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This book presents a guide to the resource acquisition, legal, and financial necessities of producing an independent film. Every aspect of the planning and execution of the business side of filmmaking is discussed, including hypothetical situations based on the personal experience of the entertainment lawyers who co-authorized the book. The book introduces the roles of producer and lawyer, then outlines the film development process through deal making, financing, hiring, licensing and distribution.
As is pertains to my project, this book provides valuable insight into the warranted concern that filmmakers have had with the 21st century dispute over Internet distribution rights. In the case of Viacom v. Youtube, the exclusive rights per the 1976 Copyright Act for copyright owners to reproduce their works became the basis for allegations against YouTube for a count of direct copyright infringement. The authors of this book advise filmmakers to negotiate with distributors on the basis that they "cannon distribute on the Net until there is adequate 'border protection' to prevent access outside licensed territories" (132).
Erickson, Gunnar, Harris Tulchin, Mark Halloran, and J. Gunnar Erickson. The Independent Film Producer's Survival Guide: A Business and Legal Sourcebook . New York: Schirmer Trade Books, 2005
The rights to intellectual property and the revenue thereof can make or break an entrepreneurial business. This book covers the gambit of trade secrets that tech-savvy entrepreneurs may need to protect intellectual property in the dynamic arena of copyright law, licensing, patenting, and trademark acquisition. The book makes examples of the infringement issues faced by international business icons such as Microsoft and Amazon.com.
As it pertains to my project, the book also goes over the provisions for statutory versus actual damages in the 1976 Copyright Act (115). These provisions are under review in the Viacom v. YouTube case.
Guide, Gilbert. The Entrepreneur's Guide to Patents, Copyrights, Trademarks, Trade Secrets & Licensing . New York: The Berkley Publishing Group, 2004
The development of internet communities, the phenomenon of file-sharing, chat room hosting, and surfing are all aspects of cyberspace social behaviors that have coalesced to create a thriving social organism, or ecology. In the book, Huberman makes a scientific observation of this phenomenon as statistically goverened patterns. While discussing the application of such physics concepts as Brownian motion and Zipf's Law, Huberman researches the mechanics of internet social behaviors, and the value of such findings to the future development of internet busines models and application architecture.
In relation to my project, and the accusations from Viacom, YouTube is being accused of actually inducing illegal behavior. Huberman looks at various problematic features of file-sharing networks, and their contribution to the dilemma of creating user-friendly file-sharing functions at the risk of creating illegally replicated material (69).
Huberman, Bernardo A. The Laws of the Web: Patterns in the Ecology of Information . Massachusetts: MIT Press, 2001
This book goes over the trends in multimedia that are pushing multimedia services into unprecidented technological formats. There is an in-depth analysis of the multimedia security technologies applied to digital data as prevention of copyright abuse or violation. These various copyright protection techniques inlude digital watermarking, steganography, fingerprinting and data hiding among others.
For the purpose of my project, the book discusses how the ease of communication of digital data is making it a globally accessible commodity. This is why positive internet video sharing service and televisions industry partnerships are being fostered. There is a growing demographic of interenet file-sharing service users who can be reached with multimedia entertainment. The future of these internet hosting / television industry busines partnerships is being forged out of the new technologies in digital data sharing.
Also of interest for my project is that the book also addresses the matter at the root of the uneasiness and friction between multimedia industries like the television companies and the internet video-sharing environment in general. That problem is arising from the polarized interests of intellectual rights owners and interntet end-users seeking free access to information.--"...The development of digital technologies permitting transmission of digital data over the internet has raised questions about how these rights apply in the new environment. How can digital intellectual property be made publicly available while guaranteeing ownership of the intellectual rights by the rights-holder and free access to information by the user?" (3).
- Lu,Chun-Shien. Multimedia Security: Steganography and Digital Watermarking Techniques for Protection of Intellectual Property. Hersey: Idea Group Inc., 2005
In chapter 8 of Lessig’s book, called “Transformers,” Lessig tells the story of Alex Alben and his creation of a retrospective CD-ROM based on the career of Clint Eastwood. He talks about the trouble the development team went through to get permission from every single actor that had appeared in the that they were going to use. This is just a small part of the chapter, but it helps explain why partly there are numerous mashups and remixes out there without permission: It’s just too hard. Lessig tells a story where Alben’s team tracked down all the actors that had appeared, called them, and then paid them $600. Besides being time consuming, the process seems very cost prohibitive, which explains why there are such a large number of copyright infringing works on sites like YouTube and online.
