seems backwards, as Hilton is attempting to secure DMCA protection for himself.  However, Section 512 of American copyright law grants protection from monetary damages if “the transmission of the material was initiated by or at the direction of a person other than the service provider.”  In this case, however, Hilton himself is posting the copyrighted pictures on his website, not an third-party user, so he affords himself no DMCA protection.

    This is a case where IO Group, the maker of adult entertainment videos, sued Veoh, a YouTube-like online video site, for hosting IO’s content (uploaded by Veoh's users) without the company’s consent.  But instead of sending Veoh a takedown notice, IO directly sued Veoh in the US District Court.  Veoh claimed it was protected by the safe harbor provisions of the DMCA, and asked for the case to be dismissed.  The judge denied IO’s request for summary judgment, determining that Veoh qualified for the protection of safe harbor.  The case is interesting because it deals with what happens when a copyright holder is so unsatisfied with the amount of work that a service provider does to prevent infringement that is skips the notice and takedown procedure all together.  IO believed that Veoh’s policies were inadequate and needed to be more proactive in preventing repeat offenders from creating multiple accounts and continuing to upload infringing content.  The Judge disagreed with this notion, and ruled that a “policy is unreasonable only if the service provider failed to respond when it had knowledge of the infringement.”
    IO’s claim in this case will be an example of an extreme view in the notice and takedown debate.  While I will likely be arguing for a reform of the procedure outlined in Section 512 because it is too easily abused, IO thought the process was so insufficient as to not even use it, and instead sought immediate relief in court.  The judge’s affirmation that Veoh had properly followed the law and that it did not need to take additional preventative measures to stop the infringement represents a blow to copyright holders who think the notice and takedown provision of the DMCA does not go far enough.  While many think that notice and takedown system fails because it is too heavy handed, IO believes the opposite.  Even though they lost, it is still worthwhile to discuss their alternative opinion, which will provide a sense of balance to the paper.

    This source linked is only McCain - Palin’s initial correspondence to YouTube.  YouTube’s response can be viewed here:
    This letter by the McCain campaign expresses former presidential candidate’s displeasure with YouTube over questionable infringement claims made by the national news media.  After the campaign created advertisements using well known video clips from national media sources and uploaded them to YouTube, news organizations like CBS sent YouTube DMCA takedown notices for hosting videos that they believed infringed on their copyright.  Central to their claim was the fact that they did not want their videos and personalities to be seen as endorsing one candidate or another.  YouTube promptly removed the videos, which drew the ire of the McCain campaign.  Even though YouTube was properly following DMCA protocol, McCain lamented that the process would take too long to be resolved (between 10 and 14 days), and asserted that YouTube should make a fair use judgment itself before removing the video.  McCain asked for special treatment, allowing for videos uploading by the official candidates’ campaigns to be looked at differently when receiving takedown notices.  In YouTube’s response, the video host declined these requests claiming that it was simply following the procedure laid out in the DMCA to protect its safe harbor status, and that they could not discriminate between uploaders.  A McCain representative asserted that the DMCA does not necessarily define with what specific speed a host must comply with a takedown notice, and responding automatically is not mandated.
    This situation provides one of the central examples I will use in my paper.  McCain’s difficulties with the intricacies of the DMCA provide a high profile example of how certain provisions can be abused.  It is particularly valuable because even though the correspondence is between the McCain campaign and YouTube, both organizations are effectively complaining about the takedown and notice process, albeit to different degrees.  Even as YouTube says it is simply following protocol, it criticizes those who abuse the takedown process.  Meanwhile, the McCain campaign reiterates the problems many see in the lack of timely recourse alleged infringers have in the process.

    This article from the California Law Review attempts to highlight the legal difference between notice and knowledge regarding cases of infringement.  When Section 512 of the DMCA was written, Congress intentionally did not make service providers directly liability for infringing material, anticipating that this would burden providers and slow growth of the internet.  In creating the notice and takedown procedure, Congress wanted to create a system where notices would be sent to inform of “potential liability” in order to spark an investigation by the service provider – not simply demanding the removal of the material.  The author says that because service providers have conflated the actual notice of potentially infringing material with the knowledge that the material is infringing, they have become prone to removing the material immediately, fearing that they will be sued for contributory copyright infringement.  The author does not believe that the receipt of a notice is equivalent to outright knowledge of infringement, and is not sufficient to put the service provider at risk.  The author also remarks that because the service provider is ultimately concern with its legal risk, this practice “poses serious First Amendment issues.”
    The confusion surrounding when a service provider becomes liable itself will be an important factor in my paper.  In trying to prove that the DMCA’s notice and takedown provision has been manipulated and abused, this article pointing out the origins of the problem will be essential.  On a fundamental level, the misinterpretation of what a takedown notice actually means and its conflation with actual knowledge of infringement represents a systematic problem, one that while not anticipated has developed over time.  Using this insight into what the initial Congressional intentions were and how those desires were not necessarily manifested in the law that was passed is a very important way to support my thesis.

    This paper was written by researchers at the University of Washington, and explores the difficulties associated with monitoring P2P file sharing networks for copyright infringement, and how the notice and takedown procedure is affected.  Two experiments were conducted, one in August 2007 and a second in May 2008, where researches intentionally implicated their own University controlled IP addresses in BitTorrent activity, but without any uploading or downloading of copyright infringing material.  As a result, the researchers received a variety of takedown notices from the music and movie industries – over 400 false positives between the two experiments.  Additionally, they were able to maliciously implicate other IP addresses in their experimentation, heavily suggesting that independent third parties without any connection to possible copyright infringing activity could receive takedown notices.  To demonstrate the ridiculousness of this, the researchers were able to get multiple takedown notices sent to the IP address of a networked printer, incapable of copyright infringement via BitTorrent.  They found that indirect monitoring of BitTorrent and other P2P networks, while less costly and resource intensive, is much less accurate than direct monitoring and results in the numerous amount of false claims.  The current methods used to monitor these networks are highly inconclusive of whether actual infringement is taking place.
    This paper is a great resource in that it takes no sides in the forthcoming “arms race” between infringers and monitors, but rather surveys the current landscape and makes determinations about the effectiveness of the strategies.  While not offering an opinion on the fair use or protected speech implications, it illustrates how takedown notices are issued without extensive care.  To receive a notice when no uploading or downloading of an infringing file has occurred, or even worse, when a person is arbitrarily and incorrectly framed for being involved in using BitTorrent, exemplifies the failures of the current system.  Anecdotally speaking, the example of the printer receiving a takedown notice for downloading an illegal file is specifically poignant.

