Newton v. Diamond is a court case that, similar to Bridgeport Music v. Dimension Films, revolves around de minimis sampling. The case involves the rap group, the Beastie Boys, and accomplished jazz flutist, James Newton. The Beastie Boys, in their song “Pass the Mic,” sampled a very small segment of Newton’s recording, “Choir.” The sample was a six-second, three-note snippet of Newton playing the flute. The Beastie Boys acquired a license for the actual sound recording from a record company, but they didn’t obtain one for the underlying musical composition from Newton. The court held that the three-note segment of the composition of “Choir” could not be copyrighted because it lacked requisite originality; further, it stated that if the segment had been copyrightable, the Beastie Boy’s use was de minimis.
     The analysis on de minimis, unlike in the Bridgeport case, was on the musical composition, not the sound recording. First, the three-note sequence wasn’t the heart of the work and was insubstantial as it appeared once within the four and one-half minute song. Even more important, though, is that the note sequence in question—C – D flat – C, over a held C note—doesn’t contain sufficient originality to be awarded copyright protection. There are only so many notes, chords, and chord progressions available to musicians. Therefore, some of these basic notes and progressions can’t be “owned” by anyone.
     With this type of court decision and interpretation of copyright and de minimis laws, the need for certain sample clearances becomes void. Along with the outcome of the Bridgeport case, if I sampled a one-note snippet of a song, I would still need licensing from whoever owns the master recordings. With the Newton v. Diamond case, however, I would now only need licensing from the record company, for instance, and wouldn’t need to seek approval from a composer or music publishing company. The composer doesn’t own the rights to certain notes, and therefore I can sample certain compositions.
     This is an important differentiation for me, or anyone who samples for that matter. It is definitely something to take into consideration for my songs that sample and any future song that I produce. It would allow me to sample small segments and only have to clear them with record companies, saving me time and money. This is an interesting wrinkle in copyright law that is certainly relevant and applicable.

    “Into the Grey” provides an excellent overview, history, and analysis of The Grey Album. This album stands as arguably the most famous and most controversial instance of mash-ups. This text covers what The Grey Album was, how it was produced, the response of record and publishing companies, and the subsequent response by disobedient mash-up and fair use advocates. Further, legal implications and defense possibilities of sampling are discussed, but in the specific context of mash-ups.
    The Grey Album, produced by Brain Burton a.k.a. DJ Danger Mouse, is a mash-up album that uses the full vocal content of Jay-Z’s Black Album mixed with instrumentals that can all be traced to the Beatles’ White Album. Every drum hit and instrumental chord was sampled from the Beatles’ album and used as beats for Jay-Z’s vocals to seamlessly rap over. Burton’s mash-up album caught like wildfire, popping up in record stores and on countless websites. The issue, however, was that Burton never received permission from any copyright owners of the Beatles or Jay-Z.
    As a result, the Beatles’ record and publishing companies sent Burton a cease and desist letter, explaining how he was infringing their copyrights. He complied and was never brought to court. After only a brief look at the exclusive rights of copyright owners, it is beyond doubt that had the case been brought to court, The Grey Album fully infringed on their rights. Discontent fans didn’t take kindly to this realization though—they organized a day of “civil disobedience” called “Grey Tuesday,” in which hundreds of websites hosted The Grey Album for download.
    The author suggests using de minimis laws as a defense, but as we know, this might no longer stand up. Instead, the only viable defense is fair use. This would unlikely be successful because although The Grey Album is highly transformative, it is a commercial product and not intended to criticize or parody. The core artistic work is also appropriated. And since copyright owners enjoy the rights to control adaptations through licenses—where they can make money by choosing to license—The Grey Album might negatively affect the ability to license further samples, and therefore is of potential harm.
    This comment is an excellent resource for my project. It first provides a thorough overview of The Grey Album and following episodes. This albums stands as an example of what would potentially happen to me if I chose to release my mash-ups. More important, however, is the discussion of fair use defense for mash-ups and the opinion that it would never hold up in court. This addresses a potential defense for my mash-ups and why it might not work.

        Grand Upright Music v. Warner Bros. Records was the court case that started it all when it comes to sampling, copyright infringement, and the necessity of acquiring clearance to sample a copyrighted work. The case was brought against one of Warner Bros. Records’ artists, a rapper named Biz Markie, by Grand Upright Music, which owns the copyrights to singer and songwriter Gilbert O’Sullivan. Grand Upright claimed that Biz Markie infringed upon O’Sullivan’s song, “Alone Again (Naturally),” by incorporating a partial piece of the copyrighted song into a rap recording. The court found this to be evident.
        Markie’s main argument was that he should be excused from liability for infringing copyright because others in the rap world are also engaging in the illegal activity. The judge was quick to point out that this mere statement could do nothing more than lead to that argument’s own refutation. The judge then pointed to the US copyright laws, as well as even the Seventh Commandment, “Though shalt not steal,” as his basis for siding with Grand Upright. Just because stealing might be rampant in the rap music business, there is no way to view this as excusable or justifiable. The court viewed that appropriating copyrighted work into a new one for the sole aim of economic achievement is a blatant disregard for the law and the rights of others.
       With this decision, the face and sound of rap music was forever changed. Until that point, sampling had been widespread in the hip-hop world; some artists had even been using ten to twenty samples a song. Now, all of these samples would have to be cleared—and at a cost. Many artists couldn’t afford to sample after this. At the same time, copyright holders could begin refusing to license their songs for one reason or another.
       In my project I have two songs with samples. Had I produced them in 1985, for instance, I wouldn’t have to clear the samples, and I would be able to reap every monetary benefit to their success. After this Grand Upright case, however, things are different. To try and release either of my songs, I would have to go through a costly clearance negotiation with record and publishing companies; and for all I know, even if I offered to pay, they might still not clear my samples.