This is a particularly great article for a number of reasons; however, those reasons will be discussed after a brief discussion of its contents. This piece, by regular contributor Bob Garfield, gives an overview of the purpose of YouTube and what it is, video advertising (in all its forms), and the recent purchase of YouTube by Google, inc.
It talks about, among various other things, the 1.65 billion paid for it in Google stock, the outrageous number of 65,000 (which is the number of videos uploaded everyday onto YouTube), and the reasoning why YouTube has such popular viral videos. The last statement was proved in the article by this quote:
“It’s said that if you put a million monkeys at a million typewriters, eventually you will get the works of William Shakespeare. When you put together a million humans, a million camcorders, and a million computers, what you get is YouTube.”
This article would be superb to cite in a piece on YouTube, like I previously stated, numerous reasons. For starters, the article gives and overview of YouTube for those not formerly acquainted with the site. This is a great article, since it explains to reader how the entire process works. It would also shed some light on the culture of the site and the community that worships it. The article at about halfway through switches gears and begins to talk about the ramifications that YouTube is having in the Advertising industry, the recent decline of mass advertising, and the fall of TV Commercials. This would fit into an essay well because I believe it will certainly add depth to my explanation of the new culture that is arising in our society, the new digital culture, one of Tivo, viral video, and iTunes. All together, this article would be indispensable for any essay on remix culture. It’s a great read, that’s chalk full of good information, quotes, and anecdotes that would definitely spice up any essay about YouTube or other remix sites.
This a great video that can be used as a counter argument for anyone that say’s online video is completely killing companies marketing and advertising strategies. The article chronicles the story of Chevrolet, and their foray into marketing involving online consumer generated works. Thinking they could profit on the recent online explosion, Chevrolet, in a bold move, asked web users to make their own video advertisements for their bestselling SUV, the Tahoe. While Chevrolet supplied the video, and music, users could mix and match them, and add their own captions. While most of the video’s created touted the superiority of the Tahoe, others became sarcastic narrations on global warming, masculinity, and even war in Iraq. Although it was a success overall in the eyes of Chevrolet, it can be argued that because of the appeal of the attack ad’s over the regular advertisements online on sites like YouTube, the negative commercials lampooning the automobile company were much more widely viewed. But, as I said, one could only argue, and not sustain, that this actually supports the fact that ways to advertise to consumers are being lost. Before this claim is made, an individual must realize certain facts.
First, the company, Chevrolet, is known for selling large, generally fuel inefficient vehicles, which have angered some more eco-friendly consumers. Second, one must remember that many other companies have succeeded where Chevrolet has failed. For example, Burger King and Converse, both nationally recognized chains, have previously launched online “mashup” campaigns. The difference, however, was simply the type of users responding to the company’s promotion, and the products of the company itself. In contrast to what happened to Chevrolet’s dealings with “mashups”, Converse was actually so successful with their endeavor, that numerous of the submissions were actually brought onto national television and later went on to receive critical acclaim.
This is a great article for any individual researching the idea of “mashups” and user generated content being used by corporations. It shows what can go right, what go wrong, and what can flat out backfire when users are involved in advertising of a product.
The main purpose of this article would be to introduce the concept of the “mashup” to the reader. Written as a somewhat filler piece for the March 6th’s Newsweek, it’s short, sweet, and to the point. The author intends to write to a slightly older audience, and begins his article with this sentence: “Unless you're a geek, obsessed with DJs or under the age of 35, chances are you've never heard the word ‘mashup.’” This shows that the piece is actually perfect for my aforementioned plan of introducing the concept of “mashups” to anyone not acquainted. A great part of this article is that it actually breaks “mashups” into the three categories that it can be created within: Video, music, and “web apps.” Although the third category of “web apps” is great, (and a big, meaningful part of the internet and the Web 2.0 movement) I don’t believe that it would have much use in an essay about more artistic “mashups” and the new electronic remix culture.