    This study was conducted in 2006 by Jennifer M. Urban and Lauren Quilter, surveying the effects of Section 512 of the Digital Millennium Copyright Act on the Internet.  The two used an empirical approach to look at the notice and takedown landscape, and collected data about the number and type of notices that were sent in recent years.  Google provided all the notices the company had received between 2002 and 2005 (constituting the majority of the data), with non-trivial supplements coming from the Chilling Effects Clearinghouse.  The researchers were careful to point out a variety of issues with the data set, including a potential bias in the Chilling Effect notices, since these were self-reported cases.  The Google information also is flawed to a degree, since notices sent to a search engine like Google are not necessarily emblematic of the entire notice and takedown climate.  This is displayed by a discrepancy between the data and common perception, with music and movie companies accounting for few of the takedown notices, since they find it more useful sending takedown notices to non-search engines.  Acknowledging the need for additional data and further research, the study concluded that there a large number of claims had serious substantive questions.  While anticipating some notices to be unjustifiable, the high number of problematic notices that were found was “particularly troubling.”  Since the researchers used a high threshold of what would be considered questionable (choosing to use cases where fair use only could likely be used as a proper defense) the results are even more severe than first appear.  Even so, enough claims were made without sufficient justification or sometimes without any at all (claims regarding material which are not subject to copyright) for the study to conclude that the “implications for expression on the Internet of this extrajudicial process appear, from our limited data, significant.”
    This is going to be very helpful in my paper, since it will be one of the few but important statistical analyses I use.  Many of the other works are theoretical expositions by professors and academics, citing specific cases and expanding out the reasoning to apply to more generic cases.  However, this study uses nearly 1,000 data points to arrive at its significant conclusions that will aid me in my argument.  Most importantly, I will reference the high rate of improper claims, representing the low barrier to entry to submit even a fraudulent claim, and its negative impact on free speech on the internet.

    In this article, Paul Alan Levy echoes the calls by some to combat abuse of the DMCA notice and takedown system by shaming those who make illegitimate claims and the others who needlessly comply, as well as take possible legal action against them.  Levy also argues that the better approach would be to reform the DMCA itself, especially since both the McCain and Obama had problems with the system, and both would be a position to change the law regardless of the election outcome.  He proposes 5 specific changes in the DMCA.  The first would be to allow ISPs and service providers to not effectively be required to immediately takedown allegedly infringing material, while still maintaining safe harbor status.  Secondly, he proposes making it easier for people who receive bogus takedown claims to receive compensation via statutory damages, presumably deterring copyright holders from filing false claims.  He also suggests notification by the service provider to the possible infringer before the content is removed, as well as requiring takedown notices to be submitted to a public database for viewing.  Finally, Levy argues for all intellectual property types to be protected, not just copyright.  His agenda is put forth at a time when both potential presidents, having felt the negative effects of the DMCA, may be more motivated to remedy it.
    This article is extremely beneficial in that it outlines a significant number of ways to amend the DMCA and resolve the current notice and takedown problem.  His position is not explicitly based in anger, aggravation, or retribution, and offers a clear list of ways to fix a broken system.  I will primarily use this article to offer constructive remedies to the problem I plan to expose.  Particularly, his suggestion to allow the service provider to notify the alleged infringer prior to the content being removed, while simultaneously not surrendering its safe harbor status, is a proposal not without flaws, but could possibly be an important part of the recommendations I make to fix the system.

    This legal analysis by Fred Von Lohmann of the Electronic Frontier Foundation is empathetic of the McCain campaign’s fair use/YouTube problem, as the EFF has been championing internet freedom and fair use principles for many years.  However, he is highly critical of McCain proposed solution, which would put the burden on YouTube to conduct legal reviews of videos posted by political candidates that receive takedown notices.  He thinks this notion is backwards, since in terms of political speech, amateur commentators are the ones that need special protection from phony takedowns.  Despite the failings of the McCain proposal, he goes on to identify the true problem in these situations: the news media organizations.  He believes it is their responsibility to refrain from sending bogus takedown notices for legitimate fair uses.  As for a recommended response by the public when they don’t, he encourages public shaming of the companies, as well as potential lawsuits for submitting a takedown they knew was illegitimate.  He also supports the claim made by the McCain campaign that it is not incumbent upon YouTube to follow this strict procedure in the case of fair use, which YouTube itself could reasonably determine with human intervention.
    Lohman’s analysis will be useful in that it finds fault with all parties involved in the process: the alleged infringers, the copyright holders, and the host.  He also puts forth a compelling reason why McCain’s solution would not be ideal from a societal point of view.  The actual reason McCain’s proposal was rejected was because YouTube said that their hands were tied in the process; Lohman says that even if YouTube could treat politician's videos differently, they still shouldn’t.  The author is transparent in placing most of the blame on the news organizations themselves.  Other articles refrain from making the obvious claim that if it weren’t for the media foolishly asserting a broad claim to copyright, this wouldn’t be a problem.  Finally, he corroborates the assertion made by the McCain campaign that YouTube does not necessarily need to act with as much immediate speed as it says it does.

    This policy paper from the Brennan Center for Justice sought to determine how strong the fair use doctrine remains in the digital age.  For the section analyzing the role notice and takedown plays, the catalog of 2004 letters received by Chilling Effects Clearinghouse was used as the data set.  To determine issues concerning fair use and the First Amendment, a subset of 153 letters was used.  The authors mentioned that it is more likely than not that this data sample under represented possible speech-suppressing efforts because only those people knowledgeable enough to submit their letters to Chilling Effects were included.  With this in mind, the complaints were split into strong, reasonable, possible, and weak fair use claims.  The results were described as “troubling,” with the combination of the accusers who had only a weak claim to copyright and the alleged infringers who had a strong claim to fair use amounting to 20% of all claims.  Another 27% of claims fit into the category where there were possible fair use defenses.  In total, the author puts forth that almost one in two takedown notices had the potential of improperly hindering free expression.  The study is important because it concludes that censorship power is put “in the hand of the IP owners.”
    Although a likely assumption, this study demonstrates the correlation between strength of the fair use defense and removal of allegedly infringing material.  Naturally, the more substantive the fair use/First Amendment claim, the more likely the alleged infringing content would remain online.  I will possibly use this in support of the idea that the notice and takedown system is not as reckless and arbitrary as some would claim.  However, I will also be sure to point out that even in cases of strong fair use, there was a significant occurrence of free-speech suppression, with over 40% of material either partially or entirely removed.

    This order from the US District Court for Northern California rejects Universal Music Group’s request to dismiss the lawsuit against the music company by Stephanie Lenz.  Months after posting a clip of her son dancing to a Prince song to YouTube, Universal asked the video host to remove the clip, claiming she was infringing their copyright of the song “Let’s Go Crazy.”  Following the procedure under the DMCA, Lenz told YouTube that her video was legal, and it was restored – Universal did not pursue legal action against Lenz since her use was clearly fair.  However, in conjunction with the EFF, Lenz sued Universal for acting in bad faith, and asked for compensation covering her legal costs.  She alleged that Universal specifically did not “belie[ve] that [Lenz] actually infringed a copyright,” and that its takedown request was entirely improper.  This order covers the most recent development, with Judge Jeremy Fogel refusing to dismiss the lawsuit as Universal wanted, and declaring that copyright holders must take fair use into account before issuing DMCA takedown notices.  Universal had argued that it was not incumbent on copyright holders to consider a potential fair use defense, and that doing so would be costly and disruptive.  The Judge rejected this argument, and while admitting that he did not believe it to be likely that Lenz could eventually win the lawsuit against Universal, still allowed it to progress nonetheless.
    Fogel’s decision is going to play a big role in my paper, as this order sets precedent for other courts to look fair use at when determining takedown-abuse cases.  The decision is unique in that it helps define what a copyright holder must do to clear the “materially misrepresents” hurdle set in Section 512, adding consideration of fair use.  Previously, it could have been possible for copyright holders to more recklessly send takedown notices to service providers, and make a credible claim that they were not active in misrepresenting since a limited (and undefined) amount of care was given to the process.  With the addition of fair use, the burden is higher, which I will argue is beneficial to the takedown process.  Despite the judge’s assurances that adding a fair use component will not add a tremendous amount of complexity to the process, it will also be worth mentioning how many people disagree with this claim, believing that the four factor test for determining fair use is inherently nebulous and difficult to use.