    This journal article opens with a hypothetical: The main gist is that you are a successful businessman who one day comes to the office to find a first-year employee sitting at your computer. He is lifting exact portions of your work to incorporate into his own. He argues that because he is new, he should be entitled to borrow and quote your work, even if his final work seems to have your “signature style.”
    You would never tolerate this, correct? It would be considered breaking and entering and intellectual property infringement. So why, then, should the music industry tolerate this rampant behavior that occurs through digital sampling?
    The author points to the Bridgeport Music court case as what finally stood up for the talents and creative ideas of artists who work to attain their right “signature sound”—the sound that makes them top-selling acts. This piece is written in full support of the Bridgeport decision, with the perspective that the unethical and unlawful use of prior work amounts to copyright infringement. It covers the history of sampling technology, the response of the courts and the music industry to sampling, an analysis on the debate of whether sampling is “art” or “theft,” and lastly, a proposed solution to foster creativity while protecting against unauthorized sampling. 
    While all of these categories have relevance to my project, I was primarily drawn to the section on sampling as “art” vs. “theft.”   In this, three myths are addressed and debunked: one, that sampling is analogous to “borrowing” work owned by others; two, that sampling is an art form and, therefore, samplers should be entitled to freely use copyrighted material; and three, that for a proper balance in copyright law, more protection should be granted to samplers. Every “myth” offers a variety of arguments presented by “free digital sampling” advocates. Each, however, is followed by a critical, thought provoking, and analytical assessment that fully shoots down any point in support of free sampling.
    Most sources that focus on sampling and its relation to copyright law seem to draw criticism on the Bridgeport decision and subsequent infringement cases. It was really helpful to have an article that fully supported Bridgeport and the notion that all digital sampling, regardless of length or clarity, needs copyright clearance. Any form of reasoning I could come up with to defend the songs I created was covered—and each was fully and thoughtfully undermined. This adds a particularly interesting aspect and perspective to my project, my songs, and their copyright implication.

        Bridgeport Music v. Dimension Films is a court case that has had a major impact on the music industry, specifically with regards to the future of digital sampling. The case revolves around the use of a sample from the song “Get Off Your Ass and Jam” by George Clinton and the Funkadelics, whose copyright is held by Bridgeport. The sample in question comes from a three-note, four-second guitar riff in “Get Off.” N.W.A.’s song, “100 Miles and Runnin’,” takes two seconds from this snippet, lowers the pitch, and loops it to extend 16 beats. This song was then included on the soundtrack for a Dimension Film’s movie, I Got the Hook Up, which Bridgeport Music then claimed to infringe on its copyright. In a district court, Dimenion Films won on grounds that the alleged infringement was de minimis, and hence not actionable. When brought before a federal court, however, the decision was reversed.
       The court used the points on derivative work from Sections 106 and 114 of the US Copyright Law as reference for their decision. Because a sound copyright holder has the right to authorize the rearrangement, remix, and alteration of its recording, the copyright owner also then has the exclusive right to “sample” its recording. From this it was made clear: the judge announced, “Get a license or do not sample.” Grand Upright Music v. Warner Bros case sided with copyright holders to an extent; but, after this interpretation, even the de minimis defense became null. The decision supports that the usage of any section of copyrighted work, regardless of length or clarity, needs clearance. The court analyzed that even when something small is taken from a sound recording, what was taken is still something of value. Further, the copyright holder of a sound recording doesn’t just own the “song,” but rather owns all of the fixed sounds in that recording.
       The case had a monumental impact on music, copyright, and sampling. There now exists a “bright-line test,” where any sampling is infringement. This affects any producer or artist who wants to sample music in a song from here on out. Lengthy and costly negotiation and litigation will be necessary to sample, even just to take a two-second snippet. In my project I have two songs with samples. In one I rearrange a hefty portion of the original recording, which would have qualified as infringement after the Grand Upright v. Warner Brothers case. But in the second one, I sample a song while altering it so much that the source is unrecognizable. With the Bridgeport decision, though, there now stands a heavy consequence on my song and the type of sampling that I employed.

Kerry Segrave's book Film Piracy in the Motion Picture Industry dedicates its entirety to my topic. Segrave's research though, extends significantly farther back into the history of film than I will be including in my analysis. She provides a wide berth of information about past and present domestic film issues as well as specific international ones. Chapters 6, "Domestic Piracy, 1975-2001," and 7, "Foreign Piracy, 1975 to 2001," are laden with the utmost pertinent material for my research. In these two chapters, Segrave goes into exquisite detail, not only providing an enormity of statistics, but also documenting vast amounts of specific legal action taken to prevent film piracy over sixteen years. Segrave's in depth method of relaying information allows me to get more than just a surface level understanding of Hollywood's constant struggle concerning film piracy. Her attention to detail regarding legislative measures and the strategic moves made by Hollywood to suppress piracy will add substantial support to my own analysis.

The part of this piece that is important is the exploration of “substantiality”, what exactly it means and how it is used in the courts in regards to copyright infringement.  The author explains that there are multiple connotations that “substantiality” takes on in court.  The first connotation of substantiality as a “criterion of infringement involves the ‘ordinary observer’ test.”  Under this test it must “spontaneously and immediately” appear to the average person that the newly created work used or was based on the original.  This test is rough for obvious reasons.  Also, it would be almost impossible to ask the “average person” to tell right away the difference between material that is appropriated and that which is simply similar to the original.  The second connotation involves economics and has no relation to my thesis. The third connotation is almost the opposite of the first and is based on “literary analysis or classification,” or in other words an ‘expert opinion.’  This connotation is helpful in making ‘substantiality’ qualitative rather than quantitative, but not so helpful in that it often leads the court into “abstract literary speculations unrelated to the ends of the copyright law.”  The final connotation is that of ‘substantiality’ as a quantitative test, though this connotation is rejected.  The paper then goes on to show how these connotations of substantiality relate directly to parodies through examples.

The RIAA submitted this letter in response to public requests for comment on the ACTA. The RIAA provides a detailed prescription of what it needs in order to ensure that its intellectual property rights are not infringed anywhere in the world. This includes recommendations for the definition of “piracy,” and which infringement cases should be prosecuted. It also sets out specific requirements for law enforcement and monitoring officials to follow. The RIAA expresses its strong supports for the dialogue the ACTA has provoked and expresses its wish that all of its arguments be taken into account when formulating its final version.
    The RIAA provides by far the clearest and most non-negotiable opinion. It explicitly states that all acts of piracy, commercial or non-commercial, should be prosecuted and the strictest laws should be applied. It seems that the RIAA has already created its own legal framework that advances the industry’s ambitions and protects its interests efficiently. The Association is merely looking for a conduit of its legal system and does not intend to negotiate with any party. It also disregards the motives of user worldwide to seek and use illegal materials online. The RIAA does directly address the links between piracy and organized crime, which shows that it recognizes some of the ramifications of copyright infringement that affect areas completely exterior to music.  While the Association’s stance should not be ignored, its positions should be considered alongside economic and empirical evidence (like the one provided by the IIPA). Additionally, the confidence and severity of the RIAA’s opinion should caution all countries that the U.S. organization is a powerful player and can include the international arena in its jurisdiction if its demands are completely met by any multinational agreement.