In any case, like previously stated, the article gives great examples of creative “mashups” such as DJ Dangermouse’s "The Grey Album," which took the lyrics from Jay-Z's "The Black Album" and mashed them with the Beatles' "White Album,” a plethora of Brokeback Mountain parodies (which are well within the bounds of fair use), and a “mashup” of Tom Cruise's appearance on "Oprah" where he confessed his love for Katie Holmes, juxtaposed against Oprah’s with her scolding of the author James Frey. As far as articles on internet sensations go, with many examples, and a sufficient definition, this piece is some of the best information an individual can find on the ever changing pop culture craze that is the “mashup.”
This case was particularly important, and could be considered landmark event in the music industry; because of the decision passed down by the Supreme Court, there was dealt a huge blow to the art of sampling in hip hop and rap music. The case involved Gilbert O'Sullivan, a singer/songwriter, who was associated with Grand Upright Music, bringing suit against Marcel Hall and Warner Brothers, also known as rapper Biz Markie, who was signed the Warner Brothers Records label. The suit was brought because Hall had, without explicit permission, sampled three words (Alone, again and naturally, in that order) and a portion of the harmony from the song "Alone Again (Naturally)" by O'Sullivan, for use in his third album, I Need A Haircut. The presiding Judge, Kevin Thomas Duffy, ruled against Mr. Hall, and Warner Brothers, stating not only did the artist and label break the seventh commandment, but copyright law as well. In his memorandum, Duffy states:
"it is clear that the defendants knew that they were violating the plaintiff's rights as well as the rights of others. Their only aim was to sell thousands upon thousands of records. This callous disregard for the law and for the rights of others requires not only the preliminary injunction sought by the plaintiff but also sterner measures."
This case is supremely important to anyone investigating mashups or remix culture as a whole. This case solely changed the face of the hip hop and rap industries, and affected future decisions about copyright infringement.
This particular section of U.S. Copyright law defines the law regarding internet services that use their servers to host unregulated user data. This section is supremely important since it states: “…A service provider shall not be liable for monetary relief…” on account of storage and hosting of infringing copyrighted documents uploaded by users. This means that any site, that hosts data by users is not responsible for said data; a statement that is seemingly at ends with the Grokster decision, which stated file sharing services that host infringing content are illegal.
Relating this back to YouTube and remix culture, if and/or when a copyright holder informs YouTube of infringing content, such as unapproved mashups, remixes, or flat out illegal copies, the only course of action YouTube has to follow to avoid legal disputes is a removal said files. This is how the numerous file hosting sites out there, like YouTube, Revver, MySpace, Google.Video, BitTorrent, and many others, are still functioning and not completely bankrupt from lawsuits. However, since the acquisition of YouTube by Google and it’s deep, deep pockets, many copyright owners and lawyers have been metaphorically “licking their chops” at the chance to win any case that will topple the viral video giant.
This section of legislation is important and indispensable for anyone doing research on data hosting websites such as YouTube or the others that were stated in the previous paragraph.
This is a great piece because it helps many individuals who do not know much about copyright law to become informed, of what is legal, what isn’t, why there’s so much fuss about YouTube, and what they can do to prevent illegal material from popping up on the site. It begins with “Ron” informing the viewer about a recent suit brought against the site, by Robert Tur, a helicopter cameraman who has taken numerous famous video clips, such as the OJ Simpson chase, and the LAPD police beatings. Mr. Tur feels that YouTube is purposely profiting by the infringement of illegal videos because of advertisements. However, our lawyer friend, Ron, states YouTube is not violating the DMCA because there is no way to see if the loads and loads of copyrighted material is drawing in ad revenue, or if the loads and loads non-copyrighted material is. He even presents what’s good for YouTube, and what’s bad for YouTube. He then states that in his lawyer opinion, that he believes Tur will lose.
In the ten minute video, Ron also mentions many other copyright related subjects, such as Fair use, the Digital Millennium Copyright Act, the Betamax case, Napster, Grokster, and others. This is a great source because it tries to help YouTubers avoid copyright infractions by offering advice, (though not legal advice, as the beginning of the video starts off with “The opinions in this video are the authors alone, and do not constitute legal advice.”) so that they can keep YouTube legal and running. In an essay about remix culture, this piece would serve as a devil’s advocate of sorts, showing that YouTube could possibly still survive without its popular, but illegal videos. In my opinion, however, this is probably not as possible as “Ron” puts it, but it’s a unique view nonetheless.