The author, in this entry from a Web 2.0-centric blog, details Youtube’s recent efforts to both appease copyright holders and to promote creativity amongst its users.  In January 2007, Youtube unveiled plans for a Revenue Sharing program which would give certain Youtube users a portion of ad revenue Youtube receives based on the number of hits their videos garner. Youtube will give even higher exposure to users labeled as “Directors,” people who are allowed to upload films greater than 10 minutes in length. Similarly, Youtube will share revenue with some copyright holders based on ad money they receive for the viewing of infringing videos. The author discusses the possibility that Youtube will have to increase the number of ads it shows to make up for the profit lost from the Revenue Sharing Program. This leads to the dilemma of Youtube losing viewers if advertisements begin to show up before minute-long clips. To increase the effectiveness of heightened advertising, Youtube may have to adopt a TV style model in which “an advertiser pays Youtube (and thus the content creator) X amount for every viewing.”  To appease advertisers, Youtube’s new Audio Fingerprinting technology could be used to prevent inappropriate videos from being paired with reputable brands. This would be similar to Google Adsense which provides targeted advertising to firms. The problem relates to copyright because if Youtube adopts targeted advertising, which it has recently begun to do, it will be receiving revenue for ads placed in front of infringing videos for which it does not have deals settled with the copyright holders, thus increasing the possibility of them being vicariously liable. The solution, the author notes, is to use Audio Fingerprinting to detect copyrighted material and then inform the copyright holder, who will have the option to either remove the material or share revenue gained from the video with Youtube.

This system could potentially solve the problem of both Youtube and the copyright holder losing money from various transactions. Youtube loses money when it devotes bandwidth and time to a video only to have the video deleted due to a takedown notice. Similarly, the holder loses money wasting man hours filing takedown notices and finding the actual infringing material. If both groups work together, as Youtube intends, companies will be much less likely to sue Youtube, especially if they are actually making money from infringing videos posted online. Similarly, Youtube decreases its chance of liability because it is increasing its promotion of original works by paying some users. By offering directors a part of the revenue earned from their original and creative works, Youtube is encouraging users to make their own films rather than simply splicing together copyrighted material (which leads to zero profit for users). Thus, with the adoption of the revenue sharing plan detailed above, Youtube has simultaneously appeased the copyright holders and expanded its promotion of original material, showing courts that there are indeed significant “non-infringing” uses for Youtube.

Lexis Nexis Article

October 10, 2006 Tuesday 4:22 PM EST
Will Google Pay for YouTube Infringements?

BYLINE: Natali Del Conte Natali_DelConte@ziffdavis.com

SECTION: NEWS AND ANALYSIS

LENGTH: 856 words

HIGHLIGHT: YouTube may have been able to avoid copyright lawsuits by simply not having any cash to go after. But Google makes a much better target.

Mark Cuban, creator of Broadcast.com and outspoken opponent of Youtube, directly compares Youtube to the original Napster website in this blog entry. He attributes Youtube’s quick success to two specific sources: “Free Hosting from any 3rd Party Site” and “Copyrighted music and video.” He goes on to make direct comparisons between Grokster, Napster, and Youtube. Napster was “the first to tell you it [pirating] wasn’t illegal.” He argues that the only reason Youtube hasn’t been brought to court multiple times already is that the studios are not sure what having so many clips available illegally means for them financially. Similarly to Napster, once the lawsuits begin, they will not stop until the service is forced to shut down. He observes that Youtube is remarkably similar to Napster, because users can simply open as many Youtube pages containing copyrighted songs as they want, and then listen to the songs as they would on Napster. Youtube will be hurt not just by lawsuits, but also by the wide availability of copyrighted content in legal online channels, such as NBC making clips available on its own site. Cuban states that as soon as Youtube is sued by copyright holders, it will be forced to find and remove all infringing content. This will leave the site, he argues, devoid of most appealing content.

While Cuban is correct in noting that there is a large amount of copyrighted material available on Youtube, he fails to take into account several key details. First, he states that Youtube will be sued for inducing others to commit infringement, just as Napster and Grokster were sued. Unlike Youtube, however, Napster and Youtube advertised themselves as sites which allowed users to download any music they wanted. They actually did induce users to visit the site for the purpose of downloading infringing material, whereas Youtube encourages users to visit its site to host user-generated content, evident from its slogan of “Broadcast Yourself.” Cuban also suggests that after copyrighted material such as TV shows is widely available in other locations and once copyright holders begin ordering their content to be removed, Youtube would be devoid of any content to set it apart from competitors. However, sites like Hulu, Joost, and services run by major Television studios have been online for over a year and Youtube is as popular as ever. This debunks the argument that Youtube would be unappealing once its copyright material was removed and other legal video-viewing services were established. Rather, users still visit the site for non-copyrighted material, and it continues to thrive, having just signed several deals itself with major content creators and TV Studios. Cuban’s main oversight is in the DMCA. He completely fails to take into account the fact that the DMCA Safe Harbor law removes Youtube from direct liability for any infringing videos that are posted on its service, so long as it removes them upon request of the copyright holder.

Copyright Notice that Youtube posts for its Users.

On March 13, 2007, Viacom International Inc. filed a class action lawsuit against Youtube claiming massive copyright infringement by the defendant. Viacom filed the suit after sending takedown notices to Youtube demanding over 150,000 copyrighted videos be removed from its servers. In its complaint, Viacom notes “millions have seized the opportunities digital technology provides to express themselves creatively.” However, Viacom argues that Youtube has “harnessed technology to willfully infringe copyrights on a huge scale.” Youtube, the complaint urges, has built a library of infringing video clips in order to increase profit. Rather than attempting to remove all infringing videos, Youtube “has decided to shift the burden entirely onto copyright owners to monitor the Youtube site…to detect infringing videos and send takedown notices to Youtube.”  Viacom claims that Youtube increases its own value at the expense of copyright holders through the following methods: displaying advertisements above infringing videos, allowing users to embed infringing files onto other websites to draw users to Youtube and subsequently increase ad revenue, and permitting users to keep copyrighted videos hidden from the public. Viacom also notes that Youtube hosts the videos on its own servers, rather than simply acting as a conduit through which users pass files. This, in Viacom’s interpretation, makes Youtube the primary copyright infringer as it is the entity that is actually “performing” the copyrighted footage.