This is the Copyright Law of the United States of America. I am referring to sections 501-504. In these sections of the law, copyright infringement is defined. The parts of the definition that are applicable to file sharing are that only the owner of the copyright can “reproduce the copyrighted work in copies,” and that only the owner of the copyright can distribute copies.
The interpretation of this law depends on whether or not file sharing should be viewed as legal or illegal. If the definition of a copy includes an mp3 file, then file sharers are most likely guilty of copyright infringement. However, the user of the P2P program isn’t actually distributing any copies. The program allows other users to access someone’s files, and download copies of them. Isn’t the downloader the one making the illegal copy? If I left a cassette tape in a room, and someone else came in, made a copy of it and ran away, would I be breaking the law?
Section 504 outlines the amounts of money that infringers should be sued for. It says the infringer should have to pay for “the copyright owner’s actual damages and any additional profits of the infringer.” In this case, the infringer makes no profit, and the actual damages are difficult to determine. The court would need to know how many people downloaded copies of one person’s copyrighted file. It is very possible that this number could be very low. Based on this logic, the lawsuits wouldn’t be very expensive. However, there is a statutory damages clause in the law that allows copyright owners to recover between $750 and $30,000 from the infringer per song, no matter the circumstances. And if the infringement is committed willfully, the maximum amount goes up to $150,000. (These high dollar amounts are a result of the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999. Previously, the range was $500 - $20,000.)
The statutory damages part of the law is one of the main reasons I believe the RIAA lawsuits are unfair. The court should have to determine the actual damages of the infringement, and no arbitrary dollar amount should exist. This part of the law makes it easier for the RIAA to exploit individuals without proof of damages. If a song costs about 99 cents, it is unlikely that one person’s sharing of the file would cause $750 in damages. The government needs to get rid of these statutory damages, or drastically lower the dollar amounts. I find it hard to believe that the Digital Theft Deterrence and Copyright Damages Improvement was passed in 1999, given how arbitrary and high the values are. It must have been pushed for by lobbyists.

This is the defendant’s opposition to the plaintiffs’ motion to dismiss the counterclaims in the case of Sony BMG Music Entertainment et al. v. Joel Tenenbaum.  Joel Tenenbaum was sued by the RIAA for copyright infringement, and Charles Nesson, his attorney, filed a countersuit against the RIAA for abusing the court system.  The RIAA wanted to dismiss the counterclaims, and this is Nesson’s defense. 
    Nesson believes that the RIAA is trying to “…punish him (Tenenbaum) beyond any rational measure of the damage he allegedly caused.”  He believes that the RIAA is trying to FRIGHTEN the public, and its not actually seeking legitimate damages.  This intimidation is an abuse of the law.  Tenenbaum only shared 7 copyrighted songs illegally.  Nesson is challenging the constitutionality of the process, saying that due process of law is being neglected because of the “grossly excessive” statutory damages (a minimum of $750 per song with a potential maximum of $150,000).  He believes that Joel’s case should be tried in a criminal court, giving him a trial by jury.  He worries that the courts are giving “excessive prosecutorial power to private hands,” and compares the situation to hundred thousand dollar speeding tickets being given by self -interested police officers.  He reminds the court that Joel acted with no malice and made no profit, and wonders, “Is the law just the grind of a statutory machine to be carried out by judge and jury as cogs in the machine, or do judge and jury claim the right and duty and power of constitution and conscience to do justice?” 
    Basically, the RIAA is just trying to scare people away from file sharing networks, and their lawsuits are unfair because no one can challenge them without facing extremely high costs.  The RIAA and the courts are exploiting the public, and they must be challenged.  Laws made by lobbyist influence are allowing the RIAA to act as a bully, and all of these defendants deserve due process of law (a constitutional right by the 14th amendment).  These are criminal matters, and they should not be tried in civil courts.  I believe that the court needs to sit back and examine the whole situation, and hopefully realize that an abuse of power is taking place.  My paper will use these points to define the RIAA lawsuits as completely unfair.  Hopefully someday the courts will prevent the RIAA from filing blatantly unfair lawsuits that are extremely difficult to fight, and with Nesson at the forefront of the battle, that day could come soon.

This is a journal article in a journal called Popular Music, and it is by Eamonn Forde.  It was written in 2004.  This article gives information about the state of file-sharing in 2004, and explains that record companies shouldn’t worry so much about it.  The article’s argument is that record companies will still be able to sell a large amount of CDs despite file sharing, and that there are other forms of media from which they can profit.  
    The film and TV industries are also becoming upset about the use of P2P networks to share files, because many of them are video files.  In other countries, the government has tried to help these industries with the use of levies.  In Germany, there are levies on PCs and CD-Rs that go to record companies.  And all over the world, record companies are flooding P2P networks with fake versions of songs to frustrate the users.  This is called “spoofing.”
    I doubt the “spoofing” tactic works very well, and the levy idea seems unfair to the consumer, who would be forced to pay higher prices for goods.  This article is important to my research because it suggests it might be best for the record companies to ignore P2P file-sharing.  In France, CD sales have been going up by 5 percent every year, and they also have P2P networks.  It is possible that the record companies may just need more creative marketing schemes to attract more customers.  Also, they need to take advantage of the market for music on cell phones, because that market is less likely to be affected by file sharing.  As the author says, “Online delivery is not the death knell for record companies.  It should be seen, ideally, as the wake up call they so dearly needed.”  If record sales are still increasing in countries that face the same file-sharing problems, American record companies need to try to emulate some of these other companies’ strategies.  They claim that their lawsuits are necessary, but maybe if they are more creative, they can avoid angering their customers and causing additional damage to their industry.

http://www.eff.org/IP/P2P/RIAAatTWO_FINAL.pdf

This is a document called RIAA v. The People: Two Years Later, which is on the Electronic Frontier Foundation’s website. It was written in 2005, which is two years after the file sharing lawsuits started. The article provides information about the legality of the lawsuits along with their results, and it also shares personal stories about individuals who have been sued. One interesting note is that the RIAA used to offer amnesty to anyone who deleted their copyrighted files and signed an agreement to stop file sharing, but some of these people were sued anyway. The RIAA was sued for false advertising.
The EFF wants the public to know that the people being sued are chosen randomly, and there is no end in sight to the flood of lawsuits. The lawsuits have not worked at all, and “Today, downloading from P2P networks is more popular than ever, despite the widespread public awareness of the lawsuits.” The number of P2P users increases every month. 89 percent of high school students reported that they knew file-sharing was against the law, and that they would continue doing it anyway. The EFF suggests cutting the prices of songs on iTunes (because there are 35 times as many songs downloaded illegally as there are downloaded on iTunes), or having the record companies collectively license music to individuals for a flat fee of around five dollars a month.
The EFF shares the stories of many people who have been sued and are in terrible financial situations, to elicit the sympathy of the public. For example, a 71 year-old grandfather was sued, along with a 12 year-old girl who had a single mother.
This document is extremely useful to my argument because it provides statistical evidence that the lawsuits have not slowed down file sharing, which was their goal. The RIAA wanted to use the lawsuits to educate people, but people clearly don’t care about the legality of their downloading. P2P programs are extremely easy to design, and even if they add filters to the popular ones, other unfiltered applications will be created eventually. The RIAA needs to take drastic action in the form of large-scale licensing, or their problems will never be solved.
While I agree with the EFF on most accounts, I strongly disagree with their use of sob-stories to promote their views. It is unfortunate that some people with very little income were sued by the RIAA, but a person’s financial situation should not affect whether or not they are sued. If the RIAA is going to file lawsuits, they should sue the users with the most copyrighted material, regardless of their income. The whole strategy of using lawsuits to stop file sharing, however, just doesn’t seem like it will ever work. And hopefully, ISPs and universities will do their best to protect the identities of their users.