This article, by online Newsweek contributor Brad Stone, discusses what YouTube represents in the online community. It begins by offering a point, saying “what if YouTube is the Napster of video?” Stone then refutes it by giving specific examples. He states that YouTube is cooperating with copyright holders much more than expected, and is taking down material quickly and but not very efficiently. To combat this problem, YouTube is apparently working with other companies to create a video reconition program that will be able to identify copyrighted material and remove it.
As you might already be thinking, this is bad for remix culture that wants a large audience such as the viewers of YouTube. It not only slows the flow of creative and derivative works dramatically, but forces creators, who want to use YouTube as a medium, to use works that are royalty free, in the public domain, or ask for permission for use (which almost is never granted).
This piece does not only give a good explanation of what YouTube is, and where it has come from, but shed’s light on a possible future for the site. If what Mr. Stone predicts comes to fruition, it would mean a entire medium for copyright infringing works would be gone; whether this is a good, or bad thing for society, is up for interpretation.
Before we get into the specifics of this article, it’s good to observe who wrote the it: Fred von Lohmann is a senior staff attorney with the now almost infamous group: the EFF or Electronic Frontier Foundation. The EFF is a San Francisco-based nonprofit group who try to protect users, the freedom of expression, creativity and innovation on the internet. While on a less than reputable site than others like Newsweek, Time, or other online journals, this piece is just as, or more so compelling and revealing about the business that is YouTube.
the article itself is split up into 4 sections, the first called: “Why YouTube?” In this section, Von Lohmann explains that the popularity of YouTube has been greater than it’s competitors, citing mostly its ease of use. The second section is “Copyright Issues,” in this section he champions YouTube for being very willing to help abide by copyright, and states that because of this, it is a attractive business partner for advertising. The third section talks about the “Safe Harbor” of section 512 of U.S. copyright law, and how YouTube benefits from it. The last section is aptly named “Problems Ahead?” Like most writers, Von Lohmann is cautious about the future of YouTube and its ability to stay running. He states that while as of right now, while some advertisers are very willing to use the site, others do not because of certain reasons regarding copyright, and advertisement opportunities and effectiveness.
All in all, this is the perfect article for any individual interested in the business behind YouTube.com. Von Lohmann articulately describes the opportunities facing YouTube, potential investors, and advertisers with the new medium. With this piece in mind, anyone can accurately state what YouTube means from an economic view.
This case is an appeal by Napster of an injunction that does not require the plaintiffs to provide any individual file names of potentially infringing works available on the Napster system. The orders require the plaintiff to provide notice to Napster of copyrighted works by providing the title and artist name for each work. When given a list of copyrighted recordings, Napster would have three days to search all files on its system and prevent the transmitting or distribution of those files. Plaintiffs had sent in notices of hundreds of thousands of copyrighted works without the corresponding file names in the Napster system. Napster complained that the plaintiffs did not provide variants in song and artist name and could mix complying items in the same notice as non-complying items because Napster could not check in the time allowed by the injunction. The consequence was that Napster would end up blocking many authorized files. The arguments were that the DMCA set limitations on the judicial power of ISPs such as Napster, did not assess the "staple article of commerce" doctrine set forth in Sony, and that Napster has commercially significant non-infringing uses but is forced to block sharing of files even though the names do not always correspond with the contents of those files.
This case brings up some important points in my research about why copyright holders are finding it beneficial in some cases to waive some of their copyright in order to use new technologies such as MP3 blogs to promote music, while they continue to fight similar technology such as peer-to-peer services. Any discussion of Internet Service Providers (ISPs) liability is important because it affects how people can make blogs and share new things over the internet. There are several ISPs which allow anyone to create a blog from them, and these businesses are based on previous cases such as the Sony Corp v. Universal City Studios, Inc case where liability of technology providers is limited if they do not have specific knowledge of infringing uses of the technology. It also shows how even though a company can send take down notices, it is still difficult and costly to actually take a case to court and win it, no matter how clear cut it originally seems.
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 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.
As Alfred Yen, professor of law at the Boston College Law School, states in his introduction, this article "studies the construction of third party copyright liability in light of the recent Supreme Court case Metro-Goldwyn-Mayer Inc. v Grokster, Ltd.” The article is broken up into five sections: the first describes the doctrines that governed third party liability before Grokster, the second uses “fault and strict liability to expose the theoretical and practical tradeoffs implicit I these differing constructions, the third analyzes the case itself, the fourth describes the implications of the decision and “sets forth the general contours of an improved, post-Grokster construction of third party copyright liability, and the fifth gives some thought to the future of this subject matter.