Youtube is one of the more influential websites in the development of Web 2.0. The website has essentially ushered in a new age of internet democratization by giving all users the ability to create and host content. Viacom’s complaint fails to take several important copyright issues into account, however, decreasing the lawsuit’s validity in several key issues. First and foremost, it assumes that Youtube has a clear intention of hosting copyright infringing content. While the court decided that Grokster, in MGM Studios v. Grokster, did not have sufficient non-infringing uses to escape liability, Youtube was developed as a website where average internet users can upload home videos. When asked about a memory associated with Youtube, users will typically discuss a humorous home movie they saw rather than an illegal movie clip. Similarly, Viacom assumes that Youtube is responsible for policing its site for all copyrighted material, failing to mention the DMCA once in the lawsuit. The Safe Harbor clause of the Digital Millennium Copyright Act, however, removes service providers from liability for any copyrighted material that users upload to their servers, specifically if the content provider removes material that a copyright holder insists is infringing. Youtube immediately removes material upon receipt of a takedown notice, typically without even ensuring that the entity which issued the notice is actually the copyright holder. Youtube is similarly protected by the Inducing Infringement of Copyrights Act, which protects sites which do not induce others to commit copyright infringement. Rather, Youtube encourages users to produce their own works.

In early 2007, Viacom sued Youtube for extensive copyright infringement. Youtube claimed protection under the Safe Harbor law in the Digital Millennium Copyright Act, but arguments still abound regarding the extent to which Youtube is liable for copyrighted files uploaded to its servers. In my paper, I will attempt to answer that question: how liable is Youtube for copyright infringement committed by its users and what can it do to ensure protection from further liability? I will begin my bibliography, and my paper, with the original Viacom lawsuit, followed by articles detailing the emergence of the DMCA. I will then cite several articles and cases arguing both for and against Youtube's innocence. This will be followed by several examples of steps Youtube can take to shield itself from liability. I will finish my argument by citing the judge's decision in the Viacom case, which still fails to offer a definitive answer of whether or not Youtube is liable for infringement.

This is a summary of the Digital Millennium Copyright Act of 1998 released by the Copyright Office. The DMCA was signed into law by President Bill Clinton. It is divided into five titles.

• Title 1: WIPO TREATY IMPLEMENTATION implements the WIPO treaties. The title makes several technical amendments regarding national eligibility, restoration of copyright protection and registration as a prerequisite to suit. Although the title provides exceptions, the title essentially prohibits the production/services of copyright-protection circumvention tools. Further it prohibits the distribution of such tools/services.
  
• Title 2: ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION. The title essentially provides a safe-harbor for online service providers as long as they meet certain provisions of the title. It establishes for classes of online services: transitory communictations, system caching, storage of information on systems or networks at the direction of users, and information location tools. In general as long as a service provider does not have requisite knowledge of infringing material, does not recieve financial gain attributable to infringing activity, and further more once the service provider is notified of infringing material it must act fast to take down or block access to such material.
  
• Title 3: Computer Maintenaince or Repair. This title basically says that an owner of a computer or a lessee doing maintenance or repair on the computer is excempt from copyright infringement if a situation arrises during which one must make a copy of a program for back up purposes. However the original copy must have been lawfully owned and further once all repair/maintenance has been finished the back up copy must be destroyed.
  
• Title 4: MISCELANIOUS PROVISIONS. This title further clarifies certain existing provisons and implements new ones regarding broadcast excemptions, library and archive excemptions among other things.
  
• Title 5: PROTECTION OF CERTAIN ORIGINAL DESIGNS. This title primarily deals with the protection of vessel hull designs.
  

This source is very valuable for my reseach paper. Specifically Titles 1 and 2 are going to be analyzed and used in my research paper. Title 1 is important in 1 crucial way. Although it may be a leap, in the sense of a legal court room, but I believe that the following analysis can be seen valid. IsoHunt and other similar websites link to/index .torrent files that allow users to download ISOs. ISOs are images of original CDs or DVDs. Now given that the DMCA prohibits the circumvention of encrypted DVDs, and other content such as software, these ISOs are illegal according to Title 1 of the DMCA. IsoHunt and other similar websites allow users to search for and download such ISOs. The title of the website itself: "IsoHunt"  suggests that the primary purpose of it is to "hunt" for "Iso"s. Title 2 is important for my paper because site operators such as Gary Fung (see affidavit no.1) often claim that as long as they follow the safe harbor provisions established by Title 2 of the DMCA, they may not be held liable for contributory infringement. Thus in my research paper I plan to make careful analyses of both these safe-harbor provisions and the claims of site operators. Title 2 is also important because many other important sources that will be used directly deal with this title.

United States Copyright Office.  The Digital Millenium Copyright Act of 1998: U.S. Copyright Office Summary.  United States Copyright Office.  28 November 2006. .

This is a summary of the Digital Millenium Copyright Act, created by the Copyright Office. It renders the more technical language and organization of the law itself into a much more straightforward form. It definitely says something about the polarizing nature of the DMCA that the only article which I have come across without a very strong, clear viewpoint of the subject is a pure summary; as could be expected, the Copyright Office is attempting to maintain an objective viewpoint, to whatever degree possible.

The DMCA was created as a way in which copyright law could be adapted to the questions raised by digital technologies. The most controversial section of the DMCA added a Chapter 12 to Title 17 of the United States Code; this section contains the much-talked-about "anticircumvention provisions", criminalizing any attempt to break through digital copy protection (CSS encryption on DVDs, etc.). Another section of law removes any liability for online copyright violations from online service providers as long as they adhere to certain broad guidelines. There is also the possibility of application for exemptions from the DMCA for non-infringing uses which require circumvention of encryption.

My project requires a detailed knowledge of the provisions of the DMCA itself; I not only plan to quote directly from the DMCA in my project, but also to use clips appropriated from DVDs to create the project. This summary of the law is one of the most simple and concise descriptions of its provisions, without much color in the form of personal opinions.

 

United States Copyright Office.  The Digital Millenium Copyright Act of 1998: U.S. Copyright Office Summary.  United States Copyright Office.  28 November 2006. .

This is a summary of the Digital Millenium Copyright Act, created by the Copyright Office. It renders the more technical language and organization of the law itself into a much more straightforward form. It definitely says something about the polarizing nature of the DMCA that the only article which I have come across without a very strong, clear viewpoint of the subject is a pure summary; as could be expected, the Copyright Office is attempting to maintain an objective viewpoint, to whatever degree possible.

The DMCA was created as a way in which copyright law could be adapted to the questions raised by digital technologies. The most controversial section of the DMCA added a Chapter 12 to Title 17 of the United States Code; this section contains the much-talked-about "anticircumvention provisions", criminalizing any attempt to break through digital copy protection (CSS encryption on DVDs, etc.). Another section of law removes any liability for online copyright violations from online service providers as long as they adhere to certain broad guidelines. There is also the possibility of application for exemptions from the DMCA for non-infringing uses which require circumvention of encryption.