First, some basic background. VNES (stands for Virtual NES) is an online NES emulator, written entirely in java. The site, based in the US, has a huge catalog of original NES games, which are completely free to play online (no downloading required). Now, obviously a whole bunch of legal questions come up here, most notably the claim that this is massive copyright infringement. The vNES legal page attempts to address these claims, and provide a justification for the legality of the site, through six main points.

One of the most notable arguments is the claim that the website constitutes fair use. It states that the website is noncommercial, only uses cartridges out of the market for 15 years, keeps copies of entire works, and that it holds works "vastly technologically inferior" to modern works (and then claims that these facts sufficiently satisfy the four factors). It also claims that, under Sony v. Universal, this emulation simply constitutes time-shifting, and therefore must be fair use. But by far the most interesting claim that they make is their classification of themselves as an archive (under 17 U.S.C. § 108). As an archive, the claim goes, they should be able to make their works available to the public. Also, they only provide games that they have physical copies of in their offices.

Now, their fair use claim in tenuous at best. The fact that they use entire works actually hurts their case as opposed to helping it, and just because the works are "vastly technologically inferior" to modern games does not mean that companies cannot still profit off of them (as remakes clearly demonstrate). Also, this isn't time-shifting so much as space-shifting, and the legality of space-shifting is not well tested in the courts. However, the archive claim is interesting, and could provide a valid loophole for emulation sites to provide video games to consumers. It relies on the games only being playable online though (no downloading (other than normal, incidental downloading) is involved). And the site has been contacted by the ESA (after which they removed all games for which they did not own physical cartridges), so presumably the industry is aware of it. This could provide an interesting middle ground for video game companies and consumers.

            Andrew Bridges is the Google counsel on the board for this video and he brings up a couple very good points in favor of Google.  He points out one of Perfect 10's arguments, for the fourth factor of Fair Use, that Google's Image Search could severely hurt the market for a cell phone in the UK.  He pointed how ridiculous it would be if this large, very useful image search, could fail because of a single cell phone deal.  Clearly this shows that such an argument, from Perfect 10, should not be seriously considered.  He goes on to point out the Perfect 10 starts to combine trademark law with copyright law when they argue about framing.  He makes a very good case that the framing is very similar to hyperlinking, which is clearly not anywhere near copyright infringement. 

            Russ Frackman is the Perfect 10 counsel and brings up a potentially harmful argument against Google.  He argues that Google's linking is direct infringement because it links to copyrighted materials.  He cites a very good example of a South Park website that claims that it is not infringing because it is not hosting the video.  The video is imbedded on the page, but they do not actually host the video.  While this at first seems like a very strong argument, he fails to acknowledge the clear differences between Google and the South Park website.  Google Image Search is not directly linking to the website; rather a computer program is creating the thumbnails and the links.  The South Park website is purposefully linking to an infringing video.  He also points out that Google gains a lot by having their name on the screen in framing and the Image Search in general.  They are not merely providing a service.  While this is obviously true, it does not really hit the important issues.  Obviously the Image Search is important and beneficial to Google; if it was not, they would not have it.  It does not, in any way, contribute to the creation or even the linking to the infringing images.  For that reason alone, that aspect should not hold much importance.

            This source is a blog which highlights several opinions on the decision.  Some agree with my thesis while others disagree.  I will use the supporters as examples to prove my thesis and will rebut the opinions of the dissenters.  William Patry offers the opinions in the first two blog entries on the page.  Both are highly critical of the Court's decision in favor of Google.  First he points out that if you tally up the factors, Google received none and Perfect 10 received three, according to him.  This argument is highly flawed because it was actually 2-1 in favor of Google according to the case.  The second argument stated that the Court erred in its assessment of Google as "consumptive."  The case has a good explanation for why this is their opinion and it seems valid.

            John Ottaviani argues that using Copyright Law from the 1970s is not very relevant for this type of technologically-based case.  He fails to realize that it is the concept of what is copyright that has carried over for that long of a time.  Copyright law would have changed had it not been working.  They also used contemporary examples in the decision. C.E. Petit argued against the first and fourth factors of Fair Use.  She argues that they are very similar and will almost always favor the same side.  According to her, the judge used the same facts for each factor and that they are likely being double counted.  She is probably right that these factors overlap and more than they should.  They should, however count for more because of how important they are to Fair Use.  The similarity was likely on purpose.

            Martin Schwimmer wrote, "The thought occurs as I read this section that Google makes this go away by cropping a corner off the thumbnail (or perhaps reproduces thumbs using sepia tone)."  This is amusing, but at the same time, it makes a very good point.  Much of the argument centers on whether or not the thumbnails are the same as the image.  Removing a corner would actually resolve this argument.  It would not change the function of the thumbnails.  This shows me that the argument is being over thought and that thumbnails shouldn't be considered the same.  If such a small alteration can change an opinion that greatly, then it should not even need to be done.

This article, by Ashley C. Kerns, appeared in the Loyola of Los Angeles Entertainment Law Review. Kerns, an active attorney in Los Angeles, argues that DVD ‘filters’ like ClearPlay should be available to consumers because the technology satisfied the requirements outlined by the four factors for fair use, and because of consumer rights. ClearPlay is not designed for commercial use; instead, it is for viewers watching films in the privacy of their own home. Kerns then argues that because the technology allows viewers to choose categories of offensive material they do not wish to view (such as “vain references to diety”), rather than simply editing out all offensive content, ClearPlay is rarely taking the heart of the work. Often, she explains, it only removes a few minutes of a film. The effect on the market is irrelevant, according to Kerns, because ClearPlay still requires the viewer to purchase or rent the film and profit is therefore not being taken from the filmmakers. Lastly, Kerns argues that consumers have the right to view videos they have lawfully purchased in their own homes as they please.