The Grokster case is the latest in a series of cases where an internet service provider has been prosecuted for the actions of its users. Yet, even with this new decision in the books, little progress has been made to determine who is really the most responsible for infringement or how to hold them adequately responsible. Yen writes that “third part copyright liability benefits society by encouraging individuals to stop others from infringing, but those benefits come at a price… third party copyright liability suppresses non-infringing as well as infringing behavior.” Overall, this paradox illustrates the biggest deficit of internet copyright law: the inability to find the balance between, in Yen’s words, “desirable and undesirable consequences” of new technology. At this point in time, there seems to be no obvious strategy for regulating the internet without stifling future innovation and creation.
This article points out that although Grokster “gave the Supreme Court the opportunity to straighten out the law of third party copyright liability” little to no progress was actually made in interpreting pre-Grokster doctrines of third party copyright liability. Instead of “choosing between” existing “differing interpretations” of the law, Yen writes that the court “adopted a dormant theory of third party copyright liability, inducement.” Overall, Yen’s article shows that “inducement give courts a new tool for holding culpable defendants liable which reducing the risk of undesirable side effects.” Yen describes the Grokster decision as being “not a landmark, so much as a milestone, ratifying a continuing détente between those who build on the Internet and those in a position to regulate the builders.” This decision has also turned the focus of internet gate keeping to controlling software and PC uses ability to run that software rather than the ability to control the entire network.
Whether or not one agrees with the merit of the new inducement doctrine, this article is a comprehensive look at an area of copyright law that is important and continuing to quickly evolve. The story of these laws will continue to change drastically in the years to come, but this is a useful, informative and through-provoking look at the situation thus far.
Section 512 of the Digital Millennium Copyright Act (DMCA) is called “Limitations on liability relating to material online.” It specifically outlines what an online service provider (OSP) can be held responsible for and the times when they are exempt for responsibility. 512 provides copyright holders the right to ask OSPs to remove material that appears on their sites or in their programs if it is an infringement of copyright. However, a service provider is not liable for “monetary relief” or for “injunction or other equitable relief” if “the service provider does not have actual knowledge that the material or an activity using the material on the system or network is infringing” and upon obtaining such knowledge “responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.”
In other words, a service provider is, in many cases, not liable for the content posted by its users, but must act swiftly to remove the infringing material from its site or service once it is notified of the infringement. Basically, if the OSPs comply promptly and effectively with copyright holders’ take down requests then they are protected by a “safe harbor” provision. According to reference.com the definition of a “safe harbor” is “a provision of a statute or a regulation that reduces or eliminates a party's liability under the law, on the condition that the party performed its actions in good faith.”
Therefore, this section of the DMCA is particularly important in determining secondary liability. A safe harbor can only be created if the site or service follows proper protocol and has been cleared of primary liability in the first place. Napster was held liable for the content being uploaded by its users because it provided a centralized server through which all information had to be passed, and thus was not granted a safe harbor.
YouTube is currently being protected by 512 because of its compliance with any and all take down notices it receives. YouTube's safe-harbor status is also helped by the fact that it has partnered itself with big, copyright-holding companies. Of course, if YouTube wasn't also complying with the takedown notices being issued by copyright holders in the first place, these partnerships wouldn't matter - or at least we’d like to think it wouldn't... The business possibilities for YouTube may almost be enough to outweigh the law, if they get the right business partners on their side.
512 is an important provision because it allows sites and services with substantial non-infringing uses to function with the possible existence of infringing material in exchange for removing that infringing material as quickly as possible. A no-tolerance infringement policy seems to be outside the scope of available online practices, therefore 512 allows services to exist with the understanding that there is inherent infringement on the internet.
This article is written by the Center for Democracy and Technology, a non-profit interest group that “seeks to promote free expression, privacy, and individual liberty on the open, decentralized internet.” This document “outlines the limits on the scope of secondary copyright liability,” looking at the Grokster decision, the landmark decision in Sony Corporation of America v. Universal City Studios, Inc. (1984), and patent law precedents relating to inducement liability. The goal of this investigation is to make sure that "secondary liability for copyright infringement does nothing to compromise legitimate commerce or discourage innovation having lawful promise.’” The Grokster case and the Sony decision can obviously be looked at be looked at individually, but this article does a nice job of synthesizing the information and explaining how they impact each other.