My project requires a detailed knowledge of the provisions of the DMCA itself; I not only plan to quote directly from the DMCA in my project, but also to use clips appropriated from DVDs to create the project. This summary of the law is one of the most simple and concise descriptions of its provisions, without much color in the form of personal opinions.

 

In the 1999 case Sony Computer Entertainment America, Inc. v. Gamemasters, Sony sought a preliminary injunction on Gamemasters’ distribution of accessories for the Sony Playstation game console. Sony alleged that Gamemasters violated anti-circumvention regulations of the Digital Millennium Copyright Act (DMCA) as well as state and federal unfair competition laws. Gamemasters, a retail store in California, was sued for selling a game enhancing device. The court granted the injunction and essentially eliminated all sales of such devices by Gamemasters.

This external device performed two primary functions when plugged into the Playstation game console. First, the game enhancer allowed users to temporarily modify aspects of the game, similar to the Game Genie, manufactured by Galoob Toys for use on the Nintendo. Nintendo v. Galoob Toys, as decided in 1992, declared that the Game Genie was not in violation of copyright laws as it was not a derivative work of the Nintendo console and the Game Genie was a fair use of the Nintendo game system. Second, and most importantly, this game enhancer permitted players to play Playstation games sold in Japan or Europe which were intended by Sony for exclusive use on Japanese or European consoles. The game discs contain electronic check codes which are checked by the console when inserted. Discs with codes that do not match the region in which the console operated were rejected. The game enhancer overrode this protection.

By invoking the DMCA, Sony stopped the use of potential copyright and trademark violating technologies. However, critics of the DMCA noted that this decision also allowed Sony to continue its controversial business practice. Sony divided its game distribution and operations into separate international regions. By disabling games from one region to be played in another, authentic Sony Playstation games played in one part of the world suddenly became illegal versions after crossing borders. With increasing video game products offering multiplayer and global competition, these restraints pose legitimate threats for the future of fair gaming, especially online games. Such restrictions enabled Sony to protect its anti-competitive business model and possibly promote price discrimination between different areas of the world.

I am working on creating a short video piece using clips from a number of different DVDs. By using short segments (one word or less), I plan to have the characters in the films I borrow from speak out portions of the anticircumvention provisions of the Digital Millenium Copyright Act. In this way, I will be using appropriated (and, most likely, non-DMCA-compliant) video footage to comment on the questions raised by the conflict of the DMCA and appropriation art themselves.

Newman, Jon O. EFF: Appellate Decision in Universal v. Reimerdes. Electronic Frontier Foundation. 22 November 2006. <http://www.eff.org/IP/Video/MPAA_DVD_cases/?f=20011128_ny_appeal_decision.html>.

This famous court case involved the publication of the "DeCSS" decryption program on the website 2600.com.  "DeCSS" was designed to break through the CSS encryption on DVDs.  The action of posting this program challenged the Digital Millenium Copyright Act which bans any measure of breaking through digital encryption, or any publication or distribution of any such measure. Eight film studios, including Universal, brought a suit against the operators of 2600.com, seeking to have "DeCSS" and any links to other sites containing it removed from 2600.com for violations of the DMCA.

The appeal challenged the constitutionality of the DMCA, claiming that it restricts free speech, and called for a narrow construction of its terms.  They also claimed that "is rooted in and required by both the Copyright Clause and the First Amendment," and that the DMCA restricts this.  However, the appeals court found no reasoning for these claims, and upheld an earlier injunction by a lower court requiring the removal of the "DeCSS" program and any links to it.

This case is extremely important because it establishes that arguments regarding fair use and free speech are almost no match for the terms of the DMCA.  Were it not for the DMCA, I think it would definitely be easy to argue for my video project as a fair use; however, cases like this clearly state that this is no defense.  The court states that there is no constitutional requirement for a fair use standard, and that such claims cannot supersede violations of anticircumvention laws.

            This case was brought to raise questions about the legality and constitutionality of the Digital Millennium Copyright Act. The argument is that "the DMCA's anti-device provisions are not a valid exercise of any of Congress' enumerated powers," and that they also "violate limits on the scope of copyright protection required by the First Amendment." The first part says that the Intellectual Property Clause does not give the authorization that anti-device provisions give, which allow technology to be banned regardless of how the device is actually used. The second argument is that in the anti-device provisions, Congress overstepped the authority given by both the Intellectual Property Clause, and the Necessary and Proper Clause, and upset the balance created by the Intellectual Property Clause, resulting in the monopolies that the framer sought to avoid. The third argument is that the Commerce Clause does not empower Congress to override other constitutional constraints. The fourth argument is that anti-device provisions violate First Amendment Limits on the scale of copyright protection.

 

            I am researching why copyright holders in the case specifically of major record labels are willing to waive their copyright in certain situations such as MP3 blogs while choosing to exercise the copyright in similar situations such as peer-to-peer file-sharing networks. The case is relevant although it is not about blogs in that it provides an argument against a proposed end goal for copyright holders, the DMCA's anti-device provisions. The argument is that it upsets the balance intended between copyright and censorship and monopolies. Anti-device provisions would ban many devices even with commercially significant uses and would contradict fair use and First Amendment arguments, and would effectively end any possibility for use of technology such as MP3 blogs.

            This essay describes what an MP3 blog is, and how record labels want to capitalize on the promotion that they provide while fighting file sharing at the same time. The essay discusses the types of copyright infringement and fair use and how they apply to MP3 blogs, as well as the factors that cause the court to view MP3 blogs more favorably than peer-to-peer networks. It discusses law suits against Napster and also by the RIAA against peer-to-peer users.  The article explains what establishes liability for infringing use, and the different expansions of the Copyright Act which have been brought by copyright owners in addressing new technologies. It then discusses some of these acts and gives some examples of violators. The next section explains the defense used when copyright owners bring suits, which is fair use, and it lists and describes the four factors in deciding fair use on a case by case basis.

 

            This essay incorporates basically every aspect of my research into why copyright holders are willing to waive certain copyright in cases such as MP3 blogs, while they continue to fight against much of new technology such as peer-to-peer services. It describes what MP3 blogs are and how they are used and different sites that can link to the unauthorized music.  It shows what the copyright holder needs to look for in order to bring a suit against infringing users, and also explains how the user of the work can try to use fair use as a defense.

            This is a long essay about corporate power in the music industry. The argument is that cross-ownership in the media tends to reduce competition and increases profits, in turn, forcing music production to become increasingly uniform and profit driven, and harming artistic expression. It has descriptions of corporate sponsorship, and the loss of diversity. The next section is about Clear Channel Communications, and how the consolidation takes away jobs, excludes a large variety of music, and provides listeners with a biased source of information. Next, is the analysis of a recent hit, which examines the predetermined song structure which results in homogenized music and play lists, this is called the sound of corporate music. The conclusion suggests that a number of musicians would prefer to circumvent the bureaucratic systems of the industry, and that in order to preserve the artists ability to express sometimes controversial and diverse views, that musicians and the population at large would prefer legislation that moves away from monopolies.