This article complicates my thesis in that it lays out a clear argument for ClearPlay as a lawful technology under the definition of fair use. Kerns even bypasses completely the idea of an artist’s moral rights—perhaps the strongest argument against ClearPlay—by explaining that the choppy film that the editing software creates is a way in which ClearPlay transforms its source material and therefore more strongly classifies the machine as fair use. However, while that assessment is an interesting one, Kerns’s definition of ‘transformation’ here is troubling. If a film’s expression is changed by choppy editing—for example, if a scene transition no longer makes sense because its ending is altered by ClearPlay—then the choppiness transforms the work not simply by removing lewd content, but by adding a new layer of commentary and meaning through editing. This is certainly not what ClearPlay or Kerns intended when suggesting that the technology is ‘transformative,’ but in order for ClearPlay to claim fair use, it assumes responsibility for this transformation. Furthermore, if ClearPlay is only removing a few minutes of violence from the film, is it not then using the heart of the work, and therefore not fair use?

           Eugene Goryunov gives her opinion on Perfect 10 v. Google and gives an extensive description of the case, the decisions, and the progression of Copyright Law.  In general, he strongly agreed with my thesis and agreed that Google should not be found liable.  His analysis centers on his assessment of the Court's decisions.  His first assessment is that the judge used a proper application of the "Server" test to in-line linking because "Google's use of in-line linking and framing does not constitute a "display" of images and cannot serve as a basis for finding direct liability.(516)" This supports my thesis because this holds that Google is not directly liable for copyright infringement.

            Goryunov follows this by offering his opinion on the Court's assessment of Fair Use.  He disagreed with the district court's application of the first and fourth factors of Fair Use.  According to Goryunov, "the court abused its discretion by apportioning excessive weight to the commercial nature of Google's secondary use and ignoring the highly transformative secondary use of the technology, which weighs in favor of fair use as a matter of law."  Thus, he agrees with me that the transformative use is more important than the commercial.  This supports my thesis in that the first factor leans towards Fair Use and therefore supports Google.  With regards to the fourth factor, Goryunov stated that, "the court abused its discretion in finding that Google's secondary use of thumbnail copies of P10's full-size images had an adverse effect on P10's market." He continues by arguing that Google's image search actually would not and does not have an adverse effect on Perfect 10's sales.  This also supports my thesis since it claims the fourth factor is Fair Use and is thus supporting Google.

            He continued by speculating what he believes could be a useful addition to Fair Use.  He states that some people have suggested adding a fifth factor that would use public policy as a guiding force.  This would help Google and my thesis, for Google's image search helps the public obtain images greatly, even those which are not infringing on copyright.  He goes on to agree with the District Court's decision to find Google not secondarily liable.  This pretty clearly also supports my thesis and Google's argument.

            Unlike the other cases I will discuss in my paper, MGM v. Grokster actually appears to contradict my thesis.  Grokster distributed free software products that allowed computer users to share electronic files through peer-to-peer networks.  MGM sued Grokster for their users' copyright infringements.  They claimed that Grokster knowingly and intentionally distributed their software to enable their users to reproduce and distribute their copyrighted works.  The Supreme Court decided in favor of MGM, which would seem to be bad for Google.

            While both and Grokster and Google seem similar, in fact, their differences, in the eyes of the Court are actually very important.  Both involve a type of peer-to-peer file sharing which may or may not involve items that are copyrighted.  MGM showed that Grokster's services contained more than 90% copyrighted material.  In fact, this information did not surface until the case was brought to the Supreme Court.  Without this information, the Appellate Court decided in favor of Grokster with the main reason being that they distributed non-copyrighted material.  While I have no proof that most of Google's images are in fact not copyrighted, it is Perfect 10's job to bring that information forward.  Since they have not, one can only assume that Google's image search contains mostly Fair Use images.

            Another reason why Google differs greatly from Grokster is the purpose behind their service.  Grokster, following the Napster case, had an advertising campaign targeting the users who were looking for an alternative to Napster.  This means that they were targeting people who had been illegally downloading on Napster.  Hence, their main source of revenue is from the file sharing of copyrighted works.  Google, on the other hand, has shown no evidence of focusing on copyrighted works.  Their technology is set up like Grokster in that they do not always know what links are being shared, but their main focus is greatly different.  It is the difference in philosophies and the users' use of the services that shows that Grokster is not a good comparison with Google.

           The Kelly v. Arriba Soft case ties in very closely to the Perfect 10 v. Google case.  Arriba Soft operated a "visual search engine" on the Internet. Just like Google, Arriba Soft produced a list of images that had been reduced to "thumbnail" images.  The process is almost identical to that of Google. Kelly is a photographer whose photos have appeared in books about California Gold Rush Country.  In January 1999, thirty-five of Kelly's photographs appeared in thumbnail format on Arriba Soft's image search.  When notified, Arriba Soft removed the thumbnails, but because of technical limitations, the photographs occasionally reappear. 

            Arriba Soft's defense centered on Fair Use.  The Court found that the first factor weighs in favor of Fair Use.  The main argument was that these photographs were not a significant part of the economic gain and that it is very transformative and provides extra details about the images.  The Court, however, found that the second factor weighs against Fair Use.  This was because photographs of this nature are part of the core of intended copyright protection.  The Court also found that the third factor weighs slightly against Fair Use.  This decision was reasonable because Arriba Soft linked to a full size image with attributes that did not involve the original site.  This argument would not suffice in the Google case because Google actually links to the original page.  Finally, the Court found that the fourth factor weighs in favor of fair use. This was because there was no evidence or reason for the search engine harming Kelly's market. Do to the importance of the first factor, the Court agreed that Fair Use was appropriate and Arriba Soft was not guilty of any infringement.

            This case is very similar to the Google case because of the focus on similar arguments regarding thumbnails.  The only difference between Arriba Soft and Google is that Google links to the actual site from which the thumbnail is derived and that Google uses advertisement for economic gain.  Because the decision favored Arriba Soft, many of the arguments made should be carried over to the Google case and support my thesis.  If the thumbnails in Arriba Soft are Fair Use, then the Google thumbnails should also be Fair Use.

            New York Times Co. v. Tasini is a case with similar information and applications to the topic of my thesis.  This case was taken to the Supreme Court, therefore, the decision and reasoning is very strongly applicable to any case.  In this case, six freelance authors (Tasini) had articles published in three publications, including the New York Times.  Two computer database companies took their articles, along with all the other articles in these publications and added them to their databases.  They had permission from the New York Times and other publications to do this, but not from the freelancers.  Within these databases, the articles are all retrievable by a user in isolation of its context in the original print publication. Like Google, users of these databases can search for several key terms or names (including author and where it was published) to find what they are looking for.

            The Supreme Court ruled in favor of the New York Times and the database companies.  As stated in Perfect 10 v. Google, "The Supreme Court has indicated that in the electronic context, copies may be distributed electronically."  Google's search engine uses HTML instructions that tell a user's browser where to find the full-size images, but Google does not actually distribute the copies.  It is the publisher of the website that actually allows users to transmit the images to their computers.  Then, like in Tasini, the user can download or print the image.