The article focuses on the new implications of the “inducement test,” what repercussions the situation has for the Sony rule and what this all means for vicarious liability. The article focuses on one key difference in clarification between the Grokster and Sony decisions. The language in the Grokster decisions "suggests that the Sony test focuses on 'substantial' non-infringing uses, not 'commercially significant' non-infringing uses." With Grokster, the emphasis was certainly placed on the commerical uses of the site. Monetary gains became one of the most significant factors of the case, not just ethical or legal implications. Certainly the internet is just as much a business as any other commerical frontier in the world, but more and more - especially illustrated with the Grokster decision - financial viability is the determining legal decision making. For example, today YouTube is currently seen as protected by the safe harbor provison, although some of the content being posted on YouTube today was possibly (or probably) also availible on Grokster. YouTube has been able to position itself not only in a safe harbor in a legal sense, but also in a financial sense by teaming up with companies who own many of the copyrighted works that are being infringed.
Of course the Sony case was also motivated by money, but more than ever before the current world of the web and the sites that are allowed to function within its borders are completely a function of their monetary potential for copyright holders. Grokster was taken to court because it posed a threat to the financial success of copyright holders. YouTube poses a similar threat as well, but thus far has been able to keep in partnership with the people who would be taking them to court in the first place.
In this article, the Boston Globe reporter talks to several bloggers and discusses what motivates audiobloggers otherwise known as MP3 bloggers to create sites and post songs. In these blogs, the author finds a song he or she wants to share, and posts it online as an MP3 file along with a commentary or review about the song so that readers can learn about the band and download and listen to the song if they choose. Bloggers will do this for free, as one blogger says "Selfishly, I get validation that people like my music taste... But I want people to find new music that they love." The music industry tends to leave blogs alone because they promote artists for free and are capable of creating "buzz" for an unknown artists and quickly establishing them among a loyal fan base. Litigation is expensive and MP3 blogs are small-scale and some labels have begun supplying blogs with music so there have not been many confrontations between record labels and bloggers. Some bloggers receive "cease and desist" letters from labels and although a code of conduct has not been written, there is a concept of ethical audioblogging. Songs are removed after being posted for typically around one or two weeks, no more than two tracks are posted from each album, and links to sites where readers can buy the albums are provided.
For my research on why copyright owners are willing to waive some of their copyright when it comes to MP3 blogs, this is a useful article in seeing a little bit of the motivation for both bloggers and record labels to coexist. It provides some commentary by the bloggers themselves as to why they put work into blogs and what makes it important for them to exist. It also discusses blog ethics which are part of the reason labels are not against MP3 blogs, and looks at one blogger's idea for a possible future move for the labels which could start their own blogs in order to promote their back catalogues. That provides an interesting comparison between a legal MP3 blog created by a label and an illegal MP3 blog which may have more credibility among the blogging community.
This is a New York Times article about how Warner Brothers Records became the first major record label to ask MP3 blogs to play its music. Robin Bechtel, vice president for new media at Warner Brothers and Reprise Records had the company contact MP3 blog websites and ask the bloggers to post and review songs by the band The Secret Machines. This is an interesting strategy for a major record label to pursue because most MP3 blogs post song files without permission from the copyright holder. According to Bechtel, Warner chose blogs which "were promoting music responsibly" by having permission to the downloadable songs and also linking to stores where the full albums could be bought. The label would benefit by gaining free promotion and establishing a little known artist. Out of at least eight MP3 blogs contacted by Warner, only one blog posted the track, after having it sent. Many bloggers only look to find new music and the Secret Machines were already being played on radio. Two other sites had already posted Secret Machines tracks before Warner had sent them and once several blogs have posted tracks, others are less likely.
The move backfired for Warner however because after the song was posted on the blog Music for Robots, several comments posted under different names were linked back to computers in the Warner offices. The indie rock song was also sent to a hip-hop blog, Cocaineblunts which was seen by the writer as proof of a disconnect between the major label and blog culture.