 

            This article is relevant to my research in finding out why copyright holders are willing to waive some of their copyright in such cases as MP3 blogs, which often involve unauthorized downloading of copyrighted work. In the conclusion of the article, it suggests that a majority of musicians are not so upset about free downloads and many who are independently minded, support distribution systems that are not connected with the industry devotion to profit. Some artists who want to make more controversial material release it for free on the internet. It also suggests that this is a reaction to media consolidation, and provides some argument that more copyright control leads to the growth of monopolies, and the limiting of new technology and expression.

            This article is written by Cary Sherman, president of the RIAA as a response to a speech by Consumer Electronics CEO Gary Shapiro in which Shapiro stated that downloading off the Web is neither illegal nor immoral. Sherman says that statement is wrong and misleading. Shapiro says that legal downloading from record companies and legitimate online music companies is fine but there is a problem with unauthorized downloading of copyrighted material, and sites Title 17 of the United States Code. Sherman writes that the fair use argument employed by Shapiro makes falsely seem as if copyright owners are against fair use, and that the fair use claim is unsupported when it comes to unauthorized use. Sherman argues against Shapiro's claim that downloading is different from taking a tangible property by writing that both owners have been deprived of something of value. Sherman refutes Shapiro's use of the first amendment and also says that companies are in fact aggressively pursuing a more flexible business model that does take advantage of new technology. Shapiro writes that the industry using technology and the internet is beside the point and that the real issue in what Shapiro is saying is that "digital stealing isn't really stealing" and the last thing we need is more polarizing rhetoric.

 

            For my research on why copyright holders are willing to waive copyright in some instances such as MP3 blogs because the new technology has benefits in promotion, this article is a firm example of the view from the record labels about copyright law and internet uses. It is written by the president of the RIAA, Cary Sherman and gives an argument in favor of strong copyright law, and a rebuttal to a speech by the Consumer Electronics CEO Gary Shapiro in favor of weaker copyright law. It provides the viewpoint of the music industry about downloading, but it is interesting in that it does not mention anything about record companies such as Warner who at times chose to solicit certain independent blogs and will send the bloggers music with the hope that the blog will help promote the record label's artist for free.

            This is a speech given by Gary Shapiro, the President and CEO of the Consumer Electronics Association about growing tension between copyright owners and new technology. Shapiro speaks about how new reproduction technology and transmission technology has increased the fears of the music and motion picture industries. He draws parallels to new technology in the past such as the VCR, and CD and cassette recording. Today with mass availability of copies of music and movies, the content community has used congress, courts, and the media to challenge new technologies. Shapiro says that he believes that hardware and software companies have an interest in working together to see more products,  and that they can misuse source protection and DVD encryption to sell more products while limiting new technologies. Shapiro says that lawsuits have shut down file -sharing services, threaten peer-to-peer networks, challegenged as illegal devices which allow consumers to skip commercials, and has subpoenaed ISPs to identify downloading subscribers. Congress has introduced legislation that will require technology to be shaped by a government-mandated copy protection system. Shapiro comments on the language used by Hollywood and the music industry using words like "piracy" and "stealing" to describe downloading. Shapiro asserts that downloading is neither illegal nor immoral. He says that downloading is not taking away a copy of the product from someone, and in some cases helps promotion. His principles for policymakers to follow ask that a very high amount of evidence be found before restricting technology.

            For my research on MP3 blogs and why copyright holders are willing to waive some of their copyrights and allow the blogs to post their music this speech shows a view which is far to the fair-use and weak copyright law. It is clear support for allowing the new technologies and the internet to be created and exist, and for there to be significant evidence of a negative effect on the copyright holder before the technology is restricted. The key line by Shapiro for my project is when he submits that downloading off the Web is neither illegal nor immoral. He sites fair use as being given on a case by case basis and that in many cases of downloading the use has "been shown to be neutral or beneficial to the copyright owners, and have either been tolerated or accepted as fair use." He also discusses how downloading can even lead to further sales, when people buy the whole CD from the song he or she heard on the internet.

Electronic Frontier Foundation. EFF: Unintended Consequences: Seven Years Under the DMCA. Electronic Frontier Foundation. 28 November 2006. .

This article tracks the continued influence of the Digital Millenium Copyright Act, specifically the "anti-circumvention" provisions of Section 1201, throughout its first seven years in effect. The Electronic Frontier Foundation argues that the DMCA has not been used as a method of blocking piracy and devices used to perpetrate it, as Congress intended it; instead, the DMCA has become a tool for big businesses to eliminate potential competition and a blockage to fair use, creativity and technological innovations. Because the DMCA "chills free expression and scientific research... jeopardizes fair use... impedes competition and innovation... [and] interferes with computer intrusion laws", the EFF argues that circumvention must be permissible. The article also contains an exhaustive list of court cases in which the DMCA has been a key factor.

Full knowledge of the restrictions of the DMCA and a general sense of the ways in which legislation has surrounded it is absolutely vital for the creation of my project; the essential goal of my project is to make a challenge to the DMCA and the restrictions that it has placed on artists, specifically in terms of digital video.

321 Studios is a company that produces a software program that can be used to back up DVDs. 321 claims that their product does not violate the DMCA because it has substantial non-infringing uses. The beginning of the document gives technical background on what a DVD is and how CSS encryption works. It also gives information on the companies involved in the lawsuit. 321 Studios filed the suit to prove that their software does not violate copyright law. Next, the document presents the legal standards for a motion of summary judgment, a motion to dismiss and rule 56(f). The first part of the discussion looks at recent, related cases (Elcom and Corley) involving the DMCA. The next section examines the wording of the DMCA and how one is liable under the act. Next is the Studios’ argument as to how CSS is a valid form of encryption and is protected by the DMCA. The court agrees with the Studios despite 321’s point that it is not an effective lock because decryption keys are widely available on the Internet. The following section outlines the arguments as to why 321’s software violates the DMCA. 321 argues that they circumvent the encryption within the law of the act because their software only works on original DVDs and the people who purchase these have the right to break the CSS. The court rejects this argument, citing a previous case (Corley). The next parts of the argument are about 1201 (b)(1). 321 claims that CSS only prevents access to, not copying of, DVDs, so they are not in violation of the DMCA. The court says that 321 misunderstands the statute and they are in violation because they sell a product that breaks encryption. 321 also argues that they are not in violation because the main use of their software has nothing to do with the DMCA or breaking CSS because it can be used to copy DVDs in the public domain. 321 also claims they do not circumvent CSS because they use a licensed key to unlock the encryption. The court rules that the part of the program that breaks the CSS is in violation of the DMCA. The court also finds that 321 is in violation of the DMCA in the way it markets its software and because it is made primarily to circumvent encryption. The court also says that the DMCA does not violate 321’s freedom of speech and first amendment rights or exceed Congress’ power. The court refers to the cases it cited earlier in the brief in this part of the discussion. The court orders an injunction against 321’s software. The last sections deal with the counterclaims and smaller issues of the lawsuit.
This case is another example of companies, in this case motion picture studios, using the DMCA to control a market. The case looks at the DMCA and is one that argues about its constitutionality. The court uses precedents like Corley in its ruling in favor of the DMCA, saying the law is constitutional and it is within the powers of Congress. This case is one of the earlier cases regarding DMCA and control, and since it deals directly with the DMCA, it is an example that goes against my thesis. The court, here, clearly decides a case using the DMCA and does not find issues with it as an act. It allows the studios to maintain the control over DVDs that they want. The DMCA is used to help and monopoly.