            New York Times Co. v. Tasini is both similar and very different from Perfect 10 v. Google.  It is similar in that they both involve distributing copyrighted works electronically.  The databases from the Tasini case were allowed to distribute copies of work electronically without direct permission from the authors.  Therefore, shouldn't Google be able to do the same thing with images?  The difference makes this question even more obvious.  Google, unlike the databases, is not even distributing the copyrighted works.  They are merely creating links to make the works more easily accessible.  This case supports my thesis by showing a related case with a decision that is similar to that which I am arguing for.

Clevenger JE. Proof of Infringement of the Visual Artists Rights Act of 1990. American Jurisprudence Proof of Facts, 3, July 2008.

This proof of facts deals with evidence for and background information regarding VARA.  The reading explains moral rights and explains why the United States included moral rights into VARA, when they had never previously been incorporated into the United States Copyright Law.  VARA infringements are then highlighted, and specific cases and what issues they deal with are specified.  For instance, an example of a case dealing with each of the following is given: an artist’s hand painted banner; works for exhibition; photographs made as studies for paintings; sculpture park vs sculptures in a park; a 6,000-pound sculpture that was not visible to the public; an embroidered dragon that was on a fashion designers pant leg; models and technical drawings; and advertising and promotional materials.  VARA is broken down into the right of attribution and integrity and then the reading covers the duration, transfer and waiver issues, and exceptions and exclusions of VARA.  This reading is also useful because it highlights state protection of moral rights, and raises the question of whether VARA, a federal law, preempts state moral rights laws.  A summary is also given of what is to be done about damages due to infringement, and discusses how it is difficult to create one remed,y because it is possible to violate the attribution or the integrity portion of VARA, which would need separate penalties.  Elements of proof of infringement of VARA are enumerated to show when a violation has occurred; therefore, appropriate action can be taken.  This is a very long reading (61 pages) and it goes further to explain interrogatories for an artist against people who may have violated VARA. 
This reading provides useful background information, as well as implications of how to deal with possible VARA infringement.  Because it provides example testimony and transcripts from cases, it shows how an actual VARA case could unfold, and the types of questions that should be asked.  It is helpful to read transcripts to get an idea of how a case would be carried out, and what questions are asked to prove that infringement has or has not occurred.  This is a very useful document to put VARA in its legal context.

            The Hotaling v. Church of Jesus Christ of Latter-Day Saints case is important because it helps distinguish Google's use of thumbnails with cases that are actually not Fair Use.  In this case, Hotaling, a group of researchers, compiled and copyrighted a number of genealogical research materials.  At some point, the Church of Latter-Day Saints received one legitimate copy of the microfiche and added it to its main library's collection in Salt Lake City, Utah.  Later, they made microfiche copies of the works without the Hotalings' permission and sent the copies to several of its branch libraries.  There were many extenuating circumstances, but even with them the appellate court decided that this was copyright infringement.

             This is especially relevant because Perfect 10 attempted to cite this case as part of their argument.  "Perfect 10 incorrectly relies on Hotaling v. Church of Jesus Christ of Latter-Day Saints and Napster for the proposition that merely making images "available" violates the copyright owner's distribution right."(Perfect 10 v. Google)  The Hotaling case differs significantly from the Google case.  Hotaling made exact copies and distributed them to places that would otherwise have had to buy the copies.  The infringement in this case was much more direct and obvious than what Perfect 10 accuses Google of doing with their thumbnails.

             Regardless, this case demonstrates an important difference between Google and the average Fair Use case.  Google is not distributing copies; they are creating thumbnails from other sites.  Google is not creating these images entirely, nor are they distributing the images.  Since merely making images "available" has been shown to not be enough for copyright infringement in the Hotaling case, we can carry that over to the Google case.  This completely nullifies one of Perfect 10's arguments, even according to the Court, than this case is very essential to supporting my thesis.  It both supports my thesis by both contrasting Google with the Hotaling case and establishing a precedent which takes away one of the opposing viewpoint's arguments.

           The A&M Records, Inc. v. Napster, Inc. case is cited several times throughout the Perfect 10 v. Google case and many of the decisions made in this case are vital to the outcome of the Google case.  First of all, the District Court's decision to grant a preliminary injunction for an abuse of discretion originated with the Napster case.  Also, the Napster case is similar because they both stress copyright infringement and had trial de novo, or new trials with a different decision maker.  For my paper, I can look at the examples from the Napster case which were cited in the Google case.  Regardless of whether or not they support my thesis, I can analyze whether or not these aspects should be part of decision making in copyright.

            Preliminary injunctive relief is available to a party that demonstrates either that they have "a combination of probable success on the merits and the possibility of irreparable harm" or "that serious questions are raised and the balance of hardships tips in its favor." These conditions were outlined in the Napster case and used as criteria in the Google case.  In the Napster case, this meant that A&M Records had to show that Napster's program for file sharing could cause irreparable harm to their copyrighted works or that it at least tips the burden towards A&M Records to stop the infringement of the illegal downloading.  In the Napster case, these conditions are very clear and seem to be a very necessary assessment to make in cases of copyright infringement.

            These conditions were used in the Google case and according to the Court's decision, support Google's argument. This was because Perfect 10, in the Court's opinion, was unable to show either of these criteria.  It does not seem to be that important of a criterion in the Google case, but the seemingly black and white use in the Napster case shows how important this type of analysis is in copyright infringement.  Because it supports my thesis, it is important to show that the criterion is essential for keeping things fair under copyright.  The Napster case shows that this analysis, which supports Google, is very well thought out and essential for Fair Use.

                This is the case and decision handed down by the United States District Court that is amending the decision of the Central District Court of California.  My paper will focus on this decision and the reasoning behind its decision.  First, it summarizes the case, which is that Perfect 10, Inc. sued Google, Inc. for infringing their copyrighted photographs of nude models among other claims.  The district court originally prohibited Google from creating and publicly displaying thumbnail versions of Perfect 10's images.  They did, however, allow Google to link to third party websites that display infringing full-size versions of Perfect 10's images.  Both Perfect 10 and Google appealed the decision.

            The decision also discusses the background of the situation including the use of the internet, HTMLs, search engines, and specifically how "Google Image Search" works.  Generally, Google uses HTML instructions to access other websites and, through a third-party website, shrink their pictures or graphics down into thumbnails.  These thumbnails are displayed in "Google Image Search" and linked to image where it is stored on the website publisher's computer.  It also discusses the background information of the previous interaction between Perfect 10 and Google.  This included notifications sent from Perfect 10 and Google, and the time of the filing of the suit.