This article is central to my project which is to look at how copyright holders are now willing to waive their copyright in certain cases such as MP3 blogs while the RIAA continues to sue peer 2 peer software. Blogs have not upset labels because there is such a strong culture of unwritten rules and basically a code of conduct for bloggers. For example, songs are not left up for long periods of time, only a couple of tracks from an album are posted and links are included to stores where full albums can be bought, and bloggers will take down songs if asked by the copyright holder. In this article we see how a major label is realizing that in order to reach a large portion of album purchasers they need to promote their artists as independents by using the internet and particularly mp3 blogs to break new acts. However, the very reason why MP3 blogs have not particularly bothered the labels is also preventing the labels from being able to use the blogs as they wish.
This document was posted on Mark Cuban's website blogmaverick.com. Cuban claims that this is the actual filing of the case Tur v. YouTube, and judging from the legal jargon and very deliberate format, there seems to be little reason to deny that this is the actual filing.
The document states that on December 4, 2006, the case Robert Tur v. YouTube will be heard in United States District Court of Central California. The introduction states that "there can be no doubt that serious and repetitive infringements of Tur's copyrighted works are displayed...on YouTube on a daily basis." It also states that YouTube's main defense is the Safe Harbor Act in the DMCA, which they say protects them because they immediately remove copyrighted content at the owner's request. The summary of Tur's claim states that YouTube does not qualify for the Safe Harbor provision because they make money "in the form of banner advertising directly attributable to the infringing video clips." The article then goes on to list the details of the case, which basically state that five clips copyrighted by Tur are being shown on YouTube illegally. It also states that Tur is seeking roughly $150 million in damages, or $150,000 for each illegal viewing of his clips.
The decision in this case will be absolutely essential to the future of YouTube as a legitimate business. While YouTube has helped solve many of their copyright issues with big name studios through recent revenue sharing agreements, a decision favoring Tur in this case would open the door to more lawsuits from small copyright owners. This case will also test the legitimacy of YouTube's safe harbor defense. Without the safe harbor provision, YouTube is an illegal company. If this court's decision and later decisions eventually change the validity of that provision, or convinve Congress to do so, YouTube may be completely out of luck. However, a win in this case would put YouTube on solid legal footing behind this Safe Harbor Defense.
Peter Fader of Wharton called the agreement between Warner Studios and YouTube, which allows Warner music videos to be played on YouTube in return for a portion of the ad revenue, the "single biggest business development deal in the history of digital media". Internet mogul and Dallas Mavericks owner Mark Cuban, on the other hand, believes that YouTube will ultimately have the same fate as Napster and be crushed by copyright lawsuits. The real answer may lie somewhere in the middle.
The article mediates a debate between naysayers, such as Cuban, and optimists, like Fader, over what the fate of YouTube will be. Cuban states that YouTube is "in the same boat as Napster". He argues that although YouTube may do a lot of good things for copyright holders, such as the promotional benefits, it will not be enough to make every single copyright holder happy. Cuban notes that it would only take one successful lawsuit against YouTube to bankrupt the company. Fader, on the other hand, suggests that the Warner deal could lay the groundwork for future deals between YouTube and other major Hollywood studios. His prediction seems to be right on the money. Since this article was published, YouTube has made agreements with CBS, the NHL, NBC, and most notably, Universal Studios, which had previously been YouTube's most outspoken critic.
Also discussed is the significance of the agreement between Warner and YouTube. Fader notes that this agreement represents a sort of paradign shift, mentioning that Warner took a completely opposite stance when it was fighting Napster in court. Also, the agreement sets a trend for other companies to follow suit. This prediction by Fader was also proven true with the new YouTube agreements mentioned earlier. Fader also predicts that these deals will allow YouTube to "call the shots" in the video industry, much the same way Google runs the search industry.
The debate in this article is the fundamental issue regarding YouTube and its legitimacy. It is important for YouTube to secure protection from copyright lawsuits, and they seem to be doing that with recent agreements and their willingness to takedown copyrighted material. However, Cuban's view does hold true that one lawsuit could cripple the company, and that lawsuit could be Tur v. YouTube. The ruling of this case and others like it may ultimately determine YouTube's future.
Michael Liedtke writes in this article about the recent lawsuit brought against Google involving Google's online video service and whether or not the lawsuit is a sign of more copyright issues to come for Google's newest addition, YouTube. He writes that content owners may only be biding their time until the Google acquisition of YouTube is finalized. At that point, a number of lawsuits may be filed against YouTube by copyright holders.