Although Digital Millenium Copyright Act (DMCA) is a part of copyright law, technology companies and content owners use the law to attempt to monopolize the market and control the aftermarkets. This effectively creates a new business model out of exploiting the DMCA that has met little challenge in the courts. Progress is the spirit of copyright law, and this is something that finds itself severly limited under the DMCA. This project provides not only the law itself, but also court cases in which the DMCA is challenged as well as articles that desmonstrate how various companies exploit the DMCA because it is beneficial to them to have control of their products and the aftermarket, as is shown in the article about Apple and RealNetworks. The DMCA has changed what copyright law is used for, and denies the pricnciples that copyright was founded on. It is a new way of doing business that benefits the technology companies instead of public interets.

United States Copyright Office.  The Digital Millenium Copyright Act of 1998: U.S. Copyright Office Summary.  United States Copyright Office.  28 November 2006. <http://www.copyright.gov/legislation/dmca.pdf>.

This is a summary of the Digital Millenium Copyright Act, created by the Copyright Office. It renders the more technical language and organization of the law itself into a much more straightforward form. It definitely says something about the polarizing nature of the DMCA that the only article which I have come across without a very strong, clear viewpoint of the subject is a pure summary; as could be expected, the Copyright Office is attempting to maintain an objective viewpoint, to whatever degree possible.

The DMCA was created as a way in which copyright law could be adapted to the questions raised by digital technologies. The most controversial section of the DMCA added a Chapter 12 to Title 17 of the United States Code; this section contains the much-talked-about "anticircumvention provisions", criminalizing any attempt to break through digital copy protection (CSS encryption on DVDs, etc.). Another section of law removes any liability for online copyright violations from online service providers as long as they adhere to certain broad guidelines. There is also the possibility of application for exemptions from the DMCA for non-infringing uses which require circumvention of encryption.

My project requires a detailed knowledge of the provisions of the DMCA itself; I not only plan to quote directly from the DMCA in my project, but also to use clips appropriated from DVDs to create the project. This summary of the law is one of the most simple and concise descriptions of its provisions, without much color in the form of personal opinions.

The consequences of the the Digital Millennium Copyright Act have hindered developments in computing by putting unnecessary blocks on academic researchers, journalists, and especially open source software developers. However, the limits on developing and trafficking code that circumvents copy protection has harmed copyright holders on the whole more than it has helped. In order to ensure strong and fair protection for copyright holders, an open standard Digital Rights Management solution should be developed and adopted.

Electronic Frontier Foundation. EFF: Digital Video Restrictions. Electronic Frontier Foundation. 22 November 2006. <http://www.eff.org/IP/digitalvideo/>.

 

As could be expected from an article written by the Electronic Frontier Foundation, this article was firmly opposed to DRM and DMCA restrictions. It gives a general overview of the ways in which digital video technologies are encrytped, and accuses Hollywood of using "scrambling, down-rezzing, and a host of other restrictions" for purposes that have nothing to do with their originally stated intent, the prevention of piracy. Most of the article is occupied by a listing of the ways in which DRM is used on a different digital video technologies, from DVDs to cable TV; each of these descriptions also lists "Why It's Bad" and the ways in which the EFF is planning to fight the restrictions. At the bottom of the web page, there is even a listing of ways in which Hollywood is attempting to expand restrictions on video technologies, from to filling in the "analog hole" to blocking the creation of unrestricted video outputs; each of these newer techniques also has a listing of the ways that the EFF is fighting against it.

This sort of information will definitely be very important to my project, as the project itself relys on avoiding DRM to use clips from DVDs. Although it is, at the moment, rather easy (albeit illegal) for anyone with certain technical knowledge to bypass the CSS encryption on a DVD, expanding control over these technologies (as Hollywood seeks to do) could definitely make it nearly impossible in the future. This could have many consequences for the creation of appropriation art pieces; I think it would be interesting to judge how a project such as the one that I am working could be created if Hollywood does get its way.

This article examines the failures of the DMCA triennial rulemaking at protecting consumers from exploitation.  The evaluation of exemptions to the DMCA every three years is the acts “fail safe” measure to prevent consumers’ rights that copyright law gives them.  However, the article argues that this fails and congress needs to rethink the DMCA.  The exemptions to the DMCA can only be on reasons why someone can circumvent the technology, not on methods of circumvention.  These exemptions are also extremely limited in their scope, thus the general public will rarely fall under the exemptions.  It is also extremely hard for the average consumer to lobby for an exemption to the DMCA.  It is a long process that involves extensive legal work and heavy burdens outlined by the Copyright Office.  The article continues to outline the extensive process of participating in the 2006 exemption process.  This serves to demonstrate that this is not an easy task for a general member of the public to undertake.  One generally needs extensive legal and technical expertise. The Copyright Office is also very strict about their requirements in regards to evidence, further complicating the exemption process and alienating the average consumer.  The matter gets worse because of the Copyright Office’s refusal to exempt anything if unprotected formats still exist.  The Copyright Office also does not care about the effects of DRM on legal activities.  They regard things as “mere” inconveniences.  Consumer activities are also not important to the Copyright Office.  The Copyright Office also assumes that the copyright holders would withhold technology from the free market if DRM did not exist.  All of this demonstrates how the Copyright Office places consumers at the bottom of the food chain.  The next section of the article looks at the effects of the DMCA on fair use.  The article argues that fair use is there not only for the consumers, but also as a way for the courts to regulate copyright law in terms of new technology.  The DMCA blocks the court from looking at fair use and prevents people from acting in ways that they legally could under the 1976 Copyright Act.  In an age of new technology, it was once the responsibility of the courts to assess fair uses of new technology and media, but now this is ruled by the DMCA.  The Copyright office is essentially making decisions that Congress gave the courts the power to decide.   The article accuses the Copyright Office of being backward looking as opposed to forward looking, as copyright intended.  The last section of the article gives suggestions of what should be done in order to remedy these problems with the DMCA.
    This article is an example of how the DMCA actively denies consumers rights afforded to them by copyright.  The DMCA does not consider the consumer like copyright law does.  It looks past them as “mere inconveniences” and favors larger companies and content holders.  This shows how the DMCA works more for larger interest and denies the founding principles of progress that are embedded in copyright law.  The DMCA has changed the face and nature of copyright and has the potential to go further.   