            This case also discusses the "Standard of Review" involved in the decision.  This includes the aspects of Copyright law that are involved and how they apply to this situation. It also discusses how Perfect 10 accuses Google of Direct Infringement, its specific requirements, Perfect 10's argument for it, and Google's defense (Fair Use).  It discusses how Google is not secondarily liable for copyright infringement as well as Amazon.com's involvement and their innocence according to the same reasoning.  Finally, they conclude that since Perfect 10 is unlikely to overcome Google's Fair Use defense, the district court's decision is reversed and Google is innocent for both the direct and secondary infringement charges.

            This is the original case brought against Google.  It both supports and rebuts my thesis.  The decision was not a full victory for Perfect 10, but compared to the appeal, it was more successful.  I will use this case to point out the flaws in the decision and to contrast Google's argument with the appeals case.  Just like the case in the Court of Appeals, this case focuses on the question: "does a search engine infringe copyrighted images when it displays them on an "image search" function in the form of "thumbnails" but not infringe when, through in-line linking, it displays copyrighted images served by another website?"

            Perfect 10 moved for a preliminary injunction against Google and Amazon solely based on copyright claims.  They wanted to prevent Google and Amazon from displaying thumbnail copies of their copyrighted images and also from linking to the third-party websites that host the infringing images.  The court decided that Google's use of thumbnails likely do directly infringe Perfect 10's copyright.  They also decided that Perfect 10 will likely not succeed with its vicarious and contributory liability theories. Just like the appeal, this case goes pretty far into the details of both Google and Perfect 10, as wells as the charges and how the charges either apply or do not apply.

            In the charge of direct infringement, Google defends themselves by arguing that many of its actions do not infringe upon any of the exclusive rights granted to the owner of a copyright, and to the extent that its actions do implicate those rights, such use is fair according to Fair Use.  The court rejects the Fair Use argument partly.  They state that Google's use of the thumbnails is commercial and thus against the first part of Fair Use. In my paper, I will argue against this decision because an overwhelming majority of Google's commercial gain from thumbnails is not copyright infringement.  They state that Google's use is very transformative and that their use no greater than necessary to provide their goal, which is providing effective image search capabilities.  These assessments show that the Court believed that Google was compliant with the second and third factors of Fair Use, and agrees with my thesis.  They argue that Google's images likely do harm the potential market for Perfect 10.  This would mean that Google infringes upon the fourth and final factor of Fair Use.  I disagree on the grounds that Google is not even creating these images and thus the burden falls upon the people downloading the images. 

Judge Stanton ruled in favor of Viacom in some aspects of his decision and in favor of Youtube in others. In favor of Youtube, he denied Viacom access to Youtube’s search code, noting that it is a trade secret that cost Youtube thousands of man-hours to produce and that it will not help Viacom determine the extent to which Youtube is liable. This decision came after numerous programming experts testified that there is currently no search code in existence with the ability to distinguish between copyrighted and non-copyrighted works. Similarly, the judge denied Viacom access to the Video ID Program. The judge also denied Viacom’s request for access to all videos currently available on the Youtube servers. Viacom claimed this would help them determine how much knowledge Youtube had relating to infringing videos, but Youtube’s response that they have been entirely accommodating to Viacom’s requests was favored by the judge. The judge stated that there is “no compelling need…to justify the analysis of millions of pieces of information.” The judge similarly denied access to the Advertising Schema, stating that this was both a trade secret and not necessary information. However, the judge favored with Viacom in many aspects, in an attempt to allow them to research how much power Youtube has over infringing videos on its website. He mandated that Youtube produce information about all videos that have already been removed so as to determine the amount of copyright infringing videos that have been available in the past. Most interestingly, he allowed Viacom access to all information about who has viewed which videos and how many times they have been viewed. This includes IP addresses, screen names, and videos viewed for every user. Viacom states that this will allow them to know, proportionally, whether copyrighted videos are typically viewed more often or less often than non-copyrighted videos. The judge also allowed Viacom access to the Google Video Content database so as to allow Viacom to determine Youtube’s knowledge of infringing activity.

This decision is interesting because it details the opinions of a judge who has considered both Viacom and Youtube’s opinions. He allows Youtube to retain several of its valuable coding secrets, but makes large concessions to Viacom to allow them to determine Youtube’s knowledge of infringing material. The reason for this decision can likely be linked to the relatively young age of cases like this. The DMCA has only been active for 10 years and many aspects of website liability for users infringing on copyrights are still uncertain. By allowing Viacom access to Youtube video records, the court is essentially hoping that Viacom will either show that Youtube is guilty of indirect liability or that Youtube has no control over the infringement beyond its current efforts. Thus, the impact of this court decision will likely come from Viacom’s analysis of Youtube video information. In my paper, I plan to further examine the same topic: whether or not Youtube is completely free from liability for infringing material.

In early 2007, Stephanie Lenz recorded a video of her children dancing to the song “Let’s Go Crazy” recorded by Prince. She uploaded the recording to Youtube and, roughly three months later, received a takedown notice from Youtube notifying her that the video infringed on a copyright held by Universal Music. Lenz issued a complaint stating that the video was actually a Fair Use of Prince’s music and should therefore be put back onto Youtube. She said her video was not taken down based “on a particular characteristic of the video or any good-faith belief that it actually infringed a copyright,” but rather Prince’s personal desire to control all of his work. The plaintiffs in this case accept that the video includes elements that are under copyright by Prince and Universal. Their argument is whether or not the Digital Millennium Copyright Act “requires a copyright owner to consider the fair use doctrine in formulating a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” The judge in this case noted that no other court case has actually determined the merits of whether the phrase quoted above pertains to Fair Use. The judge determined that, despite no previous ruling, Fair Use is not an infringement of copyright and is a lawful use of the copyright. The court thus ordered that a brief review of potentially infringing material must be completed by content owners prior to sending a Takedown notice, to ensure whether it is a Fair Use.

This decision strengthens my paper’s argument that many potentially infringing videos on Youtube may, in fact, be examples of Fair Use. While only a small percentage of songs available on file sharing websites could be constituted as Fair Use due to the skill required to sufficiently transform songs, many videos on Youtube may be shielded from unwarranted takedown notices because of this ruling, due to the fact that transforming and mashing video clips is much easier than transforming songs. The complaint that a large portion of Youtube’s videos are copyright infringing and that Youtube encourages such videos is thus proven false. In reality, many of these “infringing” videos actually make up the user-generated content that embodies the spirit of Youtube: a community of Web 2.0 users producing unique and individual content to share with others.  Had this decision not been made, unchecked takedown notices could have harmed time-sensitive and important videos that were actually examples of Fair Use. While Universal argued that this checking for Fair Use is an unnecessary waste of time, the Judge was quick to point out that the Copyright Act of 1976 established 4 simple, quick factors for determining Fair Use. This decision upholds the hard work of individuals who successfully transform copyrighted material, and it prevents large corporations and recording artists from overreaching their bounds by unfairly removing Fair Use videos. Youtube’s legitimacy as a website made up of a majority of unique material is thus upheld.