Google launched its online video service this January. Since then, Liedtke writes, they have been desperately trying to catch up to YouTube, created a year earlier by two Pay Pal employees in California. However, Google has "abandoned its attempts to catch YouTube", and instead just purchased the company for a cool $1.65 billion. The issue with the acquisition, Liedtke explains, is that copyright holders can now sue YouTube with expectations of a large payout, now that they are backed by the immense capital possessed by Google. Liedtke notes that before the deal with Google, YouTube "had been subsisting on $11.5 million in venture capital". Google itself has $10.4 billion- in cash. Google itself has acknowledged the fact that it could face more copyright lawsuits because of YouTube.
Liedtke also talks about the widely circulated internet rumor which said that Google had set aside $500 million in case copyright issues came up after the purchase of YouTube. The number was later confirmed to be $200 million by Google representatives. Eric Schmidt, Google's CEO, continues to remain confident amidst the fears of lawsuits. He said that YouTube has "been on this path" referring to copyright issues, and that together they could solve these issues "more quickly".
Investors also seem to be unfazed by copyright concerns over YouTube. Liedtke points to the fact that Google has a lot of experience in copyright cases and has yet to been dealt a serious blow. Google's stock has risen nearly 15% since the purchase of YouTube.
Tim Wu in this Slate article describes in detail the differences between YouTube and Napster and why he believes that YouTube has very solid legal footing. Wu simply says the YouTube has a safe harbor provision in the DMCA protecting them, while He also describes the "Bell lobbyists" and how their efforts set the foundation for YouTube's seemingly successful business model.
The Bell lobbyists, Wu writes, fought one of the greatest copyright struggles in history when it took on Hollywood over the liability of internet companies for copyright infringement. Wu describes the clash of these two entities as "Frazier meeting Foreman", saying that the unstoppable force that was the Hollywood lobbying team finally met an immovable object in the Bell lobbyists. Hollywood, on one side, wanted internet sites to be responsible for all content on their site, even if they were unaware of the infringing content. The Bell lobbyists insisted that this was ludacris and fought against Hollywood's lobbyists with all their political might. A stalemate insued, so a compromise was reached. Wu writes that this compromise would later become Title II of the DMCA, which states that companies are protected by a "notice and takedown" system. This means that all a site has to do to comply with copyright laws is take down infringing material at the request of the copyright holders. Therefore, YouTube only needs to quickly takedown any material after notified to avoid legal issues.
Wu does mention that this provision is not 100% "air-tight" noting that if YouTube knows there is infringing material on its site and fails to act, it may be liable in court for the infringement. Wu then describes the difference between Napster and YouTube, saying that if the Internet were a red-light district, Napster would be the "pimp" and YouTube the "hotel". He says that while Napster, like a pimp, is a means of getting illegal things and nothing else, YouTube is like the hotel in that they only "provides the space for people to do things, legal or not".
Amanda Bronstad in this article writes about the differences between the copyright infringement cases that ultimately doomed music file sharing sites like Napster and Grokster and the current batch of cases involving video sharing sites like YouTube. On one side of the argument, video sharing sites say that a major percentage of their content is perfectly legitimate and legal. Also, these sites, especially YouTube, point out that they remove content considered to be copyright infringing immediately after they are notified by the copyright holder. This did not happen with music file sharing sites. However, lawyers for Hollywood's major studios say that their case is bolstered by the fact that they now have a precedent in MGM v. Grokster. They argue that web sites know they make money off of this infringing material, and therefore are liable for induced infringement. They also say that video sharing sites may be considered direct infringers because of the role these sites take in editing user content.
Bronstad also notes that while the recent agreements between YouTube and major studios such as Universal, Warner, and CBS does help legitimize the site, the agreements aren't necessarily "suit proof". She says that many experts in the field see a major gray area that could be exploited by an ambitious company or law firm. She says that the debate will ultimately come down to the DMCA's "safe harbor provision", and whether or not these video sites have put in place and enforced rules to protect themselves from future legal issues. She says that the strongest safe harbor these companies have is the ability to remove copyright infringing material from their sites. If sites continue to consistently remove copyright infringing content, as YouTube has done over the last few months, then these companies will have a strong legal foundation for their business models.