This article argues that the anti-circumvention laws of the DMCA are being used to stifle competition and not in the spirit of copyright law in the traditional sense.   EFF claims that the DMCA puts scientific research, freedom of expression, fair use, competition and innovation and computer intrusion laws into jeopardy.  The next part of the article explains how the DMCA was enacted and what congress intended the laws to be for and protect.  The third section of the paper is evidence for the claim that the DMCA hampers research.  This section looks both and legal matters, speeches and how the DMCA works with the rootkit technology put on CDs.  The section also gives many examples of how research has been threatened and stopped because of the DMCA.  There are also examples of censorship and publications that were limited and pulled from publication because the DMCA, thus showing how it prevents free speech.  The fourth section of the paper gives examples of how the DMCA violates fair use, a fundamental principle of copyright law.  This section gives examples of DVD back-up software that is banned.  It also talks about copy protected CDs, ebooks, time shifting and manipulating fonts.  All of these examples show how actions that are allowed under the fair use doctrine can no longer exist under the DMCA.  The fifth section is about how the DMCA works against innovation and competition.  The DMCA stops progress and competition instead of working for it, as copyright law was designed to do.  This section gives examples of how the DMCA gets exploited by companies in order to control their market and the after markets.  This section gives examples of how the DMCA is used to control cell phone networks, music downloading, photography software compatibility and printer toner cartridges.  The DMCA is also used by videogame companies to disallow compatibility and prevent their games from being played on other platforms.  The sixth section of the paper deals with computer intrusion laws and how they are “displaced” by the DMCA.  This section uses a court case to show that even though this exists, this is the one thing that the courts are beginning to regulate.  The paper concludes that the DMCA takes copyright too far by disallow standard practices that are legal under regular copyright law.  The threat that the DMCA will be stretched farther with time also exists.  
I will use this paper for the examples it gives of how the DMCA functions against the intentions behind copyright law.  I will also use it as a starting point and further research some of the examples it provides.  The paper gives a good, clear analysis of the major issues of the DMCA and shows how it is being used as a means of exploitation rather than as copyright law.  The DMCA violates the principles that copyright was founded on.

    This article is a guide to how DRM controls the market place.  The article shows how music services that consumers pay for give their customers less than they promise because of copy protection and the DMCA.  The guide explains the restrictions of various music services and how the services cover these up through marketing.  The first service is iTunes.  Even though you purchase the music through Apple, iTunes can change the DRM whenever they want, thus they can change and limit what you can do with music that you own.  Apple also limits first sale, backing up, remixing, player compatibility and format conversion.  Even though you own the song, the DMCA allows Apple to control the music that you purchase and restrict your uses of it.  
Microsoft’s “Play for Sure” claims that Windows Media Player’s DRM allows you to choose your music and devices.  However, there are still severe restrictions because of DRM.  There are very few players that are compatible to play with the WMA DRM format.  If you want to use a player that does not support WMA content, you have to repurchase your library of music.  Even though Microsoft markets their DRM as user friendly and non-restrictive, it is more to make DRM a norm than the truth of the matter.
RealNetworks markets their services as compatible with any MP3 playing device.  This in fact is not true, because music purchased through RealNetworks only plays on devices that support their DRM or the WMA format, thus limiting the players that the songs can be played on and restricting use of their music. RealNetworks, like iTunes, limits the number of times you can burn a song as well as the number of backup copies that can be made.  They reserve the right to modify their DRM and what it controls.  RealNetworks also does not allow reselling or remixing songs purchased through them.
Napster 2.0 advertises itself as a service that allows you to have all the music you want in anyway that you want it.  It offers three services and all charge more for uses that were once free.  Napster Unlimited allows you access to all the music you want until you stop paying the monthly fee.  You also have to pay if you want to put it on a device, which can only be one that supports WMA.  It also costs money to burn it.  The DRM restrictions can change, you can only backup a limited amount of times and burning is restricted.
    I will use this article as an example of how companies use DRM to exploit the music market place.  Each service limits the music they sell so that it can only be used with products that they license.  They also limit what a person can do with the music, even things that are traditionally acceptable under copyright law such as making back up copies and the first sale doctrine.  This article shows how the DMCA changes traditional copyright laws and allows companies to exploit their customers.

This case is the appeal of the suit that The Chamberlain Group, INC. brought against Skylink Technologies, INC over garage door remote controls. Chamberlain claims that Skylink Technologies violated the DMCA because they manufactured a remote that can open garaged doors made by Chamberlain that use a “rolling-code” technology. Chamberlain filed suit against Skylink for both copyright and patent infringement, stating that the Skylink device is a “circumvention device” that goes around a code and thus violates the Circumvention of Copyright Protected System section of the DMCA. Chamberlain argues that the DMCA states: “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.” The rolling code feature in the Chamberlain garage door openers is a computer program that changes the code that allows a person to open the garage door. The Skylink device does not use this code; rather it circumvents it and allows the door to be opened. This rolling code is copyrighted and Chamberlain asserts that the Skylink garage door opener circumvents this code, and therefore violates the anti-circumvention clauses of the DMCA. Skylink’s model 39 garage door opener simulates the rolling code used in Chamberlain’s models. However, the court did not agree with Chamberlain and ruled in favor of Skylink. The court decided that Chamberlain could not prove that Skylink developed the model 39 in order to circumvent the rolling code technology and that the model has little commercial value outside of this purpose. The model 39 can work with other garage door units, not only Chamberlains garage doors with rolling code security. The court concludes that the DMCA does not provide new property rights. The court claims that Chamberlain did not show how access provided by the model 39 transmitter constitutes infringement.
This case deals with aftermarkets and monopolies. Universal remote controls for garage doors are often purchased as replacements or backups to the devices included with the garage door on initial purchase. The aftermarket for these devices then becomes a lucrative market for those who provide replacement garage door openers. Skylink makes universal remotes that work with many different brands and models of garage doors. Chamberlain, a major garage door manufacturer sells replacement remotes for its products. However, Skylink cuts into Chamberlain’s aftermarket profits with its universal remotes. The DMCA protects circumvention of any copyrighted work, such as the rolling code in Chamberlain’s claim. However, this case is more than just a copyright infringement case, because it has larger significance in the marketplace. If Chamberlain had been able to win their case and make the model 39 illegal because of DMCA infringement, it would then give them more control of the aftermarket by taking away the competition of universal remotes. This case is an example of how companies are turning to copyright and the DMCA in order to give themselves control of a market. Copyright is being used to help give companies a monopoly in the area of the market that they want to control. I will use this case as an example of a company trying to exploit the DMCA in order to control a market.  It shows how copyright law is exploited by a manufacturer and then put into place by the courts.  The major point is that the courts do not find anything wrong in the DMCA, just a lack support by the plaintiff.  This shows that the DMCA is still open for exploitation, and this trend will continue.

Describes the current legal battles over the sharing of guitar tableture for songs. RIAA says composers are losing money that could be made from selling sheet music -- guitar enthusiasts are sharing tips and tricks for playing. Are there free speach issues? Tableture as new copyright issue.