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.

Tim Wu from Slate Magazine discusses the development of legal protection against copyright infringement for internet-based services. He argues that Youtube may be safer from copyright litigation than many might believe. He notes that “in the early 1990s…Hollywood and the recording industry worked hard to make Internet companies responsible for any…copyright infringement that happened via the Internet.” Had this view, the idea that internet companies are liable for any infringement that occurs on their sites, been adopted by Congress, few if any Web 2.0 companies would exist today. Fortunately, Lobbyists working for firms controlling a large portion of internet traffic worked to convince Congress that “copyright law threatens to put a damper on the expression of ideas on the internet.” This forced Hollywood to settle for the Digital Millennium Copyright Act, which protects “Information Residing on Systems or Networks At Direction of Users,” or in other words, sites using user-generated content. These sites are protected by the Safe Harbor clause in the DMCA which protects content sites and ISPs so long as they comply with takedown requests submitted by copyright holders. Wu notes that Youtube may be liable if it prosecutors can prove that it is aware of specific infringing material on its site. It may also be liable due to the fact that there is a search option on its services. Wu’s most interesting argument, however, is the idea that Hollywood and the recording industry may actually be fonder of the DMCA than previously believed. He states that these industries get the best of both worlds: if they do not want a clip on Youtube, they can simply issue a takedown notice and have the offending clip removed. If the infringing clip appears to be giving a boost to TV or music ratings, however, they can simply allow the clip to remain on Youtube. Thus, Youtube is protected by the idea of “tolerated use” rather than something like “fair use.”  While sites like Grokster were not covered under the Safe Harbor law, Youtube is protected by this provision of the DMCA.
Wu accurately conveys the crucial role that the DMCA plays in protecting internet content sites and ISPs, which is a crucial argument in my paper. Had the DMCA never been created, Internet sites could be just as liable for copyright infringing content as stores are for selling physical pieces of copyright infringing material. However, the lawmakers clearly anticipated the importance of user-generated content for e-commerce and thus created a protection clause for sites like Youtube. While Wu mentions that Youtube may be liable for its “search” tools, a similar clause in the DMCA may equally protect Youtube from prosecution for this feature. 512D states that sites which allow users to search for material are not liable for any copyright infringing items that users locate using search options. Thus, the DMCA successfully anticipates many aspects of these Web 2.0 sites and prevents content industries from suing services like Youtube.

The article by Mr. Cloak discusses the evolution of online copyright cases in the pre-DMCA era. Before the DMCA, there was very little protection from liability for online user-generated services. The first case to test website liability in copyright infringement was Playboy Enterprises, Inc. v. Frena. Frena owned an online message board service that allowed its users to post messages and pictures to share with others. One user uploaded over 100 images copyrighted by Playboy. Playboy consequently sued Frena for copyright infringement, despite that fact that Frena had not actually uploaded the pictures himself. The court ruled that Frena was liable for the infringement, failing to note that Frena simply ran a service allowing others to upload images. The case of Religious Technology Center v. Netcom On-line Communications Services advanced the Frena ruling when the Church of Scientology sued Netcom for allowing unpublished Scientology writings to be posted on its services. The court judged that Netcom was not directly liable for this infringement because it had not directly facilitated the infringement. Rather, its software had automatically uploaded the infringing material without the knowledge of the operators. While Netcom was not liable for direct infringement, the court noted that it might be liable for another type of infringement. A website could be liable for Vicarious Liability if it receives direct financial benefit from the infringing material and has the ability to control infringement. Similarly, it could be guilty of Contributory Infringement if it has subjective knowledge of the infringement and substantially participates in the infringement.

The aforementioned types of liability have been mentioned in multiple copyright cases, such as the Napster case. With the advent of the DMCA and the Safe Harbor law, a service like Youtube is increasingly safe from direct liability. Youtube, however, could be held Vicariously Liable: it receives ad revenue in proportion to the number of users; if the number of copyrighted videos increases, its ad revenue will increase. Youtube has also developed filtering software, giving it the ability to control copyrighted material. For this reason, it could still theoretically be vicariously liable. Youtube could also be liable for Contributory Infringement because it has knowledge of infringement on its site (evident from the numerous takedown notices it receives). However, by demonstrating sufficient non-infringing uses of its services, like Betamax, it can escape Contributory Liability by being labeled a “staple article of commerce.” As Mr. Cloak states, “subjecting YouTube to liability from copyright owners could destroy a major facilitator of American creativity.” At the same time, authors have the right to control their works. Thus, the DMCA establishes a perfect medium by protecting online services from direct liability for allowing their users to upload anything, while also allowing copyright owners to request their work be removed if they wish. Subjecting Youtube to liability for simply allowing creativity to thrive on its servers should not be allowed, unless Youtube is proven to be guilt via vicarious or contributory means.

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.

    This spring 2007 ComiPress article (a translation of Japanese newspaper Asahi Shinbun) reports the official apology of a dojinshi artist to Shogakukan, a publishing company that accused him of infringing the copyright of the manga intellectual property Doraemon. The artist also agreed to return a portion of his profits to the publisher. The amateur artist had allegedly sold over 13,000 copies of Doraemon—The Last Episode, a dojinshi manga which he claimed was the “final” installment to the Doraemon manga series. The manga was apparently highly regarded for its art and story, both of which seemed true to the original series. The original Doraemon series was never actually “concluded” because its author, Fujiko F. Fujio, died in 1996. Shogakukan considered the massive scale of the dojinshi comic to be infringing on its rightful market. An official for Fujiko Productions, the studio that handles Doraemon manga today, claimed that while the company allowed dojinshi sales among “dojin circles" (fan groups), the sales of the amateur manga were too significant to ignore.

    This article documents a significant breach in the tacit agreement typically honored by both dojinshi artists and the mainstream manga publishing industry. The dojinshi author's incredibly widespread sale of his infringing work appears to prove that the industry's tolerance of dojinshi sales is misguided. However, Shogakukan's handling of the issue suggests otherwise. The publisher did not immediately file a lawsuit, but rather complained to the infringing dojinshi artist. The artist, in turn, acknowledged his mistake and was willing to pay the company damages settled out of court. Rather than bringing the issue to court in a drawn-out, protracted lawsuit, the parties involved reached an agreement to maintain the balanced system that benefits both sides.